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TED: COMING UP NEXT ON THIS SPECIAL EDITION OF ARIZONA, IT'S OUR ANNUAL U.S. SUPREME COURT PREVIEW.

A LOOK AT SOME OF THE BIGGER, IN FRONT OF THE HIGH COURT THIS SESSION INCLUDING CASES INVOLVING GUN CONTROL, GENDER-AFFIRMING CARE AND THE DEATH PENALTY.

OUR ANNUAL SUPREME COURT PREVIEW IS NEXT ON "ARIZONA HORIZON."

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TED: GOOD EVENING, AND WELCOME TO THIS SPECIAL EDITION OF "ARIZONA HORIZON."

I'M TED SIMONS.

EACH YEAR, WE LOOK AT NEW U.S. SUPREME COURT SESSION AND FOCUS ON MAJOR CASES THE JUSTICES ARE SCHEDULED TO CONSIDER ALONG WITH OTHER ISSUES INVOLVING THE HIGH COURT.

JOINING US TONIGHT TEERN STEPHEN MONTOYA AND BY WAY OF ZOOM, ASU LAW PROFESSOR, PAUL BENDER.

GENTLEMEN, GOOD TO SEE YOU AGAIN.

I ENJOY THESE SHOWS.

GREAT STUFF, WHETHER IT'S THE WRAP-UP OF THE YEAR, PAUL, WE'LL START WITH YOU.

6-3, CONSERVATIVE MAKEUP ON THE COURT.

HOW SOLID IS THAT?

HOW CONSERVATIVE ARE THOSE MAJORITY JUSTICES?

>> THAT'S THE BIG QUESTION WE DON'T KNOW THE ANSWER TO YET.

THE THREE TRUMP APPOINTEES ARE ALL CONSERVATIVE, BUT THEY'RE ALL A BIT DIFFERENT.

I DON'T THINK THERE'S BEEN ENOUGH TIME TO SEE HOW DIFFERENT THEY ARE, AND THEN THERE'S CHIEF JUSTICE ROBERTS WHO USED TO BE QUITE CONSERVATIVE AND SEEM TO BE GETTING MORE LIBERAL BUT THE AGENCY IS TOTALLY UNPREDICTABLE.

YOU HAVE THREE STRONG LIBERALS ON THE ONE HAND AND JUSTICES THOMAS AND ALITO ON THE CONSERVATIVE END AND CHIEF JUSTICE ROBERTS WHO COULD BE EITHER PLACE, OR IN THE MIDDLE.

HE'S REALLY VERY STRANGE, HE'S NOT ASSERTED HIMSELF AS CHIEF JUSTICE LEADER ON THE COURT.

HE DOESN'T LEAD ANYBODY AS FAR AS I CAN TELL.

HE BUYS INTO THE INTEREST OF OPINION AND NOBODY JOIN HIM.

AND YOU HAVE THE THREE TRUMP APPOINTEES, IT'S TOO SOON TO TELL WHERE THEY'RE GOING TO BE.

THEY'RE ALL CONSERVATIVE IN A DIFFERENT WAY AND ANYTHING COULD HAPPEN.

SO IT'S A MODERATELY CONSERVATIVE COURT, IT DOESN'T SEEM TO BE GOING IN ANY PARTICULAR DIRECTION, AND YOU KNOW, I DON'T THINK IT'S A VERY DISTINGUISHED COURT, THERE'S NOBODY ON THERE WHO'S GOING TO MAKE THE ALL-TIME HALL OF FAME OF JUSTICES, JUSTICE KAGAN, PERHAPS, WILL BE CONSIDERED THAT WAY.

SO IT'S A RELATIVELY MEDIOCRE COURT, A RELATIVELY CONSERVATIVE COURT.

IT DOESN'T SEEM TO HAVE ANY REAL AGENDA ONE WAY OR ANOTHER, NOT TRYING TO OVERRULE A BUNCH OF STUFF, IT'S A FAIRLY COLORLESS COURT.

TED: WHAT DO YOU THINK, STEPHEN?

>> I AGREE WITH A LOT OF WHAT PAUL SAYS, BUT I DO THINK IT IS A DEEPLY CONSERVATIVE COURT.

IN FACT, THE UNITED STATES HASN'T HAD SUCH A CONSERVATIVE COURT FOR DECADES.

LITERALLY, YOU HAVE TO REACH BACK TO THE EARLY MIDDLE OF THE 20th CENTURY TO FIND A COURT AS CONSERVATIVE AS THIS COURT.

I THINK ROBERTS IS DEEPLY CONSERVATIVE.

I THINK THE COURT DOES HAVE AN AGENDA, AND I THINK IT'S A VERY CONSERVATIVE ONE.

FIRST OF ALL, THE COURT IS VERY INFLUENCED BY THE THEORY OF ORIGINALISM, INTERPRETING THE COURT THE WAY THE FOUNDERS OR THE PEOPLE WHO RATIFIED THE CONSTITUTION UNDERSTOOD THE COURT, OR THE NATION AND THE CONSTITUTION.

THAT'S VERY DEEPLY CONSERVATIVE.

1789 WAS A LONG TIME AGO.

IT WAS A DIFFERENT WORLD.

TO INTERPRET THE COURT -- TO INTERPRET THE CONSTITUTION, BASED UPON THAT DATE IS SOMEWHAT RIDICULOUS, AND IT'S DEEPLY CONSERVATIVE.

ROBERTS IS DEEPLY CONSERVATIVE.

IN BOTH OF THE TRUMP CASES.

TRUMP V. ANDERSON AND THE UNITED STATES V. TRUMP, HE WROTE THE MAJORITY OPINION.

THEY WERE DEEPLY CONSERVATIVE OPINIONS.

JUSTICE ROBERTS' OPINION FOR THE MAJORITY AND THE UNITED STATES V. TRUMP, AS PAUL HAS INDICATED, WAS ONE OF THE WORST DECISIONS SINCE THE DREAD SCOTT CASE, AND IT DEEPLY SUPPORTED PRESIDENTIAL POWER IN A WAY IRONICALLY THAT THE FOUNDERS WOULD HAVE NEVER SUPPORTED BECAUSE THE ONE THING THAT THE FOUNDERS WERE DEEPLY FEARFUL OF WAS A STRONG EXECUTIVE.

THAT'S WHY THEY MADE THE PRESIDENT A RELATIVELY WEAK OFFICE.

THEY WERE REMEMBERING THE TYRANNY OF KING GEORGE, AND THEY DID NOT WANT IT REPEATED IN THE UNITED STATES, SO I THINK IT IS A DEEPLY CONSERVATIVE COURT.

I THINK IT'S A FEARFUL COURT BECAUSE THE PEOPLE HAVE REBELLED WITH VERY STRONG CRITICISM AGAINST THE COURT.

CALLS FOR COURT REFORM HAVE BEEN VERY LOUD AND PERVASIVE.

I THINK THE COURT IS REACTING TO THOSE CALLS, AND I THINK IT'S TRYING TO TAKE A BACK SEAT UNTIL THE NEXT ELECTION AND PEOPLE FORGET ABOUT THE OPINIONS OF THE PAST AND MOVE FORWARD.

TED: PAUL, RESPOND TO THAT PLEASE.

>> WELL, I PROBABLY AGREE ON ALMOST EVERYTHING HE SAID.

I HOPE THEY'RE NOT AS CONSERVATIVE AS THEY MIGHT BE.

I THINK IT'S TOO EARLY.

MAYBE I'M JUST TOO OPTIMISTIC.

I HAVE SOME HOPE FOR THE THREE TRUMP APPOINTEES AS BEING OTHER THAN STRICT CONSERVATIVES AS THE WAY ALITO IS.

THEY SEEM TO HAVE AN OPEN MIND TO SOME STUFF, AND IT'S EARLY TIME ON THE COURT.

AS THINGS GO ON, THEY MAY DEVELOP THEIR OWN PERSONALITIES AND APPROACH TO THINGS.

IF THEY DON'T DO THAT, THEY WON'T BE AS CONSERVATIVE AS ALITO IS.

ROBERTS FLIPS BACK AND FORTH.

SOMETIMES HE'S CONSERVATIVE, SOMETIMES HE'S NOT.

HE'S A DISAPPOINTMENT TO ME.

HE'S NOT BEEN A LEADER OF THE COURT IN ANY REAL SENSE, AND SO THE COURT HAS NO LEADERSHIP, AND I THINK THAT'S, TO ME THAT'S ONE OF THE MAIN IDENTIFYING FACTORS.

SOMETIME YOU HAVE A STRONG LIBERAL ON THE COURT LIKE CHIEF JUSTICE BRENNAN.

THERE IS NOBODY LIKE THAT NOW.

THERE ARE CONSERVATIVES ON THE COURT BUT NOBODY LIKE ALITO AND THOMAS.

THERE ARE FOLLOWERS.

THEY WOULD LIKE TO LEAD BUT NOBODY FOLLOWING THEM.

YOU HAVE MORE OR LESS A COLORLESS COURT, A CONSERVATIVE COURT, MUDDLING AROUND, THEY DON'T HAVE PARTICULAR DIRECTION, AND I'M HAPPY THEY DON'T.

I WOULDN'T LIKE THE DIRECTION IF THEY HAD ONE.

TED: I WILL GET TO THE CASES IN A SECOND.

STEPHEN, IS THERE A POSSIBILITY THIS IS A BARRETT COURT OR A CAVANAUGH COURT, DO ANY OF THE JUSTICES LOOK LIKE THEY COULD BE A SWING VOTE?

OR IS IT JUST LOCKED IN STEEL?

>> YOU KNOW, SOME WAYS THEY'RE ALL SWING VOTES.

TED: WHAT DO YOU THINK, STEPHEN?

>> I AGREE WITH PAUL A LOT.

BUT EVEN AGREEING WITH EVERYTHING THAT PAUL SAID, IT STILL A DEEPLY CONSERVATIVE COURT.

IT'S A MATTER OF DEGREE.

IS BARRETT AS CONSERVATIVE AS THOMAS?

NO, BUT SHE'S STILL VERY CONSERVATIVE, SO WE'RE REALLY TALKING ABOUT CONSERVATIVES AND ARCH-CONSERVATIVES AND THAT'S WHERE THE COURT IS GOING TO STAY.

I DON'T THINK THE ELECTION IS GOING TO CHANGE THAT.

I DON'T THINK ANYONE IS GOING TO -- UNLESS A CONSERVATIVE JUSTICE UNEXPECTEDLY PASSES AWAY, WHICH I DON'T ANTICIPATE AND I HOPE THEY DON'T.

I THINK IT'S GOING TO STAY THE SAME.

I THINK WE'RE STUCK WITH THIS COURT FOR A WHILE.

TED: PAUL, LET'S GET TO SOME OF THE CASES HERE.

SEEMS THEY'VE TAKEN UP FEWER CASES THAN RECENT YEARS, DOESN'T SEEM LIKE THE FIREWORKS.

GENDER-AFFIRMING CARE.

TRANSGENDER KIDS, TALK TO US ABOUT THE CASE AND WHAT THE BIG QUESTION IS HERE?

>> WELL, I FIND IT A FASCINATING CASE, AND MAY BE THE FIRST IN A SERIES OF CASES.

THE QUESTION I HAVE INVOLVING TRANSGENDER PEOPLE AND TRANSGENDER RIGHTS.

THIS ONE COULD COME OUT EITHER WAY.

THE QUESTION IS, YOU HAVE SOME STATES, AND THIS CASE INVOLVES TENNESSEE AND KENTUCKY AND OTHER STATES AS WELL HAVE PAST LEGISLATION PROHIBITING TREATMENT OF KIDS AS THEY START TO DEVELOP WILL SHOW TRANSGENDERNESS -- THAT'S PROBABLY NOT A GOOD WORD, BUT I THINK YOU KNOW WHAT I MEAN, AND A BOY WILL BE A BOY BIOLOGICALLY BUT START FEELING LIKE, ACTING LIKE WANTING TO BE A GIRL, AND VICE VERSA, AND THAT'S THE MEDICAL TERMS FOR THAT, AND TREATMENTS DEVELOPED FOR THAT, AND SOME OF THEM HAVE BEEN FAIRLY EFFECTIVE, AND AS FAR AS I KNOW THE TREATMENTS HAVE BEEN TO PERMIT THE KID WHO'S BORN A BOY TO TRANSITION TO BEING A GIRL, AND THAT HAPPENS DURING PUBERTY, AND THERE ARE VARIOUS MEDICAL TECHNIQUES THAT ARE USED AND SURPRISINGLY EFFECTIVE.

WELL, TENNESSEE AND KENTUCKY AND I THINK SEVERAL OTHER STATES HAVE DECIDED TO BAN THOSE TREATMENTS, SO THE PARENT AND THE DOCTOR WANTS TO HELP THE KID WHO'S BORN BIOLOGICALLY A BOY BECOME A GIRL, LIVE AS A GIRL.

TENNESSEE SAYS NO, YOU CAN'T DO THAT UNTIL YOU ARE 17, I THINK, OR 18, AND THEN IT'S OKAY.

BUT WHILE THE KID IS A MINOR, YOU ARE PROHIBITED, DOCTORS ARE PROHIBITED FROM GIVING TREATMENT TO THE KID TO FACILITATE THE KID'S CHOOSING A DIFFERENT SEXUAL IDENTITY, AND THE QUESTION IS WHETHER IT'S CONSTITUTIONAL OR NOT.

THAT'S A NEW QUESTION FOR THE COURT, AND THE OPINION OF THE COURT OF APPEALS.

THE COURT IS STUCK, IT WANTS TO FIT THIS CASE INTO SOME CATEGORY.

IS IT GENDER DISCRIMINATION?

IS IT A VIOLATION OF FUNDAMENTAL PERSONAL RIGHT?

AND THEY HAVE A LOT OF TROUBLE FITTING IN, BECAUSE IT DOESN'T FIT EASILY INTO ANY CATEGORY, AND WHAT THEY OUGHT TO DO IS LOOKING AT THE THING AS ITSELF AND SAY, HEY, IS THIS SOMETHING THAT A STATE CAN TELL PARENTS YOU CAN'T DO?

IF PARENTS WANT TO LET THEIR KID TRANSITION DURING PUBERTY FROM A BOY TO A GIRL, SHOULD THEY BE PERMITTED TO DO THAT?

THESE STATES SAY NO, YOU CAN'T DO THAT UNTIL YOU ARE 17 OR 18.

THAT'S AN INTERESTING, A NEW CONSTITUTION QUESTION.

I DON'T THINK IT FITS IN ANY PARTICULAR CATEGORY.

I HAVE MY OWN IDEA WHAT THE ANSWER SHOULD BE.

WHAT THE COURT'S GOING TO DO, I HAVE REALLY NO CLUE.

TED: IS THIS EQUAL PROTECTION, ARE WE TALKING THAT HERE?

>> EQUAL PROTECTION CASE, IT'S NOT A STATUTORY CASE, THAT MAKES IT KIND OF DIFFICULT.

AS PAUL POINTS OUT, UNDER THE EQUAL PROTECTION CLAUSE, THE COURT HASN'T CONSIDERED THE ISSUE OF DISCRIMINATION AGAINST TRANSGENDER INDIVIDUALS OR GENDER DYSPHORIA IS THE MEDICAL TOMORROW, SOMEONE WHO IS BIOLOGICALLY MALE BUT PSYCHOLOGICALLY FEMALE, AND THE APPLICATION CONCEPT TO A CHILD, SOMEONE STILL DEVELOPING, IS PROBLEMATIC.

IT'S PROBLEMATIC FOR ADULTS TOO BECAUSE ADULTS CHANGE THEIR MIND.

IF YOU SEARCH THE INTERNET FOR THIS PHENOMENON, SOME PEOPLE HAVE ACTUALLY HAD A GENDER-AFFIRMING SURGERY AND REGRETTED IT AND WANTED TO CHANGE BACK TO THEIR BIRTH GENDER.

SO IT'S PROBLEMATIC.

THE CASE BEFORE THE SUPREME COURT IS DEALING WITH EQUAL PROTECTION.

HOWEVER, IN THE DISTRICT COURT, WHERE THE PLAINTIFFS INITIALLY WON, THE COURT CONCLUDED THAT THE LAW WAS UNCONSTITUTIONAL BECAUSE IT VIOLATED THE PARENTS' RIGHTS TO GOVERN OR MANAGE THE MEDICAL CARE OF THEIR CHILDREN.

THE SIXTH CIRCUIT REVERSED THAT BASED UPON THE SAME THEORY, BUT THE DISSENT NOTED THIS COULD BE GENDER DISCRIMINATION BECAUSE MALES CAN TAKE THESE HORMONES AND -- OR THE TESTOSTERONE HORMONES AND STAY MALE, BUT GIRLS CAN'T, SO IT WAS GENDER DISCRIMINATION, AND THAT'S THE ISSUE THAT'S GOING BEFORE THE COURT, AND THAT IS GOING TO BE A TOUGH ISSUE BECAUSE IT'S A NEW ISSUE, AND MOREOVER, THE ISSUE PERTAINS TO MINORS, AND MINORS HAVE DIFFERENT RIGHTS THAN ADULTS.

FOR EXAMPLE, IN ARIZONA, MINORS CAN'T GET TATTOOS.

IF A MINOR WANTS TO DRINK A SHOT OF TEQUILA, IT'S AGAINST THE LAW, EVEN THOUGH IT'S OKAY WITH THE PARENT.

IT'S A TOUGH CASE.

TED: A TOUGH CASE, PAUL, BUT WHAT DO YOU SEE THE COURT DOING IN THIS PARTICULAR CASE?

>> I DON'T KNOW.

I THINK IT WILL TELL US A LOT ABOUT THE COURT.

I KNOW WHAT I'D LIKE THEM TO DO.

I WOULD REALLY LIKE THEM TO GET AWAY FROM ASKING THEMSELVES A FUNDAMENTAL QUESTION, IS IT SEX DISCRIMINATION?

IS IT A VIOLATION OF FUNDAMENTAL RIGHT?

AND JUST LOOK AT THE ISSUE.

SHOULD PARENTS BE ABLE TO MAKE THIS CHOICE OF HOW TO TREAT THEIR CHILDREN, THE CHILD WANTS TO TRANSITION FROM THE BIOLOGICAL SEX HE WAS BORN WITH TO SOMETHING ELSE.

SHOULD A PARENT HAVE THE RIGHT TO DECIDE WHETHER TO LET THE KID DO THAT OR NOT?

IT STRIKES ME THAT'S THE CRITICAL ISSUE, THE PARENTAL RIGHTS ISSUE, AND MY OWN VIEW IS YES, THE PARENT SHOULD BE ALLOWED TO DO THAT.

WHY SHOULD THE STATE BE ALLOWED TO TELL THE PARENT YOU CAN'T DO THAT FOR YOUR CHILD?

IT'S A PHYSICAL CONDITION, NORMALLY PARENTS HAVE CONTROL OVER THAT.

I'M AFRAID THIS COURT WILL LOOK AT IT IN TERMS OF IS THERE A FUNDAMENTAL RIGHT HERE?

IS IT GENDER DISCRIMINATION?

ALL KINDS OF CATEGORIES THAT I DON'T THINK FIT THIS CASE VERY WELL AT ALL, AND THEREFORE, I HAVE NO CLUE AS TO WHAT THE COURT'S GOING TO DO.

>> I THINK THERE IS A FUNDAMENTAL RIGHT INVOLVED, AND I THINK IT'S THE RIGHT TO PRIVACY.

AS BRANDEIS POINTED OUT IN THE CASE OF THE CIVIL RIGHT TO SOCIETY IS THE CIVIL RIGHT TO BE ALONE.

I HAVE PROBLEMS WITH THIS TYPE OF TREATMENT ON ADOLESCENTS, BUT I HAVE A BIGGER PROBLEM WITH THE GOVERNMENT INVADING INTO THE FAMILY'S RIGHT, THE PARENTS' RIGHT TO MAKE THE DECISION WITH THEIR DOCTORS, I ULTIMATELY AGREE WITH PAUL, BUT I THINK A RIGHT IS INVOLVED, I THINK IT'S THE RIGHT TO BE LET ALONE AND THE RIGHT OF THE GOVERNMENT THAT THE CONSTITUTION ESTABLISHED.

I DON'T THINK THIS IS A DECISION FOR THE STATE TO MAKE FOR THE FAMILY AND FOR THE PARENTS AND FOR THE CHILD AND FOR THE DOCTORS.

TED: THAT'S WHAT YOU THINK.

WHAT DO YOU THINK THE COURT WILL THINK?

>> I THINK THE COURT IS GOING TO AFFIRM MOSTLY WHAT THE SIXTH CIRCUIT DID AND LET THE LAW STAND MOSTLY, OTHERWISE THEY WOULDN'T HAVE TAKEN CERT, AND I DON'T KNOW.

I JUST DON'T SEE THE VOTES TO REVERSE THE SIXTH DISTRICT ON THIS CASE.

MAYBE I'M WRONG.

TED: PAUL?

>> I THINK THIS CASE IS GOING TO TELL US A LOT ABOUT THIS COURT.

IT'S A GOOD INDICATOR.

THEY COULD GO EITHER WAY.

I HAVE SOME OPTIMISM THAT THIS WILL HELP THEM SEE THROUGH ALL THE DOCTRINES AND INSTEAD COME DOWN TO WHAT THE REAL ISSUE IS.

SHOULD PARENTS HAVE A RIGHT TO MAKE A DECISION LIKE THIS ABOUT THE CHILDREN.

>> WHAT PAUL SAYS IS REALLY IMPORTANT BECAUSE, IN THIS CASE, IN THE DISTRICT COURT, THE RECORD WAS LOPSIDED IN FAVOR OF THE KIDS AND IN FAVOR OF THE PARENTS AND THE DOCTORS, AND THE OPPONENTS HAD A VERY THIN READ TO SUPPORT THEIR CASE THAT THIS WAS GOING TO BE BAD AND THREATEN THE HEALTH OF THE CHILDREN, IT WAS ACTUALLY A DOCTOR FROM SWEDEN, THAT'S ALL THEY COULD GET, AND ALL THE OTHER EVIDENCE WAS IN FAVOR OF ALLOWING THE FAMILY TO DECIDE THIS IN THE WAY THAT THEY DID, AND THAT WAS A FACTUAL FINDING THAT THE COURT IS SUPPOSED TO RESPECT.

LET'S SEE IF THEY RESPECT IT.

TED: PAUL, I WANT TO GET TO ANOTHER CASE HERE, INVOLVING A DEATH ROW INMATE, WHETHER OR NOT THIS INMATE DESERVES A NEW TRIAL BECAUSE A KEY WITNESS LIED ABOUT HIS PSYCHIATRIC CONDITION.

WHAT CAN YOU TELL US ABOUT THIS ONE?

>> THIS CASE HAS BEEN HANGING AROUND FOR YEARS, THIS IS THE TENTH TIME I'VE SEEN THIS CASE IN THE ANNUAL REVIEWS.

AND THIS IS A HARD ONE FOR ME TO THINK ABOUT.

THIS IS A DEATH PENALTY CASE.

DEATH PENALTY IS CRAZY.

THERE ARE A LOT OF TECHNICAL PROBLEMS WITH THIS CONVICTION, WHICH IF IT WERE UP TO ME, I WOULD WRITE ABOUT THE DEATH PENALTY HERE.

WHAT THE COURT WILL DO WITH IT, I DON'T THINK THEY KNOW.

IT HAS SO MANY DIFFERENT LEVELS OF TECHNICAL ISSUE HERE, AND THEY'RE HANGING AROUND FOR A LONG TIME.

IT'S INTERESTING TO ME.

TED: A KEY WITNESS LYING ABOUT PSYCHIATRIC CARE AND THE PROSECUTION NOT ALLOWING FOR THE WITNESS TO HAVE TESTIMONY.

ISN'T THAT AT THE CORE HERE?

>> THAT IS AT THE CORE, AND I THINK IT'S REALLY WRONG, AND IT'S A MAN'S LIFE IS AT STAKE.

A WITNESS LIED.

THE PROSECUTOR ARGUABLY KNEW ABOUT IT.

POTENTIALLY EXCULPATORY EVIDENCE WAS NOT DISCLOSED, SO TWO CONSTITUTIONAL RIGHTS WERE VIOLATED AND THE COURT WANTS TO JUST GLAZE OVER.

I LISTENED TO THE ORAL ARGUMENTS ON THIS CASE AND I WAS AMAZED HOW JUSTICES ALITO AND THOMAS THOUGHT IT WAS NO BIG DEAL, THE ATTORNEY GENERAL OF OKLAHOMA THOUGHT IT WAS A BIG DEAL.

HE WAS AGAINST THE DEATH PENALTY, AND HERE'S WHAT WE'RE ARGUING ABOUT HERE, NOT WHETHER OR NOT THIS INDIVIDUAL SHOULD BE LET FREE, BUT WHETHER OR NOT HE SHOULD BE GRANTED A NEW TRIAL WHERE THIS EVIDENCE IS AVAILABLE TO HIM, AND WHERE THIS WITNESS IS NOT ALLOWED TO LIE.

THERE WAS ONLY ONE WITNESS, AND THE WITNESS WAS THE MURDERER HIMSELF, AND THE WITNESS WAS STONED ON METHAMPHETAMINE WHEN HE COMMITTED THE MURDER.

HE'S RETRACTED, THEN EMBRACED, HIS TESTIMONY MORE THAN ONCE.

IT'S A VERY WEAK AND TENUOUS CASE AGAINST THE DEFENDANT, AND THE COURT IS REALLY QUESTIONING WHETHER OR NOT HE DESERVES A NEW TRIAL.

I HONESTLY THINK IT SHOULD BE A SLAM-DUNK CASE.

YES, GIVE HIM A NEW TRIAL.

HE DESERVES IT.

HIS LIFE IS AT STAKE.

TED: WHAT DO YOU THINK, PAUL?

>> IT'S A GOOD -- WILL BE A GOOD INDICATOR OF WHETHER THE COURT IS AS CONSERVATIVE AS A LOT OF PEOPLE THINK IT IS, IN WHICH CASE, IT WILL COME OUT ON THE STATE SIDE, OR WHETHER THIS IS A COURT WITH AN OPEN MIND.

IF IT'S SOMETHING OF AN OPEN MIND, THEY SHOULD REVERSE THE DECISION, AND I THINK WHETHER THEY DO OR NOT GIVES INDICATION.

I THINK THE COURT IS NOT AS STRICTLY CONSERVATIVE AS SOME PEOPLE DO.

I THINK THERE'S A LOT OF POSSIBILITY OF FLEXIBILITY, AND THIS IS A REALLY GOOD CASE TO TEST THAT.

THERE'S SO MUCH GOING ON HERE THAT'S A PROBLEM THAT A COURT COULD EASILY SAY NO.

WE'RE NOT GOING TO LET THIS GO FORWARD WITH THE DEATH PENALTY.

ON THE OTHER HAND, THEY'RE PERFECTLY CAPABLE AS THOMAS AND ALITO WANT TO DO, NO PROBLEM AT ALL, JUST GO AHEAD AND EXECUTE THE GUY.

IT'S ANOTHER INDICATION OF ME OF WHAT KIND OF COURT WE HAVE, A MODERATELY CONSERVATIVE, FLEXIBLE COURT OR STRONG CONSERVATIVE COURT.

TED: STEPHEN, SAME CONVERSATION WITH THE GHOST GUN CASE, THE IDEA THAT GUNS ASSEMBLED FROM KITS SHOULD BE REGULATED THE SAME WAY ALREADY PREMANUFACTURED GUNS ARE?

WHAT'S GOING ON HERE?

>> I THINK SOMETHING GOOD IS GOING ON IN THAT CASE.

I LISTENED TO THE ORAL ARGUMENT ON THAT CASE AND LOOKED AS IF THE MAJORITY THAT INCLUDED, AND THIS SUPPORTS PAUL'S THESIS, THAT THE COURT'S NOT AS CONSERVATIVE AS SOME PEOPLE LIKE ME THINK, BUT LOOKED LIKE JUSTICE ROBERTS AND JUSTICE BARRETT WERE GOING AGAINST THE GHOST GUN MANUFACTURERS.

BECAUSE IT'S A MENACE.

THE GUNS ARE NOT, THEY DON'T HAVE SERIAL NUMBERS.

THERE'S NO BACKGROUND CHECK.

THEY DON'T HAVE TO MAINTAIN SALES RECORDS SO ANYONE CAN BUY THEM.

THEY'RE USED IN CRIMES IN A DISPROPORTIONATE DEGREE.

THEY REALLY ARE A MENACE.

THEY'RE A THREAT TO THE PUBLIC SAFETY AND, IN FACT, THE REGULATIONS AND THE LAW, THE STATUTE ITSELF SPECIFICALLY NAMES RECEIVERS AS A GUN, AND THAT'S WHAT THEY'RE SELLING.

THEY'RE SELLING THESE RECEIVERS THAT CAN YOU BUILD A GUN ON THAT ALL YOU HAVE TO DO IS ANOTHER PULL OUT THE PLASTIC TABS OR DRILL A FEW HOLES.

IN FACT, THE SOLICITOR GENERAL OF THE UNITED STATES TOLD THE COURT, SHE WAS ABLE TO CONSTRUCT ONE IN 20 MINUTES.

TED: OKAY, PAUL, HERE'S WHAT I DON'T UNDERSTAND.

WE HAVE THE GUN CONTROL ACT OF 1968.

THE QUESTION IS, DO THE GUNS THAT YOU CAN MANUFACTURE FALL UNDER THAT?

THEY'RE GUNS.

YOU'RE NOT MANUFACTURING GRILLS HERE.

THEY'RE GUNS.

>> YEAH, IF YOU WANT TO READ THE STATUTE INTELLIGENTLY IN TERMS OF WHAT THE PURPOSE IS AND WHETHER IT'S A LEGITIMATE PURPOSE, THE CASE IS SIMPLE.

OF COURSE, THESE THINGS SHOULD BE SUBJECT TO REGULATION, BUT IF YOU ARE REALLY HOSTILE TO FEDERAL REGULATION AND YOU BELIEVE IN GUN RIGHTS A LOT, YOU COULD TRY TO -- YOU COULD COME OUT THE OTHER WAY AND SAY, WELL, THE STATUTE IS NOT ENTIRELY CLEAR ABOUT THIS.

WE'VE GOT TO HAVE MORE CLARITY BEFORE WE LET THE AGENCIES MAKE MORE OF THIS KIND, BUT TO ME IT'S AN EASY CASE.

CONGRESS WANTS TO REGULATE THE STUFF.

THEY'RE BASICALLY GUNS, WHY NOT LET CONGRESS REGULATE THEM AS IF THEY ARE GUNS, BUT IF YOU'RE LOOKING FOR A REASON TO DECIDE OTHERWISE, OR OTHER TECHNICAL REASONS YOU COULD FIND.

I WOULD SUSPECT IF THE COURT COMES OUT ON THE SIDE OF THE REGULATION HERE, IF THEY AREN'T, I WOULD REALLY BE SURPRISED.

TED: I WOULD SAY, STEPHEN, GUN RIGHTS, YOU CAN BE ON ANY SIDE OF THAT PARTICULAR ARGUMENT, BUT LEGALLY, AGAIN, WE'RE NOT BUILDING BALLOONS HERE.

THESE ARE THINGS TO MAKE A GUN.

>> I TOTALLY AGREE WITH YOU.

I AGREE WITH PAUL.

IT SHOULD BE AN EASY CASE, BUT WHEN YOU LISTEN TO THE ORAL ARGUMENTS, DOESN'T SOUND LIKE SUCH AN EASY CASE.

WHEN YOU'RE DEALING WITH JUDGES WHO ARE AS OUT OF SYNC WITH THE POPULATION AND WITH THE COLLEAGUES AS ALITO AND THOMAS, YOU KNOW, YOU REALLY HAVE A TALL MOUNTAIN TO CLIMB.

TED: WITH THAT IN MIND, WE GOT A COUPLE MINUTES LEFT, SO KEEP IT BRIEF HERE, STEPHEN, START WITH YOU.

DOES ANYTHING SUGGEST THAT THE BATTLESHIP MOVES THE OTHER DIRECTION?

>> NO, IF THE COURT INTERVENES IN THE PRESIDENTIAL ELECTION, IT COULD ACTUALLY GET A LOT WORSE.

SO I THINK THAT'S THE SECOND SHOE THAT IS THREATENING TO FALL, SO WE'LL SEE WHAT HAPPENS.

TED: WHAT DO YOU THINK, PAUL?

ANYTHING THAT SUGGESTS THAT THE COURT MIGHT BE BETTER STANDING WITH FOLKS?

>> RIGHT NOW, NO.

I CAN IMAGINE A SCENARIO WHICH THE COURT WOULD GET IN BETTER STANDING AND BE A MUCH BETTER COURT, IF THE DEMOCRATS WIN THE PRESIDENTIAL ELECTION AND IF ALITO AND THOMAS GET SO DISGUSTED WITH THAT THEY DECIDE TO RETIRE, AND THE NEW DEMOCRATIC PRESIDENT GETS TO APPOINT TWO REPLACEMENTS TO THEM, YOU WOULD THEN HAVE A COURT THAT IS VERY MUCH REPRESENTED CURRENT THINKING IN THE UNITED STATES.

MODERATELY LIBERAL COURT, THREE TERM LIBERALS AND TWO NEW APPOINTEES AND FOUR CONSERVATIVES.

THAT'S A POSSIBILITY.

BUT WHETHER ALITO AND THOMAS WOULD REACT TO A PRESIDENTIAL WIN SAYING TO HELL WITH IT, I'M GETTING OUT OF HERE, I DOUBT VERY MUCH.

IF THEY STAY, THE COURT STAYS AND IT'S MIRED IN THE MIDDLE, AND I THINK IN A MEDIOCRE MIDDLE.

TED: WOW, I THINK WE'LL STOP IT RIGHT THERE.

GENTLEMEN, GOOD DISCUSSION, AS ALWAYS.

A PLEASURE HAVING YOU BOTH ON.

>> THANK YOU.

>> THANK YOU.

TED: THAT'S IT FOR NOW.

I'M TED SIMONS.

THANK YOU FOR JOINING US.

YOU HAVE A GREAT EVENING.

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