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This is a RUSH transcript from "The O'Reilly Factor," June 2, 2013. This copy may not be in its final form and may be updated.
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O'REILLY: Here now with the "Kelly File" here once again Miss Megyn and on March 26th you accurately predicted what the Supreme Court would do about the vote against gay marriage in California.
(BEGIN VIDEO CLIP)
KELLY: Really? I think they are going to -- they're going to dodge it on procedural grounds. They have a couple of ways to get out of deciding it on the merits by saying A, you didn't have standing. You people who are challenging the lower court ruling in favor of gay marriage you don't have standing to bring this case. Or B, you know, we never should have taken this case.
O'REILLY: They are going to dodge. That's going to cause a lot of problems.
KELLY: I think they are going to dodge.
(END VIDEO CLIP)
O'REILLY: So incredibly you were right. Amazingly you really hit it?
KELLY: Even the broken clock.
O'REILLY: That's a loophole they found though. I mean it's not really -- they invalidated a vote that was legally taken.
O'REILLY: The absurdity, you don't have a right to challenge who's going to challenge if the state of California wouldn't uphold the vote.
KELLY: That's -- that is an absurdity.
O'REILLY: That's absurd.
KELLY: You're absolutely right because it leads --
O'REILLY: Wait I want to hear that again.
KELLY: You're absolutely and you know --
O'REILLY: You heard it everyone?
KELLY: Since you gave me a shout out on my correctness. But no it's true because it leaves in the hands of the state executive the ultimate decision to decide whether a law stands --
O'REILLY: To enforce a law or not.
KELLY: There is no dice.
O'REILLY: Right so anybody who voted for traditional marriage doesn't have any right to petition that their vote be upheld.
KELLY: Right you better vote for traditional marriage or whatever you favor and then you also better make sure you get the right governor.
O'REILLY: Yes if Jerry Brown doesn't like it.
KELLY: And the right attorney general because they have a veto right.
O'REILLY: You know it pains me to say this because I love this country but the Supreme Court is a political organization no longer looking out for the folks of the Constitution, in my humble opinion.
All right. Let's go to -- there they are. Good. Let's go to Nebraska. Fremont, Nebraska, a little town.
KELLY: Right, right.
O'REILLY: And they vote -- the folks at Fremont and say look we don't want illegal aliens having the right to rent rooms. You have to produce evidence that you're an American citizen to live in Fremont. That has been upheld by a federal court.
KELLY: That's right by the Eighth Circuit Court of Appeals which is you know above the federal trials court level. It's basically one level down from the U.S. Supreme Court. So it's a major ruling. And what the court said was, look, this is not an interference with the Feds' ability to regulate immigration which is what the ACLU was arguing. They were saying, "You can't have these local ordinances saying you can't rent apartments if you are illegal alien. Or you can't get the jobs."
O'REILLY: Yes because only the Feds can adjudicate illegal aliens.
KELLY: Because that's going to discourage illegal aliens from being in Fremont. And it's effectively going to lead to them leaving Fremont. And that is a decision that's up to the Feds not to Fremont.
O'REILLY: It's so absurd.
KELLY: And this -- this three judge panel which is split said the ACLU is wrong.
O'REILLY: Two to one they ruled that Fremont voters have a right to have a law that says you have to prove you're an American citizen before --
KELLY: And it's not discriminatory.
O'REILLY: I guarantee you the ACLU appeals it up. The Supreme Court will do exactly the same thing. They will find a loophole, all right, to nullify the vote.
KELLY: Well, they might.
O'REILLY: They will.
KELLY: They might we saw something similar in the Arizona immigration case.
O'REILLY: Right. They will fight so what are you --
KELLY: But -- but the fact --
O'REILLY: -- wait, wait, wait.
KELLY: The fact that you can predict how the Supreme Court is going to rule or make educated guess -- well there's that -- doesn't mean that they are a political body.
O'REILLY: No, no, no.
KELLY: It means you figured out their ideological bent.
O'REILLY: Wait a minute. I'm going to ask this to Krauthammer who is coming up behind Miss Megyn. You covered the Supreme Court.
O'REILLY: And I have always had the utmost respect for the Supreme Court except for the Dred Scott decision and the few of those things in the slave years which were awful. I didn't like Roe v. Wade because it was another loophole of privacy. It had nothing to do with the Constitution.
But right now, aren't you kind of worried that the nation's fail safe which is what the Supreme Court is, that keeps control over the Congress and the President is now gone away from that and is into politics? And finding a way to justify their political beliefs?
KELLY: I don't believe that they are into politics.
O'REILLY: But they just did. Roberts did it with Obamacare.
KELLY: No but you and I have been arguing over this for years. No listen what Roberts did with Obamacare was wrong because he said when he was getting confirmed.
O'REILLY: But he found a way.
KELLY: No but let me finish my point. He said "I'm either going to call balls or strikes on the umpire. But what he did unlike the other eight Justices on the court was he saw a ball and he called a strike. Now that's not what we put them on the high court to do.
O'REILLY: See this is what I mean though.
KELLY: He wanted to protect the reputation of the court that's not what he is there for. But the other judges --
O'REILLY: Can I just say why you're desperately wrong.
KELLY: They vote their ideology Bill. Not their -- it's not the same to say it's political.
O'REILLY: But it's not all the way down the line. It's just they -- they come up with a political belief and they try to find a law to support it.
KELLY: No I don't -- I don't agree with that. One side believes in a living breathing Constitution and other side is not. It leads to some very split 5-4 decision.
O'REILLY: Ok but here's why you're wrong about Roberts. Roberts is much smarter than you're giving him credit for. He didn't call the strike a ball. He knew it was a ball but he wanted to pass Obamacare. John Roberts as an American wanted to pass this law.
KELLY: No I don't believe that. I don't believe that.
O'REILLY: And found a way to do it.
KELLY: I don't believe that for one minute, you know how conservative that guy is.
O'REILLY: Not in all things.
KELLY: No I covered his Supreme Court confirmation hearings wall to wall. I read virtually everything the guy ever read. He is a conservative man. But that's irrelevant. He can go out on the Supreme Court whether conservative or liberal. He is supposed to vote according to his conscience. And what he reportedly did was vote with the liberals to uphold Obamacare because he wanted to protect the reputation and integrity of the high court. That's not his job. Even as the Chief Justice.
O'REILLY: That's right. That's not his job.
KELLY: That's why I say the other --
O'REILLY: Well you and I are actually agreeing on this.
KELLY: -- the liberals -- the liberals saw a strike and called a strike. The conservatives saw a ball and called a ball. He did the opposite.
O'REILLY: You and I are actually agreeing -- you and I are agreeing on Roberts, all right. He wasn't looking out for the Constitution he was looking out for his interest --
O'REILLY: -- which was protecting the Supreme Court.
KELLY: -- which is not what we put them there to do.
O'REILLY: All right. So Kelly leaves; she's going on maternity leave.
O'REILLY: Until what 2018 I believe. It's a fairly expensive long -- soon as the urchin is in kindergarten then you will be back here.
KELLY: I -- this is it. This is the third baby. I think -- I think we're done after this.
O'REILLY: Ok when are you coming back though?
KELLY: In the fall. I won't be gone quite --
O'REILLY: In the fall?
KELLY: I won't be gone quite as long this time.
O'REILLY: All right.
KELLY: But I do before I go because I take --
O'REILLY: And you don't know the gender of the baby.
KELLY: We didn't find out, because we have a boy and a girl so we left it to the heavens.
O'REILLY: Ok good for you.
KELLY: But wait before I go.
KELLY: Just because I'm sick of you complaining, that little dinner that I owe you. I don't want you to think I welched on my bet and I love zone bars. This one is cinnamon. It's really good.
O'REILLY: And this is my dinner.
KELLY: There you go you won.
O'REILLY: This is my dinner?
KELLY: There you go. It's like 220 calories.
O'REILLY: This is it? That's dinner?
KELLY: You know what; I think it might even be gluten free. You know how you're all about the non-gluten stuff now.
O'REILLY: All right.
O'REILLY: I'll savor every mouthful. Miss Megyn Kelly everyone. Take a good look.
KELLY: See you in the fall.
O'REILLY: Last time you see her until the fall.
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