'The Most Dangerous Branch' author David Kaplan talks Supreme Court in the Trump era

The author discusses the Supreme Court's upcoming LGBTQ cases and how he believes the court will decide them.
5:11 | 10/08/19

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Transcript for 'The Most Dangerous Branch' author David Kaplan talks Supreme Court in the Trump era
It was a lot of talk about the law about Congress's role in all of this for more on this conversation or bring in David Caplan joins us from New York he's the author. The fascinating book the most dangerous branch inside the Supreme Court in the age I've Donald Trump peace somebody who had covered this court for a long time. For Newsweek David thank you so much for coming into this. Because it was a point that came up a lot today want to get your take on this idea that the conservatives are gonna have to really grapple with this. Notion of wanting to punt to congress and some of these policy things were also. Adhering to the text how can they way those two things. Well that's gonna be that the thing the lawyers that the justices. Debate but you know it's. Most of us would agree that discrimination against gays and lesbians. And transgender is is a bad thing the question as you point out is whether it's the court. That should step in and congress. And to the extent you whine and ascendant court. To take on this issue you then kind of have to except when the court gets involved in other issues for example gun control. That you think may be better off let the left to legislators. Around the country what I try to. Arguing the book down as prime time my liberal could credentials are secured what I try to argue when the book is that liberals and conservatives alike. Ought to be concerned about an overly interventionist. Court and remember the issue here is not whether gays and lesbians and transgender is. Have a constitutional claim. That is whether the fourteenth amendment's guarantee of equal protection protects them this is only based on. That the 1964. Law than the day will come. When the court has to decide. Whether gays and lesbians are protected under the fourteenth amendment but it's important to remember this is not that case when that case comes forward. I think I would be singing. I might be singing a very different tune but on the more narrow issue of what the law covers I think the court ordered water Trent. Like this is also the First Act test on gay rights for this new conservative majority first time that new horses is on the bench justice Kavanagh is on the bench Terry. We didn't hear much from justice Kavanagh today which surprise a lot of people he was almost cycle. For lone question ending go anywhere you they didn't really seem to land and generate any conversation. And it's the first case on major gay rights issue without justice Anthony Kennedy. Who really was the champion. Pushing the law forward constitutionally and otherwise. Bringing. Gay and lesbian people into the fall abrasive citizenship under the constitution. And lionized for that essentially and I think that at the end of the day he will be missed this case would obviously turned out very differently. If Anthony Kennedy still been on the court but we haven't heard from Kevin on. We had a Dick Kaplan what's a what's your take on how Cavanaugh will influence. This discussion of gay rights on this landmark case he has not said a whole lot either in speeches or in decisions. At the lower court but if I were in the prediction game and I'm invariably wrong my guess would be that the court will rule 54. Against the claim. From gays and lesbians and transgender thing rule interpret the 1964. Statute. Narrowly and I'd that will be read as a decision of the conservative court against. Gays and lesbians but I think depending on how it's written it might be more fairly interpreted as just a piece of of punting to congress the issue the problem though and the reason the conservatives on the court. Are often hypocrites is they don't punt other issues to congress so whether it's on campaign finance. And the Citizens United case gore the voting rights act. The court was all too happy to strike down an act of congress and take it upon themselves. To decide what the law was and not allow it. Not allow senators and representatives to do so so that it's a question of consistency. And hypocrisy. Get shot what's your bottom line on what we heard today and what people need to know about this case which is now. Going into the into the conference room Gergen and they're gonna vote they've heard the arguments gonna read the briefs. What's the big take away well you know we'll know either way by the end of June and I think media earlier on I mean to David's point. If it is true that these plaintiffs lose then there's been a sir that's the end of the line in terms going to federal court to try to get protection. And then people aren't enough to turn the legislature's right so to congress as David suggested the one thing I like oh my that wind is. They used to indicate that the congress and the Portland an active dialogue but congress is pretty gridlocked right now so it's not quite so simple as saying. You take these arguments to congress and we'll changed all along that way. So you know state legislatures localities. All these places can confer these kinds of protections if there's a vacuum coffee crops up because the court interprets the federal law not to protect people who live in places where there is no local protection right now. Fascinating discussion Terry Moran our chief national correspondent K chart legal analyst thank you so much David Caplan join us from New York thank you so much you could talk for hours but so you guys sitting back here on Decision Day.

This transcript has been automatically generated and may not be 100% accurate.

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