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Supreme Court Rules in Favor of Baker Who Refused to Bake Cake for Same-Sex Wedding; Interview with Sen. Ed Markey (D), Massachusetts. Aired 10:30-11a ET

Aired June 4, 2018 - 10:30   ET


[10:30:00] JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: You know, in particular, in oral argument, he said the blatant discrimination would be affront to gays but also said that this Colorado commission was in his words neither tolerant nor respectful of Mr. Philips' religious beliefs.

And I just want to read something from the quote where the court really does talk about the fact that this isn't some broad ruling, and that this in fact invite future cases. This is what they've said. "The outcome of cases like this and other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved and that these are key words, with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market."

So really this is the way that Justice Kennedy is sort of bridging this gap here, saying that, yes, this baker is entitled to act upon his religious beliefs and any commission weighing those anti- discrimination statutes need to be mindful of a baker's or anyone else's religious beliefs but also you need to also be mindful of the rights of gay couples. So this is somewhat of a narrow ruling here, Poppy, and it does not speak to this broad constitutional question about whether Freedom of Religion gives really a blank check to people to not service gay couples.

POPPY HARLOW, CNN HOST: Jessica Schneider, thank you for that.

Steve Vladeck is also with us, our legal analyst and professor at the University of Texas School of Law.

Steve, first to you on the point Jessica made. This is not the broad religious liberty decision that many were expecting out of this. This is a very narrowly written majority opinion about --


HARLOW: About how the Colorado Civil Rights Commission treated, that it in the court's eyes treated the cake maker, Jack Philips, with animus.

VLADECK: That's right.

HARLOW: And they ruled against that. But that's significant, right? That this isn't leaving all of the doors open.

VLADECK: It's not leaving all the doors open, although I think, you know, the typical case has not been going to include the kind of fact specific animus claim on which the court relied today. And so I think what's really important to take away from this ruling is, yes, Jack Philips wins, but actually we still don't even know if the Colorado Public Accommodations Law itself could constitutionally bar other bakers like Jack Philips in a future case where there isn't the same kind of case specific animus.

It's really quite a dodge by the Supreme Court of what was supposed to be a major First Amendment case.

HARLOW: You see it as a dodge. Interesting. But let's talk about Justice Kennedy. We knew that he was going to be, you know, an important vote, you could tell that from the oral arguments. It was unknown which way he was going to come down and now he pens the majority opinion, the same person who in 2015 wrote the majority opinion in the same sex marriage case, in Obergefell versus Hodges, and wrote then, they being gay people, asked for equal dignity in the eyes of the law, the Constitution grants them that right. Everyone remembers that line from his opinion. And now the fact that he wrote this opinion. Striking to you?

VLADECK: It is. But I mean, we should also keep in mind this is the same Justice Kennedy who in 1996 in "Romer versus Evans" struck down a different Colorado law because he thought it was motivated by animus against gays. Right? And so I think this is actually Kennedy for him being pretty consistent, that for as important as he believes the institution of same-sex marriage is and as constitutionally protected as he has now ruled it to be, there is still a constraint on when states can act against particular individuals for reasons having nothing to do with broad policy, but that are just about animus against that person.

So, you know, I think that's why it was so important, it was narrow, it was very hard to see how Justice Kennedy would sign on to a broader opinion that seemed more at odds with Obergefell and with the constitutionalization of same-sex marriage. By focusing on animus he really saves the harder questions about the intersection between religious liberty on the one hand.


VLADECK: And same-sex marriage on the other for another day.

HARLOW: I do want to correct the record on something, our initial -- I initially said it was a 6-2 decision, and I was wondering who -- which justice did not participate, and we were wrong in saying that it was a 7-2 decision, just want to correct the record there. Got some misinformation, apologies for that.

Let me read you part of the -- let me read you part of the dissent, OK. Steve, I want you weigh in. This is part of the dissenting opinion from the justices. "Statements made at the commission's public hearing on Philips' case provide no firmer support for the court's holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two commissioners should be taken to overcome Philips' refusal to sell a wedding cake."

[10:35:03] They're saying, it reads to me, that if one or two people that are part of the Colorado Civil Rights Commission acted with animus, that should not outweigh the overlying issue that those justices see that were part of the dissenting opinion of discrimination.

VLADECK: That's right. And that's Justice Ginsburg who was joined by Justice Sotomayor.


VLADECK: And I think what's important about that is from their perspective, there were enough other layers of decision-making in this case that even if one or two members of the Colorado Civil Rights Commission reflected animus against Jack Philips, that wasn't enough to infect the whole case.

Now I think it's important to stress, I mean, Justice Kennedy disagreed, but that's not going to have a whole lot of presidential value. And then part of why there is some confusion as to the vote count is because Justice Clarence Thomas concurred in the judgment, he actually would have gone further and he would have decided the case not on the narrow ground --

HARLOW: And that --


HARLOW: Right. That's the discrepancy that I mentioned before when I said we were wrong.

Let's go to Jessica Schneider. We were not wrong on it, it's a bit confusing but an important distinction.

Jessica Schneider, because it was a 7-2 ruling on the case, a 6-2 ruling on the reasoning, on the rational.

SCHNEIDER: That's exactly right, Poppy. And Justice Clarence Thomas was that one justice who agreed in the ruling, but did not agree on the rational here. So that's the difference between that 6-2 ruling and the 7-2 ruling. When you take the opinion as a whole, it was a 7- 2 ruling, Justice Thomas agreed with the majority, but then when you get to the reasoning here, it is a 6-2 ruling because Justice Thomas did not agree with the reasoning in this case.

And what's interesting as we're again reading through this opinion, it's a lengthy opinion, 59 pages, we're getting a bit more quotes and a bit more feel as to what these justices were thinking and as we have been talking about, this all came down to the fact that the Colorado Civil Rights Commission in the view of the majority of justices, that they expressed some animus as to the religious beliefs of the baker Jack Philips. And in the dissent here, some of these justices saying that we

shouldn't take some of the words of these few commissioners to issue a ruling, such as this, and I'll read you from the dissent. It's the statements made at the commission's public hearings provide no firmer support for the court's holding today. Whatever one may think of the statements in historical context, I see no reasoning why the comments of one or two commissioners should be taken to overcome Philips' refusal to sell a wedding cake to Craig and Mullen.

Of course that being the gay couple. And that really was the linchpin here. The commission -- you know, Justice Kennedy at oral argument focused a lot on what the commission had said, there was one particular part in the commission's ruling where they kind of mockingly said, to justify discrimination is a disserviceable piece of rhetoric on the basis of religion. So that was really what Justice Kennedy took issue with here, and that is what a majority of this majority opinion actually deals with, with how this commission here did show religious animus -- Poppy.

HARLOW: Jessica Schneider at the Supreme Court, again a 7-2 decision from the high court on this. The dissent written by Justice Ruth Bader Ginsburg, she's joined in the dissent by Justice Sotomayor, the majority opinion written by Justice Anthony Kennedy.

Much more on this straight ahead. Stay with us.


[10:42:54] HARLOW: Welcome back. The Trump administration seeming to lower expectations ahead of the summit between President Trump and North Korean leader Kim Jong-un next week. A source tells our Michelle Kosinski it will be more of a, quote, "meet and greet" rather than any historic action. The president made that pretty clear on Friday as well, saying this would be a meet and greet.

Let's talk to Democratic Senator Ed Markey about this and more. He serves on the Foreign Relations Committee.

Nice to have you. And thank you for waiting through that breaking news of the Supreme Court decision. We appreciate it.

SEN. ED MARKEY (D), MASSACHUSSETTS: Thank you. Historic decision. No problem.

HARLOW: A historic decision indeed. You warn against a -- what you call a made for TV summit. And now that we know that the president thinks and the source tells our Michelle Kosinski that this will be more of a meet and greet than any realization of historic action.

Should the president still go to Singapore? Should the president still sit down with Kim Jong-un?

MARKEY: Without question, the president should begin diplomacy with Kim and do so on a personal basis. But he also has to understand that we're not going to extract concessions by made-for-TV diplomacy, by the photo-op that Kim wants, and I think that Trump wants as well. Ultimately there is a historic Kim family playbook where they negotiate with the United States, they extract concessions, they make actually none on their side as well, that we can ultimately identify as meaningful, and then the problem just continues unabated.

And so the president has to be aware that there could very well be a whole series of false promises that the North Koreans make at this summit, that ultimately will be meaningless if they're not accompanied by real action.

HARLOW: You called it an unforced diplomatic error in your words when the president canceled the summit and pulled out. But given the North's language and rhetoric about the vice president, threatening nuclear war in that statement overnight, that caused the president to withdraw from the summit initially.

[10:45:11] Why do you think that was a diplomatic error?

MARKEY: No, I think it actually, in that sequence, it began, which on Bolton saying that what the United States was going to expect is that North Koreans would accept the Libyan model, that the Gadhafi model which of course leads to the death of Kim, if that's the model we would be using, then they did not go to the table within three or four days after that, and then the vice president, once again, raised the Gadhafi model, the Libyan model, which, of course, once again leads inevitably, inexorably to the death of Kim, and then we were then once again criticized by the North Koreans for engaging in that language, and then the president pulled out of the negotiations.

So it was an unforced error. We should have been more diplomatic in the two weeks before that period of time. We were not. Now we're back on track, at least to begin the negotiations, but we have to be realists. We can't Panglossian. We can't be wearing rose-colored glasses going in here. These are dangerous people with a dangerous nuclear program that not only threatens their region but could potentially threaten the United States as well.

HARLOW: I'd like you to weigh in on two significant things that the president wrote this morning. And I'm not going to read the full tweets. You've probably read them. But he said, quote, "I have an absolute right to pardon myself," in one. And in the other, he said that the special counsel is, quote, "totally unconstitutional."

What do you think the president is trying to do here? He's wrong on the facts. He's wrong. The special counsel's appointment is completely in line with the Constitution. But what do you believe the president is doing here?

MARKEY: I think what the president continues to do is to try to delegitimize the special counsel. But it's not a rule of Trump, it's a rule of law that we live under in the United States of America. Even back in 1974, Richard Nixon's Justice Department made it quite clear that Nixon could not pardon himself. The same thing is true here.

It is a rule of law. Nixon just made very clear that under our Constitution, no one is allowed to be the judge of a case and then simultaneously be able to pardon themselves from any consequences of their own illegal activities. So it's just a continuation of an attempt to delegitimize the special counsel, which is clearly constitutional.

HARLOW: However, it seems to be working in the court of public opinion among Republicans at least and among his base. And that is that our most recent polling shows that these consistent attacks from the president seem to be working and that fewer and fewer people are supportive of and view the Mueller probe favorably when you look at the president's base and Republicans. Does that concern you?

MARKEY: Well, I think that may be true for the most conservative of Donald Trump's Republican supporters. But in the wide swath of independent swing voters in our country, I do not think they subscribe to the idea that our president is in fact a monarch that president can engage in illegal activities and actually face no consequences whatsoever. And I think if he attempts to take that path, he's going to pay a huge political price at the polls this November.

HARLOW: As you know, Republicans in the House and in the Senate have joined with Democrats in proposing legislation that would protect the special counsel. At this point, is that necessary? Is it time for that? Do you believe that these statements today from the president are a bridge too far, they make you fear that he would fire even though he said he won't and it seems that he won't but fire the special counsel?

MARKEY: I think it would be better if we did pass legislation to make sure that we were in fact protecting the special counsel. I think Mueller is doing a very good job in keeping this from appearing to be partisan. But at the same time, if he attempts, if the president attempts to act in a way that allows him to arbitrarily end this investigation, I think that it will trigger the beginning of the impeachment process in the United States Congress.

I think that there will be an uproar across this country and many Republicans will feel that pressure and not be able to resist it in a year where every single House member is on the ballot. That's what happened in 1974. Ultimately Nixon was forced to resign in August of 1974, just three months before an election, with Republicans demanding that Nixon do so.

[10:50:08] I think the same kind of phenomenon will be invoked in 2018 as in 1974 if the president tries to act like a monarch.

HARLOW: Senator Ed Markey, appreciate your time today, thank you very much. And thanks for waiting around.

MARKEY: No problem. You bet.

HARLOW: We're going to take a quick break. We'll be right back.


HARLOW: President Trump says he has every right to pardon himself, but says why would he when he hasn't done anything wrong. But if the president hasn't done anything wrong, why is he so upset about the appointment of a special counsel which he calls unconstitutional.

Joining me now, CNN Political Commentators, Scott Jennings and Keith Boykin.

Nice to have you both here.

Scott, let me begin with you. The president says I have the authority to pardon myself. If he's not thinking about it at all, why is he even writing about it?

[10:55:00] SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Yes, I wish he wouldn't write about it because I think it's a distracting side bar issue frankly. And it's not germane to the current facts. The president has not been indicted, he's not been alleged to have done anything illegal and this investigation can play out here and eventually be over with without any of that stuff happening.

So I think it's -- we're also swimming in waters that no one has explored. So we don't know whether that's true or not. To me, the ultimate issues here, though, are going to be political and not legal. There are two remedies for all of this, one is impeachment, if we go down this crazy road of pardoning yourself, I agree with Giuliani it would lead to immediate impeachment and the other of course is a political from an electoral perspective.

If the American people don't like the things that come out of the Mueller investigation, they can either vote to throw the Republicans and Trump out, or they can embolden the Republicans if they think Mueller has gone too far. So I believe in the political remedies more than the legal.

HARLOW: Keith, to you, politically, on Scott's point, Ari Fleischer, Republican, former press secretary for George -- President George W. Bush writes on Twitter responding to the president's claim this morning, and Congress has an absolute right to impeach. This is a foolish side issue, can we all just wait for the Mueller report and what it has found or what it has not found?

I mean, that's significant coming from Ari Fleischer.

KEITH BOYKIN, CNN POLITICAL COMMENTATOR: It is. Considering he's a Republican, former White House aide. It's a reflection that Trump does not have support even within the Republican establishment, for his argument that he can pardon himself and he's above the law. But they're unwilling to do anything about it. And that's the tragedy.

President is making an argument today that even Richard Nixon didn't make during the height of Watergate. He never thought he needed to pardon himself. But this is a reflection also that the president who said he could punish newspaper owners who disagreed with him, he could punish the media outlets who don't like him, he could also punish football players who don't stand up for the national anthem, he can punish comedians who say things that he doesn't like.

He's behaving like an autocrat, like a dictator, like a king, and not like a president of the United States. And he takes an oath of office, like every other president, to uphold the Constitution of the United States. He's not doing that at all with this behavior.

HARLOW: Scott, the president is wrong on the facts when he claims that the special counsel is unconstitutional. He's completely wrong on the facts. But since you brought up looking at this politically instead of legally, politically are you glad to see the president tweeting that the special counsel is unconstitutional?

JENNINGS: No, I'm not surprised he's doing it. I mean, again, I said this a few times lately because I see --


HARLOW: But do you think it behooves him politically? Do you think it behooves him politically?

JENNINGS: Yes -- yes, I see a lot of political parallels to the playbook the White House is running today, to what was run in the '90s by the Clinton White House. They wanted to destabilize the Ken Starr investigation any way they could, they accused Ken Starr back in the day of doing illegal things just like this president has said. The only difference really here is that the president has powerful information dissemination tools that were not available to the Clinton White House at the time. So he can get these messages out more deeply and more quickly.

So as a political matter, I'm not surprised to see them doing this. As a PR matter, I actually think the fastest route to getting done with this would be to stop prolonging it.

HARLOW: There is a difference here. President -- hold on.

JENNINGS: And they're prolonging it.

HARLOW: There's a difference here. Former President Bill Clinton didn't say that the special counsel, special prosecutor in his case, Ken Starr, it was unconstitutional to exist. There's a big difference here.

JENNINGS: Well, yes. But I don't think anybody would sit here and say that Bill Clinton and his team made it easy for Ken Starr to do his job. He tried to destabilize that investigation.

HARLOW: No one -- no one has said that. But there is --

JENNINGS: It's exactly what the Trump people are doing.

HARLOW: Is there not, Keith, in the president's calling something that is completely legal unconstitutional?

BOYKIN: Donald Trump has never read the Constitution, let's be honest about this. Bill Clinton was a constitutionalist scholar. For his faults, he did know the Constitution. Donald Trump doesn't. I mean, every day he sits in the office and continues to violate the Constitution on issue after issue, and the Republican Congress refuse to hold him accountable --

JENNINGS: How? How is he violating it? How is violating -- tell me specifically --


BOYKIN: I could go down the list right now from the emoluments clause from the beginning to the --

JENNINGS: Go ahead.

BOYKIN: The ethical conduct that he's engaging in to his behavior attacking members of the press to his attacks in the free speech of athletes and other people in this country. He's behaving in a way that is unconstitutional and again he took an oath -- he swore an oath to uphold, preserve and defend the Constitution of the United States of America when he became president.

He has not done that, Scott. And it's a shame that people in the Republican Party are not holding him accountable.

HARLOW: Scott, 30 seconds left.

JENNINGS: Look, there are ways to hold a president accountable. It's called impeachment and it's called elections. If you think he is not acting within the bounds of the Constitution, you can go out and campaign against him and see how many people you get to agree with you. I think you're going to lose that argument. I think it's an overreach by Democrats and I think it's a core reason why they're letting their grip on the possibility of winning the midterms slip away.

HARLOW: Scott Jennings, Keith Boykin, we're out of time, you'll both be back. Thank you very much.

And thank you, all, for being with us today. I'm Poppy Harlow in New York. "AT THIS HOUR" with Kate Bolduan starts right now.

ANNOUNCER: This is CNN Breaking News.

KATE BOLDUAN, CNN ANCHOR: Hello, everyone. I'm Kate Bolduan.