00:00:02
[Music]
00:00:12
and they've just gone crazy with them
00:00:18
there was a lot of big news um obviously this past week uh when a leaked draft of the supreme
00:00:24
court's roe v wade decision uh was published uh by politico
00:00:32
the draft opinion written by justice toledo uh would turn roe v wade from a federal issue to a state issue now this
00:00:38
is a bit above uh all of our pay grades so chamoth had a really great idea to tap
00:00:43
some people who are actual experts and uh in the supreme court uh chamoc maybe
00:00:48
you could introduce our guests i will queue this up for us thank you great um so first i'd like to introduce
00:00:55
amy howe um amy uh until 2016 served as the editor and a reporter for scotus
00:01:02
blog which is the um the premier blog that covers the supreme court she continues to serve as an independent
00:01:07
contractor and reporter for scotus blog she also writes for her blog called how
00:01:13
on the court and before turning to full-time blogging she was a council in over two dozen
00:01:18
merits cases at the supreme court and argued two cases there from 2004 until
00:01:23
2011 she co-taught supreme court litigation at stanford law school and from 05 to 13 2013
00:01:31
she co-taught a similar class at harvard law school and i'd also like to introduce um her
00:01:37
partner in scotus and also her partner in life tom goldstein another dear friend of mine over the past 15 years tom has
00:01:43
served as one of the lawyers for one of the parties in just under 10 of
00:01:48
all the cases argued before the supreme court he has argued 43 cases himself and
00:01:54
two that i think are probably a little bit near and dear to all of our hearts uh in 2000 tom served a second chair
00:02:01
for lawrence tribe and david bowie's on behalf of vice president al gore and bush figore
00:02:06
and most recently he represented google in a fair use copyright infringement
00:02:12
case google versus oracle um about the use of java apis
00:02:17
um and so tom and amy thank you guys for giving us um your precious time welcome to the pod thanks for having us thanks
00:02:24
for having us i was a little nervous about what the introduction was gonna be like so thank you so guys there's a there's a million questions um to start
00:02:31
with or that we can go but uh maybe just to frame the issue can you guys just first walk us through
00:02:38
the original roe v wade decision how it was made and the rights that it
00:02:46
conferred and then maybe we can go from there and talk about um what has happened as a result of the way it was
00:02:52
written and the and the the judgment as it as it stood sure roe v wade
00:02:58
back in the early 1970s was a decision by justice harry blackman
00:03:04
in which the court held for the first time that there is a constitutional right to an abortion and at that point
00:03:12
the court ruled that it was regulated by time up through the
00:03:17
trimesters am i getting this right tom yeah and then in 1992 in a case called planned parenthood versus casey that was
00:03:24
an earlier effort to overrule roe versus wade because abortion opponents started
00:03:31
pretty quickly trying to overturn roe versus wade and so in 1992 in a case
00:03:37
called planned parenthood versus casey the supreme court did not over row in fact reaffirmed it but switched
00:03:44
the test a little bit the constitutional test to decide whether other abortion restrictions can
00:03:50
stand and this was a decision by justices david suter anthony kennedy and
00:03:56
sandra day o'connor who were all appointed by republican presidents and they said there's a constitutional right
00:04:02
to an abortion up until the point at which the fetus becomes viable which these days is
00:04:07
somewhere around 24 the 24th week of pregnancy but states can regulate
00:04:13
abortions as long as they don't impose an undue burden on the woman's right to an abortion i
00:04:18
was just going to tack on like what's sitting underneath roe because that ends up being a big deal these days you know
00:04:24
where did it come from seven justices in rowan wade say there is this constitutional right to an
00:04:30
abortion up to an appoint and of course there's no
00:04:35
textual reference to abortion in the constitution instead the supreme court drew on earlier decisions involving what was
00:04:42
called the constitutional right to privacy essentially a kind of bodily autonomy right an individual liberty principle that
00:04:48
you're going to control your own destiny and your own body drawing on cases involving contraception
00:04:54
for example for both married and unmarried couples and that really
00:05:00
is the doctrinal the jurisprudential piece of this thing that conservatives have been
00:05:05
after so hard you've got kind of two branches of conservatism in play one is look
00:05:11
uh kind of religious uh and social conservatism that abortion is evil and then you have a jurisprudential
00:05:19
lawyers kind of thing like you made this up it's not in the constitution and those two threads have come together and have
00:05:25
been at the root of this 50-year battle over row in fact before we unpack that maybe you
00:05:30
want to just define for people as i understood as i've been learning about this this week there's this one
00:05:35
sort of moral spectrum between liberalism and conservatism but then there's this orthogonal
00:05:41
form of like originalism i guess is what folks call it can you just define those terms so everybody understands what
00:05:47
we're talking about sure so you know in ordinary politics we do think of conservatism and then kind of more
00:05:53
libertarianism a kind of peter thiel uh get the government out of my life and conservatives do believe that the
00:05:59
government has an important role frequently conservatives believe this an important role in regulating abortion
00:06:05
and prohibiting an abortion whereas a libertarian be more likely to say no this is my body my choice for example
00:06:10
and so that's kind of along the political spectrum in the legal spectrum you have this sense of people there are
00:06:17
a set of conservatives in particular are principally who think that the constitution should be interpreted today
00:06:23
the way that it would have been understood the day that it was enacted or that an amendment to the constitution was enacted so that the 14th amendment
00:06:30
to the constitution for example prohibits depriving someone of liberty or property without due process of law
00:06:37
and they would say well what was due process of law at that time what was liberty at that time whereas a more
00:06:44
progressive constitutionalist somebody more on the left would say look no there are lots of things that aren't
00:06:50
enumerated in the constitution including you know a right to bodily autonomy at all the right to
00:06:55
contraception uh the right even rights even conservatives care about the right to educate your child in the way that
00:07:01
you see fit and the constitution in particular has to be able to adapt to modern circumstances and that's why actually
00:07:08
our constitution's so vague there are lots of more modern constitutions take the south african constitution that have
00:07:13
lots and lots and lots and lots of detailed provisions tackling all kinds of problems including modern problems
00:07:18
but the view of progressive constitutionalists is that look when the country was founded and they wrote the
00:07:24
constitution they knew the country was going to be around for centuries and they didn't intend to capture every
00:07:30
kind of social circumstance they didn't intend to capture every modern problem
00:07:36
which couldn't even be contemplated so yeah that's the those are the two different kinds of conservatives and
00:07:41
we're talking about um but both originalists say look there's no right to abortion in the
00:07:47
constitution the founders of the country would have never imagined that we would
00:07:52
uh strike down bans on abortion and then social conservatives are like well this is a really really important role of
00:07:57
government we're protecting unborn life amy i don't know if you've had a chance to read alito's draft opinion but can
00:08:03
you sort of walk us through his legal framework for coming to his conclusion that that this
00:08:10
thing needs to be struck down and why he's saying what he's saying yes it is a
00:08:15
67-page opinion with another 30 pages or so in the appendix and
00:08:21
what he tackles it in two ways the first is kind of from this originalist
00:08:27
perspective he looks at the idea of whether or not the right to an abortion
00:08:33
is something that is deeply rooted in our country's history and he
00:08:38
concludes that it is not that not only was there no right to an abortion he said until
00:08:44
the late 20th century when right around the time that the court issued his decision in row but in fact
00:08:51
abortion was a crime in many places and so he starts from that premise that
00:08:57
there's no deeply rooted tradition of abortion being a right in under the
00:09:03
constitution and that goes to the idea of what did the framers intend does it
00:09:08
fall within this fundamental right that would be protected by the constitution even if it
00:09:15
is not specifically enumerated in the constitution but then he also has to
00:09:20
look at roe and casey because those laws have been in effect that those cases
00:09:26
have been in effect for 50 years now the court issued this decision in row in the early 70s and then reaffirmed it in
00:09:33
casey in 1992 because the supreme court and courts generally have a principle
00:09:40
called star a decisis that says that courts should not overturn their
00:09:46
decisions just because they think the earlier decisions are wrong that there needs to be a good reason to do that and
00:09:54
the court has never said specifically exactly what you need to do to overrule a decision
00:09:59
but over the years they have outlined some factors that you can look at to decide
00:10:04
whether or not you should do so and so he walks through those factors
00:10:09
the idea that roe and casey were simply wrong when they were decided for the reasons that
00:10:16
the toms has just discussed and that elita discusses at great length that there's no deeply rooted tradition of
00:10:23
abortion being a right the idea that
00:10:28
another thing that courts often look at is whether or not people have relied on the court's decisions here in rowe and
00:10:34
casey and he said that even in casey there wasn't this idea that people arranged
00:10:41
their personal lives you know in the short term around the idea that they have a right to an abortion they've
00:10:46
looked at it in casey and sort of in people since then in sort of the broader sense that women
00:10:52
have made decisions about about their lives so with the idea that they will have
00:10:58
reproductive freedom and he says that's really not the right way to look at the issue of reliance he looks at whether or
00:11:04
not the test that the supreme court has and other courts have been using to review
00:11:11
restrictions on abortion uh this undue burden standard is what's what he calls workable and he concludes
00:11:17
that it's not workable because he says this idea of an undue burden test is so amorphous
00:11:24
that courts have reached all kinds of different decisions on various abortion restrictions
00:11:29
and so for those reasons he says the i abortion is a profound moral question he says but it's not one that
00:11:36
is protected by the constitution it's a question that be should be decided by the people and their representatives and
00:11:43
should go back to the states can i just follow up on that point so i think a lot of people when they read a headline like
00:11:49
roe v wade overturn they think that the supreme court is directly legislating on the issue of
00:11:55
abortion and it means abortion ban nationwide um i think that maybe even the popular
00:12:02
conception of what of what just happened can you just explain that a little bit more that you
00:12:08
know what exactly is this from court deciding on this issue and specifically what the supreme
00:12:13
court is doing here is more deciding who gets to decide rather than issuing policy themselves could you just explain that for for
00:12:19
viewers and as you do that maybe you could just highlight the role the supreme court is meant to have in in our
00:12:25
system of government just as a basic kind of concept which i'm not sure is like as clearly understood here
00:12:32
sure so you know there are the three branches of government the president the executive branch the legislative branch which is congress and the supreme
00:12:39
court and the supreme court's job is to in this case interpret the constitution
00:12:46
now some of the cases that come to the supreme court are technical they don't even involve the constitution what did congress mean
00:12:53
to say when it enacted this law about bankruptcy but then it also gets these really momentous cases like abortion and
00:13:00
this case is a challenge it can't the actual case that came to the supreme court is a challenge
00:13:06
to a mississippi law that was passed with the idea that it could go to the supreme court and challenge roe and
00:13:14
casey but a mississippi law that was passed a couple of years ago that would ban virtually all abortions after the 15th
00:13:21
week of pregnancy and so abortion providers in mississippi went to court and said
00:13:28
under the supreme court's jurisprudence these decisions in row and casey this law
00:13:34
is unconstitutional because women you know as the law currently stands have a
00:13:39
right to an abortion up until the point at which the fetus becomes viable which is around 24 weeks but is certainly
00:13:47
well after the 15th week of pregnancy so the case made its way up there as a challenge to this mississippi law
00:13:54
but the state of mississippi in defending the law specifically asked the court to overrule roe and casey and
00:14:02
so what that means is the supreme court is deciding whether or not this law is unconstitutional
00:14:08
if the supreme court as the draft opinion suggests holds that
00:14:13
the law is constitutional that roe and casey should be overruled then the issue does go back
00:14:20
to the states uh is the way that most people think of it in each state
00:14:26
whether it's mississippi or texas or oklahoma or california can decide for itself
00:14:32
whether or not they want to allow abortions and if so on what terms you know i think it's a
00:14:39
little bit you know it does go back to the states the people can decide but defenders of roe and casey
00:14:47
supporters of abortion rights say that part of the supreme court's job is to say what the constitution means and that
00:14:53
there are some rights like freedom of speech you know the second amendment the right to bear
00:14:59
arms that are that are if they're in the constitution then the states shouldn't be allowed to decide that the supreme
00:15:04
court's job is to protect them so if they strike this down basically all the state legislatures
00:15:10
will start to pass their own laws that govern what happens in that state and the federal government will not have a
00:15:15
role or a say ultimately in state abortion laws is is that is
00:15:20
that fair is that what's going to happen next if this gets struck down yes i mean there are already you know
00:15:26
at least a dozen if not more states that have what's called trigger laws that have already been passed by the state
00:15:32
legislature with an eye towards this decision or some other decision by the
00:15:38
supreme court over ruling row and casey so those states wouldn't even have to pass new laws those laws restricting
00:15:44
abortion would go into effect immediately and um can i just ask maybe
00:15:49
for sex too like why why isn't there a constitutional amendment if this is a
00:15:55
an issue that folks feel you know should be kind of indoctrinated as an amendment to the constitution why
00:16:01
has that not happened and um you know why do these cases kind of keep recycling and the
00:16:07
decision-making kind of keeps going back to the states and they keep getting litigated why don't constitutional amendments get
00:16:12
passed anymore it's really difficult to pass a constitutional amendment tommy i'm sorry
00:16:18
go ahead oh no i was going to say yeah let me just step back first on this question of states versus the federal
00:16:23
government so when the supreme court says the constitution doesn't give you a right to an abortion they aren't technically
00:16:29
saying okay now it'll be up to the state legislatures they're saying it'll be up to legislatures so you have to pause on
00:16:35
the fact that it is at this point possible that you could have a federal uh protection for abortion or a federal
00:16:42
ban on abortion then the question would be is that constitutional or is this a states rights issue where only the
00:16:48
states can regulate it but there is a big big big fight looming in congress on both sides the only reason
00:16:54
that you're not getting a federal statute when you have democrats in control the senate the house and the
00:17:00
presidency the only reason you're not getting a federal statute per uh protecting a right to an abortion is the
00:17:06
filibuster essentially right um and the sorry just just just to sorry to
00:17:12
interrupt but a statute is a law not a constitutional amendment right can you just distinguish that's right so
00:17:17
the constitution is our founding foundational doctrine document it's what
00:17:22
creates the congress and gives congress the power to regulate certain things it creates the presidency and it creates
00:17:27
the supreme court and so it's the most important thing you can't do something that violates the constitution then
00:17:33
congress can pass laws and states can't do anything that is contrary to either the federal constitution or a federal
00:17:41
statute unless the constitution says oh only the states can handle this question
00:17:46
so there would be a big fight over whether abortion is strictly the regime and strictly the purview of the states
00:17:52
to deal with then you say okay well the constitution stands above everything else uber alice why don't we just amend
00:17:58
the constitution and as you suggest we're just not in the business of doing that anymore uh there
00:18:04
we have very few constitutional amendments and we haven't done it in a long time the constitution imposes all
00:18:10
kinds of hurdles in terms of congressional authorization state authorization it's why the equal rights
00:18:15
amendment was never passed uh it's just incredibly hard to get the kind of super majority in the country that you need to
00:18:22
amend the constitution and the our kind of foundational rights and that's what's made the supreme court so important by
00:18:27
the way and that is we have something like the equal protection clause we have a right to free speech we have a right
00:18:33
to uh the free exercise of religion and those are big capacious phrases that nobody can objectively tell you what
00:18:40
they mean they mean what five justices of the supreme court say they mean and that's why there are all these fights
00:18:45
over supreme court appointments uh because the justices have enormous power by five four majorities to fundamentally
00:18:52
change the course of american life and it can be in a conservative direction or a more liberal direction remember the most famous thing the supreme court has
00:18:58
done recently before this decision is recognizing a right to gay marriage i want to go there but just before i go
00:19:04
there i want to go back to something that amy mentioned which is starry diseases this idea of precedent my
00:19:10
understanding is that when supreme court nominees go through the confirmation process this is a really
00:19:16
important part of what they're asked right through their confirmation process what are your views on starry diseases
00:19:23
what are your views on roe and there's a lot of discussion right now about whether
00:19:29
you know specifically gorsuch and kavanaugh who signed up to this alito
00:19:34
draft at least may have lied to congress in the way that they answered their questions i
00:19:39
don't know if you guys can sort of um talk us through that and and whether you have an opinion on on on that and their
00:19:46
actual congressional testimony to get confirmed so what they said and i went back actually and looked at some
00:19:52
although not all of justice kavanaugh's confirmation hearings today actually uh you know what they had said at their
00:19:58
confirmation hearings was that roe and casey were settled law that roe has been in effect for 50 years
00:20:06
and then casey came along and reaffirmed it so i think justice kavanaugh called it precedent on top of
00:20:12
precedent so that seems like starry diseases it just said in different words or no oh yeah there's no question that
00:20:19
that all of the nominees that have gone through have acknowledged because it's not just
00:20:24
two cases there are 10 abortion cases you know this has been in front of the supreme court ever since 73 over and
00:20:30
over and over again and casey adopted this framework and it's been reaffirmed over and over and over and the court has been moving in a conservative direction
00:20:36
upholding more abortion restrictions but the foundation the corvo has been there but the issue is this when someone says
00:20:43
this is a precedent and a super precedent they are not saying it cannot be overruled everything can be overruled
00:20:49
and so that's why alito's draft is so strong it is it uses a formulation that kavanaugh has used which is egregiously
00:20:56
wrong from the start so that if something is just outrageously totally wrong now pause to the fact that a super
00:21:03
majority of supreme court justices have thought it was correct including a bunch of republican appointees
00:21:08
for 50 years right and you know including the court that first adopted it the but this majority uh has come up in a
00:21:16
kind of jurisprudential with a jurisprudential vision that's sufficiently conservative
00:21:21
to say this is essentially the most outrageous thing the supreme court has ever done is row because it interjected
00:21:27
itself without any textual basis into one of the fun foundational moral debates of our time which is what
00:21:34
legislature should be handling so now some of the you know moderate republicans susan
00:21:40
collins uh senator mikowski have said they're quite upset about this because they feel misled but i think the
00:21:47
defenders of the justices would say well i mean they did say it was precedent on precedent but they didn't say it was
00:21:52
immune from being overruled and here you go just to add in one tiny little detail
00:21:58
in the draft opinion by justice alito is that one of the things he talks about
00:22:05
when he's outlining the principle of starry decisis he says that this principle is actually at its weakest in
00:22:12
cases like this one involving the interpretation of the constitution because only the supreme court gets to
00:22:17
say what the constitution means and at some point you don't want to sort of trundle along with an interpretation
00:22:25
of the constitution that is as tom suggested egregiously wrong he said you know if you're talking about a
00:22:32
supreme court decision interpreting a law that was passed by congress if the congress doesn't like that
00:22:39
decision they can get together and pass a new law but only the supreme court can say what the law
00:22:46
is so i'm not you know obviously i'm not defending the a leader opinion that's not my job as a reporter but
00:22:52
that is i think one of the one of the points that someone would make
00:22:57
in explaining why this that despite the what they said at
00:23:02
their confirmation hearings if they voted to overwhelm rowan casey i have a call i'd like to ask a question
00:23:08
first from up which is i think this is really fascinating like the history of it it's amazing for you to really unpack
00:23:14
it for us i want to ask a human question here and and maybe because these judges are humans and there's like a sentiment
00:23:21
here um where the majority of the country uh does not want to do this
00:23:27
it's been the law for generations of women have had this protection it's been 50 years
00:23:32
so i think the question a lot of us have watching all this is why is this happening right now
00:23:38
and is this some you know strategy that's been played out to overturn this because it feels
00:23:45
profoundly unfair to take a right away from these generations of women and there's this anger that's built up of
00:23:52
how on earth could this happen so maybe you could tell us about the humans who are in these positions of power and
00:23:59
why they made this decision because we can look at all these laws and the precedent but there is also the reality that
00:24:05
um the deck has been uh stacked with this court uh it seems quite strategically and this feels like a rug
00:24:12
pull to a lot of the people who voted these people on and now you have a large group of the country who feels like this
00:24:18
is exactly the opposite of what the majority of us want so can you explain that to us what's going on here with
00:24:23
these humans who have these positions of power and authority yeah i think that's a fair
00:24:28
characterization of what is a majority of the country that is to varying degrees pro-choice now we ought to pause
00:24:35
and recognize that there is another significant part of the country for whom this is
00:24:41
you know an incredibly important positive moment the country is divided on this question there are passionate
00:24:47
views on both sides uh the women who are directly affected many of them will feel no doubt
00:24:52
incredibly impassionedly strongly that this is an outrage um but there there
00:24:58
are activists on on both sides and yes from the day that roe was decided
00:25:05
there has been a unflinching commitment among conservatives to undo it and it
00:25:12
has taken them five decades to do it but they have marched forward from that position where they were losing seven to
00:25:19
two in the supreme court till june of this year where they will likely win a
00:25:24
five to four and they have worked tirelessly
00:25:30
to put justices on the supreme court who would be willing to take this step they thought that john roberts would and it
00:25:36
appears that he's very likely willing to cut back on roe but not overrule it entirely but that the other
00:25:41
conservatives whether it's someone who's been on for a while like justice thomas or instead much more recent appointments
00:25:48
which is the uh and in gorsuch uh kavanaugh and in barrett and justice
00:25:53
alito having been on the court for a while uh those people this is the number one agenda item for what they believe is
00:26:00
correcting the course of the supreme court's interpretation of the constitution that this was the one that
00:26:05
was most out of bounds because it was the most made up in their mind now we
00:26:10
should talk a little bit about what it's going to mean for other areas of the law like gay rights and that sort of thing but in a very human sense there there
00:26:17
has been an utter human commitment uh by pro-life forces to stop what they regard
00:26:24
as the murder of you know millions of unborn children and an unbelievable commitment on the
00:26:30
among pro-choice uh forces to maintain what is uh you know a basic individual liberty yeah i just wanted to add i mean
00:26:36
i think i agree with everything that tom said and i think in particular you have to
00:26:41
look at you know go back to 2015 and then in particular the 2016 election
00:26:48
donald trump was elected you know in no small part because he pledged
00:26:54
to put justices on the court who would overrule roe and casey you know you had
00:27:01
conservatives who weren't quite sure about him but felt so feels felt so strongly about
00:27:07
this issue that they were willing to go to the ballot box and vote for him because they trusted
00:27:13
him based on including like a list of supreme court potential nominees that he
00:27:18
released before the 2016 election which is something that nobody had done before but i think worked out very well for him
00:27:26
you know and then you know sort of compare that with people as tom said
00:27:31
on this issue people who opposed abortion were often single issue voters you know in the 2016
00:27:38
elections you had you know the the butter emails crowd who weren't necessarily going to go to the polls for
00:27:44
hillary clinton even though they likely would be abortion rights supporters
00:27:52
and you know often just like not i think there was probably an element of disbelief the idea that this right was
00:27:59
so solidly enshrined in american constitutional law that
00:28:04
that it would stand despite who might be on the court so amy i want to ask a jump
00:28:09
a question from here um then this is an issue that's close to all of us when we read roe v wade we
00:28:15
were i think we were all like a little shocked like wow this is happening and then the second wave of news was how
00:28:22
this created potential to undo obergefell right so the gay rights law
00:28:27
or even like interracial marriage you know jason's in an interracial marriage i am you know many of our friends are
00:28:33
are gay and married how are we supposed to think about what this does presidentially
00:28:40
and does it create risk that all those rights could be taken away from us or or
00:28:45
our or people that we care about like is that something that's possible here i mean i do think those a lot of those
00:28:52
rights are going to be challenged justice alito in this draft opinion
00:28:57
says no those rights are different you know because only abortion rests on the purposeful
00:29:04
termination of a human life but you know to go back to what tom talked about earlier you
00:29:10
know those rights rest you know are also not in the constitution rest on this
00:29:15
same sort of principle called you know substantive substantive due process you know rest on a right to privacy
00:29:23
and there were definitely arguments made in the supreme court in the mississippi
00:29:29
case not by mississippi but by groups supporting mississippi that if you overrule roe and casey you do have to go
00:29:35
back and look at these other rights yeah i mean the the for over ruling row
00:29:41
is by and large the same reason that you would over rule a burger found
00:29:47
oberfeld is a much less well settled precedent you know it it hasn't been reaffirmed by the
00:29:54
supreme court as opposed to roe many many many times um it you can just as easily say it's uh
00:30:01
an issue for the states and when you see in justice alito's what you see is two things in justice alito's
00:30:07
opinion a bunch of reasoning that would be used to strike down a bunch of other rights go all the way back to where does
00:30:12
where do we think we find the right to contraception right where is that and the supreme court both with respect to married and
00:30:18
unmarried couples said there's a right to contraception but it's not in the text of the constitution and there's a
00:30:23
bunch of stuff that's not in the text of the constitution as i said the constitution's super vague so you have a bunch of stuff in alito's
00:30:30
opinion that says uh all of the the reasoning that's in those cases essentially is wrong
00:30:36
and then you have a paragraph that says but but by the way this is just about abortion why because it is
00:30:44
and the difficulty is that in a later case it's much much much easier to apply
00:30:49
all the thinking than the truism that this is just about abortion because this case just is about
00:30:54
abortion but i think what's very likely is you know i'm a legal realist and that is i think that the justices decide what
00:31:01
they want to do and then they write the opinion that gets theirs when the court voted to overrule roe when five justices
00:31:07
did that after the world argument in this dobbs case one or more of the justices said okay i'll join an opinion over ruling row if
00:31:14
it is absolutely clear that it will not lead to the overruling of these other things and so justice alito put that in
00:31:20
there he doesn't believe it for a second that those decisions are rightly that those rulings should necessarily stand
00:31:28
but it appears that they don't have five votes for that view but look they didn't have five votes for over ruling row
00:31:33
until very very recently and you could put another conservative on the court um or you know these five could end up
00:31:40
doing it it is very much in play that at the very least you have to acknowledge that a lot
00:31:45
of things that people thought were kind of foundational bases for
00:31:51
how we order our lives uh because they were protected by the constitution uh
00:31:56
may well not be anymore i mean i just like isn't there like an element of compassion that has to be a
00:32:02
part of how they're supposed to do their job i mean i know five people who disagree with you
00:32:08
it just so happens that there are a majority of the support let me ask a question about this sort of uh parade of horrible so so tom i
00:32:14
understand what you're saying that that overturning row would implicate these other cases
00:32:20
on the other hand and as you mentioned alito specifically says well presumably it's alito in this dobbs decision those
00:32:26
cases are not affected so he does carve out this case specifically but this but
00:32:32
separate from that this stream court just two years ago in boston uh clayton county
00:32:38
read you know lgbtq rights into title vii and that opinion was written by gorsuch with roberts
00:32:45
joining him you know i think was that that was a six four or six three majority so the idea that this supreme
00:32:51
court would overturn you know marriage equality you know obergefell which was just um written by
00:32:57
kennedy in 2015. i mean i understand that you're saying it's possible but is it really likely well
00:33:03
look bosek is totally different it's interpreting a federal statute a law that congress passed that's their point
00:33:08
the conservative's view is like okay congress passes a law to protect you know same-sex marriage fantastic have at
00:33:14
it and if it is past title seven to prohibit discrimination on the basis of
00:33:19
sexual orientation fine uh we don't have a problem with that but it's our problem is interpreting the constitution to
00:33:25
strike down those laws do you say is it likely uh you know the it is a it is a
00:33:31
bizarre circumstance because doctrinally when we think as lawyers when we think as judges it should be much harder to
00:33:38
overturn roe versus wade because we do have this is a lot of water under a lot of bridges whereas with same-sex
00:33:44
marriage it's a pretty new thing that we've recognized in the constitution and if you say look we're going to talk
00:33:49
about the founders of the constitution we're going to talk about originalism i'm going to give you two propositions you tell me which one is more likely and
00:33:55
that is in the year 1800 someone said given the choice do we protect a woman's
00:34:01
right to have an abortion say in the instance of rape or incest or something like that or we're gonna say that is
00:34:07
there's a constitutional right for two men to marry each other this is not close it is just not close
00:34:14
now i believe in both of those rights but nobody seriously would say that the founders of the country in enacting and
00:34:20
adopting the constitution thought that they were protecting same-sex marriage and if you want to look at it from that
00:34:26
perspective and this opinion does then a burgerfell is just an easy target to be honest in order for the the sort of the
00:34:33
parade of horribles to happen though there's a two-step process right the first step is the supreme court throws
00:34:39
it back to the legislature then the legislature has to do something that you think is appalling
00:34:44
and ultimately the you know marriage equality is not popular as a
00:34:51
position in both parties right so the idea that um
00:34:56
even if that decision was overturned that all of a sudden you would have a change in that law
00:35:02
seems unlikely right no no because all that is that a court clerk
00:35:08
in rural texas says i refuse to uh sign this marriage certificate
00:35:13
remember a lot of these statutes haven't formally been withdrawn they haven't been they're they're sitting on the books uh they're just invalid so too
00:35:21
with roe there are a bunch of statutes on the books that are abortion restrictions that everybody knows are unconstitutional they're not in force
00:35:27
those are in states you're saying yeah exactly and so too with respect to gay marriage and all other kinds lots and
00:35:33
lots of other uh uh there were there were hundreds maybe thousands of statutes
00:35:38
that discriminated against gay couples and gay individuals uh in the lgbtq community uh and there's bunches of that
00:35:45
stuff still on the books and all it takes is for one conservative to say look i'm gonna apply those laws let's go
00:35:52
i'll give you an example the attorney general of texas has said look i'm now
00:35:58
let's see i heard what's going to happen with roe i'm now looking at plyler versus doe that's the st that's the constitutional decision that says states
00:36:04
have to uh educate children no matter whether or not they're lawfully in the country or
00:36:10
not i mean a whole this is going to be extremely motivating and extremely
00:36:15
animating to conservative legislatures to conservative attorneys general in the
00:36:21
states everything's now in play it's let's go uh let's give it a shot let's
00:36:26
take it up to the supreme court it can get worse from the conservative perspective they've already lost on some of these issues and so it's going to be
00:36:34
a scary quarter century it seems to me amy the we grew up i'm of gen x 51 years
00:36:40
old with this profound respect for the supreme court that it felt fair it felt just it felt like the one
00:36:48
institution that was above politics and now it feels uh because of flipping a 50
00:36:54
year old law as if it's and these you know sort of um uh you know the interview process when
00:37:00
they were being confirmed and maybe the rug pulling there that we can't trust it and then this leak happens so
00:37:06
now it all feels like this institution is not trustworthy is biased is political so were we living under a
00:37:13
mirage that it wasn't or has something fundamentally changed when we look at the supreme court and how they're
00:37:20
behaving now that's one of the things i'm struggling with is was i just you know living under a false vision of
00:37:27
this institution and now i'm seeing reality uh or has something actually changed with the court and should we as
00:37:33
a country be looking at the court differently i mean i think at least one thing that has changed is that right up
00:37:40
until the point you know in the last 10 years when justices david suter and john paul
00:37:46
stevens retired and then justice anthony kennedy in 2018 you know
00:37:51
nom people who are sitting on the supreme court you didn't always you know people did not always have the sense
00:37:57
that they were voting in the same way as the party that put
00:38:02
them on the court you know justice's suitor and stevens it really had become
00:38:07
a solid part of the court's liberal wing by the time they retired justice anthony
00:38:13
kennedy was still a conservative but he was a conservative you know who provided the key votes on things like same-sex
00:38:20
marriage and whether or not there is a right to be intimate with somebody of the same
00:38:26
the same gender and so you just didn't i think people looked at the court and didn't think those decisions are
00:38:32
political you know they're not always dividing five to four on sort of so-called party lines i think that has
00:38:38
changed and i think some of the the confirmation hearings i think in particular
00:38:45
democrats and progressives feel that at least one of the seats either justice
00:38:50
gorsuch or justice amy coney barrett was was stolen in effect because
00:38:56
justice scalia died in february of 2016 senator senate majority leader mitch
00:39:02
mcconnell refused to have hearings for the president obama's nominee saying the next president had just has to decide
00:39:09
you know you can agree with that you could disagree with that but then justice ginsburg dies in september 2020
00:39:15
and the republicans rush to put someone just now justice barrett on the court before the presidential election so i
00:39:22
think people do just i think there is a general sense that it is more political
00:39:28
than it used to be what about the leak tom you just wrote about that yeah yeah well can i just say one other thing was having jason that was you were winning
00:39:35
i mean people think the supreme court is political when they don't like what it's doing and so when there was a right to
00:39:40
an abortion when the affordable care act is being upheld when obergerfeld is being decided in favor of same-sex
00:39:45
marriage you and me tend to think of that as oh that's that's just the way the constitution should be we've got an
00:39:51
objective sensible set of justices and then we start losing uh and we get the
00:39:56
perspective that the other side ideologically has had they think the supreme court's been super political in
00:40:02
uh roe in casey and obergefell and in the aca
00:40:07
because they think the constitution means the opposite and so they think they've got a bunch of that the court has been way too liberal and way too
00:40:13
ends oriented because there's no objective answer with respect to most constitutional questions because the document's so vague
00:40:19
we have this notion of what's judicial activism well judicial activism is is losing
00:40:24
because if you win then obviously it's what the constitution was meant to to be from the beginning and so we do have
00:40:30
this it it our the the perception of any individual about the supreme court whether it's neutral and objective or
00:40:37
instead political and biased tends to be rooted 95 percent of whether you like what it's doing or not so i'd love to
00:40:44
hear from you i think it's a very fair observation i mean even it's its fans would admit the warren court was a
00:40:49
highly activist court so i think you tend to think of the court as being activist to the extent
00:40:54
that you don't like the results yeah although obviously there are um more or
00:41:00
less incremental approaches that one could take actually in this decision it looks like roberts was angling for the
00:41:06
incrementalist approach here which was too incremental yeah it means in this context yeah and i
00:41:12
think incremental there was i'm not sure i guess it just you can call it whatever you want so at the oral argument in
00:41:19
december one of the alternative grounds that mississippi had offered
00:41:24
was to still uphold their law but not formally overwhelm roe and casey and at the oral
00:41:31
argument roberts seemed to be the only person who was interested in that alternative
00:41:38
ground so that would still be a major shift in abortion rights laws but it would not
00:41:45
formally overwhelm rowan casey in that moment and please correct me if i'm wrong the biden administration also said
00:41:51
they don't want that nuanced decision they wanted rowe voted up or down in its entirety is that right
00:41:58
you know i'm not i'm pretty sure that nobody including the the lawyers liked
00:42:04
like the alternative ground i think that is right because it's an optical illusion the chief is a sophisticated
00:42:11
guy who is very aware of all these issues related to public opinion and the court he knows what how strident the
00:42:19
reaction would be and will be if roe versus wade is overruled and so he'd rather take this step by step and kind
00:42:25
of like turn up the temperature of the water to a slower boil so that it's less of a surprise if and when roe versus
00:42:32
wade is overruled five years from now because he doesn't have to go that far today on the other hand uh you know
00:42:38
movement conservatives realize look you know justice scalia died a lot can change we've got our shot let's take it
00:42:44
uh right now and our at least at the the initial vote we're willing to be super aggressive and that
00:42:51
apparent that seems to be the debate that's playing out now in these leaks is you know what will happen with kavanaugh
00:42:56
and barrett and will they go with the chiefer instead with the leader's stronger opinion exactly so this is what i wanted to ask
00:43:02
both of you how does this play out from here inside the court itself and
00:43:08
is there a chance that this draft isn't the ultimate decision is there a way that there can be a
00:43:14
middle ground path like what happens from here or is this basically a fata complete as as as written right now
00:43:21
so i'll let tom talk about the the leak and he's got some theories about what might have happened
00:43:27
it is this was the first draft you can see that on the
00:43:32
copy that politico published and it is from apparently from back in february the argument was in december
00:43:41
nobody expected to get the decision in this case in all likelihood until late june and so you know i do think that
00:43:48
there is a chance that the opinion could change in some way it might not have quite as strong a tone
00:43:55
or it you know it's possible that what's going on behind the scenes and we just
00:44:00
don't know it is some sort of effort to move justices away from this opinion to
00:44:08
this alternative ground that the chief was advocating for at the oral argument in
00:44:14
december i you know i'll let tom talk about some of the theories that he has one of the things that somebody who
00:44:20
actually gets to go to the oral arguments right now when you are at the oral arguments in
00:44:27
any case but in particular this case you know the justices are talking to the lawyers asking the lawyers questions
00:44:34
trying to flesh out what their positions are you know what the possible resolution of the case may be the
00:44:39
justices are also talking to each other and so one thing that was not a leak but was
00:44:46
really interesting at an oral argument on april 20th a couple of days before
00:44:51
the this wall street journal editorial that tom is going to talk about and then a couple of weeks before politico leaked
00:44:58
there was a discussion in a case involving the miranda right you know you have the right to remain silent the law and order
00:45:05
thing um and the question was whether or not you can bring a lawsuit a federal civil rights claim
00:45:11
if your miranda right has been violated and so not anything to do with abortion
00:45:17
but at the oral argument justice kagan starts talking to the lawyer who's
00:45:22
arguing the case about the miranda decision there was a miranda
00:45:27
decision in 2000 at which the supreme court by a vote of 72 held that congress
00:45:33
could not overrule miranda and she said you know justice chief justice william rehnquist the chief
00:45:39
justice at the time wrote the decision and he was someone who made clear that he had not been
00:45:46
he thought that miranda was wrong but nonetheless voted to uphold it because he knew what in effect overruling
00:45:54
something that everyone believes is part of our constitutional landscape so to speak would have on the court's
00:46:00
legitimacy and you really had the sense at that point that she wasn't talking about
00:46:05
miranda that she she was talking about roe versus wade and planned parenthood versus casey in this case because this
00:46:11
was something that this is an issue that justice kavanaugh had raised at his confirmation hearings talking about
00:46:17
rehnquist and miranda and so you have the sense that that maybe things still are in play
00:46:24
behind the scenes at the supreme court as recently as you know a couple of weeks ago she wouldn't have been
00:46:29
necessarily trying to make this point if she thought it was set in stone yeah so
00:46:34
a couple of weeks ago somebody leaked to the wall street journal editorial board and this has happened before
00:46:40
a couple of times over the past you know decade-ish that um five justices have voted over a
00:46:47
row but it was in play and that the chief justice was trying to pull along to a more moderate position justices
00:46:53
kavanaugh and barrett and uh it wasn't styled as a leak but we now know it was a leak including because
00:46:59
the wall street journal editorial board said and we think justice alito is writing the opinion out of nowhere like nobody in the world
00:47:06
would go on the record saying that was true unless they knew it so they they knew what was going on and that that's a
00:47:11
very strong indication that uh things are still in play then with respect to politico
00:47:16
uh politico was told that five justices had voted to overturn roe and that was the current vote but did not say that
00:47:23
five justices were signed on to this opinion and that's what happened so justice alito circulated this opinion in
00:47:29
february and then he's supposed to get memos back from his majority saying hey sam uh if you make these five changes
00:47:35
i'll join your opinion and boom then you've got a an actual majority for the court but all that you see from february
00:47:41
10 is this is sam alito's view and it is the outcome that five people voted for
00:47:46
at at the conference of the justices uh and so there's a bunch missing between february and now in terms of
00:47:53
actually getting to a majority so the most likely scenario right now is that it is in play now
00:47:59
what does it mean to be in play and is it as i said an optical illusion well it is not in play whether this statute's
00:48:05
going to be upheld it's in it's in what's in play is are they going to admit to over ruling row and how far are
00:48:12
they going to go in upholding doing something that would for example uphold a six-week ban like their states with
00:48:18
six week bans what about statutes that are total abortion bans are those now constitutional so you know are we going
00:48:25
to go step by step and is this going to be a five-year process or is it going to happen on the last day of june of this
00:48:31
year that might be in play but people ought not be uh misled into thinking like there's a real real debate uh about
00:48:38
what's going on in abortion in the supreme court row is is on life support best case is there um
00:48:45
anything uh because the person who leaked this we would assume
00:48:51
is hoping to make some change and send this out as a warning sign to the country and the people who want to
00:48:57
preserve roe would we agree on that some people think that's i think that's true others think that uh this was an
00:49:04
effort to get kavanaugh on record as having voted
00:49:09
to overturn roe and to hold his feet to the fire that's certainly how i interpret the leak to the wall street
00:49:14
at royal street journal editorial board i think the release of the opinion however the distinct like this piece of
00:49:19
paper is intended to do what it did which is to motivate progressive forces and say wake
00:49:26
up like this is really happening we're not kidding you've been hearing that the supreme court's getting more and more conservative but i'm telling you in
00:49:33
eight weeks you don't have a right to an abortion anymore uh you better get your act together so the second question is
00:49:39
is there any chance that public sentiment could make a change in the thinking of the supreme court is that
00:49:44
farcical for us to think or are they humans and they see this and say you know we gotta dial this back or we
00:49:50
gotta you know you know uh and somehow maybe dampen the blow of this if we are gonna overturn it
00:49:58
could protest mass protests and sentiment actually change their thinking amy it's
00:50:03
so hard to say i mean i really do think it's probable you're probably talking about just one or two justices rather than
00:50:11
all of the justices as a whole you know because i do think that there is probably a sense among
00:50:17
some of the more conservative justices who would have signed on to this opinion that we are not going to be we're not
00:50:25
going to you know step off the path because somebody leaked this document and people
00:50:32
aren't going to like it we're going to stay the course but you know i think you're talking about you know in all likelihood one or
00:50:38
two justices whether they will be affected by this i think it's just it's so hard to know and so much depends on
00:50:44
what the leaker was trying to accomplish which we don't know institutionally
00:50:49
they're in a hell of a bind you know right now we know that there was this initial vote now let's say that the
00:50:56
ultimate opinion doesn't overrule row and justice kavanaugh joins the chief justice to do something
00:51:01
less aggressive institutionally that sets an unbelievably bad precedent if it creates
00:51:08
the impression that leaking documents to the public leading to protests causes the supreme court to change its mind so
00:51:14
that's a horrible place for the the justices to be in to be perceived as reacting to the leak in a way that the
00:51:21
leaker intended uh what that invites later generations of court staff to do
00:51:27
is is no bueno it seemed like alito almost thought it was gonna happen because there's a
00:51:32
section in his thing that actually speaks amy you mentioned it about being almost oblivious maybe is the right word
00:51:38
to what happens on the outside that they needed to do what's right almost in in a way almost forecasting this
00:51:45
i have a question for both of you which is more general in nature which is should we have age
00:51:50
limits for supreme court justices so one of the things and i don't mean to you know i don't
00:51:57
mean to sound morbid when i say this but you know these folks literally are in the chair until they die and this is
00:52:03
what i think creates some of this um some of these issues right so rbg
00:52:08
you know there could be a claim now that if if ruth bader ginsburg had actually stepped down
00:52:14
or tried to hold on you know it would could have been a different outcome there could have been a different person what do you guys think about this age
00:52:20
limit concept for supreme court justices and and and dealing with that in that way versus making these lifetime
00:52:26
appointments i'm personally strongly in favor of this but you have to recognize that it would require changing the
00:52:32
constitution there are all kinds of attempted workarounds but i'm telling you that the people who decide the constitutionality
00:52:38
of the workarounds are the justices themselves and they would have no interest in accepting any limitation on
00:52:45
their life tenure so you you have to expect that we're
00:52:51
talking about something that's kind of high in the sky because we're not going to amend the constitution to do this until we end up with the justice who's senile
00:52:57
and who can't do the job and the supreme court turns into a laughing stock and at that point the country will react but
00:53:02
we're just not good as a country at seeing this problem coming i mean fundamentally what happens is we're now
00:53:08
incentivized to put people on the supreme court when they're in their late teens just get them on there as soon as you can and keep them there for 70 years
00:53:16
and it's not gotten terrible and you know justice thomas was extremely young but we seem to have settled around 50
00:53:21
years old and there's nothing intrinsically wrong with having somebody on the court for 30
00:53:27
years or 40 years at age 50. we've been super lucky uh when it's come to the fact that we've
00:53:34
everybody's been pretty coppis menses we've we've gotten we've run good and we could run much worse than we have
00:53:42
we you know we see this in the senate right now uh that we have some problems and it could happen with the supreme court justice but the difficulty is even
00:53:48
are you referring to maybe they become senile they're not there or they could have alzheimer's and the problem is
00:53:53
since whatever yeah and then what do you do because you can't you know you're gonna impeach them uh people who
00:53:59
like the outcomes are gonna but what like the only the justices themselves can decide whether they're gonna leave
00:54:05
so the the but the problem is this we're we're getting we have a huge incentive
00:54:11
now to put on somebody who's very young and the the lead time effect of one presidency
00:54:17
of the trump presidency for example now will span you know four decades
00:54:22
uh and that i don't think the framers intended remember the you know the average life expectancy at the time of
00:54:27
the constitution's framing when we said life tenure was decades shorter uh even for people who like supreme
00:54:33
court justices back then who had very good health care and so nobody contemplated this when we originally
00:54:38
said lifestyle there is a proposal on this that there were a few members of the house i think including ro khanna
00:54:45
and uh rasheed labe and some other folks but also some conservatives support it too
00:54:50
for an 18-year term limit for supreme court justices and i think the way it would work is basically uh
00:54:57
each president would get to name two justices so basically every two years you get someone
00:55:03
rolls off and then the new president gets to choose a pick and so every president gets two
00:55:08
and so yeah basically if you think there's there's nine justices on the court so it takes 18 years for a full
00:55:14
cycle for it to roll over i think it's pretty interesting because it would take a lot of the heat out of
00:55:19
our these sort of supreme court nomination battles where you know somebody dies and now it's a nomination fight and
00:55:26
both sides are playing for all the marbles if you knew that every presidential election every president
00:55:32
met two votes on the supreme court it would sort of normalize things i don't know i mean i it's just that's
00:55:38
what the constitution says right no i know i know we need a constitutional amendment but i think it's a really interesting idea i'm all
00:55:44
for it yeah i mean i think obviously there would still occasionally be openings that would be created if someone had to
00:55:51
step down or would have passed away but you're right that it would people would be able to plan
00:55:56
we would know when people were going to be rolling on and rolling off i do think it is you know it's always struck me
00:56:02
it's kind of ironic that it is at least from a constitutional perspective
00:56:07
easier to add justices to the court than to impose term limits for which there seems to be
00:56:13
a fair amount of amount of support tom and amy you have been unbelievably generous with your time and your
00:56:18
knowledge we truly appreciate you coming here and explaining it to the all-in audience uh we're all better for the
00:56:25
work that you do and for you sharing with us the podcast is amazing it's so generous of you to have us thanks for
00:56:30
having us great to talk to you guys all right uh chamoth first off thanks for getting those amazing guests it was a
00:56:35
quite an education i i think first you know we'll recognize it's for four guys talking about abortion um and
00:56:44
you know we understand this is not exactly our issue uh to discuss an opinion no but jason the takeaway from
00:56:50
me was that this is not just an abortion issue oh of course the downstream
00:56:55
this is gay marriage this is interracial marriage so on the gay marriage point
00:57:00
let's just go back to that for a second so look i think tom did a nice job laying out um
00:57:05
you know in pretty neutral terms what's what's going on here and where he had a point of view he you know expressed it i
00:57:10
i think the idea that this leads to uh gay marriage being overturned i i don't
00:57:17
see it it's just uh you know it maybe it's not impossible but i i just don't buy it
00:57:23
there's two reasons so first of all the bosti case i mentioned this was a case just two years ago
00:57:29
written by gorsuch joined by roberts and the other so it was a 63 decision in which gorsuch held that the civil rights
00:57:37
act of 2064 protects uh gay and transgender employees against distribute
00:57:42
discrimination now tom is right that that's statutory not constitutional but
00:57:48
gorsuch didn't have to find in that statute that sex applied to
00:57:53
gay people and transgender people the court decided on its own to do that to interpret the statute that way so you're
00:58:00
telling me that a court that just two years ago decided that you cannot discriminate
00:58:06
against gay employees is now going to allow discrimination against gay marriage i just don't buy it and the
00:58:12
second issue the second reason is that marriage equality is broadly popular now in the united states
00:58:19
people's minds have really changed on that issue and i don't think the court would want to go back on an issue where
00:58:26
again they just ruled on this in 2015 where the where basically the issue is now settled in the country
00:58:33
one of the differences i think with abortion is it's still a very hot issue and it's not settled in the way that
00:58:41
uh marriage equality or gay marriage is settled so i just don't buy this idea that now we're gonna be overturning gay
00:58:47
marriage that we're gonna be overturning like for example example uh contraception i just don't buy it why
00:58:53
because nobody in the country is arguing for outlaw and contraception well i guess the the counter argument to that david that people would have is well we
00:59:01
didn't think they were gonna overturn ra uh roe v wade and they have um and so we feel we got rug pulled
00:59:08
kavanaugh et cetera people you know when they were uh being integrity interrogated about their views on these
00:59:15
things they felt like they lied so i guess what would the response be there because there seems to be a trust issue here that people are not trusting
00:59:21
uh the supreme court right now and again of course you know depending on which side you are you might be thrilled or
00:59:26
not thrilled with the outcomes i think that was a very good point in our discussion but um people didn't think this outcome
00:59:32
would happen with roe v wade so yeah it's kind of hard to believe anything the court says we did talk about this
00:59:37
earlier i think we we mentioned this when we talked about abortion
00:59:43
some episodes ago that this case was going to go and we mentioned i think this in the context of this and
00:59:48
affirmative action as you know two things that we're going to get challenged and would probably lose and
00:59:54
unfortunately it turns out we're right on one and it looks like we you know we may be right on the other as well
01:00:00
because i think the affirmative action case will get we'll get it did we think that we're gonna get overturned did you think that david i admit i thought
01:00:06
roberts was gonna get his way on this so i i am a little bit surprised i still
01:00:12
think that in terms of like the the um the the testimony of these nominees i mean
01:00:18
look tom i think nailed the answer to that question saying that these decisions are settled law is just a platitude i mean
01:00:25
yes it's settled law it doesn't mean it can't be overturned look i mean we all know that in these nomination hearings
01:00:31
the job of every nominee from either party is to basically say as little as possible
01:00:36
and describing row a set of law is doing that i mean it's not it's you could
01:00:42
still go back and and overturn it so i this idea that they lied or whatever i mean look people hear
01:00:47
what they want to hear in these in these they all the republicans and the democrats have a perfectly rehearsed
01:00:53
answer when somebody in the senate confirmation hearing says will you overturn it and they and they say i could never
01:00:59
adjudicate the case without knowing the facts and i have to you know look at every case as a clean slate it's like a
01:01:06
very well practiced answer to every question to your point david it's a very rehearsed confirmation process right
01:01:11
exactly so this idea that they lied or whatever look the only way you you think they lied is if you read if you read
01:01:18
something into an answer that was a platitude that you wanted to hear my issue my issue with this is the
01:01:23
following which is that i do think that there is a role for compassion and how we're governed okay
01:01:29
and i what i what i have an issue with is that at the sake of this originalism
01:01:36
to go and just be so textual about the constitution are you willing to abandon all
01:01:41
compassion and an understanding and you know i i that's where i just
01:01:47
struggle and jason i think you asked it like where is the role of like humanity in doing one's job
01:01:54
right and why is it that there's a belief that one must so fervently interpret
01:02:00
in an in a very black and white binary way a document that is you know for all intents and purposes still quite old
01:02:07
right and everything has the potential for improvement and so this belief that we got it right
01:02:13
the first time and that there there isn't any room for any dynamic improvement to me i really
01:02:18
struggle with let me just play devil's advocate your point of view is that the humanity in in making these
01:02:26
decisions is driven by what you consider to be your moral standing here which is um one of
01:02:34
pro-choice and folks um there are other folks in the united states who who have the moral
01:02:40
standing of pro-life which is to say i i don't believe that that choice should sit with with an individual given that
01:02:47
it infringes on the life of another and um and i think that's really what this is
01:02:52
all about which is in these circumstances where there are different points of view on what morality is what
01:02:58
ethics should be in this case that's where the law and the courts have to play an adjudicating role and that's
01:03:05
what makes it so tough right i hear you but look here's my my perspective on this is that
01:03:11
yeah i am fundamentally pro-choice i don't think i have the right to say okay what a woman can do with her body that's
01:03:16
just absolutely not um not my role uh or a right that i should
01:03:22
have i understand however and this may sound that i'm talking on both sides i
01:03:28
understand when people say this should be a past law
01:03:33
okay i think that that's a very reasonable thing to say you know people should be able to vote that law
01:03:39
and people should be able to enact that law i just think that when you have 50 years of a precedent
01:03:45
you know where there is as tom said so much water under so many bridges um this is why i think well why couldn't
01:03:52
you overturn loving virginia right why couldn't you overturn griswold why
01:03:58
couldn't you overturn obergefell and and this is where i just think like
01:04:03
are we not just taking a big step back in society and saying you know we're going to throw out compassion
01:04:09
in favor of original textualism and i'm just not sure that that's a good trade-off in 2022 america it's very
01:04:17
interesting this is such a polarizing issue for us and it seems like other societies
01:04:22
have found a resolution in a way to move forward i also think sorry just to finish jason i also think like this is
01:04:29
where okay honestly politicians step up and do your job one way or the other you
01:04:34
have a responsibility to reflect the will of the people and you have a responsibility to collect that nuanced
01:04:40
perspective and implement a framework that represents that and instead what i think i see
01:04:46
politicians on both sides is just you know screaming like crazy people at each other
01:04:52
and it just doesn't do anything so what are we going to do and we're going to have the same conversation guys about affirmative action right
01:04:58
we're going to have that conversation and we're going to wonder okay well is affirmative action was it reasonable was
01:05:03
it good was it bad well it's not a right that's affirmed in the constitution and so you know it's going to go away i
01:05:09
think thinking about intellectually the the way to
01:05:14
uh resolve the issue for the country um or path forward uh might be interesting to delve into
01:05:21
here is there a path forward you see david uh because listen we it is one brush we
01:05:27
play with you're either and the language is framed as such pro-choice or anti-choice pro-life or anti-life
01:05:34
obviously these are loaded framings to begin with um and people could be
01:05:40
not want to see abortions occurring in the world and they could also uh still be pro-choice right this is a very
01:05:46
nuanced issue and then people might have different feelings and i know this is graphic and hard to talk about but
01:05:51
people might have different feelings about the second trimester that they're tremendous and very different feelings about the first trimester and when an
01:05:57
abortion occurs and and people who are pro-choice might not be for third trimester abortions they may want to have some basic uh rules uh
01:06:04
around uh abortion so i'm not putting my own personal beliefs out there right now i'm just framing a question
01:06:10
what are your thoughts in terms of moving forward because this is a could possibly be a state issue in july
01:06:17
yeah well so so let's assume that this is the decision and it it's i guess
01:06:22
it'll officially come down in in june or end of june so let's assume that this is the
01:06:27
decision by the way it's still possible that roberts could peel off a vote and then we would get a scenario in which
01:06:32
roe is upheld while modifying it to allow you know laws like the mississippi law
01:06:38
but let's assume that this this decision that appears to be written by elito ends up being the law what that will mean is
01:06:44
that like tom said we'll have a vote in congress the democrats will see if they can basically uphold roe buy through a
01:06:52
law which biden would then sign i think the issue there is they have to get enough votes to break the filibuster
01:06:58
and i don't know if they're willing to do that so let's assume that fails then it goes to the states so in states like california where we
01:07:05
are there's going to be no change whatsoever in fact you know news from the democrats are saying they're going to enshrine the the current law in the
01:07:11
constitution of the state that's really that doesn't do anything abortion will remain broadly legal in
01:07:17
california and in blue states places like new york coastal states so right
01:07:22
off the bat let's say in about half the states 25 of them or so i don't think there's gonna be a change
01:07:28
in about 12 states these um restrictions that are already on the books are going
01:07:34
to go into effect and then we're going to have about you know 12 or 13 states that become battlegrounds
01:07:39
purple states basically and we will have those states through their legislatures
01:07:45
and through their elected representatives are going to have to figure out what their policy is going to be and that is going to be a huge issue in
01:07:52
those states and i think where this will go is i think politicians who figure out where
01:07:58
the center is and figure out where most of the people in their state are are the ones who are going to benefit and maybe
01:08:05
the the potentially hopeful scenario here is that it will force people to compromise when
01:08:10
they actually have to craft legislation they're gonna have to work through those compromises
01:08:16
until now the issue has been so fully preempted by the supreme court that everybody
01:08:21
basically was making these absolutist rights argument right like one side is saying there's a right to choice one
01:08:26
side saying there's a right to life these are rights that are being framed into absolutes that broke no compromise there was no reason to compromise
01:08:32
because there was nothing legislatively to work through or compromise right these were arguments being made to the
01:08:39
supreme court so no one's had to compromise and i think when they actually start working on legislation they start getting
01:08:45
working through these questions jason of what you're saying which is should abortion be allowed in the third trimester okay no most people would say
01:08:52
no should it be allowed in the second trimester and so forth so you have to work through those questions by the same token
01:08:58
if the pro-life side refuses to make compromises for say rape and incest
01:09:04
they're gonna be punished by voters in those states i mean that is very unpopular so both sides here i think are going to have to learn to compromise and
01:09:11
it's going to be a messy process but the hope would be that at the end of this we do eventually
01:09:18
arrive at some sort of resolution to the issue like we have in every other western country
01:09:23
you know in every other western country even ones that are quite religious this is not a culture war issue and i think you could argue that one of the reasons
01:09:30
why it's become a cultural war issue is because the supreme court preempted it and stopped the democratic process from
01:09:36
working 50 years ago and so the only way for people to express themselves is to make these again
01:09:41
absolute rights arguments in front of the supreme court i think that when it comes to the messy issue of democracy
01:09:47
when people actually have to work through these things through their elected representatives who will lose elections they will lose elections
01:09:54
if they take ex positions that are too extreme i think maybe we will get to a compromise
01:10:00
i think you're saying something really important you're saying had blackman not adjudicated roe v wade in 73
01:10:06
it would have been up to congress at that time they would have passed some set of laws and
01:10:13
and over successive iterations of those laws you're saying there would be a framework so that a moment like this
01:10:18
didn't happen yeah and you know what that exactly what you just said was written by um a supreme court justice um
01:10:25
in a larvae article in 1992 i'm going to let you guess who that justice was in a second but i kind of read you a couple
01:10:32
of statements from it this justice said that uh no measured motion the road decision
01:10:37
left virtually no state with laws fully conforming to the court's delineation of abortion regulation still permissible
01:10:43
around that extraordinary decision a well-organized and vocal right to life movement rallied and succeeded for a
01:10:49
considerable time and turning the legislative tide in the opposite direction meaning there was already a trend before roe towards liberalizing
01:10:56
these abortion laws across various states even ronald reagan had governor had signed a law liberalizing abortion
01:11:02
in california and that process was halted and stopped by the supreme court's decision which in one decision
01:11:08
invalidated every single abortion law in america and then what this justice said is that roe halted a political process
01:11:16
that was moving in a reformed direction and thereby i believe prolonged divisiveness and deferred stable
01:11:23
settlement of the issue do you know who the justice was who said that ruth bader ginsburg
01:11:29
so she obviously was for the ultimately the holding in in row but
01:11:34
what she said she would have done was have a much more incrementalist narrow decision
01:11:41
that would have maybe invalidated just that texas law but threw it back to the legislature so that they could then work
01:11:47
out the issue and instead she felt like the supreme court making such a sweeping decision
01:11:53
it created a backlash and i think for 50 years we've been living with that backlash and there's been a culture war
01:11:58
in this country over it while every other western nation has gone through the democratic process of working out the messy compromise now i think what
01:12:07
roberts was trying to do is create an incremental approach to
01:12:12
putting it back in the hands of the legislature and i think you could argue for the same reason that
01:12:18
ruth bader ginsburg argues that the incrementalist approach would have been better um i think it was certainly the politically shrewder move right not just
01:12:25
throw this grenade into 50 state legislatures but to gradually move the issue back to the states i think there's
01:12:32
a lot of wisdom in an incrementalist approach whether it's roberts or ruth bader ginsburg they both are basically
01:12:38
saying or you call it the starry decisis approach you give precedent you give weight to president you don't just overrule
01:12:43
you know these 50-year precedence i think there's a lot of wisdom in that approach as well but i think the hope here would be that
01:12:50
by letting the legislative process work through this issue we can hopefully eventually get to a stable sustainable
01:12:58
consensus and it will be chaotic but other countries
01:13:04
have dealt with this australia has basically by the states in australia they have different weak requirements
01:13:13
and europe has a certain weak requirements i've read a new york times article and chamathi
01:13:18
you pointed me to some of these resources so a possible outcome is
01:13:23
states starting to build their own framework in terms of rape incest
01:13:29
on-demand you know on request versus a certain number of weeks uh
01:13:35
and that is just going to be an absolute amount of chaos for some number of years
01:13:41
yeah look if if the parties don't compromise on this voters will eventually punish them i mean i don't think you're going to see
01:13:47
you know glenn younkin like victories by the republican party if they broke no compromise on for example the issue of
01:13:54
you know rape and incest by the same token i think democrats will have to
01:14:00
in a lot in purple states they will have to concede that there is a competing rights interest at some point
01:14:06
on the part of this you know of the unborn baby right i mean are you really going to allow abortion into the nine
01:14:12
month of pregnancy if the life of the mother is a mistake so both sides have never had to acknowledge that the other
01:14:18
side had anything useful to say and i think now they will and if the
01:14:23
absolutists in both parties refuse to do that i think they're going to lose elections
01:14:28
yeah i i it's so hard to get the proper statistics here because i think a lot of the
01:14:34
i've been looking trying to understand what the country actually thinks and people do not
01:14:40
ask very nuanced questions are do you believe roe v wade should be overturned people get asked that question the majority believe it shouldn't be
01:14:46
do you believe that you know like but we don't have all of these nuance issues uh bi-state it doesn't seem to be
01:14:54
um maybe people haven't even thought it through right like do most people who
01:14:59
are pro-choice have an opinion on the third trimester on the second trimester do they do they actually
01:15:04
have an idea of when they feel and and you know i'll be honest i have not given
01:15:10
this total thought myself as to how i feel about it i learned a lot by reading this here's here's something that was in
01:15:16
the opinion that i didn't know but it says at the time of enactment of this mississippi law
01:15:22
only six countries beside the united states permitted non-therapeutic or elective
01:15:28
abortions on demand after the 20th week of gestation those other six countries were canada
01:15:36
china the netherlands north korea singapore and vietnam that's it in the
01:15:43
whole world and so you know to your point there's there's all these granular details and i
01:15:48
think as david said a group of politicians need to sit in a room and really think through these things and
01:15:53
kind of try to try to get to some kind of basis that doesn't take back something that's been in the books for
01:15:58
50 years that's something so funny that's the really tragic part about this it's like it's such an unequal
01:16:05
think to do unfair it feels profoundly unfair to take her right away after 50 years i think that's
01:16:10
the republican party is going to just pay such a massive price for this um
01:16:15
broadly i mean is this a case where like the dog catches the car bites the fender
01:16:21
and it's now like oh my god cause well this is why i'm asking what is the what is the true prioritization of
01:16:27
things as we know how the world works today meaning i understand what it means
01:16:33
to be an originalist or a textualist i understand that right and i respect people's
01:16:41
perspectives that the constitution should be interpreted verbatim i understand that and and i and i and i
01:16:47
respect people's ability to think that the thing though jason to your point of
01:16:53
like the dog catching the car and the fender or whatever is okay um
01:16:58
do you do that at the sake of a lack of compassion or or lack of
01:17:05
empathy for how the world works today and should we not
01:17:11
have a point of view that says irrespective of how we decide we should factor in
01:17:18
what the moral temperature of the country is in that moment in which something is decided and i in some
01:17:24
context like there's a context here of it being law for 50 years that you cannot
01:17:29
disregard and that's why obergefell took until 2015 to really happen right because by
01:17:35
that point it was a it was there was this beginning of a sea change where you know i think it's like 70
01:17:41
i think in a gallup poll that i saw support um same-sex marriage and i think
01:17:47
it was about eighty percent it's not a hundred by the way eighty percent support interracial marriage and
01:17:53
ninety-two percent this is all in the same galapagos 92 percent support um
01:17:59
they don't think that using contraceptives contraceptives is immoral okay but that still leaves 30 20 and 8
01:18:06
percent that still think something that's very different but it's such a clear majority of america
01:18:14
so my my hope is that you know as as tragic as this ruling is if if this is
01:18:19
what comes to pass that it's narrowly defined so that to your point david we don't open the pandora's box on all of
01:18:26
these other things that we have decided as a nation are are very reasonable things you know i don't think obergefell
01:18:32
is going to get overturned i just don't see it and the reason is because of the way the supreme court handled that issue so
01:18:38
you know again go back to the early 1990s the way that that um this issue first came up is that a hawaii court
01:18:44
found that there was a right to gay marriage and there was a huge uproar supreme court did not take up the case
01:18:50
they did not take the bait so what happened then is congress passed doma the defense of marriage act which was
01:18:56
huge majorities in both parties and bill clinton signed it remember this stating that marriage was you know one man and
01:19:02
one woman and so if the supreme court had basically taken up the issue then and
01:19:07
found a right to gay marriage we might have had a constitutional amendment banning gay marriage by now and we'd be
01:19:12
trying to work our way out from under that and figuring out how to get rid of that but instead the court did not take
01:19:18
the bait they stayed out of it until 2013 when attitudes had changed substantially
01:19:24
and then they invalidated dome in 2013 and then obergefell came along in 2015.
01:19:29
so i think the pattern here is that the court has learned to stay out of these hot button issues
01:19:36
until they become a little bit more settled and then what they do is once the public's opinion has sort of clear
01:19:42
is clear then they enshrine it but isn't it clear that people want the right to for women to choose
01:19:48
well but it created this enormous backlash the the the the enormous backlash that you mean amongst the
01:19:54
minority well you say that but it is a it's a very large group of people but it's the
01:20:00
minority but then you said yourself that the majority in the court wants the majority of people to go for gay
01:20:06
marriage that's what that's that's the disconnect i have well but here's another disconnect right jake ellis if you believe your position on this is so
01:20:13
incredibly popular and has such a super majority why are you worried about it being returned to the state legislatures
01:20:18
they will basically have the laws that you want well no i believe in some places the
01:20:24
minority might be the majority in a certain state and then we'll have women in those states who aren't able to get an abortion
01:20:30
safely that would be my concern i think that the country is deeply
01:20:35
divided on this issue look at all defense uh depends on how you define the labels it is true that most people say
01:20:41
they're pro-choice however if you frame the question as should there be no restrictions at all
01:20:46
most people would say their favorite restrictions yeah that's a totally different phrase exactly so my point is the country is still deeply divided over
01:20:52
this and um the issue got preempted by the supreme court 50 years ago and we've
01:20:57
never made progress since then yeah and i think it's gonna be i think it's gonna be very messy i think that's fair and if
01:21:02
we if you frame the question as do you believe people women should have the right to choose in the first trimester we would probably have the
01:21:08
overwhelming majority people say sure that's no problem then we would be arguing over second trimester and third
01:21:14
i just i just posted the gallup data they've longitudinally tracked attitudes
01:21:19
and uh opinions of abortion since 1975. as of today in 2021 2022
01:21:27
you know the split between pro-choice and pro-life is very even it's you know 49 is pro-choice and 47 is pro-life but
01:21:35
if you ask the more nuanced question that david said 48 consider uh abortion to be legal
01:21:43
only under certain circumstances 32 percent say it should be legal under any circumstance
01:21:49
and 19 said it should be illegal in all circumstances and so to your point the
01:21:54
plurality of people half the half of america basically wants it it as a
01:22:00
supported right with some boundary conditions but then there's 32 percent of people
01:22:06
that want it under all circumstances so i think the compromise is that there is a 70 plus percent majority of people who
01:22:13
can craft a law here right yeah i mean right and also the question of do you consider yourself pro-choice or pro-life
01:22:19
that is the personal question not do you think it should be legal or legal that's what do you believe as a human being on
01:22:26
planet earth are you pro-choice or you're pro-life if you and i guess that would be assume if you had a baby
01:22:31
but then when you look at the illegal the illegals under 20 now it's been 18 19 percent now
01:22:36
so well to be fair since in 1975 that line hasn't moved right and that would
01:22:42
be highly religious people i would assume uh make up the majority of that 19 that we're
01:22:48
talking about like what's what's really moved is you know we've doubled the
01:22:53
number of people that that say it should be legal in all circumstances since roe
01:22:59
and that's come from people who thought it should be legal under some circumstances yeah to 32 so 50
01:23:07
this is a fraught issue for the republican party because if they only appeal to their base
01:23:13
the 32 percent who should actually you know sorry 32 percent say it should always be legal that's the democratic
01:23:19
base but if they appeal to the 19 who say never as opposed to
01:23:24
the 48 percent who say reasonable restrictions they could lose some elections here look i think until now
01:23:30
the issue has been a little bit performative because both sides both parties could just appeal to their base
01:23:36
because the issue had been preempted there were no laws to vote on now they're gonna be real laws to vote on there's gonna be
01:23:42
real votes and people if they don't move to where the majority of the country are they're gonna pay a political price for
01:23:47
that so basically translated republicans are going to have to fall into this bucket of legal under
01:23:53
certain uh and they're going to not listen to illegal at all because that that means
01:23:58
they'll just be so disconnected from the reality of american life in 2022 they will not get office as long as we can
01:24:05
have some reasonable voter participation that isn't about the extreme bridges of both parties
01:24:11
again this is again what we've been saying i think it's like the more centrists that show up and vote
01:24:17
the more compassionate and rational we can be and getting to denmark is what they call it right what is it
01:24:23
there's a term getting to denmark which is a term for where the politicians and the people who represent
01:24:29
you are in sync with the beliefs of the majority of the country and if you get to denmark
01:24:35
you know the distance between what politicians are doing and what the people want is very short you have this consensus or this alignment and we don't
01:24:42
have that alignment right now and this is probably the most pronounced issue and gun control we don't we can always hold out hope that
01:24:48
you know there's a more temperate moderate form of a ruling that's not what this is
01:24:55
but in the case that this is what it is i hope david that you're right and that it starts and ends
01:25:03
with row and that it it gets the states to be activated to do something and it doesn't spill over to
01:25:09
other things like gay marriage or even interracial marriage because i just think that i don't put it past
01:25:15
one law clerk someplace who's hell-bent on proving a point to use an originalist framing of what
01:25:22
they believe the constitution says to run these cases up the flagpole right but i don't think the supreme court is
01:25:28
going to overturn those other cases i'd just be shocked i don't even think they will take those challenges um
01:25:33
right yeah i hope you're right i am just absolutely devastated
01:25:39
by this it's just to take away women's right to choose is just insane to me but
01:25:45
uh we'll see we don't know exactly what's gonna happen here so hopefully we'll get some resolution
01:25:51
but i really love you guys love you guys too
