justice kagan: mr. messenger, may i ask you about reliance interests here? i don't think that we have ever overruled a case where reliance interests are remotely as strong as they are here. so just a few things to put on the table. 23 states, the district of columbia, puerto rico, all would have their statutes declared unconstitutional at once. thousands of municipalities would have contracts invalidated. those contracts probably cover millions, maybe up to over 10 million, workers. so property and contract rights, the statutes of many states and the livelihoods of millions of individuals affected all at once. when have we ever done something like that? what would be the justification for doing something like that? mr. messenger: well, i'd say two things, justice kagan. the first is that the prevalence of these compulsory unionism provisions isn't reason for retaining abood, it's reason for reversing abood. you have wide-scale first amendment violations, as you said, in 23 states affected. justice kagan

you have riordan kagan with the kagan. bryer and the majority relies on this exemption and waiver provision but we're not sure how effective -- if it's actually an option for people who are trying to come to the united states. it was the sotomayor-ginsburg dissent that was strong, talking about this is a muslim ban. >> the travel ban argument was my favorite moment where she justice breyer, one and at get gets too many questions try steve martin time. she tries to give extra time to enough to get you is a lot of questions. the sg's extra time on the travel ban argument. neil cudgel gets up. the mark of a good argument is just as the red light comes on become to your closing statement and you landed like your figure skater. the chief justice says you can have five more minutes. [laughter] >> i forgot that. compiles the fabulous statistics at the end of every term. looking at the one for this term, total questions for argument. 124 average total questions for argument. two permitted in a 60 minute argument. how can anybody a

i heard justice kagan talk about this when she was the junior justice. at the conferences, they go around the table and vote. as the junior justice, he is the last justice who gets the vote. to a certain extent, this is his way to talk to his colleagues. so he has some unique views on the law that he will press at some length, but i think there are probably a couple of different motivations going on. arthur: adam, you wrote the other day that justice gorsuch had turned in the most consequential freshman performance by a member of the supreme court in living memory. how so? adam: that's a good sentence. [laughter] welcome that we talked about the one case in which he joined the liberals. in 14 others, he provided the decisive vote going the other way. it's a fair bet that in every single one of them that justice merrick garland would've gone the other way. so the raw numbers, the raw power come up lives a. also, notwithstanding some reports of friction with other justices, he was also entrusted with very big cases. the biggest business case of the term wa

elena kagan: but, mr. liu, this might be the same question and, if so i apologize for beating , you over the head with it, but a notice to appear, it's a special kind of charging document. it's telling you that the government wants you to appear. and then, if the government wants you to appear, the first thing you need to know is, where am i supposed to appear? when am i supposed to appear? so that there will be somebody who will do what they want to do with me when i appear. it would seem actually even more than the charges itself that a notice to appear, you know, the sine qua non is telling you where you should appear. frederick liu: well, i think that is not the essential function of a charging document. elena kagan: well, you talk about it as a charging document. i hate to interrupt you, but it's not any old charging document. it's a notice to appear, which means somebody has to know where they're supposed to appear and when. frederick liu: and the government doesn't dispute that the notice to appear

union as a member unless there is some way to require them to pay for that they have what justice kagan calls a collective action problem of nightmarish proportions. imagine as the analogy the u.s. government decide that taxes are voluntary. now you know as a citizen that whether or not you pay a dollar in taxes you have the same roads, same schools, same police and fire protection and a military and military and it is just up to you to pay or not, you know anyone in particular in this room would do but fewer people would pay this tax that is the situation that is now foisted onto the public sector unions by the supreme court. every public sector worker has the right to receive every ounce of union representation and to do that without paying a penny. that is very difficult to sustain. i think we are in for a period of severe challenge for public sector unions and therefore public-sector employees. i haven't mentioned too much about the doctrine i am not sure this case is about doctrine to be perfectly honest with the tweets on janus the moment it was decided it will be tough on the dem

[laughing] >> that's -- >> and then justice kagan joined. now there are three women on the court. interestingly, the dynamic changed a little bit. for a law professor at northwestern along with her students, just released a study a few years ago and they track the number of interruptions in oral arguments at the court, indiebound that women justices are disproportionately interrupted at higher rates than their male colleagues by their male colleagues and by mail advocates. have you noticed that? [laughing] >> i'm sorry. that was truly spontaneous. [laughing] is a woman in the room who has ever failed to notice that? [laughing] [applause] justice ginsburg once noticed, and i hope she has noticed my response to it come at an earlier time where she said she is often spoken at conferences, said something. no one reacts to it. then we go around the room giving explanations and a male colleague says exactly the same thing, and all of a sudden there's this perking up of this is a most really think anyone is ever said. that happens routinely come not just with her but with all of us. >> y

[laughter] and then you have justice kagan and three women on the court. the dynamic changed a little bit. a law professor at northwestern and her student just released a study a few years ago and tracked the number of interruptions in oral arguments at the court and found that women justices are disproportionately interrupted at higher rates than their male colleagues by their male colleagues, have you noticed that? [laughter] [applause] justice sotomayor: that was truly spontaneous. a woman in the room who has failed to notice that? [cheers and applause] justice sotomayor: justice ginsburg once noticed and i hope has noticed my response at an earlier time. she has often spoken about this at conferences. no one reacts to it and then we go around the room giving explanations and a male colleague says exactly the same thing and all of a sudden there is a perking up, this is the most brilliant thing anybody has ever said. that happens routinely, not just with her, but with all of us. when i started noticing that, i have been conscious of saying when it comes

ruling and justice kagan said that this dilutes union power. she said there is no sugar coating today's opinion and today's decision will have large-scale consequences for public sector unions. theupreme court ruling that this illinois law that says all employees had to contribute to public sector union, they struck that down, and of course, that will have big effects nation wide because 22 states have simila laws. >> jessica, an important note, as you'resaying, it is unusual for the dissent to read -- be read from the bench and this has happened two times in two days now. >> right. what's very interesting about this is you notice the change, perhaps in the balance of power here at the court. this term alone, there have been 17ases decided 5-4. so it really shows you just how important that nomination and the appointment of justice neil gorsuch and president trump was. justice gorsuch, perhaps the deciding vote in this because after all, the supreme court back in they decided or they were listening to, at least a similar case that involved the

e might have had more kagan- breyer type of decisions? shoba: i think -- where i stand is i think this case should have been rejected on the statute and there are number of a very clear arguments to support that. with respect to exemptions and waivers since i already reached my 10 minutes, those are problematic, right, for a few reasons. we have a statute that includes waivers and we already have four-seam work for our immigration law that congress wrote in 1952. to the waivers and justice breyer brought this up both in his oral argument, during the oral argument as well as in his dissent, there's very little evidence to show that they're actually working. evidence one sworn by a counsels lahr officer called the waiver process window dressing and consular officers don't have discretion. to the extent exemptions and waivers were relied upon by the majority to support the legality of this proclamation, i think that alone is problematic. tom: well, one of the good things about the term, we had another opportunity in the form of another quest

that will go swimmingly. >> they should follow along the lines of 2010 and elena kagan's confirmation, where in fact they were able to confirm elena kagan three months before the midterm election. >> martha: i don't think they are in the same mood these days. >> the democrats obstruction if they continue down that path, obviously that will continue to hurt them along the way. especially when they are seeing that president trump's agenda is winning. in fact, when he puts his name behind it, it's where we know that his policies are winning and why republicans can be so successful. >> martha: mercedes, always good to see you, thank you. interesting to remember that kennedy was not president reagan's first choice. in fact, he was his third choice. first was robert bork, and we all remember that sparked a brutal senate battle. he was defeated. his second pick was douglas ginsburg who withdrew after admitting he had smoked marijuana which obviously is no longer a benchmark for pretty much anything in the country, and then came kennedy who was viewed as the consensus nominee. >> justice kenn

joined andtice kagan now there are three women on the court. justice sotomayor: the dynamic changed a little bit -- >> the dynamics changed a little bit. a study was just released of these years ago -- released a few years ago. they found that women justices are disproportionately interrupted at high rates than their male colleagues by their male colleagues and by mail advocates. have you noticed that -- male advocates. have you noticed that? [laughter] i'm sorry.omayor: that was truly spontaneous. is there ever a woman in the room that has ever failed to notice that? [applause] justice sotomayor: one justice was noticed and i hope she has noticed my response to it at an earlier time where she said she has often spoken at conference, said something, no one reacts to it. then we go around the room giving explanations and the male colleagues say exactly the same thing and all of a sudden there is this, this is the most brilliant thing everyone has ever said -- anyone has ever said. that happens routinely with all of us. one of the things is that

elena kagan was nominated by pres.ma in 2010, and we are going to hear quickly from the president who he wants and i guarantee they will try to get her conferment before the october terms. heather: midterm election versus presidential election, very big difference. thank you very much, we will see what happens today because you never know. thank you. the time is 18 after the top of the hour, the huge upset everyone is talking about including donald trump. >> a slovenly man named joe crowley got his [bleep] character. he was going to take nancy policy's place. >> the internet is on fire, carly shimkus sharing reaction next. >> 22 after the top of the hour, multiple tornadoes carving a path of destruction. a disaster declaration after a powerful tornado left eight people injured. the storm damaging homes, flipping over cars and knocking out power to thousands and cleanup is underway after a series of twisters touched down this week. the severe storm, much more on this coming up, stay tuned for this. workers behind the fa

so one was a mid term, elaine ya -- elena kagan. merrick garland who you'll hear more about from our senate democratic colleagues, this came up during a presidential election, a time during which joe biden said that nominees should not be confirmed in the runup to a presidential election. after president trump makes a selection, senators will have the opportunity to meet with the nominee, examine his or her qualifications, and debate them. we'll have a hearing in front of the senate judiciary committee. this will be the sixth supreme court justice nominee i will have had the privilege to serve on the senate judiciary committee for and question. and then this fall we will vote to confirm justice kennedy's successor. just kennedy placed a deadline on his time in office. he's retiring july 31. so any idea of delaying this and leaving the court shorthanded, particularly under these circumstances, really is beside the point. i know chairman grassley will as usual manage a fair, thorough, and efficient confirmation process. he always does

the strength of phillips' case, demonstrate that breyer and kagan went along with it.greed the tribunal in colorado was hostile to his religion. he deserved to have his religion taken seriously. and he has a first amendment righto, to not be compelled to make statements about marriage he doesn't want to make. so i think, you know, it's, it's a good decision for the court. hopefully it will turn the temperature down in the country a little bit. these discussions are a little bit academic in some sense. i think seeing a 7-2 decision hopefully wl make people realize there is legal analysis going on here, not a straight political play. neil: you know, i remembere years back when i talked to jack phillips, the baker involved here, he stressed to me, i'm not anti-gay, i'm not making a judgment about gay people. i just on religious grounds don't want to honor same-sex marriage. i'm fair phrasing his argument at the time. >> right. neil: he was sincere in his beliefs obviously and justices believed that as well. couldn't someone take advantage of this decision, robert, use it

year and do we mentioned in august 2010 the senate confirmed barack obama's very liberal pick alayna kagan a few months before the 2010 midterms and the republicans have something else, the harry reid precedent, looking like democrats will reject that read as leader lowered the bar to 51 votes to muscle through obama's nominee's, mcconnell warned this would backfire. >> you want to play games, another precedent you will no doubt come to regret, you will regret this and you may regret it a lot sooner than you think. >> democrats in diane feinstein, during the merrick garland episode democrats surrendered the judicial branch to mitch mcconnell. this is not just about animus against donald trump which is already fierce in the democratic party but a potential senate war where mainstream democrats will face intense pressure to resist this nominee no matter what. >> everybody gets a precedent. >> shannon bream president by laura income. shannon: great to have you with us. our next guest will play a pivotal role in the upcoming debate over justice kennedy's seat on the court as a member of the se

justice kagan predicted employees and those that love their union realize that they can get the same benefits even if they let their memberships expire. as more and more staff paying dues -- stop paying dues, the others have to make up the difference and then they quit the union. >> we are very disappointed to. it's a blow to working people. >> reporter: the head of the san francisco teachers union says she's confident that teachers will continue to be union members. >> we have hi union membership among the people we record -- we represent. people recognize the benefits and power to being a strong voice through a strong union. >> reporter: there is reason to be concerned. wisconsin pass a law in 2011 making union dues optional. public employee union dues plummeted to 19 percent in 2017. >> reporter: the unions have been given, for almost 50 years, the right to force all of us to pay them. >> reporter: a former teacher sued the california teachers association back in 2013. she demand that dues be optional. the suit went all the way to the supreme court but just disc scalia's death in

>> justice kagan and justice breyer join kennedy's majority opinion for the court.tice kagan wrote separately to as some clever vacation but it is good majority of the court thought that what happened here is a mission, was to kill youru. they were not happed -- happy but they all agreed this issues were specific to the fact this case, there's no need to reach the broader questions. remember, the baker was asking for constitutional right to discriminate based only on freedom of religion and freedom of speech. the court did not engage with that claim at all. amy: explain what happened that day when the family went into order a case for the same-sex weddin and just in clearly, some soda mayor and ginsburg -- dave and charlie were planning their wedding. ceremony inanning a massachusetts. this moments planning to be in town so they waited for her to be there. the sooner they walked in the door, they were turned away, told, we won't do cakes. that is devastating. the family left in tears. harms ie the very real think. -- as peopleruling feared. >> the freedom of religio

kennedy, thomas, alito, gorsuch, roberts and the liberals briar and kagan. i asked about it being a 7-2 ruling and they note the justices did not tackle the broader issues. >> given the very nature of this decision and the fact that it does not set precedence. that is to say, it does not affect the outcome of future cases, it's less surprising by the 7-2 nature of the decision. >> experts say this is not the end of the fight over the big picture issues but it is certainly a happy day colorado baker and his supporters. harris? >> harris: mike, thank you very much. let's bring in my next guest, steven mulroy, a former federal prosecutor and the university of memphis law professor. great to see you today. i want to bring you on the program because of something you explained that made so much sense. i don't want people to miss it. this was supposed to be very, very narrow. first of all, tell me about that and whether you think it actually will impact other cases. >> right. well, both are good questions as to the first one, this could have been a broad holding in

gorsuch thomas and es, kennedy, liberals brier and kagan. an attorney that argued the case for the baker says this will have an impact on future legal battles. >> certain princes here that will be applied to other cases. when the court said religious people have a right to be robust members of the community, that is a principle that has application in many contexts. >> baker and for my religious conservatives around the country. neil? >> neil: thank you very much. now, right after this brouhaha just started in 2015, i had a chance to catch up with the baker in question, jack phillips that would prompt this court decision today. he was arguing on religious grounds and more that he just wanted to do what he said the lord was telling him to do. take a look. >> when you heard the supreme court ruled and to your lawyer's point, the 5-4 decision in favor of gay marriage is apparently deeply religious man, how did you feel? >> i was disappointed in the court's decision but still it's a different decision than what my case is. my case is the governm

kagan: the hairstylist? >> there is no protection and that context. is there no protection in creating a wonderful here do? >> it may be creative -- >> the makeup artist? no. >> but in artist, the makeup artist. [laughter] >> the makeup artist may be using creativity and artistry, but when the court is looking at whether speech is involved, it commuting --it is communicating something and atlas to something else. -- an allergist to something else. >> i think the they may feel like your client does. they are doing something of great aesthetic importance to the wedding and there is a lot of skill and artistic vision that goes into making somebody look beautiful. that person or the hairstylist, why would that not also count? >> because it is not speech and that is the first trigger point. >> you have a view that cake can be speech because it involves great skill and artistry. i'm wondering if that is the case, how do you draw a line? how do you decide, of course the chefs and the baker are on one side and i think you said the florist is on that side. ver

couple of things to add to jessica's report, justices kagan and breyer, from the liberal side, join in, kind of as a sign that, okay, we're not trying to do too much here, but i would say that the two bader ginsburd justice sotomayor said, look, even though the commission may have made -- commissioners may have made disparaging comments about religion, this was assessed by other entities, by courts, and there was no need to say that the context here affected t case. that these two individuals did face discrimination and it should be read as that. so they were the only two that broke off, but as i say, justice kennedy, i think he wanted to caution everyone in the courtroom, and probably anyone reading this opinion, that this is a very small step in the case of these particular men. again, justice ginsburg and sotomayor said otherwise, but i think it really opens the door to what would come next from the next case. i would just add one other thing, justice kennedy noted that in 2012, when this had happened, colorado was not allowing gay marriage. and he seemed to talk a lot about that hi

>> he's closer to john roberts and sam alito than alaina kagan. even though he rejected the conservative views on abortion, he was more with them than not with them. when sandra day o'connor retired, she was the swing vote for liberals and conservatives. anthony kennedy took that. donald trump won't be looking for a swing vote. he's looking for a reliable traditionalist with libertarian leanings just like he got in neil gorsuch. he will probably go to that list and will either be amplified or reduced by his colleagues and friends at the federalist society and then he will pick one of those people and we're in for the battle royal of the summer. >> dana: chris stirewalt is with us. chris, do we have you? >> you have me always. >> dana: very good. meantime, chris, can you look for that list -- i remember, the one that president trump put out with the possibilities of other names that he might consider. if we can find that in the meantime. let me ask you, this news, shocking, surprising, maybe not entirely because people thought anthony kennedy might

i'd like to first address justice kagan's concern about the gerrymandering issue. on page 5 of our reply brief we point out the state's web site for where the state tells low income women how they can go to private doctors and get information -- or get services for pregnancy. yet those doctors are all can xempt from this act as are all nonprofit clinics that have the general kind of practice that justice alito's question described. as to the ad burden, the amicus -- heartbeat international on page 24 of their brief, gave a mock-up of what an ad would look like when you have simply pregnancy questions and a phone number and all the languages required in los angeles county. that's what it would look like. and it's clearly burdensome, and the unlicensed -- the last answer from california was correct, it would be triggered if they are otherwise mandated by law. i'd last like to -- >> the answer was that this was not brought up in this case until now, and it should be aired -- >> your honor, that's not correct. it was raised below as our reply brief sets out. it's in th

justice kagan said "the decision will have large-scale cons with us.ublic employee unions will lose a secure source of financial support." she later said the majority has chosen the winners by turning the first amendment into a sword and using it against workaday economic and regulatory policy. mark, for you, this was all about the first amendment, whether you could be forced to use your money to subsidize someone else's political manage. >> the first amendment give me that right of free association. unfortunately with the force side to pay, i didn't have the freedom of association. i was told that i had to do in order to work for the government. and i didn't pay come i didn't have a job. >> shannon: the dnc say attacking unions is one of the most powerful tactics in the republican playbook to enrich their wealthy friends at the expense of working people. in fact, republicans are so determined to undermine workers that they held a supreme court seat hostage for nearly a year in order to nominate an aggressively antiunion justice. make no mistake. the n

kaganate justice described it yesterday as a going on.ion she is right. the decision comes at a time when hard-working americans are fighting every day just to pay their bills and support their family. labor unions are working hard to give workers a collective voice to gain higher wages, better health care and secure retirement. a tax on public-sector unions on the camel's nose under the tent flap. they are coming after private-sector unions next. the middle class in our country and shape the life of every american by negotiating for labor rights, including minimum wage, eight hour workdays, weekends, health insurance. now is not the time to turn our back on american workers and labor unions. stand withtime to employees who serve the public across the country. if we defeat the previous question, i will offer an amendment to the will to bring up my bill, the public service freedom to negotiate act. the bill that would defend every employee to join a union. it empowers the relation authority to ensure that state and local government employees are treated fa

liberal justices breyer and kagan joined the conservative majority. jan crawford tells us the court did leave unresolved a key issue in the case. >> reporter: moments after the court's ruling, baker jack phillips celebrated what he saw as a victory for religious freedom. in a 7-2 ruling written by justice anthony kennedy, the court said colorado officials, who compared objections to defenses of slavery and the holocaust, showed an indifference to his religious objections to baking a wedding cake. phillips told us he would serve same-sex couples other baked goods in his shop, but he would not create a wedding cake. because... >> because the biblical teaching on marriage is pretty clear, and this is promoting a ceremony that goes against those core teachings. >> reporter: but the court's ruling was narrow, and may well apply only to phillips. the justices made a plea for civility in future cases, writing, "these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs and without subjecting gay persons to indigniti

donor to the liberty justice center which pursued the plaintiff's case in her dissent justice elaina kagan criticized the rulings foundation in an expansive interpretation of the first amendment for that reason labor law expert said janice could be cited to challenge almost any other labor rights law as reported yesterday the u.s. supreme court is issued a ruling that american express vendors may not encourage their customers to favor competing credit cards using discounts and promotions that case ohio vs american express could have major consequences for retail and perhaps others here to break it down as a c.e.o. of stocks woosh melissa are moma lissa thanks for always being with us we really appreciate let's start with the lay of the land american express charges higher fees i mean most of us know that both those swipe fees and their vendors all they hate that they hate that a lot and so the companies out there are now you know in this sort of battle sort of a credit card you know war first of all why does american express you know charge a higher rate than some of the other credit card

ladies and gentlemen, justice kagan in her dissent made a point, she talked about how now the bill of rights is being used differently. she said the first amendment has now been weapon nice to use against ordinary regular working people. that is what happened in this janice decision. there is more of this to come. we can see it. this is what brings us together this morning. i'm congressman matt cartwright and i represent -- were labor rates are time-honored values. it is areas where john mitchell gathered in clarence spoke for the mineworkers and help to establish fair labor standards act, 40 hour week it acts, getting children out of the mines. we understand the importance of labor rights in northeastern pennsylvania. i'm proud to be here among my colleagues. what we are doing is announcing an introduction in the house by the public-service freedom to negotiate act. it strengthens the right of employees to stand together as one and negotiate with their employer to negotiate collectively to bargain for decent pay fair workplaces. we have several democratic cosponsors. we are republica

held until after the midterm elections in november, republicans point out that obama nominee elena kagan joined during a midterm in 2010. >> abc's terry moran has more on the upcoming battle on capitol hill and how both sides of the political landscape are mobilizing because of one issue, abortion. >> reporter: since before he was elected, president trump made abortion and the supreme court one of his campaign's major issues vowing to overturn roe versus wade. in 2016 the candidates were asked where they want the court to take the country. >> the supreme court, it's what it's all about. our country is so, so -- it's just so imperative that we have the right justices. i am putting pro-life justices on the court. >> reporter: pro-life and pro-choice groups are already reacting to the news of kennedy's retirement. planned parenthood saying the right to access abortion in this country is on the line while concerned women for america hailed this opportunity as, quote, the moment conservative women have been waiting for, the chance to return justice to the nation's highest court, and as advoca

in fact, the pryor appointment by obama was made during a midterm election that was justice kagan leadingp to the midterms. certainly different. what will happen certainly an appointment quickly because the republicans control the senate. >> the clear, though. the senate is pretty tight, david. real quick before i let you go, donald trump made an interesting comment. he said basically this is someone that will be there for decades. looking at the list of possible nominees. they could see somebody like senator mike lee born in 1871 mckinley became a justice david strasser 1974. the justice so that he got his legacy for decades to come. >> i can't see them being on the court for 40 years, 45 years. gorsuch is 50. senator leahy, we need his vote you double be a critical vote coming up in the confirmation hearing. good candidate and they are all on the screen. david bruno, thank you for a match. >> have a great day. gerri: u2. truth or president trump attend the groundbreaking ceremony in wisconsin. the company that makes iphone scrapple will be sending $10 billion over four years. the factor

host: does it surprise you that john roberts is chief justice, is onkagan -- elena kagan the supreme court, and barack obama became president? guest: i would love to say i predicted it. but no, they had unlimited potential. in retrospect, i am not surprised where they ended up. i am pleased, in all three cases. in the long run, they will have done great service to the country and the law. host: richard joins us on the republican line, louisville, kentucky. caller: good morning. it is telling that you use the gentleman from west virginia, , grandbyrd, the democrat cyclops of the ku klux klan, hillary clinton's mentor, for someone to come out and say why they should not remove bill clinton from office. but that is for another time. my question to the good professor, which, of course, i can tell that you are very liberal about the current president. and is he a politician? no, he is just a knucklehead trying to straighten this country are from people like you. my question is if you find out the it former president use fbi, cia, nsa, can you post impeach a president? -- guest: no. it can

professor like justice scalia was very predictable coming on the court, or a justice like pryor or kaganics who are much more predictable. but they are lacking that particular experience. david: you said this has been a largely pro-business court. what issues are left that business would like to make a difference on in the supreme court? >> in addition to preemption to eliminate a lot of state regulation and in addition to the big issue, which will be helpful to business, which is cutting back on the scope of power, iegulatory think punitive damages is an issue the court hasn't addressed. on behalf of my law firm, i argued the exxon punitive damages case. that was a case under federal maritime law. it was a tough case to win. got a $5 billion punitive judgment reduced to $5 million. that court seems relatively friendly to it. but there are some states rights -- in a states case, justice scalia would have said that the court has no business setting aside what states do. on punitive damages, this is whether a states rights oriented justice would not want to limit with states could do. davi

justice d gentlemen, kagan, in her dissent, made a point. she talked about now the bill of rights is being used differently, isn't it? she said the first amendment has w been weaponized to use against regular working people. and that's what happened in the janus decision. there is more of this to come. we can see this. this is what brings us together this morning. and i'm congressman cartwright and i represent northeast pennsylvania where labor rights are time honored and traditional values. it is in northeastern pennsylvania that john mitchell gathered and clarence darrow helped to establish the fair labor standards act, 40-hour work week, weekends, getting children out of the mines, we understand the importance of labor rights in northeastern pennsylvania and i'm proud to be here. what we are doing here is announcing and i'm announcing introduction in the house by the public service freedom to negotiate act, this is a bill that strengthens the rights of public employees to stand together as one and negotiate with their employer. it protect

in 2010 a midterm the year alayna kagan was confirmed in may come in august, neil gorsuch was announcedary 31, 2017, and confirmed early april so 21/2 months. if donald trump comes out in july with a nominee that gives mitch mcconnell about 21/2 months before the october 1st start of the next term to put somebody on the bench and likely he could do it. jillian: donald trump what this person to be there 40 to 45 years. what type of character, do you think this person will have and also what issues should we keep an eye out for? >> most of his appellate courts are in there 40s, likely to see a young supreme court nominee. barrett is a recent appellate court nominee. and donald trump floated around as potential replacement for justice kennedy. interesting to watch during her senate hearing for the circuit court placement because she was criticized for being too catholic. that is something to watch because pres. kennedy, to uphold roe v wade and we might see the president look to someone with more of a pro-life leaning that could be an issue we hear a lot about over the next several months

in a dissent, justice kagan predicted employees and those that love the union can realize that they can get the same benefits, even if they let their membership expire. as more and more stop paying dues, those left must take up the financial slack and they begin to feel like soccer so they too with the union. >> we are very disappointed. it wasn't unexpected but it's definitely a blow. >> reporter: ahead of the teacher union here says they will continue to be confident. >> we have very high union membership. the state recognizes the benefits and power to being a strong voice for our students to their union. >> reporter: there is reason to be concerned. when wisconsin pass a law in 2011 making union dues optional, membership vomited from 50 percent in 2011 to 19 percent in 2017. >> what has happened is the unions have been given, for almost 50 years, the right to force all of the -- all of us to pay them. >> reporter: she sued the california teachers association demanding that dues be optional. the suit went all the way to the supreme court. justice scalia's death and in the case in 2016

i understand some of that confidentiality, but if that backdrop is the way that justice kagan described anti- somatic background, don't you think once you get through the mandel preliminary stage that he and independent arbiter to look at that to ensure the process is what claimed it was? >> a couple of responses to that. first i think the proclamation is very transparent and lays out in great detail the process and substance on which it is based and under the duty of good faith that one branch of government equals to another a very strong presumption that is what is set is the truth. >> i want to make sure i have it right that at the time the president said we don't want muslims coming into this country but that would undermine the proclamation. is thatt right? so honestly the difference seems to be is everything the president said that? campaign statements are made by a private citizen to receive advice of the cabinet that marks a fundamental transformation from a private to the embodiment of the executive branch will make the statements is elected on day number two makes acts consist

david:or example, justice kagan, who might be expected to go the other way.ur opinion says -- the commission hostility was inconsistent with first guarantees," and basically makes fun of the cake baker's religion does what they say, about the decision by the civil rights commission? >> yes, the commission talked about how religion over the defendas been used to things like the holocaust and slavery, and use that in the commissioners concern, that jack phillips should not be allowed to refuse to sell this wedding cake to a gay couple. the language was very strong there. on the other hand, there was a language that gays rights groups can point to when talking about the importance of respecting the dignity and equal status of gay people in our society. shery: what will this do to the 22 states that have barred discrimination on the basis of sexual orientation? >> it is really not clear yet. they did not decide the big question. as it came to the court, the case was set up as a fight gayeen the the quality of people, and the states and religion rights of business

. >> juan: justices kagan and breyer siding with the conservatives. >> dana: justice kennedy said it'solerance having to go both ways. colorado civil rights commission did not do the right thing initially. what i wish the supreme court have done is gone ahead and done the full thing on rule on the issue of religious liberty that the country is hungry for them to decide on. we are so polarized wean't figure it out on our own. so the supreme court is trusted. i think now we are going to have to go through it again. other cases going to have to come up to the court and will be three years before we get a final decision. >> juan: gran, as a libertarian. >> greg: we have a new c-word. cake. it's so complicated it is decided by the supreme court and not by us. you have to think about the baker, the state being biased against religious rites. then you have to think about respecting customers. if you are open to the public, the public comes in. but then again, my feeling is you shouldn't have to do anything you don't want to do. i don't like all people. if i had a place open to the public, i m

either one of those is going to have to face robert kagan -- barbara cue canned, excuse me.is a businessman. again -- >> we've seen businessmen be successful in new jersey previously in the context of democratic with corzine for example. it's an interesting place. it ise, but sometimes the low crossovelks like chris christie. this is really about of menendez because of the special circumstances that have her visit here everything whether it's new jersey or california it's about turnout and who shows up in more importantly who doesn't show up to the pole which will impact the outcome. cheryl: capri, just didn't come i can't wait to find out what happens. the s&p ballot standing by for a long time on this. capri, just in the coming thank you, we appreciate it. tracee: coming up, the lava flow in hawaii destroying everything in its path as it heads to the ocean. we will have a update. tech stocks in the nasdaq to a record high. we will look at what is next for attack. u.s. stock index futures right now take a look at the board. up by 60. s&p 500 by 5.5, nasdaq up by 23.5. you a

opposing kagan was not smart. but the idea of opposing her was ridiculous.ma had an opportunity to put someone on who shared his judicial philosophy and he did. >> she's highly qualified. we don't play the same games that the other side does. it can be made in congress, signed by the president and ruled on by the courts. not made by the judges. you see cory booker going full venezuela that maybe we should suspend the normal rules ande allow this frivolous complaint who is, by the way, not under criminal investigation, that's false. >> what's false? >> the president is not under criminal investigation. >> he can't be indicted. >> if you want to play by those rules, democrats, think about what happens when you have the white house. do you want frivolous complaints? number two, there is a real human cost, laura, to having a split on the supreme court where there is a vacancy. a lot of cases, death penalty cases don't get herd because there isn't a quorum. >> that's what mitch mcconnell did. >> laura: what michael is getting at, mitch mcconnell didn't move forwa