Zack Smith of Heritage Foundation Breakds Down The SCOTUS Spring 2024 Rulings

What rulings have flown under the radar? Which will be most impactful? 

Episode Transcript

(00:21):
All right, five minutes after thehour, and so we begin the third
hour of the Morning Show with BrustinScott. Great to be with you this
morning. We have had Zach Smithon the show several times over the years.
He's a friend of the program withthe Heritage Foundation. He follows the
Supreme Court, he understands the mechanismof it, and joins us this morning,

(00:41):
how are you, Zach, I'mdoing well. Thanks for having me
on the show. Always good tohear your voice and get your insights on
some things. Let's start with this. If I were to ask you,
what are the most consequential rulings thatthe Supreme Court made from the spring session,
understanding that the ruling started rolling outof you know, several weeks ago,

(01:03):
not just in June. What's onyour list of the things that are
the most important and impactful. Yeah, well, I think one that's blown
a little bit under the radar givenall of the other high profile cases is
involving kind of an arcane legal doctrineknown as Chevron deference. Now, the
Court recently overruled this difference in twocases called the Loper Bright and Relentless cases

(01:27):
that involved what sound like a boringissue involving fisheries whether they had to pay
for monitors on their boats to monitortheir catches. Right. But this,
this Loper Bright case is so importantbecause essentially what the court did is they
said that instead of unelected, unaccountablebureaucrats deciding what the law says, what

(01:48):
their own power should be, thatthe courts now are going to decide that
without giving deference to what those bureaucratsthink. And given the vast scope of
the administrative state, the way itimpacts all of our lives on the day
to day basis in ways we don'teven realize. This is a major win
for the rule of law, andwe'll have a significant impact on our lives

(02:10):
going forward. I've seen some peopleoffer a little analysis that this court has
limited the scope of government. Andwhile I can see that in some rulings,
I look at the rulings on socialmedia and I scratch my head and
I wonder if they really have.Well, it'll be interesting to see you
today. We expect two more bigFirst Amendment social media cases. The net

(02:34):
Choice cases went out of Texas wentout of Florida as well, where essentially
the court will answer the question whetherstates can treat these big tech companies like
common carriers, require them to carrycontent, or at least provide reasons for
why they choose to deplatform certain individuals. And so we'll see a further development
on that front later today at tenam Eastern. Were you surprised the court

(02:59):
did not find the federal government wascrossing the line when it comes to impacting
what social media was in fact censoring. Yeah, so that is the Murphy
versus Missouri case, As your listenersmay recall, that's the case where the
Biden administration essentially coerced big tech companiessocial media companies to sensor speech that the

(03:20):
Biden administration disagreed with, and thecourt unfortunately didn't reach the merits of that
case. They didn't decide the actuallegal question whether the Biden administration had crossed
the line and inappropriately forced these socialmedia companies to sensor speech they disagreed with
the court, and set essentially saidthat the people, the States, and
the individuals challenging these policies weren't theright parties to do so legally. They

(03:46):
didn't have something known as standing andso we'll have to wait and see whether
someone else will bring a similar challenge, whether the Court will find someone else
has standing. But what's interesting aboutthat is that some thing, some like
Justice Clarence Thomas, He's written aboutthis before in the past, some are
worried that the Court will use thisstanding doctrine to kick cases they simply don't

(04:10):
want to reach on the merits andcan avoid reaching some very difficult, yet
very important questions that they do needto reach and that they do need to
resolve. The morning, Joe atPreston Scott go ahead, Make My Day
on news radio one hundred point sevenWUFLA eleven minutes past the hour of Zach

(04:33):
Smith with us from the Heritage Foundation. We're talking about the constitutional rulings,
the veracity of them as it relatesto the Supreme Court. We'd love to
think that the Supreme Court is alwaysgoing to go back to an originalist view
of it. And I've kind ofbroken it down. I don't like the
mainstream media's view of ACT of maybeconservative and liberal justices act. I've always

(04:56):
preferred the view originalist and activist.But I want to circle back to this
idea of standing. I've been strugglingwith this because and this sounds really stupid,
and that's why you're on here tohelp say you're an idiot and correct
me. But I liken this wholestanding notion to let's say I pull a

(05:17):
firearm and pointed at somebody. It'salmost as saying I have to pull the
trigger and hurt somebody before they havestanding. I really am struggling with this
notion that we're seeing used more andmore that we don't have standing because we
don't have a victim yet, andthe victim's not in front of the court.
Why is that? Why can't wejust determine whether the law is constitutional

(05:40):
or not. Well, Look,standing is rooted in the separation of powers.
It's a constitutional requirement because Article threeat the Constitution says that federal courts
can only hear cases and controversies,and so as that's been interpreted, it
means that there has to be aninjured party. The problem I think you're
alluding to, Preston, is thefact that starting really in the nineteen sixties

(06:03):
and the nineteen seventies, the courtdiluted what it meant to have an injury.
And the concern, again by JusticeThomas and others, is that it
seems like the Court has been morewilling to bend that standing doctrine reach cases
on the merits when they involve casesfavored by the left leading components of our

(06:24):
society, typically environmental type cases.And yet they stringently apply those standing requirements
when the cases seem to be favoredby those on the right or conservative causes
are being brought before the Court.And so I think what needs to happen
is that the Court needs to reevaluate, readdress its standing doctrine and make sure

(06:45):
that it's applying it equally across theboard instead of essentially trying to gain the
system to get rid of cases thatthey just don't want to hear on the
merriage. So how does that happen? I mean, do they they can't
just sit down and talk about itover dinner. Right? Do they have
to have a course a case thatchallenges the very issue of standing. Yeah,

(07:06):
they may have to do that,and I think Justice Thomas again has
explicitly caught for the Court to dothat. And again there's some very bad
case flak in the sixties and seventieson the standing front. The Court would
likely need to reevaluate and probably overturnas a result of that. But I
think the fact that we're having thisconversation at all right now, Preston,
is a good sign that people arerecognizing this is a problem and that it

(07:30):
may be time for the Court toreevaluate it. I'm also curious your take
on let's use Joe Biden's decision tothumb his nose at the ruling by the
Supreme Court on student loans and thathe did not have the authority to do
that. I mean, Nancy Pelosisaid it on the front end, but
yet he goes around and continues totry to find ways. Is that ruling

(07:53):
so narrow that it doesn't just say, look, Joe, you cannot do
this, so stop it. Well, you know, he recently tried to
do the same thing again, justusing a slightly different statutory provision. Lower
federal courts did enjoin. That's sayyou have to stop that. It's unconstitutional.
Unfortunately, it looks like that casemay be making its way back to

(08:13):
the Supreme Court again as the Bidenadministration continues to defend its policy. But
look, if one of these studentloan following cases makes his way back to
the Supreme Court, it seems likeit'd be very difficult for the Biden administration
to prevail. But I think againyou hit the nail on the head and
are highlighting a more fundamental problem inthat the Biden administration in the student loan

(08:37):
area, in other areas as well, essentially has said we're gonna take these
actions we know are illegal, We'regoing to do it for political purposes,
and then you know, cast upour hands in frustration when the courts strike
it down, even though we knowthey have an obligation to do so.
And so I think that's important foreveryone to keep in mind that the Biden

(08:58):
administration is take actions they know theydon't have the power to do. In
less than a minute, what wasthe ruling that surprised you the most this
term, Well, there was avery interesting rule involving the funding of the
Consumer Financial Protection Bureau. And whatwas interesting about that decision is you had
two very conservative, two very originalist, constitutionally solid justices, Justice Thomas and

(09:24):
Justice Samuel Alito on opposite sides ofthat decision. And so I just think
it goes to show and push backagainst the narrative from many on the left
that all of the conservative justices thinkalike, they're always going to reach the
same result because of that case andthe others. This term show that's just
not the case. Back with ZachSmith from the Heritage Foundation, and when

(09:48):
it comes to the Supreme Court inthe law and the Constitution, he's smarter
than us. Let's just go there, settle it with that statement, Zach.
We've talked about a lot of consequentialrulings. There was another ruling,
Fisher, that you wanted to touchon before we get to some other things.
Yeah, that's right. It's Fisherversus the United States. This was

(10:11):
a case involving January sixth defendant.He was challenging one of the statutes that
has been used to prosecute many ofthe January sixth defendants. It also is
involved in some of the charges againstPresident Donald Trump as well. And essentially,
what mister Fisher said is that theJustice Department interpreted this statute too broadly.
It was originally passed in the wakeof the inrun scandal. It was

(10:33):
essentially designed to prohibit someone from intimidatingor coercing others, or helping others to
hide evidence or shred documents and thattype of thing. And yet this is
the statute that the Justice Department chargedmany of the January sixth defendants with violating
and so what mister Fisher said,he said that was a wrong interpretation of

(10:54):
that statute, and the Supreme Courtultimately agreed with him. And so as
a result, the convictions of manyJanuary sixth defendants under this statute will likely
be revisited. And again it's likelythat several of the charges against President Donald
Trump will also have to be dismissedas a result. Speaking of President Trump,

(11:15):
they are expecting more rulings to comeout today highlight what we think will
happen today. Yeah, we're goingto give the ruling today on the Trump
Community case. You may remember PresidentDonald Trump is facing four criminal prosecutions.
The state prosecution in New York Cityby Alvin Bragg, the prosecution in Fulton

(11:35):
County, Atlanta, Georgia by FannyWillis, and then the two federal prosecutions
being brought by Special Counsel Jack Smith, one in Florida related to the classified
documents of documents Marcus Classified of marA Lago, and then the case out
of Washington, DC involving what happenedin the wake of the twenty twenty election.
And so this immunity case that theSupreme Court is hearing is out of

(11:56):
the Washington DC case, and essentiallywhat President is saying, he's asking the
court to extend presidential immunity, tosay that presidents are immune for being prosecuted
for actions they took in their officialcapacity while in office. And look,
regardless of what the Court decides inthis case, this is going to be
a very consequential pace for presidents ofboth parties going forward and will likely be

(12:22):
one of the key cases that's talkedabout in law schools in terms of presidential
power presidential immunity for many many yearsto come. Does that potentially extend the
vice presidential immunity ie Joe Biden whenhe was vice president to Barack Obama.
It could. It's a tougher cellto make because many have adopted what's known

(12:43):
as the unitary theory of executive powerin the United States, essentially meaning that
all executive power flows from the president. And so for instance, one of
the things when we talk about classifieddocuments, Donald Trump as president, he
had the power to declassify documents inhis possession while he was president. Joe
Biden, who took home classified documentsfrom his time as a senator, from

(13:07):
his time as vice president, didn'thave that power, And so they are
two factually and legally distinct claims.When we talk about each of those classified
documents cases and issues, does itmatter that we've learned that, for example,
all of the documents in possession ofpresidents are also kept on a server

(13:28):
that they have a constant record ofeverything anyway, So it wasn't like he
was he had the only copy ofdocuments either of them. Yeah, that's
right. And look also, likeI said, he had the ability to
declassify those documents while he was apresident. You know, I think it's
also important to emphasize president. Whenwe talk about presidents being immune from criminal

(13:48):
prosecution, I think it's important toemphasize that doesn't mean that presidents can't be
held accountable for their actions while inoffice. They can still be impeached.
We saw it with Donald we sawit with you know, other presidents in
the past as well. They canstill the Congress still controls the power of
the purse. They can try toinfluence the executive branch in that manner,

(14:11):
and there are other mechanisms to holdpresidents accountable as well. But you know,
many of the left wants you tothink that if Donald Trump our other
presidents get immunity, it essentially meansthey can do whatever they want, whenever
they want, however they want,and that is just not the case at
all. Last question, weigh inwith whatever you like on this. Can
Joe Biden be replaced before the election. It'd be very, very difficult.

(14:35):
You know, it's interesting, we'veseen some talk about this. The mechanism
for making that happen would be differentdepending on whether it happens before the convention
or after the convention. It couldalso matter whether Joe Biden simply chooses to
step aside or whether he would unfortunatelypass away or something like that, which
of course no one wants, butit would be very different scenario. But

(14:56):
look, the bottom line is thatat this point in the cycle, it
would be very difficult to replace JoeBiden and would take some significant legal maneuvering
on the part of the DNC andother democratic entities to make that happen.
Zach has always I appreciate you carbonout time for us when we have some
questions we can't possibly get our brainaround, and appreciate it very much.

(15:18):
Of course, thanks for having meon. Zach Smith with US Heritage Foundation
legal scholar expert on the Supreme Court. That's what he does. He studies.
I mean. I asked him offair about the Florida State Supreme Court
and he's a Floridian, so helives in the state. He had some
interesting comments on that, but hesaid the bulk of his focus is on

(15:43):
the United States Supreme Court, andso we'll see if standing, he said,
standing is becoming a bigger and biggerissue as well. It should be