Return to Transcripts main page


Supreme Court Rulings Expected; Questions over Kennedy Retirement; Supreme Court to Hear Religious Liberty Case; Senate Bill Slashes Medicaid Funding. Aired 9:30-10a ET

Aired June 26, 2017 - 09:30   ET



[09:30:05] POPPY HARLOW, CNN ANCHOR: A pivotal day for the Supreme Court as the justices are set to issue their final rulings of the term. Still to come, decisions on a First Amendment fight over separation of church and state and whether the justices will take up the president's travel ban. It is not just those rulings and opinions that have everyone's eyes glued to the court this morning. It is also the future of Anthony Kennedy, a speculation that is swirling that the 80-year-old justice and, really, the center of the court, may announce his retirement.

Joining us now, the expert extraordinaire on the Supreme Court, CNN's senior legal analyst and former federal prosecutor Jeffrey Toobin.


HARLOW: Good morning.

So I will hold everyone in suspense and we'll get to Kennedy in just a moment.


HARLOW: But, the travel ban. Is there a chance that this court passes on taking this up?

TOOBIN: You know, this is actually a more complicated legal situation than usual because they're -

HARLOW: Because it's not final law yet.

TOOBIN: It's not a final decision -


TOOBIN: On the court, on the travel ban from the lower courts. It is also - the travel ban itself speaks of a 90-day review period, which may or may not have lapsed, depending on how you interpret it. And the Supreme Court likes to duck difficult issues if they can. And there is a possibility they may send it back for further evaluation in the lower courts. They may not deal with it at all. They may take up the case and set a briefing schedule today. I'd say that's probably the most likely alternative. I think this is going to be a hard case to duck all together. But how they deal with it is actually not at all clear.

HARLOW: And we should know in moments, 9:30, 10:00 a.m. That is when all of this starts rolling in.

TOOBIN: The orders come in, yes.

HARLOW: And they start telling me in my ear we have something.

TOOBIN: Right.

HARLOW: Because we have our correspondent in the court.

But as we wait, let's talk about Justice Kennedy. He's 80. He's going to be 81 in July. And there's a number of reasons that he might retire, right? I mean he could be comfortable with the list of 20 justices that President Trump put out. If he delays for a year, then his replacement will be nominated in - during the mid-terms, which could inject more politics into this. At the same time, though, you've got the gerrymandering case coming up, right, and he'd want to be part of that. So how do you see it?

TOOBIN: Well, you know, my rule on Supreme Court retirements is, those who know don't tell and those who tell don't know. So, I don't know.

HARLOW: It's a good (ph) rule.

TOOBIN: I mean, you know, this is a very personal decision. I do know Anthony Kennedy. I know how much he enjoys being on the Supreme Court. He is in good health as far as I can tell, for an 80-year-old. But he is also a Republican appointee and justices tend to look to their own party, leave during the presidency of a member of their own party. So, there are a lot of different considerations. Another - another factor is, President Trump's first nominee to the court, Neil Gorsuch, was a clerk to Anthony Kennedy.

HARLOW: Yes, was a clerk.

TOOBIN: And that may give him a certain sense of comfort with the kind of people Donald Trump is appointing.

HARLOW: With the president. And he's promised to choose from that list of 20. Gorsuch was on that. He -

TOOBIN: Well, actually, for the second appointment, he has not -

HARLOW: That's a good point. It was for the first appointment.

TOOBIN: It was for the first appointment.

HARLOW: That's a good point.

TOOBIN: And I think he will certainly look to that list, but he may expand it as well. HARLOW: Just talk quickly about how critical this is because, you

know, when it was Antonin Scalia for Gorsuch, it was sort of a one for one ideological swap.

TOOBIN: Correct.

HARLOW: This is different. This is someone who wrote the majority opinion in the same-sex marriage case and also wrote the majority opinion in Citizens United.

TOOBIN: Right.

HARLOW: So this is someone who's truly at the center of the court. You don't know which way he'll go.

TOOBIN: There has never been, in my lifetime, a justice as important as Anthony Kennedy, given the ideological splits on the court.


TOOBIN: Four very clear conservatives, four very clear liberals. And Kennedy, who has differing views on some of these issues. You know, he is a hero to liberals for his embrace of gay rights through his -

HARLOW: On abortion.

TOOBIN: And in - and particularly last year he voted in favor of an abortion rights case. In 1992, he voted to reaffirm Roe versus Wade. Affirmative action, he has moved to a more supportive position. But he was in the majority in Bush v Gore.


TOOBIN: As you say, he wrote Citizens United, which is a case that liberals revile. He is a crucial, crucial figure.

Given what Donald Trump has promised during the campaign, given Neil Gorsuch, it seems likely that Trump would appoint a strongly conservative candidate, which would really throw all the cards up in the air in the court.

HARLOW: It would be his legacy certainly.

TOOBIN: It would be a big one.

HARLOW: Thank you, Jeffrey.

TOOBIN: OK. Keep an eye on your watch.

HARLOW: I think you'll be around here.

TOOBIN: I'm not going too far.

HARLOW: Don't go too far, because I think we have a lot maybe ahead from the Supreme Court this hour.

TOOBIN: All right.

[09:34:54] HARLOW: Ahead for us, as battle lines are drawn over the slashing of Medicaid in Washington, there is one town that has a little dividing line when it comes to who gets Medicaid and who does not. You'll hear from the residents of Texarkana, next.


ANNOUNCER: This is CNN breaking news.

HARLOW: All right, we have some breaking news out of the Supreme Court. The justices in the high court deciding to hear a religious liberty case. This is a big case and it would be precedent setting. It's Masterpiece Cake Shop versus the Colorado Civil Rights Commission.

Jeffrey Toobin, I told you not to go anywhere because we knew something would happen. He's right here.

This is a big deal. Explain the nuts and bolts of what the court will hear here.

TOOBIN: Well, this is an issue that's come up in many state courts already -


TOOBIN: But the Supreme Court has not - has not addressed it yet. And it is, what is the responsibility, the duty of independent business owners to participate in same-sex wedding ceremonies if they have a religious objection to them? This is a case where a cake baker in Colorado said to a gay couple, I will make you a birthday cake -

[09:40:12] HARLOW: Any other kind of cake.

TOOBIN: Any cake, but I will not make you a wedding cake. And the Civil Rights Commission of Colorado found against them. The argument in favor of the Civil Rights Commission is that, look, we don't allow businesses to discriminate. We don't allow businesses to say, I will serve black - white customers but not black customers.

HARLOW: Right.

TOOBIN: Serve Catholics but not Jews. Straight people but not gay people. The argument in favor of the cake company is, you cannot get us to violate our religious convictions -


TOOBIN: To participate in a ceremony we don't approve of.

HARLOW: We were just talking about Justice Anthony Kennedy and whether or not he'll retire and his major role he played in the decision he wrote in the same-sex marriage case just a few years ago. Will that decision impact this whatsoever? TOOBIN: Absolutely. I mean it is a precedent of the court that stands

for the proposition that the due process clause of the Fifth Amendment says gay people have to have equal rights. Now, what makes Supreme Court cases complicated is that there are often competing rights and the right to practice your own religion is one that the court takes very seriously. So it's a - it's a clash of - it's a clash of constitutional rights and Anthony Kennedy - it's not just that he wrote the Obergefell decision, which is the same-sex marriage case -


TOOBIN: He wrote the Defensive of Marriage Act case, striking that down.

HARLOW: Yes. Yes.

TOOBIN: He wrote Lawrence v. Texas, which said that gay people couldn't be thrown in prison for having consensual sex. This is his area. He dominates the gay rights jurisprudence of the court.

HARLOW: And this is his court, as they say right now.

TOOBIN: And it is his court. You know, I - this case is important. It's not a world-shaking case. I don't think he would stay on the court just to decide this case. But his presence on the court would be enormously important and enormously valuable to supporters of gay rights if he chooses to stay on.

HARLOW: And, of course, this administration that has talked a lot about religious liberty, et cetera, this is - this is a key case for the court.

We're waiting on -

TOOBIN: Mike Pence, the vice president, was the governor of Indiana -

HARLOW: Of course.

TOOBIN: When they passed the law that said independent businesses could discriminate against gay people -

HARLOW: Right.

TOOBIN: Which caused such a backlash that they changed the law, at least - at least somewhat.

HARLOW: Which caused a number of companies to threaten to pull out completely from the state. But again -

TOOBIN: Correct. Correct. If I can just -


TOOBIN: Give people a little preview of what - the way the - the way the Supreme Court procedures work is that at 9:30 - so 12 minutes ago - they released the orders. Like whether they agree to hear cases or decline to hear cases. At 10:00 -

HARLOW: The decisions, opinions.

TOOBIN: Thy start reading the decisions from the bench. At the end of those decisions, on the final day of the term, Chief Justice Roberts says, we have an announcement from the member or he says, have a good summer to everybody.

HARLOW: So we will know today, likely, whether or not Justice Kennedy will or will not retire?

TOOBIN: Likely, but not certain. It is a tradition for a justice to announce the retirement on the last day of the term, but not a requirement. Sandra Day O'Connor, when she retired in 2005, retired a couple of days after the last opinion of the term. So, just because Anthony Kennedy doesn't retire today, if he -

HARLOW: Right.

TOOBIN: If that's the - it doesn't mean he's not retiring this year.

HARLOW: Before the next term.


HARLOW: Stay with me.

TOOBIN: I'm just telling you what we don't know -

HARLOW: You're hedging. You're hedging.

Let's -

TOOBIN: I'm hedging. Exactly.

HARLOW: Let's go to Jessica Schneider on the steps of the Supreme Court as well.

And, Jessica, we just went through this religious liberty Masterpiece Cake Shop case with Jeffrey Toobin. Have we heard anything on the Second Amendment case? Because I'm seeing some rumblings of that as well on whether the court will take that up.

JESSICA SCHNEIDER, CNN CORRESPONDENT: Well, the big news out of the Supreme Court today, Poppy, is that the Supreme Court will not hear any of those Second Amendment cases. Of course, today, at 9:30 a.m., the Supreme Court issued several orders and, notably, they are not taking up those Second Amendment cases. One of them out of San Diego.

But what is notable, Poppy, is that two years to the day, after the Supreme Court ruled that same-sex marriage was a right across the country in the Obergefell decision, the Supreme Court has issued orders on two same-sex marriage cases. Cases involving same-sex marriage and also religious liberty, which you have both been talking about. Interestingly, there is one case that was brought here to the Supreme

Court out of Arkansas. It was brought by two same-sex couples, both of them married. They were petitioning and appealing this decision to the Supreme Court to have their names, both of the people in that same-sex marriage, on a birth certificate. Arkansas law said that, no, you could not have both names on a birth certificate if you were a same- sex couple. In a sense, treating a same-sex couple differently than a heterosexual couple.

[09:45:21] So these two couples brought the case to the Supreme Court. And what the Supreme Court did this morning is they summarily reversed the decision of the Arkansas Supreme Court and said that, no, Arkansas cannot have this law that does not allow both these same-sex partners to both be on the birth certificate if they are married. So a very interesting decision.

Of course, also, an order coming down in that Masterpiece Cake case out of Colorado. The Supreme Court will, in fact, take up arguments on this case involving religious liberty in the next term. This case involves a cake shop maker who was - a same-sex couple came to his cake shop, said that we want you to make a cake for our same-sex marriage, our reception and the cake shop owner said no, because of my religious beliefs, that would violate my First Amendment rights, my religious liberty, and I won't do it. So the Supreme Court will be hearing that case next term.

So, interesting, two same-sex orders coming down from the Supreme Court today, two years to the day after Obergefell ruled that same-sex marriage was a right across the nation.


HARLOW: Jessica Schneider at the court. Thank you very much.

And before we go, quickly back to you, Jeffrey Toobin, because especially the Second Amendment case, having to do with San Diego, was going to be likely the biggest case heard since the Heller decision on Second Amendment rights.

TOOBIN: Right.

HARLOW: They're not going to hear it.

TOOBIN: They're not. The are - they are letting the lower courts address this - these gun issues. But what's particularly interesting about the decision not to hear the Second Amendment case -

HARLOW: It's a conceal and carry case.

TOOBIN: Right. Is Justice Thomas, joined by Justice Gorsuch, dissented from the decision not to hear the case. This is really a signal that Justice Gorsuch is taking his place on the very far right of the court, that he is really aligning himself - and we've seen it in these - in these decisions coming up - I mean for the last couple of months - that Thomas and Gorsuch are voting together a lot of the time, which is something that should please conservatives a great deal. HARLOW: A very clear signal, indeed.

Stay with us.


HARLOW: We still have nowhere to go because we're hearing -

TOOBIN: OK, 10:00 the opinions start.

HARLOW: We're getting another decision. Stay with us. We'll be right back.


[09:52:00] HARLOW: More than 70 million Americans rely on Medicaid and it is Medicaid that is at the center of the health care debate right now. To put this in perspective, one in every five Americans relies on Medicaid. Now, imagine a place where an invisible line runs straight through a town that divides people's access to it. You'll find that in Texarkana. It's a city that straddles Texas and Arkansas, a state line. Residents on one side are covered because of Medicaid expansion. Those on the other side are not. So our Dan Lieberman went there to see the divide for himself.


JOSEPH PACK, REGIONAL COORDINATOR, TEXARKANA CARE CLINIC: This is the line that divides our community health. The state of Texas decided not to go with the Medicaid expansion and the state of Arkansas did, even though they're right next door to each other. Now we're seeing vast differences in health.

HATTIE MCLEMORE, TEXAS RESIDENT: Adalodapin (ph). I have (INAUDIBLE) disease. I have congestive heart failure. I have Crohn's disease, high blood pressure, high cholesterol, fibromyalgia, vertigo and probably some I'm missing, but right now that's all I can think of.

DAN LIEBERMAN, CNN CORRESPONDENT (voice-over): Fifty-nine-year-old Texas resident Hattie McLemore is a mother of two. And even though she worked for years filling other people's prescriptions as a pharmacy technician, she doesn't qualify for Medicaid under Texas eligibility requirements. But if she lived on the other side of Texarkana, in Arkansas, she would.

UNIDENTIFIED FEMALE: You benefit from seeing a (INAUDIBLE) because you do have chronic kidney disease.

MCLEMORE: I don't have insurance of any kind.

LIEBERMAN (on camera): What do you say to your neighbors who say, we don't want to pay for your health care?

MCLEMORE: It's not as though I've never worked a day in my life because I worked. So, you work and you can't get it and you're sick and you can't get it. What is this? LIEBERMAN (voice-over): While Hattie lives on the Texas side of the

state line, another woman, a few miles away on the Arkansas side, says she's having a completely different health care experience because she's on Medicaid.

LIEBERMAN (on camera): How long after you got diagnosed with cancer did you start getting treatment?

LASHONDA ROSS, ARKANSAS RESIDENT ON MEDICAID: Immediately. Once I finished my surgery and I healed, my treatment started.

LIEBERMAN (voice-over): Lashonda Ross is a 37-year-old mother of three with stage two breast cancer.

ROSS: The only thing about us being as close as we are and the only thing that separated these two places is a state line because it's Texarkana, Arkansas, and Texarkana, Texas, you would think both sides would get the equal benefit because it's still Texarkana.

LIEBERMAN: Dr. Hesham Hazin sees cancer patients from both sides of the state line. He says he's witnessing dramatic health care disparities.

DR. HESHAM HAZIN, ONCOLOGIST, CHRISTUS ST. MICHAEL: As far as stage wise, we're seeing more advanced stags from the Texas side than as from the Arkansas side. We're seeing incurable patients from the Texas side more than show in Arkansas, where they can be treated with surgery, as well as chemotherapy.

[09:55:04] No fever, chills, sweats, anything like that?

It's unfair the fact that I have to see a 45-year-old female breast cancer patient who didn't get a mammogram because she didn't have funds, as opposed to somebody who's the same age, right across the border, got mammogram and she's cured with surgery and might not even need chemo.

LIEBERMAN (on camera): And you see that?

HAZIN: And I see that, front line, in the office or in the hospital.

LIEBERMAN (voice-over): Under Obamacare, more than 30 states chose to grow insurance for the poor through Medicaid expansion, bringing an estimated 11 million more people into the program. But Texas and 18 other states chose not to.

UNIDENTIFIED FEMALE: There is an argument that people make that the system is overburdened. And, in fact, there was some concern about adding so many people to Medicaid that there just wasn't the capacity to treat them and that there would be long waits for people to get appointments. The evidence really just doesn't bear that out. It is pretty comparable to what people with private insurance have.

LIEBERMAN: The truth is, even without Medicaid expansion, Texas residents still end up paying anyway for some of the health care of the uninsured. Hattie goes to a clinic funded by federal taxpayer dollars. And since 2015, county residents have paid more than $30,000 for her medical bills.

LIEBERMAN (on camera): Is there a stereotype around here that if you're on Medicaid-

CATHY EVANS, ARKANSAS RESIDENT ON MEDICAID: If you're on Medicaid, then you're - you're -

LIEBERMAN: Then there's - you don't have a job?

EVANS: You're either lazy or on drugs or - I mean, there's a stereotype.



UNIDENTIFIED FEMALE: I miss getting up in the morning.

EVANS: None of us want to live off of government assistance.

MCLEMORE: If people would listen to what's being said at this table and what the doctors have to say, how can you turn your back on those people? Why do you want to turn your back on the ones that's trying to help us get to where we need to be?


HARLOW: A fascinating report by Dan Lieberman and his team. Thank you for that.

We have a lot ahead.

The Senate racing for a vote on a GOP health care bill, but what does it say when even some Republican senators want to stop the rush?

And we are on top of all the developments coming out of the Supreme Court this morning. We'll take you there in just moments.

Stay with us.


ANNOUNCER: This is CNN breaking news.

HARLOW: Top of the hour. 10:00 a.m. Eastern. Good morning, everyone, I'm Poppy Harlow. John Berman has the day off.

[10:00:04] And we begin with breaking news out of the Supreme Court on the issue of same-sex marriage.