Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: For the purpose of this criminal case, former President Trump
Speaker 2: has become citizen Trump. That's what the DC's Circuit Court
Speaker 2: of Appeals wrote as it moved Donald Trump one step
Speaker 2: closer to standing trial for trying to overturn the twenty
Speaker 2: twenty election. In a decisive, unanimous ruling, the three judge
Speaker 2: panel found that Trump can't claim that the office of
Speaker 2: the presidency protects him from criminal prosecution. The judges wrote,
Speaker 2: we cannot accept that the Office of the Presidency places
Speaker 2: its former occupants above the law for all time. Thereafter,
Speaker 2: the judges had made their skepticism of Trump's immunity claims
Speaker 2: clear during the oral arguments last month. Here's Judge Karen
Speaker 2: Lacraft Henderson.
Speaker 1: I think it's paradoxical to say that his constitutional duty
Speaker 1: to take care that the laws be faithfully executed allows
Speaker 1: him to violate criminal laws.
Speaker 2: And in the opinion, the judges repeatedly used Trump's words
Speaker 2: and positions against him, for example, pointing to Trump's position
Speaker 2: during his impeachment that he could still be criminally charged,
Speaker 2: something Judge Florence panpointed out during the arguments.
Speaker 3: You took the position or your client did during the
Speaker 3: impeachment proceedings that there would be an option for criminal
Speaker 3: prosecution later, and it's in the congressional record, and I
Speaker 3: guess the question is what has changed or why have
Speaker 3: you changed your position.
Speaker 2: The court put the ruling on hold for Trump to
Speaker 2: appeal to the Supreme Court, but only until Monday. Joining
Speaker 2: me is former federal prosecutor Jessica Roth, a professor at
Speaker 2: Cardozo Law School. The court said, our analysis is guided
Speaker 2: by the Constitution, federal statutes, and his as well as
Speaker 2: concerns of public policy. What's your impression broadly of the opinion?
Speaker 4: My opinion broadly is that it is a resounding rejection
Speaker 4: of Trump's claim of immunity from criminal prosecution, and that
Speaker 4: it's an extremely thorough well written and well reasoned opinion
Speaker 4: that is unanimous issued on behalf of a panel that
Speaker 4: included one judge appointed by a Republican president, all speaking
Speaker 4: in one calm but clear voice, holding that a former
Speaker 4: president is not above the law.
Speaker 2: They address all of Trump's arguments for immunity and shoot
Speaker 2: them down one by one, starting with his argument that
Speaker 2: separation of power's doctrine immunizes him.
Speaker 4: The Court took that argument seriously and addressed it thoroughly,
Speaker 4: but found that there was no problem in separation of
Speaker 4: powers concerns with a former president being held criminally responsible
Speaker 4: for actions taken while in office that were in violation
Speaker 4: of federal criminal laws passed by the United States Congress.
Speaker 4: And it cited precedents in which presidential actions had been
Speaker 4: subject to judicial review, including former President truman seizure of
Speaker 4: the steel mills, and the Court said it did not
Speaker 4: find that separation of powers concerns prevented the Court from
Speaker 4: exercising oversight through the adjudication of the criminal laws over
Speaker 4: acts committed by a former president while in office that
Speaker 4: in fact were violations of criminal law.
Speaker 2: As you mentioned, there was a measured tone, but I
Speaker 2: thought that the tone was a little less measured when
Speaker 2: they had concerns about quote at bottom, former President Trump's
Speaker 2: stance would collapse our system of separated powers by placing
Speaker 2: the president beyond the reach of all three branches. At
Speaker 2: different points, I just thought that they raised some heightened concerns.
Speaker 4: They certainly raised concerns, and there were a number of
Speaker 4: really striking portions of the opinion that in a sense
Speaker 4: in a very measured way, I thought, expressed a sense
Speaker 4: of outrage over the implications of the former president's arguments.
Speaker 4: So you just read one portion of it. There's another
Speaker 4: portion where the court said, it would be a striking
Speaker 4: paradox if the president, who alone is vested with the
Speaker 4: constitutional duty to take care that the laws be faithfully executed,
Speaker 4: were the sole officer capable of defying those laws with impunity.
Speaker 4: So there are a number of statements like that that
Speaker 4: are just really strong rejections of the notion that a
Speaker 4: former president would be immune from prosecution and from his
Speaker 4: actions being reviewed by the court.
Speaker 2: They also took on policy considerations that he'd raised. Trump's
Speaker 2: lawyer had said, and Trump himself has said this on
Speaker 2: the road, that if presidents didn't have immunity, it would
Speaker 2: risk chilling their actions, and that presidence would be routinely
Speaker 2: indicted after they left office.
Speaker 4: Yes, the court did into account those policy considerations and
Speaker 4: said that not only was there no historical precedent for
Speaker 4: immunity from criminal prosecution of the kind that former President
Speaker 4: Trump thought, but that these policy considerations did not weigh
Speaker 4: in favor of recognizing such immunity. For the first time.
Speaker 4: In this case, they said that it has always been
Speaker 4: understood that former presidents could be subject to criminal prosecution
Speaker 4: when they left office. For example, that's why former President
Speaker 4: Ford pardoned former President Nixon. They cited the example of
Speaker 4: former President Bill Clinton, who entered into an agreement with
Speaker 4: the special counsel who had been investigating him with various sanctions,
Speaker 4: including forfeiting his law license, in part to settle the
Speaker 4: prospect of a future criminal prosecution. And then, most importantly,
Speaker 4: they cited statements by attorneys for former President Trump during
Speaker 4: his impeachment trial his second impeachment trial, they argued that
Speaker 4: impeachment was not the proper remedy, but rather the possibility
Speaker 4: of a criminal prosecution would be the proper remedy. And
Speaker 4: so they said these examples that point toward an understanding
Speaker 4: that former presidents could be subject to criminal prosecution when
Speaker 4: they left office for acts taken while president, and that
Speaker 4: there was no suggestion in the historical record that that
Speaker 4: prospect had chilled presidents while they were in office from
Speaker 4: exercising their duties without too much concern. And in fact,
Speaker 4: there was a quote from the district court opinion that
Speaker 4: they reiterated in the appellate opinion that I just thought
Speaker 4: was very telling. The District Court had said, every president
Speaker 4: will face difficult decisions, whether to intentionally commit a federal
Speaker 4: crime should not be one of them. And the DC
Speaker 4: Circuit quoted that language, saying, basically, they don't think that
Speaker 4: they're holding that there is no immunity from criminal prosecution
Speaker 4: is going to actually chill presidents in the exercise.
Speaker 2: Of their duties. They sort of turned the argument around
Speaker 2: against Trump. During the oral arguments, Trump's lawyer spent seemed
Speaker 2: like most of the time on the impeachment clause and
Speaker 2: this argument that Donald Trump would first have to have
Speaker 2: been convicted by the Senate in order to then be
Speaker 2: tried criminally after he left office.
Speaker 5: So, as the Lascimenta points out very clearly, then the founders,
Speaker 5: the framers actually in the Constitution Convention clearly contemplated that
Speaker 5: that sequence that I've described would be mandatory. He would
Speaker 5: have to be impeached and convicted first of them.
Speaker 2: And they took that on and they said, the strongest
Speaker 2: evidence against Trump's claim of immunity is found in the
Speaker 2: words of the Constitution's impeachment clause.
Speaker 4: They did treat thoroughly this argument that he could not
Speaker 4: be prosecuted criminally because he had not been convicted in
Speaker 4: the Senate relying on the impeachment clause. They addressed it
Speaker 4: thoroughly and said that they rejected it, that they thought
Speaker 4: it was a strained reading of the clause that he offered,
Speaker 4: and that although the clause makes clear that a president
Speaker 4: can be criminally prosecuted after being impeached and convicted, that
Speaker 4: the negative implication that Trump was arguing from that clause
Speaker 4: that he could only be criminally prosecuted if he had
Speaker 4: been convicted in the Senate following impeachment simply did not follow.
Speaker 2: So in the opinion, you had the legal arguments based
Speaker 2: on precedent and history and the Constitution, and then there
Speaker 2: were the sort of logical, sensible arguments, and one here
Speaker 2: was that, you know, the founders knew how to grant
Speaker 2: immunity if they wanted to, and they didn't want to hear.
Speaker 6: Yes, absolutely.
Speaker 4: They cited to other portions of the Constitution that were
Speaker 4: explicit about granted immunity, for example, with respect to the
Speaker 4: speaking debate clause and making clear that there would be
Speaker 4: immunity there for actions in the course of speech and debate.
Speaker 4: By members of Congress, And so if the framers knew
Speaker 4: how to be explicit about grants of immunity, it follows
Speaker 4: that if they didn't explicitly grant it to presidents in
Speaker 4: this context, that it doesn't exist.
Speaker 2: Is there any part of this opinion that you think
Speaker 2: is weak or subject to attack on appeal?
Speaker 4: It is a really sorrow opinion, and I think that
Speaker 4: the fact that the Court took its time to write
Speaker 4: this and to speak in one voice clearly was time
Speaker 4: well used to write such a sorrow opinion. I do
Speaker 4: not see any weak points in this opinion. I thought
Speaker 4: it was interesting that the court wrote in a footnote
Speaker 4: that it was not addressing the situation of a criminal
Speaker 4: prosecution by a state prosecutor for ax undertaken in office,
Speaker 4: and nor was it addressing the prospect of immunity of
Speaker 4: a sitting president from criminal prosecution. So in a sense,
Speaker 4: it's very much narrowly tailored to the situation before the court.
Speaker 2: And where did Trump's arguments about official acts go?
Speaker 4: I thought it was really interesting that the DC Circuit
Speaker 4: held categorically that there was no immunity from criminal prosecution
Speaker 4: for a former president, even for official acts at the
Speaker 4: oral argument, and given the briefing, much of which was
Speaker 4: dedicated to whether these were official acts of the president,
Speaker 4: I thought it was possible that the court would say,
Speaker 4: we're not going to deal with the categorical question because
Speaker 4: we're going to find that there is no immunity here
Speaker 4: because these were not official acts. In other words, they
Speaker 4: might have said, arguendos, we're going to apply the framework
Speaker 4: for immunity from the civil context to the criminal context,
Speaker 4: which is what Trump invited them to do, that we
Speaker 4: would find that even within that framework, these actions by
Speaker 4: Trump fall outside of his official acts. Have written an
Speaker 4: opinion along those lines, but they didn't, and I think
Speaker 4: that that is significant. It's a really sort of resounding
Speaker 4: rejection of the idea that there could be immunity from
Speaker 4: criminal prosecution even for official acts. The Court didn't really
Speaker 4: discuss whether or not these were official acts in the
Speaker 4: body of its opinion. They dropped a footnote where they said,
Speaker 4: even if we were to apply that framework, which asks
Speaker 4: whether the actions were within the outer perimeter of the
Speaker 4: presence responsibilities, which is the civil suit immunity framework, they said,
Speaker 4: we are doubtful that these most of these acts is
Speaker 4: alleged to the indictment would constitute official acts, and they
Speaker 4: cited to their recent's opinion in the Blastingham case, which
Speaker 4: was the civil suit against Trump and others involved in
Speaker 4: the January sixth riot, where the court did apply the
Speaker 4: civil immunity framework and found that most of the actions
Speaker 4: as alleged in those civil complaints outside the outer perimeter
Speaker 4: of official actions. And so although the court didn't squarely
Speaker 4: address that question in this opinion, because it didn't need to,
Speaker 4: given that it said categorically there is no immunity from
Speaker 4: criminal prosecution, I thought it was interesting that it did
Speaker 4: drop that footnote essentially expressing doubt that these would be
Speaker 4: deemed to be official acts.
Speaker 2: Didn't the judges also throw cold water on any claims
Speaker 2: that the counting of the ballots, that part of the
Speaker 2: electoral process has anything to do with the president.
Speaker 6: They did.
Speaker 7: They talked about how these were not actually acts that
Speaker 7: were within the president's duty, that these were not matters
Speaker 7: entrusted to him, and to the extented he claims that
Speaker 7: his actions were an effort to see that the laws
Speaker 7: were faithfully executed, that that essentially was a disingenuous argument
Speaker 7: here because he had no role to play with respect
Speaker 7: to the administration of the state elections and the county
Speaker 7: of the electoral votes, and that, in fact, what he
Speaker 7: did was an effort, as alleged, it's an effort to
Speaker 7: actually undermine the working of the laws that do govern
Speaker 7: the election of the president. It's a one other sort
Speaker 7: of notable quote from the opinion in that regard is
Speaker 7: the court said former President Trump's alleged efforts to remain
Speaker 7: in power despite losing the twenty twenty election were, if proven,
Speaker 7: an unprecedented assault on the structure of our government. He
Speaker 7: allegedly injected himself into a process in which the president
Speaker 7: has no role the counting and certifying of the Electoral
Speaker 7: College votes, thereby undermining constitutionally established procedures and the will.
Speaker 4: Of the Congress.
Speaker 2: Jessica, you're going to stay with me. Coming up, we're
Speaker 2: going to discuss whether the Supreme Court will take this
Speaker 2: case on appeal. I'm June Grosso and you're listening to Bloomberg.
Speaker 2: In a unanimous ruling, the DC Court of Appeals has
Speaker 2: found that Donald Trump cannot claim that the office of
Speaker 2: the presidency protects him from prosecution. Quote. Former President Trump
Speaker 2: has become citizen Trump with all the defenses of any
Speaker 2: other criminal defendant, but any executive immunity that may have
Speaker 2: protected him while he served as president no longer protects
Speaker 2: him against this prosecution. This decision moves Trump closer to
Speaker 2: standing trial for trying to overturn the twenty twenty election,
Speaker 2: but it may not be the last word. The court
Speaker 2: put the ruling against Trump on hold until February twelfth
Speaker 2: for him to appeal to the U. S. Supreme Court.
Speaker 2: He might also ask the full d C. Circuit to
Speaker 2: rehear the case. Neither court is required to take up
Speaker 2: his appeal. I've been talking to former federal prosecutor Jessica Roth,
Speaker 2: a professor at Cardozo Law School. The court gave Trump
Speaker 2: until Monday only to appeal to the Supreme Court to
Speaker 2: have this case on hold. Do you think they were
Speaker 2: looking at his strategy of delayed delay delay.
Speaker 4: I can't speak to what was in the judge's vines
Speaker 4: in their decision about the timing here. It is notable
Speaker 4: that they gave him a short time frame in which
Speaker 4: to appeal to the US Supreme Court before they would
Speaker 4: issue the mandate. I think it speaks to the urgency
Speaker 4: of the matters involved in this case, and you see
Speaker 4: that sense of the significance of this case throughout the
Speaker 4: Court's opinion when it talks about how the alleged conduct
Speaker 4: was an effort to overturn the results of a democratic
Speaker 4: election and the public's interest in the enforcement of criminal laws.
Speaker 4: So I think that those substantive aspects of the case
Speaker 4: may carry over to the court sense of what is
Speaker 4: an appropriate time frame in which to allow resort to
Speaker 4: further appellate review before the case goes forward in the
Speaker 4: district Court.
Speaker 2: Does that order the way it's it's raised mean that
Speaker 2: if Trump decides to appeal on Bank to the DC
Speaker 2: Circuit that the order won't be stayed.
Speaker 1: Yes.
Speaker 4: So the order makes clear that although Trump could file
Speaker 4: a petition for rehearing in Bank from the full DC Circuit,
Speaker 4: that motion would not stay the mandate. The only thing
Speaker 4: that will stay the mandate beyond Monday would be Trump
Speaker 4: filing an application for a stay from the United States
Speaker 4: Supreme Court. And as I read the DC Circuit order,
Speaker 4: its mandate will be stayed tending the US Supreme Court's
Speaker 4: resolution of a motion by Trump for a stay. So,
Speaker 4: if the Supreme Court considers an application by Trump for
Speaker 4: a stay and rejects it. Then the case goes back
Speaker 4: to the trial court, even if the US Supreme Court
Speaker 4: subsequently grants circiora.
Speaker 2: No one knows whether the Supreme Court will take the
Speaker 2: case or not, but they already have a couple of
Speaker 2: Trump cases on the docket, including this Thursday, the case
Speaker 2: over Colorado barring him from the ballot. What would be
Speaker 2: your guess as to whether they'll take the case or not.
Speaker 4: This is such a well reasoned and thoughtful opinion that
Speaker 4: I think they are very compelling reasons why the Court
Speaker 4: wouldn't take this case. There's no circuit split on this issue,
Speaker 4: and they certainly have their plateful with other really important
Speaker 4: cases that they need to decide, including the ballot access question.
Speaker 4: On the other hand, this is an enormously significant issue
Speaker 4: whether a former president is entitled to immunity from criminal prosecution.
Speaker 4: One could imagine the Justice is saying this is an
Speaker 4: issue on which we should open. But on the other hand,
Speaker 4: unless there are enough justices who think that the DC's
Speaker 4: circuit opinion is wrong, then I could also see them
Speaker 4: letting the DC opinion be the final word on this subject.
Speaker 2: So is everything here because the federal election case was
Speaker 2: on for March fourth, but then the judge had to
Speaker 2: take it off the calendar. If the Supreme Court decides
Speaker 2: not to take the case, how fast could the trial
Speaker 2: be put back on the calendar and move forward.
Speaker 4: Well, the Trial court has indicated that she will give
Speaker 4: the former president additional time to respond to motions that
Speaker 4: were filed by the special counsel to file any additional
Speaker 4: motions on his own behalf time that but for the
Speaker 4: stay of the trial court proceedings, he would have had
Speaker 4: to work on these motions in this last month or so.
Speaker 4: So she's going to give him that time. That means
Speaker 4: we're probably looking at some time at the earliest in
Speaker 4: late summer, perhaps late July, early August, for a trial date.
Speaker 4: But we really don't know what's going to happen. I mean,
Speaker 4: if the US Supreme Court were to take the case
Speaker 4: in grant to stay, that would mean that things would
Speaker 4: remain frozen. We really don't know, But we do see
Speaker 4: coming from the Trial Court in DC, Judge Chutkin every
Speaker 4: effort to move the case along as expeditiously as possible.
Speaker 4: So I think we may have a better sense by
Speaker 4: next week, by Monday, when and if Trump files an
Speaker 4: application in the US Supreme Court for a stay. Whether
Speaker 4: that's going to happen, I expect it will, and then
Speaker 4: I would imagine within a week or so after that,
Speaker 4: perhaps we would have some indication from the US Supreme
Speaker 4: Court about how quickly they're going to move, and if
Speaker 4: they're not going to take the case at all, then
Speaker 4: these things may start proceeding even more quickly in the
Speaker 4: trial court.
Speaker 2: So I know that what they say here, or as
Speaker 2: they said it has no application to what's happening in Georgia.
Speaker 2: But Trump did make a similar argument in Georgia, and
Speaker 2: I'm wondering if the courts there might look to what
Speaker 2: this court has said.
Speaker 4: I think the courts there will look to what this
Speaker 4: court has said as persuasive authority. Certainly, the analysis about
Speaker 4: the functional considerations about what impact would a holding that
Speaker 4: a case, a criminal case could go forward have on
Speaker 4: a president's ability to conduct their official duties without too
Speaker 4: much concern. I think that would be persuasive to state
Speaker 4: courts considering whether immunity should apply from a state prosecution.
Speaker 4: But I do think that some of the language might
Speaker 4: cut the other way, in the sense that one of
Speaker 4: the things that the Court says about why federal criminal
Speaker 4: prosecutions don't pose as great a concern as the prospect
Speaker 4: of civil lawsuits is. They said, well, essentially, there are
Speaker 4: so many private parties who might file civil lawsuits against
Speaker 4: a former president, and that prospect is significant enough for
Speaker 4: us to be concerned about not granting immunity. Those are
Speaker 4: statements that the US Supreme Court had made in the
Speaker 4: Fitzgerald's case, where it did recognize immunity from civil lawsuits
Speaker 4: for presidents for actions taken in the course of their
Speaker 4: official duties. DC Circuit said, well, we don't think those
Speaker 4: considerations apply with the same force with respect to federal
Speaker 4: criminal prosecutions, because prosecutors are subject to a number of
Speaker 4: constraints before they can bring criminal charges, including a code
Speaker 4: of ethics and also having to present their cases to
Speaker 4: a grand jury composed of ordinary citizens before the case
Speaker 4: can proceed. So much of that language I think works
Speaker 4: in the same way with respect to date criminal prosecutions.
Speaker 4: Prosecutors in the States also are subject to codes of
Speaker 4: ethics before they can bring charges. They also generally have
Speaker 4: to present them before a grand jury. But on the
Speaker 4: other hand, there are many more state prosecutors in a
Speaker 4: sense than there are federal prosecutors who are all encompassed
Speaker 4: within the Department of Justice. So I could see that
Speaker 4: discussion parts of it being used to help establish immunity
Speaker 4: from state prosecution, and parts of it being used to
Speaker 4: establish it there is no immunity from state prosecutions. And
Speaker 4: then of course there's a whole issue of the supremacy
Speaker 4: clause on how that would work in the context of
Speaker 4: state prosecutions of a former president. That wasn't a consideration
Speaker 4: in this case because it is a federal prosecution of
Speaker 4: a former president.
Speaker 2: So now we'll be keeping our eye on the calendar
Speaker 2: until Monday to see what happens with the appeal. Thanks
Speaker 2: so much, Jessica. That's Professor Jessica Roth of Cardozo Law School,
Speaker 2: coming up next on the Bloomberg Lawn Show. The Pennsylvania
Speaker 2: Supreme Court has made a ruling in a case over
Speaker 2: the use of Medicaid dollars to cover the cost of abortions,
Speaker 2: and the reasoning in that ruling signals a possible new
Speaker 2: path for reasserting abortion rights. I'm June Gross when you're
Speaker 2: listening to Bloomberg. The Pennsylvania Supreme Court has ordered a
Speaker 2: lower court to reconsider a challenge to the states decades
Speaker 2: old ban on using medicaid funds for abortions except in
Speaker 2: cases of rape or incest. But the State Supreme Court's
Speaker 2: reasoning has far wider implications. A law school professor Jessica
Speaker 2: Levinson has written in a column for MSNBC, the majority
Speaker 2: opinion signals a possible new path for reasserting abortion rights,
Speaker 2: as well as thoroughly rebutting the Supreme Court's Dobb's decision,
Speaker 2: which overturned Roe v. Wade, and Professor Levinson joins me, Now, Jessica,
Speaker 2: in order to put this in context, where you have
Speaker 2: to go back to the Roe v. Wade decision in
Speaker 2: nineteen seventy three, explain how the court used the Fourteenth Amendment. There. Rov.
Speaker 6: Wade is the Supreme Court deciding what is included in
Speaker 6: the word liberty in the Fourteenth Amendment, what is constitutionally protected,
Speaker 6: And leading up to Roe v. Wade, what the Supreme
Speaker 6: Court had concluded is that broadly, there is this right
Speaker 6: to privacy that's included in that word liberty. That broadly
Speaker 6: that includes, for instance, the right to obtain contraception. But
Speaker 6: the question in Roe v. Wade was does the word
Speaker 6: liberty include the right to obtain an abortion? And back
Speaker 6: in that case, the court answered in the affirmative, they said, yes,
Speaker 6: it's not written anywhere in the Constitution, but we find
Speaker 6: these unwritten rights and we conclude that they are included
Speaker 6: in this word liberty. That the drafters of the fourteenth
Speaker 6: Amendment knew that we were going to have to fill
Speaker 6: in meaning to that word. And one of the things
Speaker 6: that must mean is the right not just to contraception,
Speaker 6: but also to an abortion.
Speaker 2: And you right that Ruth Bader Ginsburg, the attorney Ruth
Speaker 2: Bader Ginsburg, would have chosen a different legal theory.
Speaker 6: That's right, in part because I think Justice Ginsberg knew
Speaker 6: that a decision like Dobbs could come down, and I
Speaker 6: think her feeling was instead of locating the right to
Speaker 6: obtain an abortion in the due process clause of the
Speaker 6: fourteenth Amendment, instead of saying it's an unwritten right that's
Speaker 6: included in the word liberty, let's instead look to a
Speaker 6: different part of the fourteenth Amendment. Let's list to the
Speaker 6: equal Protection clause, and let's look at how abortions obviously
Speaker 6: and the right to obtain an abortion disproportionately falls along
Speaker 6: gender lines. It is women and now trans men who
Speaker 6: can obtain abortions, And what she thought is that it's
Speaker 6: much cleaner to look at this as an equal protection
Speaker 6: clause analysis. Obviously, if you limit abortions, that is something
Speaker 6: that will have an impact on women in a very
Speaker 6: different way than it will impact men. And I think
Speaker 6: she was worried about writing rights into the Constitution that
Speaker 6: weren't written and therefore could potentially be overturned by a
Speaker 6: future court.
Speaker 2: Is that why she was a critic of Roe.
Speaker 6: I think that Jessice Ginsberg was a critic of Roe
Speaker 6: in part because she thought that this was cleaner and
Speaker 6: more legally elegant not to ever put words in her
Speaker 6: mouth as an equal protection cause analysis saying this is
Speaker 6: really amounts to gender discrimination when you limit or ban abortions.
Speaker 6: I think part of it was that Justice Ginsberg was
Speaker 6: somebody who, when she looked at women's rights, understood that
Speaker 6: we needed to move incrementally. And I think some of
Speaker 6: her writing and some of her speeches indicate that she
Speaker 6: thought maybe we needed to move more slowly when it
Speaker 6: comes to finding a constitutional right to obtain an abortion.
Speaker 6: Not because she personally didn't believe in that or didn't
Speaker 6: believe that it was legally correct, but that she worried
Speaker 6: about the court and a gap between the court and
Speaker 6: public opinion.
Speaker 2: And now we have the Pennsylvania Supreme Court tell us
Speaker 2: about the decision on the state law banning the use
Speaker 2: of medicaid funds for abortions.
Speaker 6: So this is a case that's fascinating where we see
Speaker 6: now the question largely about abortion rights is going back
Speaker 6: to states, and in this case, the state Supreme Court.
Speaker 6: And this is a state Supreme Court that isn't looking
Speaker 6: directly at that state's equal protection clause, but is instead
Speaker 6: looking at that state's equal rights amendments. Now, I think
Speaker 6: that's worth noting, but it's also worth noting that the court,
Speaker 6: in my view, kind of got very close to talking
Speaker 6: directly about that state constitution in the equal protection clause.
Speaker 6: But essentially, I read that State Supreme Court decision as saying,
Speaker 6: when we look at restrictions on abortions in this case,
Speaker 6: you cannot use government funds to obtain an abortion, we
Speaker 6: have to acknowledge that the impact is falling on gender lines.
Speaker 6: The court also acknowledge that you are treating certain women
Speaker 6: women who want to end a pregnancy as different from
Speaker 6: those who want to care continue a pregnancy, where the
Speaker 6: women who want an end of pregnancy get no funding
Speaker 6: from the government, but those who want to continue and
Speaker 6: carry a child to term do get funding from the government.
Speaker 6: So they saw different places where the government is treating
Speaker 6: arguably similarly situated people differently, and that is what gives
Speaker 6: rise to this the quality question.
Speaker 2: And you think it's a much cleaner argument, Well, I think.
Speaker 6: The argument when it comes to substance who due process
Speaker 6: on the federal level is obviously done for now. The
Speaker 6: Supreme Court said indabbs in no uncertain terms that there
Speaker 6: is no constitutionally protected rights to an abortion under the
Speaker 6: federal constitution. Now, there are some states that could look
Speaker 6: at their states to process clauses and decide that abortion
Speaker 6: is protected. But I think the equality argument does have
Speaker 6: a lot of a peace you'll legally speaking, now there's
Speaker 6: still questions that you need to look at. You still
Speaker 6: need to look at how different state if and when
Speaker 6: they have equal rights amendments the specific wording. You still
Speaker 6: have to look at the equal protection clause state by
Speaker 6: state in those states constitutions and figure out if in fact,
Speaker 6: we're going to say a restriction on abortion amount to
Speaker 6: gender based discrimination. So it's not that we're absolutely there,
Speaker 6: it's that there's a new framework that at least the
Speaker 6: Pennsylvania Supreme Court is looking at. And then I think
Speaker 6: offers hope for those who do want legal protections for
Speaker 6: women in their ability to obtain abortions.
Speaker 2: This could work in some of the states. Could it
Speaker 2: work federally as well?
Speaker 6: So I believe it could work federally if we want
Speaker 6: to change our paradigm. And again, the Pennsylvania Supreme Court
Speaker 6: looking at the state Equal Rights Amendment, But if we
Speaker 6: want to make this conversation broader, and if we want
Speaker 6: to look at restrictions on abortions as discrimination based on gender,
Speaker 6: then that is a conversation that we can have under
Speaker 6: the Equal Rights Amendment. Now, it would take the Supreme
Speaker 6: Court using a different strategy and espousing a different task
Speaker 6: than it otherwise has. This is not a theory that
Speaker 6: the Supreme Court has ever previously espoused. But I think
Speaker 6: that you could say, again, because the vast majority of
Speaker 6: people who speak an abortion are women. There are some transmen,
Speaker 6: but we're talking about disparate impact here. Then if you're
Speaker 6: looking at the Court's current jurisprudence. What you need to
Speaker 6: ask is about discriminatory intent. That's a difficult threshold, But
Speaker 6: I think that this is a legal framework that could
Speaker 6: be employed on the federal level.
Speaker 2: How would that work on the ground. You'd have to
Speaker 2: have a case where someone challenges an abortion restriction based
Speaker 2: on the equal protection.
Speaker 6: Argument exactly, and then that case has to move up
Speaker 6: the system. The Supreme Court has to decide to take
Speaker 6: that case, which I frankly think is not likely. The
Speaker 6: Supreme Court in Dobbs already said basically, now we're done,
Speaker 6: We're not deciding more abortion cases, and of course that
Speaker 6: is not true at all. The Court is looking at
Speaker 6: midf for Priston, but they're also looking at a case
Speaker 6: dealing with whether or not there's a federal statute that
Speaker 6: requires people to obtain be able to obtain free emergency
Speaker 6: treatment in emergency rooms, whether or not that applies to
Speaker 6: women seeking abortions. So they're certainly not out of this question.
Speaker 2: The Pennsylvania Supreme Court also attacked Justice Alito's reasoning in
Speaker 2: the Dobbs decision.
Speaker 6: Yes, what we saw from the Pennsylvania Supreme Court was
Speaker 6: a strong rebuke of the US Supreme Court's majority opinion
Speaker 6: in Dobbs, and what they really reminded us of, and
Speaker 6: this was specifically in a concurrence as well, is that
Speaker 6: when you're looking at history, there are often different lenses
Speaker 6: through which you can look at history. And part of
Speaker 6: the problem I think in grounding constitutional rights based on
Speaker 6: the time that either the Constitution was ratified or an
Speaker 6: amendment was ratified, is that that was often a time
Speaker 6: in society where we had gross inequality. So looking at,
Speaker 6: for instance, the fourteenth Amendment and when that was added
Speaker 6: to the Constitution and asking at that moment whether or
Speaker 6: not abortions were legal, I think is problematic because it
Speaker 6: has the effect of kind entrenching inequality. It has the
Speaker 6: effect of saying, let's locate this right at a time
Speaker 6: when women, frankly were second class citizens, women couldn't vote.
Speaker 6: I believe at the time spousal rape laws were rare,
Speaker 6: or at the very least not the majority. I think
Speaker 6: the answer is quite rare. But women were not full
Speaker 6: participants in society, And so there's a problem when you
Speaker 6: locate rights at a time when our society looked very different.
Speaker 2: How do we get to this point where constitutional interpretation
Speaker 2: means relying on tradition and history, going back to a
Speaker 2: time when society was so different. I mean, look at
Speaker 2: the Second Amendment cases where they're comparing modern weapons to weapons,
Speaker 2: you know, back in the eighteen hundreds.
Speaker 6: Well, I think people who are originalists or constructionists, what
Speaker 6: they would say is I'm a judge, not a lawmaker,
Speaker 6: and I'm interpreting what provisions of the Constitution mean, and
Speaker 6: it's not up to me to say what I think
Speaker 6: is wise or unwise. I don't make policy. I just
Speaker 6: apply the facts of cases to existing laws, and I
Speaker 6: helped to inter for those laws. And I think proponents
Speaker 6: of originalism would say it's the only way to make
Speaker 6: sure that we don't have judicial activism, that we just
Speaker 6: need to look at the time that the Second Amendment
Speaker 6: was ratified or the Fourteenth Amendment was ratified and figure
Speaker 6: out what was allowed and or prohibited at that time. Now,
Speaker 6: obviously those who are proponents of originalism, I'm sure would
Speaker 6: say much more than I just said, But it is
Speaker 6: certainly a judicial philosophy that I think has now been
Speaker 6: espoused by a majority of the Supreme Court. And again,
Speaker 6: what people what supporters would say is I'm not somebody
Speaker 6: who's elected. I'm the furthest away as a judge from
Speaker 6: we the people, and so I shouldn't be acting as
Speaker 6: a super legislator. I should be acting as somebody in chief,
Speaker 6: Justice Roberts Words, who just calls balls and strikes. And
Speaker 6: the only way I can do that is just looking
Speaker 6: at the plain language of these when they were adopted.
Speaker 2: I remember when the late Justice Antonin Scalia and Justice
Speaker 2: Stephen Breyer used to debate Originalism versus the living Constitution,
Speaker 2: and it appears the living Constitution has lost. Thanks so much, Jessica.
Speaker 2: That's Professor Jessica Levinson of Loyola Law School. And that's
Speaker 2: it for this edition of the Bloomberg Law Show. I'm
Speaker 2: June Grosso and you're listening to Bloomberg. And that's it
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