for modern medicine these days. thank you for your insight. talk to you soon. >> great to see you. >> dana: fox nulls alert. we're moments away from major decision as the supreme court has seven cases remaining before the summer break. i'm dana perino. bill hemmer is off today. i have my other bill with me. >> bill: great to be with you. i'm bill melugin. a handful of high profile blockbusters still undecided as we wait for the court. we wait for rulings on affirmative action, religious liberty, workplace speech and student loans as a new fox new poll finds the confidence in supreme court hitting a record low 48%. down from 80% just six years ago. >> dana: "fox news sunday" anchor shannon bream is joining us. there is no more teasing. something big is going to happen today. do you have any indication what it will be like and what we

might see? >> here is what we know. inside the courtroom our producer is behind me and we have two boxes. we should be getting multiple opinions today. 6 or 7 left depending how you count them. some are coupled up together. now we wait. it is the last of the term. the end of the term. we think they may add tomorrow to be the final day. we have affirmative action in higher ed., can you use race in considering applicants? a huge battle waged for decades. you have the student loan debt relief program. did the biden administration go too far? do they have the power to wipe out billion else in loans without congress or another body being involved? a couple of religious liberty cases. the web designer out of colorado. does she have to make web designs for everyone? we have the postal worker when he joined the postal service they didn't have sunday delivery. he told them it is a day of sabbath and can't work it. now we're just -- let's see what we have.

the first opinion. not one of the ones on the watch list. now we wait for the next one. this is how it will go for the next few minutes to wait to see if there is historic landmark change to the laws of the land as we now know them. >> dana: you know the court very well. all of these stories about the unpopularity of the supreme court. they have been getting it from all sides mostly from the left demonizing the court. how does it affect them at all? are they stoic about it, do they have a thick skin or take it into account? >> i think you have to have a thick skin. it looks like we might have one of the cases we were waiting on the postal worker and religious freedom. waiting to see if that comes in. i will read through it and let you know. i think going through the confirmation battles that have been very tough in recent years on these nominees, they know what they are facing. by the time they get to the court they know they have a lifetime appointment and do the work as they committed to do it whatever their judicial philosophy is. i think it has to bother them at

some points when there are attacks on family members or other things. it has been very pressure packed the last year plus since the leak of that dobbs decision that overturned roe v. wade. there are still protests continuing at some of the justices' homes. it still goes on. for them there are a lot of external pressure factors and i think most of them not wore eft about what people think about their jurisprudence but worry about family and friends. threats have been very real over the last year and a half. >> dana: when a decision like this, for example, on student loans. if it comes out it is possible they might say there is no standing here and kick it back or might they be more explicit and try to put an end to this controversy as to whether or not it is allowed? >> okay, need to tell you it looks like we may have the decisions on higher education. hold on and let me look. it is fast and furious this morning. there is the concern for people

who were challenging the student loan program is they would get hit with standing at not get to the merits of the case. that has been a big issue. we saw it with the immigration case last week. texas and louisiana tried to bring a case that didn't have standing. who does have standing? it looks like harvard and unc admission programs where they used race as a factor in the determination of letting people in, the first read on this says that let's see here. admissions programs violate the equal protection clause of the 14th amendment. got to read the whole opinion to see. that's the first impression that our producer is getting from this. so that would be enormous. we've been watching this case to see would they swing for the fences or very narrow? the roberts court does as narrowly taylored as possible trying to make a decision about something and this issue. oh, look.

thank you very much. let's look here and see. >> dana: we could give you a moment to read through it and go to jonathan turley if you will allow us to give you time to breathe. >> this is by the chief justice handled most of the affirmative action cases. professor turley will know that well. >> dana: we'll be right back to you. jonathan turley, good to see you. this is one of the big cases we've been waiting for on affirmative action. it appears that it wouldn't be a surprise if this is thrown out as on a constitutional matter. >> that's right. it appears that it has gone the way many of us expected. particular life when we saw who the author is. chief justice roberts has said for years that the best way to stop discrimination is to stop discriminating. and he has opposed racial classifications in college admissions. this is the culmination of

decades of cases that were very much muddled and divided. it started in the 1970s with backe where the supreme court said you cannot do affirmative action in admissions. but it allowed for race to be considered as one of the criteria for admissions. and they often ironically cited harvard to say that harvard had this holistic approach to admissions and that, you know, you can do something like that. well, the universities used that and sort of drove a truck through it. that was not a -- it was an a a big space and they were adding diversity. most universities want to see diversity in class. courts got more and more uneasy.

particularly the supreme court feeling it was an end run. and justices really were divided. you have a series of 5-4 decisions decisions where justice o'connor said we'll allow you to use race for admissions but not able to do it beyond a certain date. this is almost that date. roberts and others reminded these schools that time is up. that even o'connor said it wouldn't be something they would be comfortable with doing in the long term. >> dana: if you will hold your thought there. let's go back to shannon bream. she has had a chance to read through it. i understand, shannon, there might have been three dissents. >> yes. we've got a mixture of opinions here. majority opinion, concurrences and dissents. majority opinion which controls written by the chief justice. he says both harvard and unc. a public and private school both

take federal money. both programs lack sufficiently focused and measurable objectives warranting the use of race in their admissions process. employing race in a negative manner involving racial stereotyping and lack meaningful endpoints. we've never per misted admissions programs to work in that way and won't do so today. at the same time as all parties agree nothing in this opinion should be construed as prohibiting universities from considering an applicants discussion how race affected his or her life through discrimination, inspiration or otherwise. these essays applicants will write talking about what their experience has been. we won't rule that out. of course people can have discussions what led them to this point in their life. whatever that is. they say a benefit to a student who overcame racial discrimination might be tied to that student's courage and determination or benefit to a student whose heritage or culture motivated them to assume

leadership positions. basically they say the universities have too long done the opposite. they used race in a way that hurt other races and the touch stone of an individual's identity is not challenges, skills built or lessons learned but only the color of their skin and our constitutional history does not tolerate that. just advertise sotomayor the court is rolling back momentous progress. holding so the court cements a superficial role of color blindness as a constitutional principle in a segregated society where race has always mattered and continues to matter. a clear split. race as a fact or for admissions not allowed in higher ed.. >> dana: thank you for the quick

look. let's bring in roger severino, former director of the office of civil rights in the trump administration. you have followed this case very closely, roger. i assume you are not surprised. what are the real world implications for universities now after this decision? >> this is fantastic news particularly for asian-americans. remember, they were the ones who were artificially kept low and being punished by harvard who gave low personality scores and less likely to be kind. all the subjective buzz words to say we have too many asians. that's what was going on. ashian americans are the big winners here. a man was instrumental in bringing this result. we'll see what harvard and unc does in response. i fear what they do is go under the table to hide continued discrimination on the basis of

race. we'll hopefully see the numbers of asians go up. they are the ones held back most. harvard signaled they'll resist it as much as they can. the vision of martin luther king said -- >> are we talking immediate fall arrivals this year for universities? it is done? >> it should be. the opinion should be in effect because it's the constitution that is being enforced. interesting to see how the biden administration will respond. companion case to harvard was federal funding. they are in charge of enforcing the civil rights laws. i was in the civil rights division in d.o.j. it is their responsibility now to enforce it against harvard university and with respect to the constitution state institutions as well have to finally respect the fact that race should not be a part of the decision making. the check the box system is

over, dead and buried. >> dana: roger, does that -- does it have broader implications outside of higher education? >> absolutely. wherever you take race into account. think back to another decision. diversity rational. that something that should be sponsor evidence by the state and racial balancing. it has been rejected today. 45% of the students of african-american decent admitted to harvard would not have made it according to harvard's statistics had they not done the racial balancing in the name of diversity. harvard only has 8% of conservatives are admitted students. 82% of harvard students come from wealthy backgrounds. it was about racial balancing. not diversity. they would have done a different system if they cafard about it. they could have gotten rid of -- they focused on race and it will be pulled back now. >> bill: stand by.

we want to bring in jonathan turley one more time. if you are with us, we're hearing from our team on the ground the unc decision was 6-3, the harvard college decision was 6-2 with brown jackson recusing herself. do either of those decisions there surprise you in any way in terms of numbers? >> no. this is how some of us thought they would break. this is, as i noted, the culmination of decades of opinions by some of these very same justices. most importantly chief justice roberts has finally secured the opinion he has long argued for. he has maintained the way to end racial discrimination is to stop discriminating on the basis of race. this is his legacy opinion in that area. what is interesting is that the court seems to be really writing the college essays for next year's applications. what it says is that you can

still emphasize race but you have to do it in terms of your individual struggle with racial discrimination. i expect that college advisors will take that part of the opinion and say here is your outline. you need to articulate how race has impacted your life. so after the bakke decision in the 70s, universities and colleges pivoted to get away from the bar on affirmative action by emphasizing diversity. i expect they will pivot again to say they will score an individual's struggle with race as part of the application process and race will still be part of the decision making for some of those schools. >> dana: it is interesting. thinking back to 2005 if you go in the way back machine with me. i was a spokesperson for chief justice roberts at the time.

deputy press secretary assigned to him and that nomination process that took place over the summer of the 2005. at the time, during the confirmation hearing, this issue affirmative action was a big deal. he had talked about it in his previous iterations as lower court judges and now at the supreme court. it is interesting what you say it has taken now we are 18 years since that moment and he finally secured that majority. this is quite historically significant. the court is under pressure. unpopularity and distrust with the court dependsing if you like their positions or not. i wonder if you could give a thought to how we're ending this particular year now that he has a 6-3 majority? >> your point is so well taken. just as dobbs was the culmination for justice alito and some of his colleagues, this

may be one of the most significant legacy opinions for john roberts. i expect it will be at the top of the list for most of us in reviewing his time on the court. he have has maintained consistently that we should not be engaging in racial discrimination in the name of diversity. while the universities are likely to circumvent this decision in creative ways, it is an important decision. what roberts has called for for decades is a bright line that clearly establishes that using racial discrimination for good purposes, still using the wrong means to achieve them. that is going to be his legacy. as for the court itself people will emphasize this opinion and say what and ideologically divided court.

that's not true. this court has delivered major victories to the biden administration, decisions with the left side of the court. you've had most opinions to be either unanimous or nearly unanimous. those divided opinions often have a mix of justices, roberts and kavanaugh with some of the justices on the left. gorsuch has repeatedly voted with his more liberal justices. so i think that they have been wrongly treated. this case did break along ideological lines but this is not a case that really embodies the whole term. >> bill: jonathan, looking at the real world impacts of this ruling which just came down if i heard you correctly a few moments ago moving forward students say in their essays to colleges can talk about how race has impacted their life but these universities will not be able to look at them or their skin color and use that as a factor as to whether or not they will get into that school, is

that correct? >> that's right. there should be some significant changes in terms of the boxes being checked off on race. those boxes are now constitutionally unacceptable. what they can do is add a box in terms of personal statements. here is where the ambiguity comes in. these cases came before the court because asian students were being consistently given low personality scores. the justices were all over that during the argument including roberts saying do you think that asian-americans are not very patriotic or interesting? and the council stumbled over that. we knew what he was talking about. he was accusing them of using this nebulous category to achieve what they were told they were not supposed to do, which is the use of race, in this case to reduce the number of asians accepted. the concern that some of us have is that there are universities,

including in the california system, that are getting rid of standardized tests and i think it's a huge mistake. but they are getting rid of standardized test because they believe it helps diversity. if you eliminate those it will be more difficult to show racial patterns because those standardized tests are one of the key means of looking alt why some groups like asians seem to be consistently accepted on one level despite their scores being higher than that. so we'll have some fights in the future as i think universities will game it. academics are very clever people and they are not going to like the opinion and they are going to try to pivot the way they did after bakke in the 70s. >> dana: stand by. shannon bream you have had more chance to digest and right there at the supreme court on this historic day as this decision has come down. >> one of the things that

happens when we get an opinion, the justice who authored the majority opinion or dissent can read part of it from the bench. sometimes it's quick, a paragraph that gives an overview. so people understand what the ruling of the decision of the court was. what we've had today the chief justice has read for several minutes from his opinion. justice thomas reads from his concurrence to the main opinion. we'll hear from dissenters as well. a heated disagreement between the two sides. we may have multiple people reading from the bench and the final opinion of the day. you can see some of the heat between the majority and dissent. read you more from the majority from the chief justice pointing at the dissent and says basically what they want essentially is suggesting a judiciary that picks winners and losers based on the color of their skill. the dissent would not permit you to receive programs that -- it is perfectly willing to let the programs here continue.

to remind folks this emanates from asian-american students or applicants who said they weren't given a fair chance because of their race. in its view this court, it's supposed to tell state actors when they have picked the right races to benefit. the chief goes on writing for the majority. a remarkable view of the judicial role, remarkably wrong. it is a claim to power so radical and destructive it required a second founding to undo. that may sound very wonky and lawyerly but that is a smack down. serious language going back and forth between the two sides. not seeing eye-to-eye on any of this. stand by. i think that audio will continue from the court where i would expect some dissenters to weigh in as well. >> dana: let's bring back in roger severino for more reflections as you listened to jonathan turley and shannon bream. roger. >> on the back and forth with

the dissent. sotomayor during the oral arguments made a structural racism argument saying that simply being african-american means you will face some sort of discrimination just by the nature of our society period. and that you could use the check the box and that's a good proxy. the supreme court rejected that. race alone is not the overriding factor of human existence. and it is going to allow things like did you struggle, did you face discrimination. that means you overcame obstacles and that applies for people that are minorities and non-minorities. there could be whites in a majority black area that face discrimination. are you able to overcome obstacles. the dissent is going down the lines it is different in this country. black experience is unique and you don't need the personal stories to back it up. just a given. the court is rejecting at saying we have to treat every individual as an individual because that is what the

constitution requires. we are actually color blind constitution and we fought a civil war to eliminate race as a decision maker, as a way we value people. that's the just outcome. when i actually applied to harvard law school i was faced with the same decision. i benefited from affirmative action going through college and i had an asian girlfriend who didn't get the same doors open wide and i had to stop. my story and background is important. i only speak spanish to my kids but i did not check the box. i couldn't live with that stigma where i would get a benefit where asians would not. we all have to be able to -- we have equal opportunity. we cannot have a country where we enforce equality of outcomes. it is bad for minorities and non-minorities alike. >> bill: at the end of the day the majority of the court made this ruling saying affirmative action violates the equal protection clause of the 14th

amendment. for the average american sitting at home who doesn't know what the 14th amendment is or equal protection clause is. explain it. >> the wake of the civil war. the second american founding. the racial question was the stain of the original constitution that did not solve. it took abraham lincoln and the north and union to restore and recognize the fundamental human dignity of african-american slaves. the 14th amendment guaranteed equal protection for all. that means it applied against the states who are the ones that were engaging in the discrimination and it was the promise of liberty that was made very explicit in the declaration of independence that we are all created equal and equal protection clause was a fulfillment of that promise. it has to be enforced. the supreme court, this is one of its best moments as it did with brown versus board of education saying that separate is not equal in our schoolings.

it stood up to say now that same principle applies when you are trying to push one race up and another down for so-called benign reasons. it is not a benign reason when you say you cannot enter here because of your race. some of the race is going to be allowed in and that's what was happening to asian american students at harvard. a hard cap at 20%. low and behold once this litigation came around it jumped because harvard knew what was coming. asians become more qualified or did harvard stop discriminating against them? >> bill: respond to this. "the new york times" tweeted about this decision. they are writing breaking news, talking about the ruling saying the major ruling quote curtails race conscious college admissions in the u.s. all but insuring elite institutions become whiter and more asian and less black and latino. your response to that.

>> harvard's class of 2026 is going to be 42% white. the problem is we have wealthy people getting disproportionate benefit. they allow 82% of the students admitted come from wealthy backgrounds and harvard could fix that if they wanted to really value socio- economic diversity they could take income into account in a much greater way but they aren't. they are still allowing legacy admissions. if your family was well connected and went to harvard, you get this boost up because it is their club and they want to choose who gets into their club and it has been exclusionary against people of lower economic status. they could fix that if they want to. if they cared about true diversity they could have that about get people around the country in different circumstances. they recruit from elite institutions. while it doesn't look good according to their metrics on race, so then they start

including artificial boosts base on race. it boosts folks that are quite well off. i grew up poor and was not the standard harvard law student when i went to school. harvard could fix that. that would have had a greater impact of race that they were looking for but they chose not to. >> dana: jonathan turley. i wanted to ask you about something. it is curious about the decision to file a big lawsuit, right? what do you know about the plaintiffs and their -- they finally had enough, right? the straw that broke the camel's back or find the right case to figure oust a way to right a wrong in their opinion. what about their feelings today as this has taken quite a while to get to this moment. >> "new york times" tweet really shows, i think, why there is a sense of injury, particularly in

the asian community. i have always said the greatest diversity that i value in my classes is class diversity. diversity of economic class. i find that students that came, as roger did, from more impoverished circumstances have the most interesting perspectives regardless of their race. many of the asian students are first or second generation. they come from working-class families that have gotten to this point where their children could accomplish a great milestone. yet they were treated as somehow with a sort of privileged elite. there was a sense of injury there. i think people have to keep in mind this opinion really was coming for decades. 2003 you had the gruter decision, 5-4 decision. the only reason why this opinion didn't come out in 2003 is that

sandra day o'connor voted to allow some race to be considered. but she said that she expected in 25 years the court would not allow these race to be considered. that was in 2003. >> dana: shannon bream has a little more there at the court. what more do you have? >> so justice sotomayer is reading her dissent. she is reading from her dissent. i want to read you more of what it says. she says the devastating impact of this decision cannot be overstated. the majority's vision of race neutrality will entrench racial segregation in higher ed. because racial inequality will persist so long as it is ignored. you talk about the plaintiffs in this case, the students, and

applicants or asian-americans who said they were hurt by the use of race. justice gorsuch during the arguments said what do you say to asian-american students who have been told by the coaches that help people to do applications to try to get into ivy league schools they've been told to hide their ethnicity as asian-american students. what do you say to them as the government argued about this. justice sotomayor sees it a different way and says the court's unjust filed exercise of power that. it will serve to highlight the court's own impotence in the face of an america who cries for equality. the cries for equality are resounding. so she thinks they are clearly on the wrong side of history in this case. but there are all kinds of different groups of applicants who are impacted by this decision and i think you guys have rightly mined the fact as professor turley talked about the fact when people write their

personal essays, it will be the place to make the case about where they came from. whether it's injustice they've experienced on the basis of race or income, class or lack of opportunity. that will be the place to make the case. the dissenters don't think it will provide an avenue. but the idea of race being considered is no longer going to be legal in higher education. >> bill: you have been doing this a long time. is this the sort of ruling that you expect protestors later today? >> i would expect that may happen. last year was clearly way more heated over here. we were looking at overturning roe v. wade. we had hundreds of thousand of people out here. a number of groups said they would be out here today to make their voices heard on either side. it will be active and we're waiting to see from the court if tomorrow will the be final day they give us opinions as we wait

for student debts and a couple others. we did get the case involving the postal worker hired and didn't want to work sunday. when they added sunday. it was a unanimous decision there should have been more of a burden buy the postal service. a win for the employee. the court is giving further guidance. employers have to decide to accommodate someone with religion. unanimous decision. still reading through that one for the implications there. >> dana: roger severino. i have a question for you. the last couple of weeks we've been talking about the nation's report card. this is for younger students not college students. but hopefully they would aspire either to go to college or all want to pursue happiness as we are all given the right to do. people have called education the civil rights issue of our time.

you were in the civil rights division under the trump administration. these test scores are horrendous in the k-12 and we see backsliding in math and reading, in science, history. and i'm wondering about the civil right of those students to be able to have either choice in their school for their parents to have a choice or for there more accountability. >> there are huge disparities in educational outcomes and i think the best solution to that is you get it early and you need school choice. you need to break the monopoly of government schools and hold them accountable when they fail. you need to give students who are poor money so that they can be on equal footing of those of

higher means. that's what vouchers and school choice provide. if you start it early, then you don't have to do this hard tool of racial balancing at the back end. you go at the front end to address educational disparities. our educational is broken. too much government intervention and control and not enough choice. that is one of the solutions. we won't have this problem of mismatch. it's one of the things why is it racial balancing actually hurts minorities? well, if you put somebody in a place where they weren't prepared for it, based solely on race, you are setting people up for failure. i saw it firsthand. a lot of folks were put in position where they were set up for failure and it is disparity. it is better if you are put in the place where you qualify for based on your merit and there you have a chance to flourish on equal footing with everybody else. much better to flourish there

than to be set up for failure and have that be something that haunts you forever where you think i guess i didn't measure up. i guess i didn't belong. why was i here? that's the thing that is underappreciated. the best way to get to having the equal opportunity for everybody is starting young and you nailed it. school choice, get the government out of it and let parents decide. >> bill: nikki haley saying in part picking winners and losers based off of race is fundamentally wrong. this decision will help every student no matter their background have a better opportunity to achieve the american dream. your thoughts on her comments there. >> that's right. really it comes down to how do we measure americans in the eyes of the law, right? this is the land of equal opportunity that attracts people, immigrants from around the world. my family came because we would be given a fair chance, equal

shot, right? came poor and their son was able to go to harvard law school. that's an only in america story. unfortunately if you are an asian immigrant like my friends in college back in the day, they did not have that same equal opportunity. they were immigrants like me and grew up in the same neighborhood and they could not get the opportunity because they were being held down. that's what is so offensive by americans of all stripes. the majority of americans and minorities are against racial preferences in education and in government benefits. that is a fact because that is counter american. >> dana: right. roger severino, stand by. ken markus was the secretary for civil rights during the trump administration. the decision came down 30 minutes ago. the end of affirmative action on college campuses. your initial reaction, sir. >> this is a big day. a big day for america. a big day for the idea of

equality and equal protection under the law. i have think that the supreme court has been bold and strong in acting in moral clarity. it is critical now that we continue to fight. the supreme court has laid down the ruling. the problem is that we are about to see what i expect to be massive pushback from colleges and universities that will find ways to try to get around the ruling. so this was an important day but it is not the end of the battle. it is simply the beginning of a new set of challenges. >> bill: the biden administration was supporting and pushing affirmative action and filed a brief in support of harvard's admission policies. how do you think they are reacting to the ruling right now? >> they're not ready to give up i'm sure. what i think we should look for is for the biden administration to come up with guidance that will try to give colleges and universities some way of doing an end run around the supreme court's ruling.

it is important to keep a close eye on any potential guidance coming outs of the u.s. education department and the justice department. i expect that they have been planning on this for quite some time and we need to be ready for it. >> dana: when you say we, what is the mechanism for policing it? >> there are certainly private party lawsuits like this one, which is to say groups like students for free admission can sue if they need to. we've seen how many years it takes for that to happen. the u.s. department of education's office for civil rights, which i headed during the trump and bush administration should be doing compliance reviews to make sure that colleges are complying with the new rules coming out of the supreme court. don't bet on it. don't expect them to do that because they are not on the same side as the law. we do need as compliance reviews but i expect they will have to await a new administration.

>> bill: you said that you anticipate that there will be significant pushback to these and these colleges and universities will try to find a way around this ruling. what do you mean by that? what are some of the maybe under the radar ways these schools will try to get around this ruling? >> sure. here is a word for you. they have will find proxies or alternative ways of getting at race. they will ask students to describe how they have overcome adversity. they will discriminate on behalf of students from particular zip codes. they will find other plans, whether they have to do with class rank or socio- economic considerations, they will come up with whatever they need to in order to try to achieve the racial balance that they want to. this is something that has to be watched very closely. do not expect that colleges and universities will watch this opinion and say okay, we will now stop discriminating on the basis of race. expect that they will do it in a

way that is more clever and direct and insidious. this requires very close scrutiny. >> dana: if you'll stand by i want to bring in tom dupree, former assistant attorney general. you followed this court for a long time and know justice roberts and his background very well. something he has been signaling when i first came in contact with him in 2005. 18 years since that moment when he had his confirmation hearing to the supreme court. he had his majority today, 6-3 is the decision. affirmative action no longer allowed in college admissions. your reaction? >> you're right. this is the culmination of a series of cases on affirmative action the court has heard going back decades. justice o'connor famously wrote in a case involving the university of michigan program shell expected affirmative action to be not necessary in 25 years. we're almost at that point on the calendar. a lot of court watchers had

circled the year 2023 or thereabouts as when the court was ready to return to the question of affirmative actions in admission. the court finally said look, we need to establish a clear rule. we are not going to tolerate the use of race even in a limited purpose. colleges and universities need to follow forward and hold considering raves violates the equal protection law. >> bill: the schools try to get ways to get around the ruling. won't we end up right where we are right now over a span of several years? that would open themselves up to more lawsuits, right? >> i think that's right. look, there are thousands of colleges and universities that are going to have to change their admissions policies because of today's decision. some of those colleges and universities will continue to run afoul of the equal protection clause. it wouldn't surprise me if we do see lawsuits in the years ahead

responding to that sort of thing where if you have a college or university using a tactic that tries to circumvent today's decision. so although today is obviously a big day, very significant day, i think it would be unrealistic to think that litigation over college admissions programs comes to an end today. >> dana: i want people to remember, you can help us with this, the supreme court looks at the constitution and tom, if you can hold that, shannon bream has more. i have a great question that will bring back to you in a moment. shannon bream you have more for us? >> yes, tom dupree will have a great answer. you have a score of great legal minds. read more from justice jackson's dissent. waiting to see if she'll join the chorus and read her dissent. she says our country has never been color blind in her dissent. given the lengthy history of

state-sponsored race based preference in america. whether the legacy of discrimination fails to acknowledge the well-documented transmission of inequality that still plagues our citizens. she says this. the court has come to rest on the bottom line conclusion that racial diversity in higher education is only worth preserving insofar as it might be needed to prepare black americans and other underrepresented minorities for success in the bunker, not the board room. very strong language from her throughout her dissent. she didn't take part in the harvard case. she sat on the board of overseers there but she did take part in the unc case and her dissent with respect to that case and overall what the court has done. a little bit unusual we have several of the justices feeling so passionate about their decisions they are reading them from the bench. it continues. we'll wait to see if justice jackson sounds off as well.

she feels there are gaps these policies were addressing and the court was wrong to shut them down. >> dana: who is in the supreme court chambers listening to them? is there an audience? >> usually is just members of the press or people interested parties in these cases. we don't know which cases we'll get. a lot of times the parties will come the last couple days knowing their case is still left. i think back to the affordable care act when they read from the bench pages and pages and pages that went on for a long time. members of congress and other people who had a stake in that case who were in there. generally is pretty sparse on a day like today. it is a unique thing to see them read to the room what she so want to make sure people hear in various messages. >> bill: explain why judge jackson had to recuse herself in the harvard case. >> she was actually on the board of overseers at harvard. she had a connection very personal to the university that was a cut above having attended. almost all of the justices have

gone to one of these ivy league schools but she was on the board of overseers. there were two tracks for these cases. she sat out that case. as you would imagine, the guts of the arguments were pretty much the same in the two cases. she sat that one out. she is writing a dissent with respect to the unc case that applies to the opinion as a whole. >> dana: shannon bream, stand by. tom dupree. what i was going to ask you is what she brought up. brown jackson basic line is our country has never been color blind and one of the things i was wondering if you could do knowing your background remind everybody what the supreme court is doing is looking at the constitution of the united states and seeing if the laws are out of sync with the constitution. and it appears that the justices, 6-3 said yes, it is. >> that's exactly right. that's the role of the court when it sits in what it considers a court of judicial

review where it examines statutes that are passed by congress or programs like this to determine whether they comply with the united states constitution or with anything the government is doing to make sure that it passes constitutional muster. the court held its understanding of the equal protection clause forbids colleges and universities for considering race in the admissions process. great reporting from shannon pointing out about jackson's dissenting from the bench. what it signals is that she feels very passionate flay rely about this and recognizes the important nature of this course and felt so stroppingly about it she wanted to read her words to the court. >> bill: the senate's top democrat chuck schumer is responding to this saying in part quote, the supreme court ruling has put a giant roadblock in our country's march towards racial justice. the consequences of this decision will be felt immediately and across the ton

re country as students of color will face -- your thoughts. >> my sense is that's not entirely correct. i think what the supreme court is saying is that nothing precludes colleges from assembling diverse classes by looking at class, people's economic opportunities, by looking at the circumstances in which they survive and were raised. what the supreme court is simply saying is the constitution prohibits you from considering a person's racial background in deeming whether they should be admitted to college or not. so i think that senator schumer may be overstating it slightly when he suggests that colleges have their hands tied in assembling a class that represents the diversity of america. supreme court said you can't look at race. >> dana: if you could hold that thought, tom. if jonathan turley is still with

us. let's put that question to you as well in terms of what senator schumer is saying. he definitely has the gift for overstatement but on the merits of that, is he correct? >> no, i don't believe he is correct. what the court is saying is that you need to make admissions decisions on the basis of individual merit, which can include a person's past struggle with discrimination but it also will obviously elevate other issues like what i think is even more important, that is economic background and the struggle that it took for many students to get to these institutions of higher education. the other thing to keep in mind about senator schumer's comments is that the public has consistently rejected affirmative action. in california, one of the most liberal jurisdictions in the country, the public has

repeatedly rejected affirmative action and said they don't want race to be considered as part of their schools. that was done even recently with a multi-million dollar campaign to try to get them to reverse their earlier decision. they came back and said it again. so i think that schumer and others are going to have a hard time with many people in the public who believe that admissions should be based on the individual. what we're talking about is banning the box. that's what it comes down to. the court is saying you have to get rid of the box. you have to get rid of checking off race and you have to be a little more sophisticated in looking at individuals and what they overcame individually, which might include racial discrimination. >> bill: i'm scrolling through twitter seeing a lot of people outraged. a lot of people thrilled. there isn't a whole lot in the middle going on. do you agree with the idea this isn't the end of this battle? even with this ruling some of these schools and universities

will try to find ways around this ruling? >> i've been teaching for 30 years. i promise you, right now college admissions staffs are working on the next generation of applications. they could encourage applicants to share any struggles they've had with racial discrimination. the essays will still identify the race of the applicant. and i expect that high school admissions officers are taking these three lines from the opinion and saying write this. write about your struggles. so there is going to be a displacement factor here. for chief justice roberts it is an amazing moment. he feels it is still important to say it's wrong to reduce people to a box. it is wrong to try to lower the number of asian-americans admitted because they are asian-americans. that is going to be a lasting and important part of his

legacy. >> dana: indeed it is. roger severino still with us, i imagine? >> yes. >> dana: roger, when it comes to what schools might have been already doing, i assume that they were watching this very closely. they were planning ahead. and as ken markus said they might have been trying to figure out a way to get around it. what is the mechanism to see if schools will figure out a way to be in line with what the supreme court has now said is unconstitutional? >> one of the troubling developments we've seen is that elite universities are now getting rid of the s.a.t. that was the ticket of entrance for so many minority groups. starting originally with jewish groups back in 1910s and 20s. all of a sudden too many jews according to harvard and created a personal interview process and then all of a sudden the jewish numbers went down. we saw the same thing with

asians who were doing very well on standardized tests and all of a sudden they want to get rid of that. title six uses a methodical disparate impact to rule out racial discrimination attempted to be hidden. that's one interesting thing. the left loves it as an enforcement mechanism. now we'll use it to make sure that harvard and other universities aren't using covert ways for racial balancing. they look look at the numbers. they have allowed more asian-americans in, right? all of a sudden they did to get ahead of this case. but they will probably say there will be a cap and we want to do racial balancing and the court with brown jackson out of the critical race theory facebook say there are gaps that need to be addressed and equality and opportunity is not enough. that's false. the only way to fix the gaps is through equality and opportunity

and make sure everybody is able to compete on merit not by saying we give artificial penalties against asian-americans. when schumer said what he did he is excluding asian-americans as people of color. you have to get rid of this racial balancing. >> dana: brown jackson and sotomayor are doing the same thing. >> they think you need to have a check box. rich african-american or immigrants from africa recently. the color that matters and because there is a notion that they believe of incurable institutional racism. how would we ever know when it is done if you are doing this artificial balancing to make sure you have this number of african-americans, this number of whites and too many ash answer. how do you know when society cured institutional racism? no way to know.

you are perpetuating it and creating social divisions. >> bill: roger, i'm being told shannon bream has more information for us. what have you got? >> a couple other things. interesting footnote in the majority opinion by the chief justice where he talks about military academies. they weren't a party to this case. none of the lower courts addressed the propriety of race based admissions to the academies. this doesn't address that issue with the interest that military academies they possess. admissions process isn't going to apply to the military academies. it was not argued. the court seems to recognize there may be different interests there. this probably does not apply to them. we just heard from the chief justice. tomorrow is the final day. tomorrow we'll find out the fate of the student loan forgiveness program the biden administration put together. it is about the standing

ishikawa -- issue. was it an appropriate use of executive power or went too far? we'll get that case tomorrow and the colorado web designer who would like to do web designs. she considers herself an artist and does things in a custom way and can't comply with colorado law commanding she has to do business with anybody who came to her even if it was in contrast to her religious beliefs. that will be the final day. the court will wrap up and do it at 10:00 a.m. eastern tomorrow the final opinions. >> dana: final thought explained why it takes so long to get to this point where all the big decisions come at the very end. >> the most difficult ones will take the longest. you can hear the dissents. people going back and forth. after they hear a case, some of these were months ago they take a vote privately and you see where the votes fall and

assigning who is writing what opinion. they have tried to persuade each other and move votes and write opinions and change the outcome of the case. that goes on for months. they trade things back and forth so that all sides get their say, all of these opinions come together. the most sticky entangled cases that take the longest to get us to the last of june and why they always land here. >> dana: you have been amazing today. thank you to all of you, thank you so much. bill, we have our assignments for tomorrow. >> bill: shannon will have a busy day tomorrow. >> dana: the student loan one will be very interesting indeed. great to do breaking news. other breaking news. here is more. mike pence former vice president and current g.o.p. candidate in the primary flew to ukraine today. he is in kiev, i believe, meeting with zelensky.

and greg palkot is there also. >> unannounced visit by mike pence. current presidential candidate for the g.o.p. nomination. he arrived earlier today by train as one does and then traveled to some of the very hard-hit cities in the outskirts of kiev. heard firsthand from eyewitnesses about the terrible fighting that happened here last year between ukraine and russian. he went to the presidential palace and zelensky thanked pence for coming here. pence expresses unwavering support for ukraine and his resolve was stronger than ever to support the country. we understand he is shortly or is now on that train back to poland where he gets flown back to the united states. by our reckoning the first candidate of the bunch during this g.o.p. primary campaign to

visit here. certainly putting his stand on the position of u.s. support for ukraine. other candidates running on the republican side have expressed more divergent opinions, perhaps weaker positions on support. this is clearly mike pence say i'm for continuing the strong support by the u.s. of ukraine. again, he was in cities outside of where we are right now in front of the square where there is memorials to soldiers, where there is wreckage of russian vehicles. so he saw it all and he put his mark on the story. he is heading off and pretty soon we can show you images. those were embargoed during the time he was here for safety reasons. >> dana: bill, you are on the road doing campaigning and went with ron desantis in eagle pass texas, as one of the republican candidates went to look at the border and announce border

policies. nikki haley earlier this week did a big piece about her approach to china. vivek ramaswamy was out in philadelphia. you have to create moments. now you have the former vice president, mike pence, in a very crowded primary trying to figure out a way to break out and making news today. other news in addition to that, bill, 2024gop presidential nominee preference. president trump ticking up to 56% after the indictments. ron desantis at 22%. he have went down a little bit. the rest are all in single digits way behind and you can see how you would need a break-out moment. >> bill: you get the feeling that break-out moment might have to happen at one of the debates. numbers are stuck in mud for the last couple months and you feel there has to be a catalyst. someone will have to take on trump on stage and have a break-out moment that everybody remembers and goes viral on social media. interesting to see what happens

with that. >> dana: less than two months away now from the debate. that's happening and we had the breaking news, affirmative action cases for -- affirmative action as a practice is now ruled unconstitutional. it will no longer happen at higher ed.. >> we'll find out about student loan relief tomorrow. >> dana: it is happening tomorrow. "the faulkner focus" is next. julie banderas is in for harris, hi, julie. >> julie: thank you so much. fox news alert. a much-anticipated decision as you have just heard from the high court. the supreme court rejecting affirmative action and outlawing the use of race as a factor in college admissions. "the faulkner focus", i'm julie banderas in for harris today. the decision is coming out of two cases, one against the university of north carolina, and the other against harvard. the vote break down 6-3 in the unc case and 6-2 in the harvar