back to indexE79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein
Chapters
0:0 Amy Howe (@AHoweBlogger) & Tom Goldstein (@SCOTUSblog) join the show to break down the leaked draft overturning Roe v. Wade
28:7 Potential downstream impacts from the precedent of overturning Roe v. Wade
43:3 How will the leaked draft impact the Supreme Court going forward? Should there be age limits for SC justices?
65:9 Analyzing the path forward
00:00:12.000 |
there was a lot of big news um obviously this past week uh when a leaked draft of the supreme court's 00:00:24.960 |
roe v wade decision uh was published uh by politico the draft opinion written by justice delito 00:00:34.320 |
uh would turn roe v wade from a federal issue to a state issue now this is a bit above uh all of our 00:00:40.320 |
pay grades so chamath had a really great idea to tap some people who are actual experts and 00:00:46.080 |
uh in the supreme court uh chamath maybe you could introduce our guests i will and cue this up for us 00:00:51.680 |
thank you great um so first i'd like to introduce you to the supreme court uh the supreme court uh 00:00:54.880 |
is a very well-known and well-known media outlet for the supreme court and i'm going to introduce 00:00:59.120 |
amy howe um amy uh until 2016 served as the editor and a reporter for scotus blog which is the um the 00:01:07.520 |
premier blog that covers the supreme court she continues to serve as an independent contractor 00:01:11.840 |
and reporter for scotus blog she also writes for her blog called how on the court and before 00:01:18.400 |
turning to full-time blogging she was a counsel in over two dozen merits cases at the supreme court 00:01:24.800 |
and i'd also like to introduce her partner in scotus and also her partner in life tom goldstein 00:01:30.080 |
another dear friend of mine over the past 15 years tom has served as one of the lawyers for 00:01:34.480 |
one of the parties in just under 10 percent of all the cases argued before the supreme court he has 00:01:40.000 |
argued 43 cases himself and two that i've seen in the past year and two that i've seen in the past 00:01:45.360 |
year and two that i've seen in the past year and two that i've seen in the past year and two that 00:01:49.520 |
i've seen in the past year and two that i've seen in the past year and two that i've seen in the past year 00:01:54.720 |
and two that i've seen in the past year and two that i've seen in the past year and two that i've 00:01:54.960 |
seen in the past year and two that i've seen in the past year and two that i've seen in the past year 00:01:55.040 |
are probably a little bit near and dear to all of our hearts uh in 2000 tom served as second chair 00:02:00.480 |
for lawrence tribe and david bowies on behalf of vice president al gore and bush v gore 00:02:05.520 |
and most recently he represented google in a fair use copyright infringement case 00:02:12.480 |
google versus oracle um about the use of java apis um and so tom and amy thank you guys for 00:02:19.680 |
giving us um your precious time welcome to the pod thanks for having us thanks for having us 00:02:24.640 |
i was a little nervous about what the introduction was going to be like so thank you so guys there's a 00:02:28.720 |
there's a million questions um to start with or that we can go but uh maybe just to frame the 00:02:35.120 |
issue um can you guys just first walk us through the original roe v wade decision 00:02:41.760 |
um how it was made and the rights that it conferred and then maybe we can go from there 00:02:48.320 |
and talk about um what has happened as a result of the way it was written and the and and the 00:02:54.560 |
the the judgment as it as it stood sure roe v wade back in the early 1970s was a decision by 00:03:01.920 |
justice harry blackman in which the court held for the first time that there is a constitutional right 00:03:09.440 |
to an abortion and at that point the court ruled that it was regulated by time up through the 00:03:17.200 |
trimesters am i getting this right tom yeah and then in 1992 in a case called planned parenthood 00:03:22.640 |
versus casey that was the time when the court ruled that it was a constitutional right to an abortion 00:03:24.480 |
and that was an earlier effort to overrule roe versus wade because abortion opponents started 00:03:30.800 |
pretty quickly trying to overturn roe versus wade and so in 1992 in a case called planned 00:03:37.520 |
parenthood versus casey the supreme court did not overrule rowe in fact reaffirmed it 00:03:43.680 |
but switched the test a little bit the constitutional test to decide whether 00:03:47.280 |
other abortion restrictions can stand and this was a decision by justices david sue 00:03:54.400 |
andrew day o'connor who were all appointed by republican presidents and they said there's a 00:04:00.320 |
constitutional right to an abortion up until the point at which the fetus becomes viable which these 00:04:05.920 |
days is somewhere around 24 the 24th week of pregnancy but states can regulate abortions as 00:04:12.800 |
long as they don't impose an undue burden on the woman's right to an abortion i was just going to 00:04:18.160 |
tack on like what's sitting underneath roe because that ends up being a big deal these days but i'm 00:04:24.320 |
not sure what the contrarian approach is but i think that's a really important question and i'm 00:04:28.160 |
going to ask roe so i'm going to ask roe about the constitutional right to an abortion and i'm going 00:04:31.280 |
to ask roe about the constitutional right to an abortion and i'm going to ask roe about the 00:04:34.240 |
constitutional right to an abortion and i'm going to ask roe about the constitutional right to an 00:04:36.160 |
abortion and i'm going to ask roe about the constitutional right to an abortion and i'm going 00:04:38.160 |
to ask roe about the constitutional right to an abortion and i'm going to ask roe about the 00:04:40.160 |
constitutional right to an abortion and i'm going to ask roe about the constitutional right to an 00:04:42.880 |
abortion and i'm going to ask roe about the constitutional right to an abortion and i'm going 00:04:45.360 |
to ask roe about the constitutional right to an abortion and i'm going to ask roe about the 00:04:46.960 |
constitutional right to an abortion and i'm going to ask roe about the constitutional right to an 00:04:48.960 |
abortion and i'm going to ask roe about the constitutional right to an abortion and i'm going 00:04:50.960 |
to ask roe about the constitutional right to an abortion and i'm going to ask roe about the 00:04:53.760 |
constitutional right to an abortion and i'm going to ask roe about the constitutional right to an 00:04:54.880 |
abortion and i'm going to ask roe about the constitutional right to an abortion and i'm going 00:04:55.840 |
to ask roe about the constitutional right to an abortion and i'm going to ask roe about the 00:04:57.840 |
constitutional right to an abortion and i'm going to ask roe about the constitutional right to an 00:04:58.880 |
abortion and i'm going to ask roe about the constitutional right to an abortion and i'm 00:04:59.920 |
going to ask roe about the constitutional right to an abortion and i'm going to ask roe about the 00:05:01.840 |
constitutional right to an abortion and i'm going to ask roe about the constitutional right to an 00:05:03.920 |
abortion and i'm going to ask roe about the constitutional right to an abortion and i'm going 00:05:05.920 |
to ask roe about the constitutional right to an abortion and i'm going to ask roe about the 00:05:07.760 |
constitutional right to an abortion and i'm going to ask roe about the constitutional right to an 00:05:09.120 |
abortion and i'm going to ask roe about the constitutional right to an abortion and i'm going 00:05:12.160 |
to ask roe about the constitutional right to an abortion and i'm going to ask roe about the 00:05:15.040 |
constitutional right to an abortion and i'm going to ask roe about the constitutional right to an 00:05:16.000 |
abortion and i'm going to ask roe about the constitutional right to an abortion and i'm going 00:05:16.880 |
to ask roe about the constitutional right to an abortion and i'm going to ask roe about the 00:05:17.680 |
constitutional right to an abortion and i'm going to ask roe about the constitutional right to an 00:05:18.560 |
abortion and i'm going to ask roe about the constitutional right to an abortion and i'm going 00:05:19.520 |
kind of thing like you made this up it's not in the constitution and those two threads have come 00:05:24.640 |
together and have been at the root of this 50-year battle over rome in fact before we unpack that 00:05:30.180 |
maybe you want to just define for people as i understood as i've been learning about this this 00:05:33.860 |
week there's this one sort of moral spectrum between liberalism and conservatism but then 00:05:39.660 |
there's this orthogonal form of like originalism i guess is what folks call it can you just define 00:05:45.200 |
those terms so everybody understands what what we're talking about sure so you know in ordinary 00:05:49.400 |
politics we do think of um conservatism and then kind of more libertarianism a kind of peter teal 00:05:55.580 |
uh get the government out of my life and conservatives do believe that the government 00:06:00.300 |
has an important role frequently conservatives believe this an important role in regulating 00:06:04.760 |
abortion and prohibiting an abortion whereas a libertarian be more likely to say no this is my 00:06:09.060 |
body my choice for example and so that's kind of along the political spectrum in the legal spectrum 00:06:14.380 |
you have this sense of people there are a set of conservatives in particular 00:06:19.280 |
principally who think that the constitution should be interpreted today the way that it 00:06:23.920 |
would have been understood the day that it was enacted or that an amendment to the constitution 00:06:27.680 |
was enacted so that the 14th amendment to the constitution for example prohibits depriving 00:06:33.600 |
someone of liberty or property without due process of law and they would say well what 00:06:39.360 |
was due process of law at that time what was liberty at that time whereas a more progressive 00:06:45.040 |
constitutionalist somebody more on the left would say look no uh the 00:06:49.160 |
There are lots of things that aren't enumerated in the constitution, including, 00:06:52.100 |
you know, a right to bodily autonomy at all, the right to contraception the right, 00:06:57.400 |
even rights, even conservatives care about the right to educate your child 00:07:02.040 |
And the constitution in particular has to be able to adapt to modern circumstances. 00:07:06.840 |
And that's why actually our constitution is so vague. 00:07:09.780 |
There are lots of more modern constitutions, take the South African 00:07:12.460 |
constitution that have lots and lots and lots and lots of detailed provisions, 00:07:15.600 |
tackling all kinds of problems, including modern problems. 00:07:18.560 |
But the view of progressive constitutionalists is that look, when the country was founded 00:07:24.000 |
and they wrote the constitution, they knew the country was going to be around for centuries. 00:07:27.540 |
And they didn't intend to capture every kind of social circumstance that intend to capture 00:07:34.460 |
every modern problem, which couldn't even be contemplated. 00:07:37.840 |
So yeah, that's the, those are the two different kinds of 00:07:42.320 |
But both originalists say, look, there's no right to abortion in the constitution. 00:07:47.960 |
The founders of the country would have never imagined that we would strike down bans on abortion. 00:07:54.080 |
And then social conservatives are like, well, this is a really, really important role of government. 00:07:59.540 |
Amy, I don't know if you've had a chance to read Alito's draft opinion, but can you sort of walk us through his legal framework for coming to his conclusion that, that this thing needs to be struck down and why he's saying what he's saying? 00:08:17.360 |
30 pages or so in the appendix and what he tackles it in two ways. 00:08:22.360 |
The first is kind of from this originalist perspective, he looks at the idea of whether or not the right to an abortion is something that is deeply rooted in our country's history. 00:08:37.360 |
And he concludes that it is not that not only was there no right to an abortion, he said until the late 20th century, when right around the time of the Civil War. 00:08:48.360 |
Issued its decision in Roe, but in fact, abortion was a crime in many places. 00:08:54.840 |
And so he starts from that premise that there's no deeply rooted tradition of abortion being a right under the Constitution. 00:09:04.480 |
And that goes to the idea of what did the framers intend? 00:09:08.160 |
Does it fall within this fundamental right that would be protected by the Constitution, even if it is not? 00:09:20.560 |
It's because it's not a right under the Constitution. 00:09:22.560 |
It's because it's a right under the Constitution. 00:09:24.560 |
And that's why he says that abortion is not something that is specifically enumerated in the Constitution. 00:09:29.560 |
But then he also has to look at Roe and Casey because those laws have been in effect that those cases have been in effect for 50 years now. 00:09:36.560 |
The court issued this decision in Roe in the early 70s and then reaffirmed it in Casey in 1992. 00:09:41.480 |
Because the Supreme Court and courts generally have a principle. 00:09:45.960 |
They're decisions just because they think the earlier decisions are wrong. 00:09:50.160 |
That there needs to be a good reason to do that. 00:09:53.360 |
And the court has never said specifically exactly what you need to do to overrule a decision. 00:09:59.360 |
But over the years, they have outlined some factors that you can look at to decide whether or not you should do so. 00:10:09.760 |
The idea that Roe and Casey were simply wrong when they were decided for 00:10:15.760 |
the reasons that Tom has just discussed and that Alita discusses at great length. 00:10:20.760 |
That there's no deeply rooted tradition of abortion being a right. 00:10:25.560 |
The idea that another thing that courts often look at is whether or not people have relied on the court's decisions here in Roe and Casey. 00:10:35.560 |
And he said that even in Casey, there wasn't this idea that people arrange their personal lives in the short term around the idea that they have a right to abortion. 00:10:45.560 |
They've looked at it in Casey and sort of in people since then. 00:10:49.560 |
And sort of the broader sense that women have made decisions about their lives. 00:10:55.560 |
So with the idea that they will have reproductive freedom. 00:10:59.560 |
And he says that's really not the right way to look at the issue of reliance. 00:11:03.560 |
He looks at whether or not the test that the Supreme Court has and other courts have been using to review restrictions on abortion. 00:11:12.560 |
This undue burden standard is what's being used. 00:11:17.360 |
And he concludes that it's not workable because he says this idea of an undue burden test is so amorphous that courts have reached all kinds of different decisions on various abortion restrictions. 00:11:29.360 |
And so for those reasons, he says the abortion is a profound moral question, he says. 00:11:35.360 |
But it's not one that is protected by the Constitution. 00:11:38.360 |
It's a question that should be decided by the people and their representatives and should go back to the state. 00:11:46.160 |
So I think a lot of people when they read a headline like Roe v Wade overturned, they think that the Supreme Court is directly legislating on the issue of abortion. 00:11:59.160 |
I think that may be even the popular conception of what of what just happened. 00:12:05.160 |
Can you just explain that a little bit more that you know, what exactly is the Supreme Court deciding on this issue and specifically what the Supreme Court is doing here is more deciding who gets to decide. 00:12:18.960 |
And as you do that, maybe you could just highlight the role the Supreme Court is meant to have in in our system of government, just as a basic kind of concept, which I'm not sure is like, as clearly understood here. 00:12:31.960 |
So you know, there are the three branches of government, the President, the executive branch, the legislative branch, which is Congress, and the Supreme Court, and the Supreme Court's job is to, in this case, to make sure that the Supreme Court is doing what it's supposed to do. 00:12:44.760 |
And that is to, in this case, interpret the Constitution. 00:12:46.760 |
Now, some of the cases that come to the Supreme Court are technical, they don't even involve the Constitution. 00:12:51.760 |
What did Congress mean to say when it enacted this law about bankruptcy, but then it also gets these really momentous cases like abortion. 00:13:02.760 |
It came that the actual case that came to the Supreme Court is a challenge to a Mississippi law that was passed with the idea that it could go to the Supreme Court and challenge Roe and Casey. 00:13:14.560 |
But a Mississippi law that was passed a couple of years ago that would ban virtually all abortions after the 15th week of pregnancy. 00:13:23.560 |
And so abortion providers in Mississippi went to court and said, under the Supreme Court's jurisprudence, these decisions in Roe and Casey, this law is unconstitutional because women, you know, as the law currently stands, have a right to an abortion up until the point at which the fetus becomes viable, which is around 20 years old. 00:13:44.360 |
So it's not a law that's going to last around 24 weeks, but it's certainly well after the 15th week of pregnancy. 00:13:51.160 |
So the case made its way up there as a challenge to this Mississippi law, but the state of Mississippi in defending the law specifically asked the court to overrule Roe and Casey. 00:14:03.160 |
And so what that means is the Supreme Court is deciding whether or not this law is unconstitutional if the Supreme Court, as the draft opinion suggests, holds that the law is constitutional. 00:14:14.160 |
That Roe and Casey should be overruled, then the issue does go back to the states is the way that most people think of it. 00:14:24.960 |
And each state, whether it's Mississippi or Texas or Oklahoma or California, can decide for itself whether or not they want to allow abortions and if so, on what terms. 00:14:37.960 |
You know, I think it's a little bit, you know, it does go back to the states. 00:14:43.960 |
Defenders of Roe and Casey, supporters of abortion rights, say that part of the Supreme Court's job is to say what the Constitution means and that there are some rights like freedom of speech, you know, the Second Amendment, the right to bear arms that are, if they're in the Constitution, then the states shouldn't be allowed to decide that the Supreme Court's job is to protect them. 00:15:05.760 |
So if they strike this down, basically all the state legislatures will start to pass their own laws that govern what happens in that state. 00:15:13.760 |
And the federal government will not have a role or a say ultimately in state abortion laws. 00:15:20.760 |
Is that what's going to happen next if this gets struck down? 00:15:24.760 |
I mean, there are already, you know, at least a dozen, if not more states that have what's called trigger laws that have already been passed by the state legislature with an eye towards this decision or some other decision by the Supreme Court over ruling Roe and Casey. 00:15:40.760 |
So those states wouldn't even have to pass new laws. 00:15:43.560 |
So the laws restricting abortion would go into effect immediately. 00:15:46.560 |
And can I just ask, maybe for SACS too, like, why isn't there a constitutional amendment if this is an issue that folks feel, you know, should be kind of indoctrinated as an amendment to the Constitution? 00:16:03.560 |
And, you know, why do these cases kind of keep recycling and the decision making kind of keeps going back to the states and they keep getting litigated? 00:16:11.360 |
Why don't constitutional amendments get passed anymore? 00:16:13.360 |
It's really difficult to pass a constitutional amendment. 00:16:19.360 |
Oh, no, I was going to say, yeah, let me just step back first on this question of states versus the federal government. 00:16:24.360 |
So when the Supreme Court says the Constitution doesn't give you a right to an abortion, they aren't technically saying, okay, now it'll be up to the state legislatures. 00:16:34.360 |
So you have to pause on the fact that it is at this point possible that you could have a federal protection for abortion or a federal ban on abortion. 00:16:43.160 |
Then the question would be, is that constitutional? 00:16:46.160 |
Or is this a state's rights issue where only the states can regulate it? 00:16:50.160 |
But there is a big, big, big fight looming in Congress on both sides. 00:16:54.160 |
The only reason that you're not getting a federal statute when you have a Democrats in control of the Senate, the House and the presidency, the only reason you're not getting a federal statute protecting your right to an abortion is the filibuster, essentially. 00:17:12.960 |
A statute is a law, not a constitutional amendment, right? 00:17:16.960 |
So the Constitution is our foundational document. 00:17:21.960 |
It's what creates the Congress and gives Congress the power to regulate certain things. 00:17:25.960 |
It creates the presidency and it creates the Supreme Court. 00:17:30.960 |
You can't do something that violates the Constitution. 00:17:32.960 |
Then Congress can pass laws and states can't do anything that is contrary to either the federal Constitution or a federal statute unless the Constitution is in force. 00:17:42.760 |
And that's the Constitution says, "Oh, only the states can handle this question." 00:17:46.760 |
So there would be a big fight over whether abortion is strictly the regime and strictly the purview of the states to deal with. 00:17:53.760 |
Then you say, "Okay, well, the Constitution stands above everything else. 00:17:59.760 |
And as you suggest, we're just not in the business of doing that anymore. 00:18:02.760 |
We have very few constitutional amendments and we haven't done it in a long time. 00:18:08.760 |
The Constitution imposes all kinds of hurdles in terms of congressional office. 00:18:11.760 |
In terms of congressional authorization, state authorization. 00:18:14.760 |
It's why the Equal Rights Amendment was never passed. 00:18:17.760 |
It's just incredibly hard to get the kind of super majority in the country that you need to amend the Constitution and our kind of foundational rights. 00:18:25.760 |
And that's what's made the Supreme Court so important, by the way. 00:18:28.760 |
And that is we have something like the Equal Protection Clause. 00:18:33.760 |
We have a right to the free exercise of religion. 00:18:36.760 |
And those are big, capacious phrases that nobody can objectively tell you what they mean. 00:18:40.760 |
What five justices of the Supreme Court say they mean. 00:18:42.760 |
And that's why there are all these fights over Supreme Court appointments. 00:18:46.760 |
Because the justices have enormous power by five, four majorities to fundamentally change the course of American life. 00:18:53.760 |
And it can be in a conservative direction or a more liberal direction. 00:18:55.760 |
Remember, the most famous thing the Supreme Court has done recently before this decision is recognizing a right to gay marriage. 00:19:03.760 |
But just before I go there, I want to go back to something that Amy mentioned, which is stare decisis, this idea of precedent. 00:19:09.760 |
My understanding is that when Supreme Court nominees go through the confirmation process, this is a really important part of what they're asked. 00:19:19.760 |
Right through their confirmation process, what are your views on stare decisis? 00:19:24.760 |
And there's a lot of discussion right now about whether, you know, specifically Gorsuch and Kavanaugh, who signed up to this Alito draft at least, may have lied to Congress in the way that they answered their questions. 00:19:38.760 |
I don't know if you guys can sort of talk us through that and whether you have an opinion on that and their actual congressional testimony to get confirmed. 00:19:48.760 |
So what they said, and I went back actually and looked at some, although not all of Justice Kavanaugh's confirmation hearings today, actually. 00:19:55.760 |
You know, what they said at their confirmation hearings was that Roe and Casey were settled law. 00:20:02.760 |
That Roe has been in effect for 50 years and then Casey came along and reaffirmed it. 00:20:07.760 |
So I think Justice Kavanaugh called it precedent on top of precedent. 00:20:17.760 |
And there's no question that all of the nominees that have gone through have acknowledged because it's not just two cases. 00:20:26.760 |
You know, this has been in front of the Supreme Court ever since '73 over and over and over again. 00:20:30.760 |
And Casey adopted this framework and it's been reaffirmed over and over and over. 00:20:33.760 |
And the court has been moving in a conservative direction, upholding more abortion restrictions. 00:20:36.760 |
But the foundation, the core of Roe has been there. 00:20:41.760 |
When someone says this is a precedent and a super precedent, they are not saying it cannot be overruled. 00:20:48.760 |
And so that's why Alito's draft is so strong. 00:20:51.760 |
It uses a formulation that Kavanaugh has used, which is egregiously wrong from the start. 00:20:57.760 |
So that if something is just outrageously totally wrong. 00:21:00.760 |
Now, pause to the fact that a super majority of Supreme Court justices have thought it was correct. 00:21:10.760 |
And, you know, including the court that first adopted it. 00:21:12.760 |
But this majority has come up in a kind of jurisprudential, with a jurisprudential vision that's sufficiently conservative to say, 00:21:21.760 |
this is essentially the most outrageous thing the Supreme Court has ever done is Roe. 00:21:25.760 |
Because it interjected itself without any textual basis into one of the foundational moral debates of our time, which is what legislature should be handling. 00:21:34.760 |
So now some of the, you know, moderate Republicans, Susan Collins, Senator Mikowski, have said they're quite upset about this because they feel misled. 00:21:45.760 |
But I think the defenders of the justices would say, well, I mean, they did say it was precedent on precedent, but they didn't say it was immune from being overruled. 00:21:54.760 |
Just to add in one tiny little detail in the draft opinion by Justice Alito. 00:22:03.760 |
When he's outlining the principle of stare decisis, he says that this principle is actually at its weakest in cases like this one involving the interpretation of the Constitution. 00:22:15.760 |
Because only the Supreme Court gets to say what the Constitution means. 00:22:19.760 |
And at some point, you don't want to sort of trundle along with an interpretation of the Constitution that is, as Tom suggested, egregiously wrong. 00:22:29.760 |
He said, you know, if you're talking about a Supreme Court decision interpretation, 00:22:32.760 |
a law that was passed by Congress, if Congress doesn't like that decision, they can get together and pass a new law. 00:22:42.760 |
But only the Supreme Court can say what the law is. 00:22:45.760 |
So I'm not, obviously, I'm not defending the Alito opinion. 00:22:50.760 |
But that is, I think, one of the points that someone would make in explaining why this, despite what they said at the time, they're not going to say what the law is. 00:23:00.760 |
So I'm not, you know, I'm not defending the Alito opinion. 00:23:01.760 |
What they said at their confirmation hearings. 00:23:12.800 |
and it's amazing for you to really unpack it for us. 00:23:22.220 |
where the majority of the country does not want to do this. 00:23:34.780 |
watching all of this is, why is this happening right now? 00:23:38.600 |
And is this some strategy that's been played out 00:23:43.400 |
to overturn this because it feels profoundly unfair 00:23:46.520 |
to take a right away from these generations of women? 00:24:00.280 |
'Cause we can look at all these laws and the precedent, 00:24:05.000 |
that the deck has been stacked with this court. 00:24:13.080 |
to a lot of the people who voted these people on. 00:24:15.060 |
And now you have a large group of the country 00:24:25.400 |
who have these positions of power and authority? 00:24:28.040 |
- Yeah, I think that's a fair characterization. 00:24:37.100 |
that there is another significant part of the country 00:24:39.940 |
for whom this is an incredibly important positive moment. 00:24:51.540 |
many of them will feel no doubt incredibly impassioned 00:25:14.460 |
but they have marched forward from that position 00:25:17.520 |
where they were losing seven to two in the Supreme Court 00:25:38.360 |
to cut back on Roe, but not overrule it entirely. 00:25:42.880 |
whether it's someone who's been on for a while, 00:25:48.380 |
which is in Gorsuch, Kavanaugh, and in Barrett, 00:25:53.380 |
and Justice Alito having been on the court for a while. 00:25:56.160 |
Those people, this is the number one agenda item, 00:25:59.300 |
for what they believe is correcting the course 00:26:01.700 |
of the Supreme Court's interpretation of the Constitution. 00:26:03.900 |
That this was the one that was most out of bounds, 00:26:07.320 |
because it was the most made up in their mind. 00:26:12.020 |
what it's gonna mean for other areas of the law, 00:26:24.120 |
as the murder of millions of unborn children, 00:26:31.960 |
to maintain what is a basic individual liberty. 00:26:36.120 |
I mean, I think I agree with everything that Tom said. 00:26:39.220 |
And I think in particular, you have to look at, 00:26:43.140 |
go back to 2015, and then in particular, the 2016 election. 00:26:52.740 |
because he pledged to put justices on the court 00:27:03.840 |
And I think that's why I think it's so important to recognize, 00:27:05.820 |
that if you look at the history of the election, 00:27:10.720 |
it's a matter of who's elected, and who's not elected. 00:27:12.820 |
And so, I think that's a really important part of it. 00:27:15.480 |
And I think that's why I think that it's so important, 00:27:17.560 |
because it's a really important part of the election, 00:27:19.320 |
and it's a really important part of the election, 00:27:20.760 |
and it's a really important part of the election. 00:27:22.760 |
And I think that's the one that's really important, 00:27:26.640 |
And I think that's why I think that's why we're so concerned 00:27:28.640 |
that with people, as Tom said, on this issue, 00:27:32.880 |
people who oppose abortion were often single-issue voters. 00:27:37.160 |
In the 2016 elections, you had the "but her emails" crowd, 00:27:41.480 |
who weren't necessarily going to go to the polls for Hillary Clinton, 00:27:46.080 |
even though they likely would be abortion rights supporters. 00:27:54.080 |
I think there was probably an element of disbelief, 00:27:58.420 |
right was so solidly enshrined in American constitutional law 00:28:03.340 |
that it would stand, despite who might be on the court. 00:28:07.720 |
So, Amy, I want to ask a jump question from here. 00:28:12.260 |
Then this is an issue that's close to all of us. 00:28:16.060 |
I think we were all like a little shocked, like, "Wow, this is happening." 00:28:18.740 |
And then the second wave of news was how this created potential to undo Obergefell, right? 00:28:28.200 |
even like interracial marriage, you know, Jason's in an interracial marriage, I am, you know, 00:28:34.860 |
How are we supposed to think about what this does precedentially? 00:28:41.000 |
And does it create risk that those rights could be taken away from us or our— 00:28:47.680 |
Like, is that something that's possible here? 00:28:51.920 |
a lot of those rights are going to be challenged. 00:29:01.160 |
because only abortion rests on the purposeful termination of a human life." 00:29:07.220 |
But, you know, to go back to what Tom talked about earlier, you know, 00:29:11.000 |
those rights rest, you know, are also not in the Constitution, 00:29:15.000 |
rest on this same sort of principle called, you know, 00:29:18.200 |
substantive due process, you know, rest on a right to privacy. 00:29:23.580 |
And there were definitely arguments made in the Supreme Court 00:29:27.760 |
in the Mississippi case, not by Mississippi, but by groups supporting Mississippi, 00:29:32.520 |
that if you overrule Roe and Casey, you do have to go back and look at these other rights. 00:29:37.520 |
Yeah, I mean, the reasoning for overruling Roe is, by and large, 00:29:43.320 |
the same reason that you would overrule Obergefell. 00:29:46.240 |
Obergefell is a much less well settled precedent. 00:29:50.540 |
You know, it hasn't been reaffirmed by the Supreme Court as opposed to Roe many, many, many times. 00:29:57.540 |
You can just as easily say it's an issue for the states. 00:30:02.540 |
And when you see in Justice Alito's, what you see is two things in Justice Alito's opinion. 00:30:07.760 |
A bunch of reasoning that would be used to strike down a bunch of other rights go all the way back to, 00:30:11.980 |
where do we think we find the right to contraception? 00:30:16.600 |
And the Supreme Court, both with respect to married and unmarried couples, 00:30:20.640 |
But it's not in the text of the Constitution. 00:30:23.320 |
And there's a bunch of stuff that's not in the text of the Constitution. 00:30:27.320 |
So you have a bunch of stuff in Alito's opinion that says all of the reasoning that's in those cases essentially is wrong. 00:30:36.320 |
And then you have a paragraph that says, but, but, but, but, but, by the way, this is just about abortion. 00:30:43.960 |
And the difficulty is that in a later case, it's much, much, much easier to apply all the thinking 00:30:50.960 |
than the truism that this is just about abortion because this case just is about abortion. 00:30:55.560 |
But I think what's very likely to happen is that in the case of Alito's opinion, 00:30:57.100 |
what's very likely is, you know, I'm a legal realist. 00:30:59.440 |
And that is, I think that the justices decide what they want to do. 00:31:02.040 |
And then they write the opinion that gets there is when the court voted to overrule Roe, 00:31:06.920 |
when five justices did that after the oral argument in this Dobbs case, 00:31:10.700 |
one or more of the justices said, okay, I'll join an opinion overruling Roe if it is absolutely clear that it will not lead to the overruling of these other things. 00:31:21.000 |
He doesn't believe it for a second that those decisions are rightly, that those rulings should necessarily stand. 00:31:26.880 |
But it appears that they don't have five votes for that view. 00:31:30.820 |
But look, they didn't have five votes for overruling Roe until very, very recently. 00:31:35.060 |
And you could put another conservative on the court or, you know, these five could end up doing it. 00:31:40.720 |
It is very much in play that at the very least, you have to acknowledge that a lot of things that people thought were kind of foundational bases for how we order our lives because they were protected by the Constitution. 00:31:58.780 |
I think that the court is going to be very careful. 00:32:00.000 |
I think that the court is going to be very careful. 00:32:02.040 |
I think that the court is going to be very careful. 00:32:02.680 |
I think that the court is going to be very careful. 00:32:03.320 |
I think that the court is going to be very careful. 00:32:04.280 |
I think that the court is going to be very careful. 00:32:04.900 |
I mean, I know five people who disagree with you. 00:32:07.280 |
It just so happens that they're a majority of the Supreme Court. 00:32:10.900 |
Let me ask a question about this sort of parade of horrible. 00:32:13.460 |
So, Tom, I understand what you're saying, that overturning Roe would implicate these other cases. 00:32:20.020 |
On the other hand, and as you mentioned, Alito specifically says, well, presumably it's Alito in this Dobbs decision, those cases are not affected. 00:32:27.840 |
So, he does carve out this case specifically. 00:32:31.460 |
But separate from that, the Supreme Court just two years ago in Bostock v. Clayton County read LGBTQ rights into Title VII. 00:32:41.480 |
And that opinion was written by Gorsuch with Roberts joining him. 00:32:49.800 |
So, the idea that the Supreme Court would overturn marriage equality in Obergefell, which was just written by Kennedy in 2015. 00:32:58.040 |
I mean, I understand that you're saying it's possible, but is it really likely? 00:33:04.960 |
It's interpreting a federal statute, a law that Congress passed. 00:33:09.020 |
The conservatives' view is like, okay, Congress passes a law to protect same-sex marriage. 00:33:14.800 |
And if it is passed Title VII to prohibit discrimination on the basis of same-sex marriage, 00:33:19.580 |
and the same-sex marriage to prohibit discrimination on the basis of sexual orientation, fine. 00:33:24.760 |
But our problem is interpreting the Constitution to strike down those laws. 00:33:30.760 |
You know, it is a bizarre circumstance because doctrinally, when we think as lawyers, when we think as judges, 00:33:37.960 |
it should be much harder to overturn Roe v. Wade because we do have—this is a lot of water under a lot of bridges. 00:33:43.960 |
Whereas with same-sex marriage, it's a pretty new thing that we've recognized in the Constitution. 00:33:49.360 |
We're going to talk about the founders of the Constitution. 00:33:54.780 |
And that is, in the year 1800, someone said, given the choice, do we protect a woman's right to have an abortion, 00:34:02.980 |
say in the instance of rape or incest or something like that? 00:34:06.060 |
Or we're going to say that there's a constitutional right for two men to marry each other. 00:34:14.340 |
Now, I believe in both of those rights, but nobody seriously would say that the founders of 00:34:19.140 |
the country in enacting and adopting the Constitution thought that they were protecting same-sex marriage. 00:34:24.640 |
And if you want to look at it from that perspective, and this opinion does, 00:34:27.760 |
then Obergefell is just an easy target, to be honest. 00:34:31.020 |
In order for the sort of the Parade of Horribles to happen, though, there's a two-step process, right? 00:34:36.920 |
The first step is the Supreme Court throws it back to the legislature. 00:34:40.980 |
Then the legislature has to do something that you think is appalling. 00:34:48.920 |
And that is, you know, the first step is to make sure that the legislature is doing something that is appropriate. 00:34:53.920 |
And the second step is to make sure that the legislature is doing something that is appropriate. 00:34:55.920 |
And the third step is to make sure that the legislature is doing something that is appropriate. 00:34:57.920 |
And the fourth step is to make sure that the legislature is doing something that is appropriate. 00:34:59.920 |
And the fifth step is to make sure that the legislature is doing something that is appropriate. 00:35:01.920 |
And the sixth step is to make sure that the legislature is doing something that is appropriate. 00:35:03.920 |
And the sixth step is to make sure that the legislature is doing something that is appropriate. 00:35:05.920 |
And the seventh step is to make sure that the legislature is doing something that is appropriate. 00:35:07.920 |
And the sixth step is to make sure that the legislature is doing something that is appropriate. 00:35:09.920 |
And the seventh step is to make sure that the legislature is doing something that is appropriate. 00:35:11.920 |
And the sixth step is to make sure that the legislature is doing something that is appropriate. 00:35:12.920 |
And the sixth step is to make sure that the legislature is doing something that is appropriate. 00:35:14.920 |
And the seventh step is to make sure that the legislature is doing something that is appropriate. 00:35:16.920 |
And the sixth step is to make sure that the legislature is doing something that is appropriate. 00:35:18.920 |
And the sixth step is to make sure that the legislature is doing something that is appropriate. 00:35:20.920 |
And the seventh step is to make sure that the legislature is doing something that is appropriate. 00:35:22.920 |
And the sixth step is to make sure that the legislature is doing something that is appropriate. 00:35:24.920 |
And the sixth step is to make sure that the legislature is doing something that is appropriate. 00:35:26.920 |
And the seventh step is to make sure that the legislature is doing something that is appropriate. 00:35:28.920 |
And the sixth step is to make sure that the legislature is doing something that is appropriate. 00:35:30.920 |
And the sixth step is to make sure that the legislature is doing something that is appropriate. 00:35:32.920 |
And there's lots and lots of other, uh, uh, there were, there were hundreds, maybe thousands of statutes that discriminated against gay couples and gay individuals, uh, and the LGBTQ community. 00:35:43.920 |
And there's bunches of that stuff still on the books. 00:35:46.920 |
And all it takes is for one conservative to say, "Look, I'm gonna apply those laws. Let's go." 00:35:54.920 |
The Attorney General of Texas has said, "Look, I'm now, let's see, I heard what's gonna happen with Roe. 00:36:01.920 |
That's the constitutional decision that says states have to educate children no matter whether or not they're lawfully in the country or not." 00:36:10.920 |
I mean, a whole, this is gonna be extremely motivating and extremely animating to conservative legislatures, to conservative attorneys general in the states. 00:36:23.920 |
It's, "Let's go. Let's give it a shot. Let's take it up to the Supreme Court." 00:36:27.920 |
It can get worse from the conservative perspective. 00:36:29.920 |
They've already lost on some of these issues. 00:36:31.920 |
And so it's gonna be a scary quarter century. 00:36:35.920 |
It seems to me, Amy, the, we grew up, I'm of Gen X, 51 years old, with this profound respect for the Supreme Court, that it felt fair. 00:36:46.920 |
It felt like the one institution that was above politics. 00:36:50.920 |
And now it feels, because of flipping a 50-year-old law, as if it's, and these, you know, sort of, you know, the interview process when they were being confirmed. 00:37:00.920 |
And maybe the rug pulling there, that we can't trust it. 00:37:05.920 |
So now it all feels like this institution is not trustworthy, is biased, is political. 00:37:10.920 |
So were we living under a mirage that it wasn't? 00:37:14.920 |
Or has something fundamentally changed when we look at the Supreme Court and how they're behaving now? 00:37:20.920 |
That's one of the things I'm struggling with is, was I just, you know, living under a false vision of this institution and now I'm seeing reality? 00:37:29.920 |
Or has something actually changed with the court? 00:37:32.920 |
And should we as a country be looking at the court differently? 00:37:35.920 |
I mean, I think at least one thing that has changed is that right up until the point, you know, in the last 10 years when Justices David Souter and John Paul Stevens retired, and then Justice Anthony Kennedy in 2018, you know, people who are sitting on the Supreme Court, you didn't always, you know, people did not always have the sense that they were voting. 00:37:58.920 |
And so I think that's something that's been happening. 00:37:59.920 |
And I think that's something that's been happening. 00:38:01.920 |
And I think that's something that's been happening. 00:38:03.920 |
And I think that's something that's been happening. 00:38:05.920 |
And I think that's something that's been happening. 00:38:07.920 |
And I think that's something that's been happening. 00:38:09.920 |
And I think that's something that's been happening. 00:38:11.920 |
And I think that's something that's been happening. 00:38:13.920 |
And I think that's something that's been happening. 00:38:15.920 |
And I think that's something that's been happening. 00:38:17.920 |
And I think that's something that's been happening. 00:38:19.920 |
And I think that's something that's been happening. 00:38:21.920 |
And I think that's something that's been happening. 00:38:23.920 |
And I think that's something that's been happening. 00:38:25.920 |
And I think that's something that's been happening. 00:38:27.920 |
And I think that's something that's been happening. 00:38:29.920 |
And I think that's something that's been happening. 00:38:31.920 |
And I think that's something that's been happening. 00:38:33.920 |
And I think that's something that's been happening. 00:38:35.920 |
And I think that's something that's been happening. 00:38:37.920 |
And I think that's something that's been happening. 00:38:39.920 |
And I think that's something that's been happening. 00:38:41.920 |
And I think that's something that's been happening. 00:38:43.920 |
And I think that's something that's been happening. 00:38:45.920 |
And I think that's something that's been happening. 00:38:47.920 |
And I think that's something that's been happening. 00:38:49.920 |
And I think that's something that's been happening. 00:38:51.920 |
And I think that's something that's been happening. 00:38:53.920 |
And I think that's something that's been happening. 00:38:55.920 |
And I think that's something that's been happening. 00:38:56.920 |
And I think that's something that's been happening. 00:38:58.920 |
And I think that's something that's been happening. 00:39:00.920 |
And I think that's something that's been happening. 00:39:02.920 |
And I think that's something that's been happening. 00:39:04.920 |
And I think that's something that's been happening. 00:39:06.920 |
And I think that's something that's been happening. 00:39:08.920 |
And I think that's something that's been happening. 00:39:10.920 |
And I think that's something that's been happening. 00:39:12.920 |
And I think that's something that's been happening. 00:39:14.920 |
And I think that's something that's been happening. 00:39:16.920 |
And I think that's something that's been happening. 00:39:18.920 |
And I think that's something that's been happening. 00:39:20.920 |
And I think that's something that's been happening. 00:39:22.920 |
And I think that's something that's been happening. 00:39:24.920 |
And I think that's something that's been happening. 00:39:25.920 |
And I think that's something that's been happening. 00:39:27.920 |
And I think that's something that's been happening. 00:39:29.920 |
And I think that's something that's been happening. 00:39:31.920 |
And I think that's something that's been happening. 00:39:33.920 |
And I think that's something that's been happening. 00:39:35.920 |
And I think that's something that's been happening. 00:39:37.920 |
And I think that's something that's been happening. 00:39:39.920 |
And I think that's something that's been happening. 00:39:41.920 |
And I think that's something that's been happening. 00:39:43.920 |
And I think that's something that's been happening. 00:39:45.920 |
And I think that's something that's been happening. 00:39:47.920 |
And I think that's something that's been happening. 00:39:49.920 |
And I think that's something that's been happening. 00:39:51.920 |
And I think that's something that's been happening. 00:39:53.920 |
And I think that's something that's been happening. 00:39:54.920 |
And I think that's something that's been happening. 00:39:55.920 |
And I think that's something that's been happening. 00:39:56.920 |
And I think that's something that's been happening. 00:39:57.920 |
And I think that's something that's been happening. 00:39:58.920 |
And I think that's something that's been happening. 00:39:59.920 |
And I think that's something that's been happening. 00:40:00.920 |
And I think that's something that's been happening. 00:40:01.920 |
And I think that's something that's been happening. 00:40:02.920 |
And I think that's something that's been happening. 00:40:03.920 |
And I think that's something that's been happening. 00:40:04.920 |
And I think that's something that's been happening. 00:40:05.920 |
And I think that's something that's been happening. 00:40:06.920 |
And I think that's something that's been happening. 00:40:07.920 |
And I think that's something that's been happening. 00:40:08.920 |
And I think that's something that's been happening. 00:40:09.920 |
And I think that's something that's been happening. 00:40:10.920 |
And I think that's something that's been happening. 00:40:11.920 |
And I think that's something that's been happening. 00:40:12.920 |
And I think that's something that's been happening. 00:40:13.920 |
And I think that's something that's been happening. 00:40:14.920 |
And I think that's something that's been happening. 00:40:15.920 |
And I think that's something that's been happening. 00:40:16.920 |
And I think that's something that's been happening. 00:40:17.920 |
And I think that's something that's been happening. 00:40:18.920 |
And I think that's something that's been happening. 00:40:19.920 |
And I think that's something that's been happening. 00:40:20.920 |
And I think that's something that's been happening. 00:40:21.920 |
And I think that's something that's been happening. 00:40:22.920 |
And I think that's something that's been happening. 00:40:23.920 |
And I think that's something that's been happening. 00:40:24.920 |
And I think that's something that's been happening. 00:40:25.920 |
And I think that's something that's been happening. 00:40:26.920 |
And I think that's something that's been happening. 00:40:27.920 |
And I think that's something that's been happening. 00:40:28.920 |
And I think that's something that's been happening. 00:40:29.920 |
And I think that's something that's been happening. 00:40:30.920 |
And I think that's something that's been happening. 00:40:31.920 |
And I think that's something that's been happening. 00:40:32.920 |
And I think that's something that's been happening. 00:40:33.920 |
And I think that's something that's been happening. 00:40:34.920 |
And I think that's something that's been happening. 00:40:35.920 |
And I think that's something that's been happening. 00:40:36.920 |
And I think that's something that's been happening. 00:40:37.920 |
And I think that's something that's been happening. 00:40:38.920 |
And I think that's something that's been happening. 00:40:39.920 |
And I think that's something that's been happening. 00:40:40.920 |
And I think that's something that's been happening. 00:40:41.920 |
And I think that's something that's been happening. 00:40:42.920 |
And I think that's something that's been happening. 00:40:43.920 |
And I think that's something that's been happening. 00:40:44.920 |
And I think that's something that's been happening. 00:40:45.920 |
And I think that's something that's been happening. 00:40:46.920 |
And I think that's something that's been happening. 00:40:47.920 |
And I think that's something that's been happening. 00:40:48.920 |
And I think that's something that's been happening. 00:40:49.920 |
And I think that's something that's been happening. 00:40:50.920 |
And I think that's something that's been happening. 00:40:51.920 |
And I think that's something that's been happening. 00:40:52.920 |
And I think that's something that's been happening. 00:40:53.920 |
And I think that's something that's been happening. 00:40:54.920 |
And I think that's something that's been happening. 00:40:55.920 |
And I think that's something that's been happening. 00:40:56.920 |
And I think that's something that's been happening. 00:40:57.920 |
And I think that's something that's been happening. 00:40:58.920 |
And I think that's something that's been happening. 00:40:59.920 |
And I think that's something that's been happening. 00:41:00.920 |
And I think that's something that's been happening. 00:41:01.920 |
And I think that's something that's been happening. 00:41:02.920 |
And I think that's something that's been happening. 00:41:03.920 |
And I think that's something that's been happening. 00:41:04.920 |
And I think that's something that's been happening. 00:41:05.920 |
And I think that's something that's been happening. 00:41:06.920 |
And I think that's something that's been happening. 00:41:07.920 |
And I think that's something that's been happening. 00:41:08.920 |
And I think that's something that's been happening. 00:41:09.920 |
And I think that's something that's been happening. 00:41:10.920 |
And I think that's something that's been happening. 00:41:11.920 |
And I think that's something that's been happening. 00:41:12.920 |
And I think that's something that's been happening. 00:41:13.920 |
And I think that's something that's been happening. 00:41:14.920 |
And I think that's something that's been happening. 00:41:15.920 |
And I think that's something that's been happening. 00:41:16.920 |
And I think that's something that's been happening. 00:41:17.920 |
And I think that's something that's been happening. 00:41:18.920 |
And I think that's something that's been happening. 00:41:19.920 |
And I think that's something that's been happening. 00:41:20.920 |
And I think that's something that's been happening. 00:41:21.920 |
And I think that's something that's been happening. 00:41:22.920 |
And I think that's something that's been happening. 00:41:23.920 |
And I think that's something that's been happening. 00:41:24.920 |
And I think that's something that's been happening. 00:41:25.920 |
And I think that's something that's been happening. 00:41:26.920 |
And I think that's something that's been happening. 00:41:27.920 |
And I think that's something that's been happening. 00:41:28.920 |
And I think that's something that's been happening. 00:41:29.920 |
And I think that's something that's been happening. 00:41:30.920 |
And I think that's something that's been happening. 00:41:31.920 |
And I think that's something that's been happening. 00:41:32.920 |
And I think that's something that's been happening. 00:41:33.920 |
And I think that's something that's been happening. 00:41:34.920 |
And I think that's something that's been happening. 00:41:35.920 |
And I think that's something that's been happening. 00:41:36.920 |
And I think that's something that's been happening. 00:41:37.920 |
And I think that's something that's been happening. 00:41:38.920 |
And I think that's something that's been happening. 00:41:39.920 |
And I think that's something that's been happening. 00:41:40.920 |
And I think that's something that's been happening. 00:41:41.920 |
And I think that's something that's been happening. 00:41:42.920 |
And I think that's something that's been happening. 00:41:43.920 |
And I think that's something that's been happening. 00:41:44.920 |
And I think that's something that's been happening. 00:41:45.920 |
And I think that's something that's been happening. 00:41:46.920 |
In that moment, and please correct me if I'm wrong, the Biden administration also 00:41:54.940 |
They wanted Roe voted up or down in its entirety. 00:41:59.080 |
You know, I'm not I'm pretty sure that that nobody, including the lawyers, liked, 00:42:09.400 |
The chief is a sophisticated guy who is very aware of all these issues related to public 00:42:16.820 |
He knows how strident the reaction would be and will be if Roe versus Wade is overruled. 00:42:23.540 |
And so he'd rather take this step by step and kind of like turn up the temperature of 00:42:27.700 |
the water to a slower boil so that it's less of a surprise if and when Roe versus Wade 00:42:32.980 |
is overruled five years from now, because he doesn't have to go that far today. 00:42:36.760 |
On the other hand, you know, movement conservatives realize, look, you know, Justice Scalia died, 00:42:46.800 |
at least at the the initial vote, we're willing to be super aggressive. 00:42:50.980 |
And that apparent that seems to be the debate that's playing out now and in these leaks 00:42:54.260 |
is, you know, what will happen with Kavanaugh and Barrett and will they go with the chief 00:43:03.860 |
How does this play out from here inside the court itself? 00:43:08.180 |
And is there a chance that this draft isn't the ultimate decision? 00:43:13.040 |
Is there a way that there can be a middle ground path? 00:43:16.780 |
Or is this basically a fait accompli as as as written right now? 00:43:24.320 |
And he's got some theories about what might have happened. 00:43:30.600 |
You can see that on the copy that Politico published. 00:43:35.760 |
And it is from apparently from back in February, the argument was in December. 00:43:40.780 |
Yeah, nobody expected to get the decision in this case, in all likelihood until late 00:43:46.760 |
And so, you know, I do think that there is a chance that the opinion could change in 00:43:53.520 |
It might not have quite as strong a tone or it's possible that what's going on behind 00:43:59.760 |
the scenes and we just don't know it is some sort of effort to move justices away from 00:44:06.880 |
this opinion to this alternative ground that the chief was advocating for at the oral argument 00:51:55.740 |
And I don't mean to, you know, I don't mean to sound morbid when I say this, but, you 00:51:59.780 |
know, these folks literally are in the chair until they die. 00:52:02.960 |
And this is what I think creates some of this, some of these issues, right? 00:52:07.320 |
So RBG, you know, there could be a claim now that if Ruth Bader Ginsburg had actually stepped 00:52:12.240 |
down or tried to hold on, you know, it would could have been a different outcome. 00:52:19.440 |
What do you guys think about this age limit concept for Supreme Court justices and dealing 00:52:27.200 |
I'm personally strongly in favor of this, but you have to recognize that it would 00:52:34.480 |
There are all kinds of attempted workarounds, but I'm telling you that the people who would 00:52:37.480 |
decide the constitutionality of the workarounds are the justices themselves, and they would 00:52:41.880 |
have no interest in accepting any limitation on their life tenure. 00:52:48.400 |
So you have to expect that we're talking about something that's kind of high in the sky because 00:52:52.960 |
we're not going to amend the Constitution to do this until. 00:52:55.580 |
We end up with a justice who's senile and who can't do the job and the Supreme Court 00:53:01.400 |
And at that point, the country will react, but we're just not good as a country at seeing 00:53:05.780 |
I mean, fundamentally, what happens is we're now incentivized to put people on the Supreme 00:53:11.860 |
Just get them on there as soon as you can and keep them there for 70 years. 00:53:17.700 |
And, you know, Justice Thomas was extremely young, but we seem to have settled around 00:53:22.620 |
And there's nothing intrinsically wrong with having somebody. 00:53:25.500 |
We've been on the court for 30 years or 40 years at age 50. 00:53:29.160 |
We've been super lucky when it's come to the fact that we've everybody's been pretty copious 00:53:35.380 |
men says we've we've gotten we've run good and we could run much worse than we have. 00:53:41.500 |
We, you know, we see this in the Senate right now that we have some problems and it could 00:53:47.940 |
But the difficulty is even are you referring to maybe they become senile? 00:53:52.420 |
They could have Alzheimer's, Parkinson's, whatever. 00:53:56.420 |
Because you can't, you know, you're going to impeach them. 00:53:59.940 |
People like the outcomes are going to but like only the justices themselves can decide 00:54:09.040 |
We're getting we have a huge incentive now to put on somebody who's very young and the 00:54:14.880 |
lead time effect of one presidency of the Trump presidency, for example, now will span, 00:54:25.340 |
But, you know, the average life expectancy at the time of the Constitution's framing 00:54:28.780 |
when we said life tenure was decades shorter, even for people who like Supreme Court justices 00:54:36.060 |
And so nobody contemplated this when we originally said life tenure. 00:54:39.780 |
There is a proposal on this that there were a few members of the House, I think, including 00:54:44.960 |
Ro Khanna and Rashid Tlaib and some other folks, but also some conservatives supported 00:54:50.340 |
too, for an 18 year term limit for Supreme Court justices. 00:54:55.340 |
And I think the way it would work is basically, each president would get to name two justice. 00:55:00.120 |
So basically, every two years, you get someone rolls off, and then the new president gets 00:55:09.260 |
And so yeah, basically, if you think there's there's nine justice on the court, so it takes 00:55:12.820 |
18 years for a full cycle for it to roll over. 00:55:16.700 |
I think it's pretty interesting, because it would take a lot of the heat out of our these 00:55:20.280 |
sort of Supreme Court nomination battles, where you know, somebody dies. 00:55:25.260 |
And now it's a nomination fight, and both sides are playing for all the marbles. 00:55:29.740 |
If you knew that every presidential election, every president met two votes on the Supreme 00:55:37.860 |
I mean, I just saw the Constitution says, I know, I know, we need a constitutional amendment. 00:55:45.020 |
Yeah, I mean, I think obviously, there would still occasionally be openings that would 00:55:48.900 |
be created, if someone had to step down or would have passed away, but you're right that 00:55:55.180 |
People would be able to plan, we would know when people were going to be rolling on and 00:56:00.120 |
I do think it is, you know, it's always struck me as kind of ironic that it is, at least 00:56:05.280 |
from a constitutional perspective, easier to add justices to the court than to impose 00:56:12.100 |
term limits for which there seems to be a fair amount of amount of support. 00:56:15.420 |
Tom and Amy, you have been unbelievably generous with your time and your knowledge. 00:56:19.900 |
We truly appreciate you coming here and explaining it to the all in audience. 00:56:25.100 |
Thank you for the work that you do and for you sharing them. 00:56:31.680 |
All right, Chamath, first off, thanks for getting those amazing guests. 00:56:36.760 |
I think first, you know, recognize it's for four guys talking about abortion. 00:56:42.600 |
And you know, we understand this is not exactly our issue to discuss and opine on. 00:56:48.660 |
No, but Jason, the takeaway for me was that this is not just an abortion issue. 00:56:59.620 |
So on the gay marriage point, let's just go back to that for a second. 00:57:01.900 |
So look, I think Tom did a nice job laying out, you know, in pretty neutral terms what's 00:57:07.260 |
going on here and where he had a point of view. 00:57:10.700 |
I think the idea that this leads to gay marriage being overturned, I don't see it. 00:57:18.120 |
It's just, you know, maybe it's not impossible, but I just don't buy it. 00:57:24.940 |
First of all, the Bostick case I mentioned, this was a case just two years ago, written 00:57:29.940 |
by Gorsuch, joined by Roberts and the other, so it's a 6-3 decision in which Gorsuch held 00:57:36.220 |
that the Civil Rights Act of 1964 protects gay and transgender employees against discrimination. 00:57:43.140 |
Now, Tom is right that that's statutory, not constitutional. 00:57:47.960 |
But Gorsuch shouldn't have to find in that statute that sex apply to gay people and transgender 00:57:55.860 |
The court decided on its own to do that, to interpret the statute that way. 00:58:00.340 |
So you're telling me that a court that just two years ago decided that you cannot discriminate 00:58:06.840 |
against gay employees is now going to allow discrimination against gay marriage? 00:58:12.980 |
And the second issue, the second reason is that marriage equality is broadly popular 00:58:19.940 |
People's minds have really changed on that issue, and I don't think the court would want 00:58:24.860 |
I think the court would want to go back on an issue where, again, they just ruled on 00:58:27.680 |
this in 2015, where basically the issue is now settled in the country. 00:58:33.920 |
One of the differences, I think, with abortion is it's still a very hot issue, and it's not 00:58:38.920 |
settled in the way that marriage equality or gay marriage is settled. 00:58:43.880 |
So I just don't buy this idea that now we're going to be overturning gay marriage, that 00:58:48.600 |
we're going to be overturning, like, for example, contraception. 00:58:54.780 |
I mean, we're just arguing for outlawing contraception. 00:58:56.320 |
Well, I guess the counterargument to that, David, that people would have is, well, we 00:59:01.200 |
didn't think they were going to overturn Roe v. Wade, and they have. 00:59:09.160 |
Kavanaugh, et cetera, people, when they were being interrogated about their views on these 00:59:18.580 |
Because there seems to be a trust issue here that people are not trusting the Supreme Court 00:59:24.060 |
And of course, depending on which side you are, you might be thrilled or not thrilled 00:59:28.140 |
I think that was a very good point in our discussion. 00:59:29.580 |
But people didn't think this outcome would happen with Roe v. Wade. 00:59:33.520 |
So then it's kind of hard to believe anything the court says. 00:59:38.320 |
I think we mentioned this when we talked about abortion some episodes ago, that this case 00:59:46.500 |
And we mentioned, I think, this in the context of this and affirmative action as two things 00:59:51.800 |
that were going to get challenged and would probably lose. 00:59:53.980 |
And unfortunately, it turns out we're right on one. 00:59:57.500 |
And it looks like we may be right on the other as well, because I think the affirmative action 01:00:02.700 |
Did we think that Roe was going to get overturned? 01:00:05.760 |
I admit I thought Roberts was going to get his way on this. 01:00:11.240 |
I still think that in terms of the testimony of these nominees, I mean, look, Tom, I think, 01:00:28.040 |
Look, I mean, we all know that in these nomination hearings, the job of every nominee from either 01:00:33.580 |
party is to basically say as little as possible. 01:00:40.360 |
I mean, it's not it's you could still go back and and overturn it. 01:00:46.500 |
I mean, look, people hear what they want to hear in these in these. 01:00:49.500 |
And they all the Republicans and the Democrats have a perfectly rehearsed answer. 01:00:53.900 |
When somebody in the Senate confirmation hearing says, Will you overturn it? 01:00:58.100 |
And they and they say, I could never adjudicate the case without knowing the facts. 01:01:02.580 |
And I have to, you know, look at every case as a clean slate. 01:01:05.880 |
It's like a very well practiced answer to every question. 01:01:08.260 |
To your point, David, it's a very rehearsed confirmation process. 01:01:12.400 |
So this idea that they lied or whatever, look, the only way you think they lied is if you 01:01:17.060 |
read if you read something into an answer, that was a platitude that you wanted to hear.