1 00:00:00,200 --> 00:00:04,600 Speaker 1: The Constitution does not confer a right to abortion. Roe 2 00:00:04,680 --> 00:00:09,320 Speaker 1: and Casey are overruled, and the authority to regulate abortion 3 00:00:09,760 --> 00:00:13,680 Speaker 1: is returned to the people and their elected representatives. So 4 00:00:13,880 --> 00:00:17,720 Speaker 1: declares the United States Supreme Court. This is verdict with 5 00:00:17,760 --> 00:00:27,160 Speaker 1: Ted Cruz. Welcome back to verdict with Ted Cruz. I'm 6 00:00:27,200 --> 00:00:34,440 Speaker 1: Michael Knowles. It is the greatest political event of my lifetime, 7 00:00:34,960 --> 00:00:38,279 Speaker 1: I suspect Senator, of your lifetime. We are not in 8 00:00:38,320 --> 00:00:42,360 Speaker 1: our usual locations right now. I am in Chicago for 9 00:00:42,440 --> 00:00:46,800 Speaker 1: a wedding. You are in Milwaukee, and we said we 10 00:00:46,880 --> 00:00:53,120 Speaker 1: need an emergency bonus verdict to discuss and to celebrate 11 00:00:53,440 --> 00:00:58,560 Speaker 1: the Supreme Court's overruling of Revuewade. Well, Michael, it's truly 12 00:00:58,600 --> 00:01:02,400 Speaker 1: extraordinary and right. This has been forty nine years in coming. 13 00:01:03,200 --> 00:01:05,520 Speaker 1: You have never lived a day on planet Earth without 14 00:01:05,680 --> 00:01:08,280 Speaker 1: Roe versus Wade being the law of the land. I 15 00:01:08,400 --> 00:01:12,360 Speaker 1: was two when Roe was decided, and for forty nine 16 00:01:12,480 --> 00:01:21,840 Speaker 1: years that was unshakable and unstoppable. And today we've returned 17 00:01:21,840 --> 00:01:24,320 Speaker 1: to what the country was for the first one hundred 18 00:01:24,319 --> 00:01:27,120 Speaker 1: and eighty five years, which is the elected people, the 19 00:01:27,160 --> 00:01:31,399 Speaker 1: elected representatives of the people. The voters now have the 20 00:01:31,480 --> 00:01:34,560 Speaker 1: right to decide questions of life. That that's how the 21 00:01:34,600 --> 00:01:38,160 Speaker 1: Constitution was designed in the first place. But but I 22 00:01:38,200 --> 00:01:44,040 Speaker 1: got to just pause and reflect on the extraordinary efforts 23 00:01:44,120 --> 00:01:51,640 Speaker 1: that led to yesterday's decision. Millions of activists, an entire movement, 24 00:01:51,760 --> 00:01:57,240 Speaker 1: millions of young women and old women, and people marching 25 00:01:57,320 --> 00:02:01,680 Speaker 1: in the March for Life every year, millions of grassroots 26 00:02:01,720 --> 00:02:05,000 Speaker 1: activists who mobilized, who mobilized but behind the campaign of 27 00:02:05,080 --> 00:02:08,880 Speaker 1: Ronald Reagan, who mobilized behind the campaign of George Herbert 28 00:02:08,880 --> 00:02:12,320 Speaker 1: Walker Bush, who mobilized behind the campaign of George W. Bush, 29 00:02:12,360 --> 00:02:18,919 Speaker 1: who mobilized behind the campaign of Donald Trump. This is 30 00:02:19,000 --> 00:02:25,440 Speaker 1: the culmination of forty nine years of work, of organizing, 31 00:02:25,520 --> 00:02:31,600 Speaker 1: of mobilizing, of incredible and fervent prayer. And it's truly 32 00:02:31,639 --> 00:02:36,240 Speaker 1: an extraordinary moment because a lot of us in the 33 00:02:36,280 --> 00:02:40,440 Speaker 1: pro life movement have wondered would this ever happen, would 34 00:02:40,520 --> 00:02:43,880 Speaker 1: Row ever be overturned? Was this feudal? Was this a 35 00:02:43,919 --> 00:02:47,119 Speaker 1: waste of time? I can't count how many times I've 36 00:02:47,120 --> 00:02:50,800 Speaker 1: heard people raise those questions, This will never happen. These 37 00:02:51,200 --> 00:02:54,080 Speaker 1: you know, these damn politicians are just they're just lying 38 00:02:54,120 --> 00:02:57,440 Speaker 1: to us. They're just pretending and this will never happen. 39 00:02:57,600 --> 00:03:02,000 Speaker 1: It there aren't words to scribe. It is the most 40 00:03:02,040 --> 00:03:07,360 Speaker 1: consequential Supreme Court decision of the last fifty years, since 41 00:03:07,480 --> 00:03:11,920 Speaker 1: Roe in nineteen seventy three that started us on this journey. 42 00:03:12,320 --> 00:03:15,040 Speaker 1: It is. I have to say, I didn't I didn't 43 00:03:15,040 --> 00:03:19,040 Speaker 1: expect it, even I didn't want to allow myself to 44 00:03:19,080 --> 00:03:22,000 Speaker 1: hope that it could actually happen. Even after the leaked opinion, 45 00:03:22,720 --> 00:03:24,720 Speaker 1: I still sort of thought it was fifty fifty. I 46 00:03:24,800 --> 00:03:27,080 Speaker 1: didn't know if the people who showed up outside the 47 00:03:27,120 --> 00:03:30,600 Speaker 1: justice's homes and the attempted assassination of Brett Havanon and 48 00:03:30,680 --> 00:03:33,560 Speaker 1: all the craziness, if that would succeed in in bullying 49 00:03:33,800 --> 00:03:37,520 Speaker 1: the justices. It obviously did not. And so now i'd 50 00:03:37,520 --> 00:03:39,560 Speaker 1: like your take, not just as someone who's been in 51 00:03:39,560 --> 00:03:41,440 Speaker 1: the pro life movement for a very long time, not 52 00:03:41,480 --> 00:03:44,760 Speaker 1: even just as a US Senator, but as an expert 53 00:03:44,760 --> 00:03:47,160 Speaker 1: on the constitution, someone who has argued cases before the 54 00:03:47,200 --> 00:03:50,800 Speaker 1: Supreme Court, someone who clerked for the Chief Justice. What 55 00:03:50,880 --> 00:03:54,520 Speaker 1: does the opinion say and do? Because there's the opinion, 56 00:03:54,720 --> 00:03:56,600 Speaker 1: there's the opinion of the Court on the pro life 57 00:03:56,680 --> 00:03:58,720 Speaker 1: law that brought this issue to the four that was 58 00:03:58,760 --> 00:04:02,279 Speaker 1: the Mississippi pro life Law six three. All the Conservatives, 59 00:04:02,360 --> 00:04:05,839 Speaker 1: joined by Chief Justice Roberts, vote to uphold the Mississippi law. 60 00:04:06,160 --> 00:04:10,080 Speaker 1: Then the Chief Justice splits off. He does not vote 61 00:04:10,120 --> 00:04:13,920 Speaker 1: to overrule Row and Casey. So that's a five four decision. 62 00:04:14,160 --> 00:04:19,120 Speaker 1: You've got Thomas, Alito, Barrett, Kavanaugh, and Gorsage vote to 63 00:04:19,160 --> 00:04:22,760 Speaker 1: overrule Row and Casey. But then it gets even more 64 00:04:22,800 --> 00:04:28,240 Speaker 1: complicated because Kavanaugh files his own concurring opinion, which seems 65 00:04:28,279 --> 00:04:33,719 Speaker 1: somewhat modest. Justice Thomas files his concurring opinion, which seems 66 00:04:33,760 --> 00:04:36,480 Speaker 1: perhaps more ambitious, and then you've got the dissent from 67 00:04:36,480 --> 00:04:38,800 Speaker 1: the liberals. I'm sorry. Chief Justice Roberts has his own 68 00:04:38,839 --> 00:04:41,760 Speaker 1: concurring opinion. So anyway, what does it all mean. Well, 69 00:04:41,839 --> 00:04:44,919 Speaker 1: let's walk through it, and let's walk through it systematically. 70 00:04:45,160 --> 00:04:47,440 Speaker 1: So let's turn to the decision itself. So I would 71 00:04:47,560 --> 00:04:51,640 Speaker 1: encourage Look, many of you, presumably are not lawyers, I 72 00:04:51,640 --> 00:04:53,839 Speaker 1: would encourage you to sit down and read this opinion. 73 00:04:54,720 --> 00:04:59,400 Speaker 1: Justice Alito wrote this opinion for the ages, and yes 74 00:04:59,520 --> 00:05:02,239 Speaker 1: it is a legal opinion and a Supreme Court opinion, 75 00:05:03,360 --> 00:05:07,120 Speaker 1: but it is designed to be accessible for a reader 76 00:05:07,120 --> 00:05:13,839 Speaker 1: to walk through. Not why Row was wrong, but it 77 00:05:13,920 --> 00:05:17,640 Speaker 1: also explains how constitutional law is supposed to work. So 78 00:05:17,680 --> 00:05:23,320 Speaker 1: the opinion begins the first paragraph. Justice Alito talks about 79 00:05:23,360 --> 00:05:26,960 Speaker 1: their three different groups in America. There's one group that 80 00:05:27,000 --> 00:05:32,240 Speaker 1: are convinced passionately that an unborn child is a human 81 00:05:32,320 --> 00:05:34,760 Speaker 1: life that is precious, that needs to be protected, that 82 00:05:34,880 --> 00:05:39,159 Speaker 1: has full rights. He acknowledges, There's another group that is 83 00:05:39,240 --> 00:05:43,520 Speaker 1: justice passionate, they're justice heartfelt that are convinced an unborn 84 00:05:43,600 --> 00:05:46,520 Speaker 1: child is not a human right, that abortion is about 85 00:05:46,560 --> 00:05:49,760 Speaker 1: the liberty of a woman to control her body and 86 00:05:49,880 --> 00:05:52,880 Speaker 1: her life. And then he points out there's yet a 87 00:05:52,920 --> 00:05:55,200 Speaker 1: third group that is in neither of the two camps, 88 00:05:55,240 --> 00:05:58,320 Speaker 1: but thinks that abortion should be allowed in some circumstances, 89 00:05:59,000 --> 00:06:02,520 Speaker 1: but there should be significant restrictions on any points out 90 00:06:02,560 --> 00:06:07,400 Speaker 1: where those restrictions are run. The gamut, I like that 91 00:06:07,480 --> 00:06:10,320 Speaker 1: opening observation. One of the things that the majority opinion 92 00:06:10,320 --> 00:06:14,520 Speaker 1: does a good job of doing is not denigrating those 93 00:06:14,560 --> 00:06:18,640 Speaker 1: who have different views. The majority opinion, I think it's 94 00:06:18,640 --> 00:06:24,640 Speaker 1: fair to say, is not necessarily a pro life opinion. 95 00:06:25,560 --> 00:06:31,800 Speaker 1: It's a pro constitution opinion. It's saying, we're judges, we 96 00:06:31,920 --> 00:06:35,320 Speaker 1: don't know any better than you do. How to answer 97 00:06:35,440 --> 00:06:41,040 Speaker 1: questions that are fundamentally moral questions or scientific questions or 98 00:06:41,080 --> 00:06:47,560 Speaker 1: philosophical questions about whether an unborn child is entitled to 99 00:06:47,640 --> 00:06:50,520 Speaker 1: the same rights as the rest of us. I think 100 00:06:50,600 --> 00:06:54,320 Speaker 1: that modesty is important. And the opinion goes through systematically 101 00:06:54,400 --> 00:06:56,840 Speaker 1: points out for the first one hundred and eighty five years, 102 00:06:57,760 --> 00:07:02,240 Speaker 1: those questions were decided by electedgislatures. That's how the Constitution operated. 103 00:07:03,279 --> 00:07:06,560 Speaker 1: And it points out, and we've talked about this before. 104 00:07:06,680 --> 00:07:11,240 Speaker 1: On the second page, Justice Alito says, after cataloging a 105 00:07:11,280 --> 00:07:13,920 Speaker 1: wealth of other information having no bearing on the meaning 106 00:07:13,920 --> 00:07:17,520 Speaker 1: of the Constitution, he's talking about roversus way. The opinion 107 00:07:17,560 --> 00:07:23,040 Speaker 1: concluded with a numbered set of rules, much like those 108 00:07:23,120 --> 00:07:27,280 Speaker 1: that might be found in a statute enacted by a legislature. 109 00:07:27,840 --> 00:07:30,480 Speaker 1: And it's Harry Blackman's opinion in row is really one 110 00:07:30,520 --> 00:07:33,480 Speaker 1: of the worst judicial opinions ever written, and it's universally 111 00:07:34,480 --> 00:07:39,480 Speaker 1: criticize it. In fact, the majority opinion here then quotes 112 00:07:39,600 --> 00:07:45,880 Speaker 1: John Hardelet, who was a revered liberal constitutional scholar, and 113 00:07:45,960 --> 00:07:51,000 Speaker 1: here's what he says. One prominent constitutional scholar wrote that 114 00:07:51,160 --> 00:07:55,240 Speaker 1: he quote would vote for a statute very much like 115 00:07:55,480 --> 00:07:58,120 Speaker 1: the one the Court ended up drafting. If he were 116 00:07:58,120 --> 00:08:01,960 Speaker 1: a legislator. So he agreed with abortion as a policy matter. 117 00:08:03,160 --> 00:08:07,520 Speaker 1: But he then describes Row and says Roe quote was 118 00:08:07,640 --> 00:08:13,720 Speaker 1: not constitutional law at all and gave quote almost no 119 00:08:13,840 --> 00:08:18,560 Speaker 1: sense of an obligation to try to be This is 120 00:08:18,600 --> 00:08:22,760 Speaker 1: a liberal talking about Justice Byron White, who was one 121 00:08:22,800 --> 00:08:25,800 Speaker 1: of the original dissenters in Row. He was appointed to 122 00:08:25,840 --> 00:08:29,000 Speaker 1: the Court by President John F. Kennedy was on many 123 00:08:29,040 --> 00:08:33,680 Speaker 1: issues a liberal, but Justice White in Rowe described the 124 00:08:33,760 --> 00:08:40,880 Speaker 1: opinion as quote, the exercise of raw judicial power. Yeah, 125 00:08:44,120 --> 00:08:52,200 Speaker 1: it's powerful. And then Rowe was the law until nineteen 126 00:08:52,280 --> 00:08:55,360 Speaker 1: ninety two. And nineteen ninety two the Supreme Court decided Casey. 127 00:08:55,720 --> 00:08:58,960 Speaker 1: And one of the reasons so many conservatives felt frustrated 128 00:08:59,120 --> 00:09:01,559 Speaker 1: is a lot of us thought Casey would overrule Row. 129 00:09:02,400 --> 00:09:06,239 Speaker 1: You'd had the ragged revolution, you had justices, you had 130 00:09:06,320 --> 00:09:09,839 Speaker 1: justices put on by presidents who had campaigned against Row. 131 00:09:11,679 --> 00:09:14,600 Speaker 1: And what happened is that three of them, Justice Kennedy, 132 00:09:14,640 --> 00:09:19,560 Speaker 1: Justice O'Connor, and Justice Suitor shocked everyone and together wrote 133 00:09:19,760 --> 00:09:24,559 Speaker 1: a joint opinion in Casey, reaffirming Row. And look, the 134 00:09:24,600 --> 00:09:29,520 Speaker 1: Casey opinion is another terrible opinion. It is an opinion. 135 00:09:29,600 --> 00:09:33,120 Speaker 1: It doesn't attempt to defend Rowe. It doesn't attempt to 136 00:09:33,160 --> 00:09:35,400 Speaker 1: go through and say Rowe was right. Roe is based 137 00:09:35,400 --> 00:09:38,840 Speaker 1: on the Constitution, Rowe was well reasoned. Well, it actually 138 00:09:38,880 --> 00:09:43,480 Speaker 1: overrules parts of Row, significant parts of Row. Instead, it 139 00:09:43,559 --> 00:09:46,640 Speaker 1: just says, under the principle of starry decisive starry descisi 140 00:09:46,640 --> 00:09:48,640 Speaker 1: is a very important principle in law, which is that 141 00:09:48,720 --> 00:09:52,920 Speaker 1: you respect precedents. The court was not going to overturn it, 142 00:09:53,880 --> 00:09:58,640 Speaker 1: and it created a new standard. So instead of Row 143 00:10:00,480 --> 00:10:04,480 Speaker 1: drew lines during the pregnancy of the first trimester, the 144 00:10:04,520 --> 00:10:08,280 Speaker 1: second trimester, the third trimester, and it laid out the 145 00:10:08,360 --> 00:10:11,520 Speaker 1: different standards, and it said only in the third trimester 146 00:10:12,080 --> 00:10:14,480 Speaker 1: does the state have an interest in protecting what it 147 00:10:14,520 --> 00:10:18,760 Speaker 1: called potential life. Well, Casey came in and said, all right, 148 00:10:18,800 --> 00:10:23,520 Speaker 1: don't don't use the Row standard anymore. Instead, what is permissible. 149 00:10:23,840 --> 00:10:31,360 Speaker 1: What is impermissible is a law that imposes an undue burden, Yeah, 150 00:10:31,440 --> 00:10:35,760 Speaker 1: on a woman's right to access an abortion. Now, the 151 00:10:35,800 --> 00:10:38,720 Speaker 1: problem is, what the heck is the difference between a 152 00:10:38,880 --> 00:10:42,640 Speaker 1: due burden and an undue bird And nobody knows. This 153 00:10:43,280 --> 00:10:49,559 Speaker 1: is magic. And so the majority opinion in Dabbs describes 154 00:10:50,080 --> 00:10:53,120 Speaker 1: says the decision provided no clear guidance about the difference 155 00:10:53,160 --> 00:10:57,640 Speaker 1: between a due and an undue bird. But the three 156 00:10:57,760 --> 00:11:01,800 Speaker 1: justices who authored the controlling opinion quote, and this is 157 00:11:01,800 --> 00:11:06,840 Speaker 1: one of the more grandiose, condescending statements in it. Here's 158 00:11:06,880 --> 00:11:11,640 Speaker 1: what Casey said. Quote called the contending sides of the 159 00:11:11,720 --> 00:11:17,760 Speaker 1: national controversy to end their national division by treating the 160 00:11:17,800 --> 00:11:20,920 Speaker 1: Court's decision is the final settlement of the question of 161 00:11:20,960 --> 00:11:26,080 Speaker 1: the constitutional right on abortion. So, like philosopher kings on High, 162 00:11:26,840 --> 00:11:33,640 Speaker 1: they say, you stupid people, stop bickering. We have decided. 163 00:11:34,559 --> 00:11:36,720 Speaker 1: And you might think you have a right to vote, 164 00:11:36,760 --> 00:11:39,240 Speaker 1: you might think you have a right to engage, but 165 00:11:39,360 --> 00:11:45,040 Speaker 1: you are wrong. Well, their assessment that suddenly after Casey 166 00:11:45,120 --> 00:11:48,440 Speaker 1: people would say, okay, never mind, we accept that is 167 00:11:48,480 --> 00:11:56,040 Speaker 1: not what played out. The operative paragraph of the opinion, 168 00:11:57,360 --> 00:12:02,199 Speaker 1: found on page five weld that Rowan Casey must be overruled. 169 00:12:02,880 --> 00:12:07,439 Speaker 1: The Constitution makes no reference to abortion, and no such 170 00:12:07,559 --> 00:12:12,040 Speaker 1: right is implicitly protected by any constitutional provision, including the 171 00:12:12,080 --> 00:12:14,560 Speaker 1: one on which the defenders of Rowan Casey now chiefly 172 00:12:14,600 --> 00:12:18,160 Speaker 1: rely the due process clause of the Fourteenth Amendment. That 173 00:12:18,280 --> 00:12:21,120 Speaker 1: provision has been held to guarantee some rights that are 174 00:12:21,120 --> 00:12:26,199 Speaker 1: not mentioned in the Constitution, But any such right must 175 00:12:26,240 --> 00:12:30,040 Speaker 1: be deeply rooted in this nation's history and tradition and 176 00:12:30,200 --> 00:12:34,080 Speaker 1: implicit in the concept of ordered liberty. Now there's a 177 00:12:34,120 --> 00:12:36,360 Speaker 1: lot of substance there, so let's try to unpack that 178 00:12:36,400 --> 00:12:38,480 Speaker 1: a little bit. And actually the court does a very 179 00:12:38,520 --> 00:12:42,400 Speaker 1: good job of that. What is the source of the 180 00:12:42,480 --> 00:12:47,000 Speaker 1: right to abortion? Well, Rowe doesn't say, and in fact, 181 00:12:47,360 --> 00:12:50,839 Speaker 1: as Dobbs says, Rowe was egregiously wrong from the start, 182 00:12:50,920 --> 00:12:54,480 Speaker 1: that phrase is used a couple of times. The source though, 183 00:12:55,200 --> 00:12:58,040 Speaker 1: I want to flip over to the discussion because it's 184 00:13:00,120 --> 00:13:02,920 Speaker 1: so Alito is particularly withering, saying, okay, well, what part 185 00:13:02,960 --> 00:13:05,719 Speaker 1: of the Constitution are you finding this this new found right? 186 00:13:06,559 --> 00:13:13,280 Speaker 1: And the dab's opinion says Rowe expressed the quote feeling 187 00:13:14,920 --> 00:13:18,600 Speaker 1: that the fourteenth Amendment was the provision that did the work. 188 00:13:19,520 --> 00:13:22,040 Speaker 1: But its message seemed to be that the abortion right 189 00:13:22,080 --> 00:13:26,839 Speaker 1: could be found somewhere in the Constitution, and that specifying 190 00:13:26,880 --> 00:13:32,240 Speaker 1: the exact location was not a paramount importance. It could 191 00:13:32,240 --> 00:13:34,520 Speaker 1: be this amendment, it could be that amendment. It's the 192 00:13:34,520 --> 00:13:38,120 Speaker 1: emanation of the pnumbra of the invisible inc They say, 193 00:13:37,880 --> 00:13:40,680 Speaker 1: it's it's there and find it wherever you want to 194 00:13:40,720 --> 00:13:44,000 Speaker 1: find it well. And in fact they drop a footnote 195 00:13:44,080 --> 00:13:49,160 Speaker 1: quoting from Rowe of a provision that is just really so, 196 00:13:49,960 --> 00:13:53,720 Speaker 1: here's what Footnote sixteen says the court's words, whereas follows 197 00:13:53,800 --> 00:13:58,599 Speaker 1: quote this right of privacy, whether it be founded in 198 00:13:58,640 --> 00:14:01,840 Speaker 1: the fourteenth Amendments, contup to personal liberty and restrictions on 199 00:14:01,880 --> 00:14:07,000 Speaker 1: state state action, as we feel it is. No, this 200 00:14:07,160 --> 00:14:09,880 Speaker 1: is not reasoning, This is not thinking, this is feelings 201 00:14:10,480 --> 00:14:14,400 Speaker 1: we feel it is. Or as the District Court determined 202 00:14:14,440 --> 00:14:16,840 Speaker 1: in the ninth Amendments, reservation of rights to the people 203 00:14:17,480 --> 00:14:22,200 Speaker 1: is broad enough to accompass encompass a woman's decision whether 204 00:14:22,320 --> 00:14:27,880 Speaker 1: or not determinate her pregnancy. What the majority opinion does 205 00:14:27,960 --> 00:14:34,120 Speaker 1: as systematically dismantles the reasoning and row it's not explicitly 206 00:14:34,160 --> 00:14:37,440 Speaker 1: protected in the Constitution and then says, Okay, just because 207 00:14:37,440 --> 00:14:41,080 Speaker 1: it's not explicitly protected, that doesn't mean it's it's not there. 208 00:14:41,120 --> 00:14:46,040 Speaker 1: It might be implicitly protected, but if it's implicitly protected, 209 00:14:46,080 --> 00:14:48,360 Speaker 1: there's got to be something implying in So the court 210 00:14:48,480 --> 00:14:52,720 Speaker 1: systematically goes through where does this come from? And the 211 00:14:52,800 --> 00:14:58,160 Speaker 1: principal basis that the defenders of Row and Casey allege 212 00:14:58,200 --> 00:15:00,600 Speaker 1: it that it comes from as the fourteen Amendment to 213 00:15:00,600 --> 00:15:05,200 Speaker 1: the Constitution, and in particular, in particular the due process Protection. 214 00:15:05,200 --> 00:15:12,480 Speaker 1: The due process protection prohibits states from depriving people of life, liberty, 215 00:15:12,640 --> 00:15:17,000 Speaker 1: or property without due process of law. And it is 216 00:15:17,080 --> 00:15:20,240 Speaker 1: liberty in particular. And so the argument is, what is 217 00:15:20,280 --> 00:15:24,000 Speaker 1: the liberty you cannot be deprived of without due process 218 00:15:24,040 --> 00:15:32,120 Speaker 1: of law? And how do you determine them? Now, there 219 00:15:32,160 --> 00:15:35,920 Speaker 1: are two different legal questions that let's walk through for 220 00:15:35,960 --> 00:15:38,840 Speaker 1: a second, because they also highlight a disagreement that then 221 00:15:38,960 --> 00:15:43,360 Speaker 1: comes up with Justice Thomas in his dissent. There's a 222 00:15:43,440 --> 00:15:48,200 Speaker 1: notion called substantive due process and there's a notion called 223 00:15:48,280 --> 00:15:53,600 Speaker 1: procedural due process. Procedural due process is what the actual 224 00:15:53,640 --> 00:15:56,400 Speaker 1: provision in the Fourteenth Amendment and also the Fifth Amendment 225 00:15:56,440 --> 00:15:59,720 Speaker 1: protects due process against the federal government. The Fourteenth Amendment 226 00:15:59,720 --> 00:16:05,240 Speaker 1: protect next due process against the states. Procedural due process 227 00:16:05,320 --> 00:16:08,320 Speaker 1: says the state can't take your life from you, can't 228 00:16:08,320 --> 00:16:10,600 Speaker 1: take your liberty from you, can't take your property from 229 00:16:10,680 --> 00:16:14,560 Speaker 1: you without due process of law, which means without illegal proceeding, 230 00:16:14,600 --> 00:16:18,480 Speaker 1: without notice, without opportunity to be heard. There's got to be. 231 00:16:18,600 --> 00:16:20,920 Speaker 1: They can't just come in and seize your stuff and 232 00:16:20,920 --> 00:16:25,560 Speaker 1: say ha ha. There's got to be a process. It 233 00:16:25,760 --> 00:16:29,560 Speaker 1: protects procedural rights, which you would think call it something 234 00:16:29,640 --> 00:16:36,080 Speaker 1: saying we're protecting due process would protect process right. So 235 00:16:36,440 --> 00:16:39,600 Speaker 1: that's the ordinary understanding of due process. But the Supreme 236 00:16:39,640 --> 00:16:44,400 Speaker 1: Court has created a second category that is called substantive 237 00:16:44,480 --> 00:16:49,440 Speaker 1: due process. And the idea is that there are some 238 00:16:49,520 --> 00:16:52,600 Speaker 1: things that are just protected in substance that it doesn't 239 00:16:52,600 --> 00:16:56,240 Speaker 1: matter what the process is, the government can't do them. 240 00:16:58,760 --> 00:17:04,240 Speaker 1: There have been many constitutional scholars and some justices that 241 00:17:04,280 --> 00:17:08,959 Speaker 1: have argued substantive due process is nonsense, it's made up. 242 00:17:11,400 --> 00:17:14,240 Speaker 1: John Hardilier, i quoted before, had a great phrase also 243 00:17:14,280 --> 00:17:17,720 Speaker 1: about substanti due process. He said, that's like saying green 244 00:17:17,840 --> 00:17:24,520 Speaker 1: pastel redness, because substantive and process are the opposite of 245 00:17:24,520 --> 00:17:29,760 Speaker 1: each other. Like, it doesn't mean anything to say, but 246 00:17:31,520 --> 00:17:37,159 Speaker 1: what the majority opinion does, it doesn't do anything significant 247 00:17:37,240 --> 00:17:40,000 Speaker 1: in changing substant of due processes. And look, we've had 248 00:17:40,000 --> 00:17:42,560 Speaker 1: lots of decisions that we've found things are protected by 249 00:17:42,560 --> 00:17:46,080 Speaker 1: substant of due process. But they fall into two categories. 250 00:17:47,240 --> 00:17:52,640 Speaker 1: One are rights that are explicitly enumerated in the Bill 251 00:17:52,720 --> 00:17:57,719 Speaker 1: of Rights that the Court has incorporated against the States. 252 00:17:57,760 --> 00:18:00,760 Speaker 1: And we've talked about this before, how the Bill of 253 00:18:00,880 --> 00:18:05,480 Speaker 1: Rights only applies to the federal government by its terms, 254 00:18:05,520 --> 00:18:09,080 Speaker 1: but over the years, the Supreme Court has interpreted the 255 00:18:09,160 --> 00:18:14,600 Speaker 1: due process clause to apply them against the states as well. 256 00:18:14,720 --> 00:18:17,359 Speaker 1: So that's one mechanism, and virtually every right in the 257 00:18:17,400 --> 00:18:21,040 Speaker 1: Bill of Rights has now been incorporated and applies against 258 00:18:21,080 --> 00:18:24,280 Speaker 1: the states and against local governments as well. That's a 259 00:18:24,320 --> 00:18:27,840 Speaker 1: fairly straightforward way of determining. And what the Court is 260 00:18:27,920 --> 00:18:31,600 Speaker 1: essentially says is they're all packed into the word liberty 261 00:18:32,560 --> 00:18:36,080 Speaker 1: in saying, no staial deprive you of life, liberty, or 262 00:18:36,119 --> 00:18:40,640 Speaker 1: property without due process of law. In addition to that, 263 00:18:41,440 --> 00:18:43,960 Speaker 1: there are some unenumerated rights that are not in the 264 00:18:43,960 --> 00:18:49,119 Speaker 1: Bill of Rights that the Court has incorporated in but 265 00:18:49,280 --> 00:18:55,960 Speaker 1: it has required pretty strict and the test it is 266 00:18:56,040 --> 00:19:02,040 Speaker 1: laid out is whether or right is deeply rooted in 267 00:19:02,080 --> 00:19:06,600 Speaker 1: our history and tradition and whether it is essential to 268 00:19:06,720 --> 00:19:10,920 Speaker 1: our nation's scheme of ordered liberty. So that's the test. 269 00:19:11,000 --> 00:19:13,160 Speaker 1: And look, part of the reason is if you're just saying, 270 00:19:13,200 --> 00:19:17,000 Speaker 1: what does liberty mean? If judges are allowed to define 271 00:19:17,040 --> 00:19:21,639 Speaker 1: what they think liberty means you can have lots of 272 00:19:21,680 --> 00:19:25,600 Speaker 1: different definitions of liberty, and very quickly judges become legislators 273 00:19:25,600 --> 00:19:27,840 Speaker 1: saying here's what I think you ought to be able 274 00:19:27,840 --> 00:19:31,600 Speaker 1: to do. And so part of the reason the Court 275 00:19:31,680 --> 00:19:37,520 Speaker 1: over the centuries has adopted this test, it's a way 276 00:19:37,520 --> 00:19:41,239 Speaker 1: to constrain judicial power to say, okay, there will be 277 00:19:41,520 --> 00:19:47,240 Speaker 1: implicit protections, and so for example, on page twelve of 278 00:19:47,240 --> 00:19:52,480 Speaker 1: the opinion in Dabbs, it talks about one example of 279 00:19:52,600 --> 00:19:55,880 Speaker 1: incorporating an express right against the states, and it says 280 00:19:55,920 --> 00:19:59,000 Speaker 1: Justice Ginsburg's opinion for the Court in Tims is a 281 00:19:59,080 --> 00:20:03,159 Speaker 1: recent example in concluding that the Eighth Amendments protection against 282 00:20:03,160 --> 00:20:06,320 Speaker 1: excessive finds is quote fundamental to our scheme of ordered 283 00:20:06,320 --> 00:20:08,960 Speaker 1: liberty and deeply rooted in this nation's history and tradition. 284 00:20:09,760 --> 00:20:12,560 Speaker 1: Her opinion traced the right back to the Magna cartam, 285 00:20:13,960 --> 00:20:17,760 Speaker 1: Blackstone's commentaries, and thirty five of the thirty seven state 286 00:20:17,800 --> 00:20:21,800 Speaker 1: constitutions in effect at the ratification of the Fourteenth Amendment. 287 00:20:21,840 --> 00:20:24,280 Speaker 1: So that's an example of what looking to those texts 288 00:20:24,280 --> 00:20:28,160 Speaker 1: means as well. Right has this right been protected for centuries? 289 00:20:28,240 --> 00:20:31,199 Speaker 1: Was it protected throughout law? Was it deeply rooted in 290 00:20:31,200 --> 00:20:35,840 Speaker 1: our history. So this applies some limits, which obviously you 291 00:20:35,840 --> 00:20:38,239 Speaker 1: would need because, as you say, otherwise, you would have 292 00:20:38,280 --> 00:20:42,120 Speaker 1: these philosopher kings on the Supreme Court defining liberty however 293 00:20:42,160 --> 00:20:45,560 Speaker 1: they would like. But this issue of substantive due process 294 00:20:46,119 --> 00:20:48,720 Speaker 1: does seem to me to be the point where all 295 00:20:48,800 --> 00:20:51,560 Speaker 1: of the liberals, all of the I shouldn't even say liberals, 296 00:20:51,600 --> 00:20:56,399 Speaker 1: all of the pro abortion advocates are focusing their fire, 297 00:20:56,720 --> 00:21:00,439 Speaker 1: because you even see this in the descent. They're not 298 00:21:00,480 --> 00:21:04,680 Speaker 1: even so much making a substantive argument for abortion rights rights, 299 00:21:04,760 --> 00:21:07,719 Speaker 1: quote unquote, as they are saying, if we get rid 300 00:21:07,760 --> 00:21:10,960 Speaker 1: of this, we're going to have to overrule Griswold, which 301 00:21:11,160 --> 00:21:14,000 Speaker 1: which finds a constitutional right to contraception. We're going to 302 00:21:14,040 --> 00:21:17,639 Speaker 1: have to overrule Lawrence fee Texas, which finds constitutional right 303 00:21:17,720 --> 00:21:20,399 Speaker 1: to homosexual sodomy. We're going to have to overrule a 304 00:21:20,480 --> 00:21:24,560 Speaker 1: Berghafel which finds a redefinition of marriage to include same 305 00:21:24,560 --> 00:21:27,960 Speaker 1: sex unions, all of which rely on substantive due process. 306 00:21:28,160 --> 00:21:31,560 Speaker 1: And so then this question that the disagreement here between 307 00:21:31,760 --> 00:21:36,399 Speaker 1: the Court's majority opinion and then Thomas's concurrence, which goes further, 308 00:21:36,800 --> 00:21:40,119 Speaker 1: this does seem to be the biggest point that the 309 00:21:40,160 --> 00:21:43,159 Speaker 1: liberals are going to focus on. Well, that's right, and 310 00:21:44,600 --> 00:21:47,000 Speaker 1: I think it's worth reflecting on what that tells us. 311 00:21:47,920 --> 00:21:52,520 Speaker 1: It tells us that even the far left thinks abortion 312 00:21:52,640 --> 00:21:55,680 Speaker 1: is not a winning issue for it. Like they're not 313 00:21:55,800 --> 00:21:58,879 Speaker 1: arguing many of them, they're not arguing the substance of 314 00:21:58,880 --> 00:22:03,919 Speaker 1: this decision because they recognize that the vast majority of 315 00:22:03,960 --> 00:22:07,520 Speaker 1: Americans favor at least some significant restrictions on abortions, that 316 00:22:07,600 --> 00:22:11,399 Speaker 1: the positions of the left of unlimited abortion on demand 317 00:22:11,480 --> 00:22:14,040 Speaker 1: up until the moment of birth, partial birth abortion with 318 00:22:14,119 --> 00:22:18,520 Speaker 1: no restrictions is a fringe view. Less than nine percent 319 00:22:18,520 --> 00:22:23,080 Speaker 1: of Americans support that view. And so smart liberals, which 320 00:22:23,080 --> 00:22:26,840 Speaker 1: may be oxymoronic, but smart liberals and smart Democrats they 321 00:22:26,920 --> 00:22:30,560 Speaker 1: don't actually defend their view on this issue because they 322 00:22:30,560 --> 00:22:34,840 Speaker 1: know it's unpopular. What they say is, well, what this 323 00:22:34,920 --> 00:22:37,040 Speaker 1: means is all of these other decisions are going to 324 00:22:37,080 --> 00:22:39,560 Speaker 1: be struck down. And I got to say the majority, 325 00:22:39,640 --> 00:22:45,600 Speaker 1: and Dabbs says, I think four separate times, No, it doesn't. 326 00:22:46,080 --> 00:22:49,760 Speaker 1: We're not overruling those opinions. We're not calling question into 327 00:22:49,760 --> 00:22:53,000 Speaker 1: those opinions. Those opinions are totally different. Like it at 328 00:22:53,040 --> 00:22:55,359 Speaker 1: one point, they say, we don't know how we could 329 00:22:55,359 --> 00:22:59,800 Speaker 1: be any clearer, and the majority opinion points out says, 330 00:23:01,080 --> 00:23:04,280 Speaker 1: so the ones they focus on, they focus on contraception, 331 00:23:04,320 --> 00:23:08,199 Speaker 1: and you have two decisions, Griswald and Eisenstatt. Griswald was 332 00:23:08,320 --> 00:23:12,879 Speaker 1: a right to access contraceptives for married couples. Eisenstatt was 333 00:23:12,880 --> 00:23:17,159 Speaker 1: a right to access contraceptives for single people. They also 334 00:23:17,240 --> 00:23:20,920 Speaker 1: focus on Loving versus Virginia, which it was a right 335 00:23:20,960 --> 00:23:27,680 Speaker 1: to marry regardless of race, so interracial marriage. And then 336 00:23:27,720 --> 00:23:33,399 Speaker 1: they focus on Lawrence the right to homosexual sodomy and 337 00:23:33,440 --> 00:23:38,240 Speaker 1: consensual sexual acts between adults, and then berger Fell gay marriage. 338 00:23:38,960 --> 00:23:41,280 Speaker 1: And what the court says repeatedly is, look, those are 339 00:23:41,320 --> 00:23:45,440 Speaker 1: all completely different decisions. Why because none of them involve 340 00:23:46,080 --> 00:23:50,840 Speaker 1: ending a human life. Abortion is fundamentally different. Ending a 341 00:23:50,960 --> 00:23:56,080 Speaker 1: human life is a big deal, even rowe called it 342 00:23:56,160 --> 00:24:03,080 Speaker 1: potential life. And so repeated the majority goes jumps up 343 00:24:03,080 --> 00:24:05,800 Speaker 1: and down and says, we are not calling into question 344 00:24:05,880 --> 00:24:09,280 Speaker 1: these decisions. This has nothing do with it. The left 345 00:24:09,400 --> 00:24:15,840 Speaker 1: keeps saying, oh, but these other issues, I think they're telegraphing. Listen, 346 00:24:15,920 --> 00:24:19,440 Speaker 1: if you had a referendum on should we ban contraceptives 347 00:24:19,440 --> 00:24:22,440 Speaker 1: in America, nobody would vote for I mean, Michael, you might, 348 00:24:22,520 --> 00:24:25,320 Speaker 1: but the rest of us would. The rest I don't 349 00:24:25,320 --> 00:24:27,760 Speaker 1: think there's a majority for it. That's certainly the case. 350 00:24:27,920 --> 00:24:31,639 Speaker 1: And it also I've talked to friends of mine who 351 00:24:31,640 --> 00:24:34,960 Speaker 1: are gay, for instance, and who support gay marriage. You 352 00:24:34,960 --> 00:24:36,520 Speaker 1: know if they if they went out to vote, they 353 00:24:36,520 --> 00:24:41,000 Speaker 1: would vote to redefine marriage to include same sex unions. 354 00:24:41,080 --> 00:24:45,000 Speaker 1: And many of my gay conservative friends will say, yeah, 355 00:24:45,080 --> 00:24:48,640 Speaker 1: all of that notwithstanding, Oh, Berghafell is a crap decision 356 00:24:48,720 --> 00:24:51,800 Speaker 1: by the Court that the Court actually it doesn't make 357 00:24:51,800 --> 00:24:55,239 Speaker 1: a ton of sense. And So while I support this 358 00:24:55,280 --> 00:24:57,760 Speaker 1: issue and I support it in the legislature, and I 359 00:24:57,800 --> 00:24:59,320 Speaker 1: would vote for people who are going to vote for 360 00:24:59,359 --> 00:25:01,960 Speaker 1: this kind of thing, I don't think that's the role 361 00:25:02,280 --> 00:25:04,719 Speaker 1: for the Supreme Court. So one can be in favor 362 00:25:04,760 --> 00:25:08,160 Speaker 1: of all sorts of outcomes of certain Supreme Court cases 363 00:25:08,320 --> 00:25:12,240 Speaker 1: and still oppose a principle that was made up in 364 00:25:13,240 --> 00:25:18,119 Speaker 1: the twentieth century that seems bogus from a judicial perspective. Well, 365 00:25:18,160 --> 00:25:21,199 Speaker 1: that's exactly right. And you talked about so Justice Thomas 366 00:25:21,200 --> 00:25:23,320 Speaker 1: wrote a concurrence. He joined the majority in full. So 367 00:25:23,400 --> 00:25:26,680 Speaker 1: the majority opinion is a majority opinion of the Court, 368 00:25:26,680 --> 00:25:30,240 Speaker 1: it is binding law. Justice Thomas wrote a concurrence in 369 00:25:30,280 --> 00:25:33,359 Speaker 1: which he said he would go further and the Court 370 00:25:33,440 --> 00:25:36,960 Speaker 1: should reconsider. He actually didn't say overrule. He said reconsider 371 00:25:37,960 --> 00:25:41,040 Speaker 1: all of its substantive due process cases, basically. And he said, 372 00:25:41,080 --> 00:25:43,720 Speaker 1: for a long time, substantive due process as gobbledygook, and 373 00:25:43,760 --> 00:25:46,720 Speaker 1: we ought to reconsider it all. If you look at 374 00:25:46,840 --> 00:25:50,399 Speaker 1: like he's referred to, let's say, the contraceptives law, so 375 00:25:50,440 --> 00:25:53,280 Speaker 1: Griswold versus Connecticut was a Connecticut law that restricted the 376 00:25:53,280 --> 00:25:56,560 Speaker 1: sale of contraceptives. Justice Thomas is referred to that as 377 00:25:56,640 --> 00:26:00,760 Speaker 1: quote an uncommonly silly law. He's record saying this is 378 00:26:00,800 --> 00:26:03,720 Speaker 1: a stupid law. I don't support this law, but he 379 00:26:03,840 --> 00:26:07,480 Speaker 1: says the Constitution doesn't prohibit silly laws. It's up to 380 00:26:07,560 --> 00:26:10,119 Speaker 1: the voters to get rid of that. I think that 381 00:26:10,280 --> 00:26:15,040 Speaker 1: is a right and principled legal distinction. But I also 382 00:26:15,160 --> 00:26:19,840 Speaker 1: think it speaks volumes that Justice Thomas's concurrence was alone, 383 00:26:21,000 --> 00:26:25,359 Speaker 1: that the other justices have no interest in going down 384 00:26:25,400 --> 00:26:30,760 Speaker 1: that road, and the number of times the majority opinion 385 00:26:30,840 --> 00:26:35,480 Speaker 1: says no, no, no, no, no, And it's worth look. 386 00:26:36,800 --> 00:26:39,440 Speaker 1: The distinction the majority opinion makes is abortion ends a 387 00:26:39,520 --> 00:26:43,919 Speaker 1: human life. But there's another distinction, which is those opinions, 388 00:26:44,080 --> 00:26:52,760 Speaker 1: unlike Row, Row, created enormous societal divisions, deep long felt 389 00:26:52,880 --> 00:26:56,880 Speaker 1: people didn't listen to Casey's admonitions of just accept that 390 00:26:56,920 --> 00:27:00,840 Speaker 1: you're wrong and put it behind you. Millions of people 391 00:27:00,880 --> 00:27:05,000 Speaker 1: care passionately about this issue. None of these other issues 392 00:27:05,080 --> 00:27:11,560 Speaker 1: have created that kind of long lasting, multidecorate decade division 393 00:27:11,760 --> 00:27:16,200 Speaker 1: that there are not. There's a march for life every 394 00:27:16,280 --> 00:27:21,360 Speaker 1: year in DC. There's not a march against condoms every year. Yeah, 395 00:27:21,400 --> 00:27:28,399 Speaker 1: but like the rights at issue have not prompted the 396 00:27:28,520 --> 00:27:35,680 Speaker 1: kind of massive societal disagreement the way that that that 397 00:27:35,960 --> 00:27:41,440 Speaker 1: abortion uniquely has. And so points Some commentators will leap 398 00:27:41,520 --> 00:27:44,840 Speaker 1: on Justice Thomas's concurrence, but I think the chances that 399 00:27:44,880 --> 00:27:49,440 Speaker 1: the Court goes down that road are zero. And I 400 00:27:49,520 --> 00:27:52,200 Speaker 1: think even Justice Thomas knows that he's arguing this would 401 00:27:52,240 --> 00:27:55,719 Speaker 1: be the most principled way to interpret the Constitution. But 402 00:27:55,760 --> 00:27:59,800 Speaker 1: I don't think even Justice Thomas thinks that other justices 403 00:27:59,800 --> 00:28:02,120 Speaker 1: are going to agree with that, or that any of 404 00:28:02,119 --> 00:28:05,359 Speaker 1: these decisions are going to be revisited. You know, it 405 00:28:05,480 --> 00:28:09,280 Speaker 1: seemed clear to me reading his concurrence, which I thought 406 00:28:09,359 --> 00:28:12,120 Speaker 1: was brilliant and marvelous. It seemed clear to me he's 407 00:28:12,119 --> 00:28:16,240 Speaker 1: writing this for his principal stance and for law students. 408 00:28:16,280 --> 00:28:18,440 Speaker 1: You know, this is not this is not to persuade 409 00:28:18,440 --> 00:28:21,919 Speaker 1: people right now in this moment in American politics. Before 410 00:28:21,960 --> 00:28:24,040 Speaker 1: we get to the mailbag, I do think we have 411 00:28:24,119 --> 00:28:28,600 Speaker 1: to touch on the Kavanaugh concurrence and the Roberts concurrence. 412 00:28:29,200 --> 00:28:33,800 Speaker 1: Roberts basically says, yes, I vote to uphold the pro 413 00:28:33,880 --> 00:28:36,240 Speaker 1: life law, but command, guys, do we really have to 414 00:28:36,280 --> 00:28:37,840 Speaker 1: deal with rowe? I really don't want to do this. 415 00:28:37,920 --> 00:28:40,880 Speaker 1: Can't we do this at a later date? And then 416 00:28:41,000 --> 00:28:45,640 Speaker 1: Kavanaugh's concurrence here doesn't seem all that different from the 417 00:28:46,000 --> 00:28:50,200 Speaker 1: opinion of the Court, but he it seems almost as 418 00:28:50,240 --> 00:28:53,360 Speaker 1: if that concurrence is taking aim at one of the 419 00:28:53,440 --> 00:28:57,680 Speaker 1: amicus briefs that was submitted by the Oxford professor John 420 00:28:57,720 --> 00:29:02,240 Speaker 1: Finnis and by your old professor, Senator Robbie George, which 421 00:29:02,360 --> 00:29:05,320 Speaker 1: argued that the Supreme Court actually does not need to 422 00:29:05,320 --> 00:29:08,440 Speaker 1: send the abortion question back to the legislatures. The Supreme 423 00:29:08,480 --> 00:29:13,080 Speaker 1: Court can outlaw abortion based on the Fourteenth Amendment. Kavanaugh 424 00:29:13,360 --> 00:29:16,959 Speaker 1: seems to just spend most of his concurrence rejecting that 425 00:29:17,080 --> 00:29:20,920 Speaker 1: idea outright, although he doesn't call it out by name. Yeah, look, 426 00:29:20,960 --> 00:29:26,080 Speaker 1: I think that's right. Let's start with the Roberts concurrence. 427 00:29:26,120 --> 00:29:30,560 Speaker 1: So Chief Justice Roberts concurs in the judgment. Now, what 428 00:29:30,680 --> 00:29:33,400 Speaker 1: is concurring in the judgment means it means he agrees 429 00:29:33,440 --> 00:29:39,000 Speaker 1: with the outcome of the case. And the judgment of 430 00:29:39,040 --> 00:29:44,200 Speaker 1: the case is whether the decision below is affirmed or reversed. 431 00:29:45,680 --> 00:29:50,760 Speaker 1: And in this instance, the judgment was that the Mississippi 432 00:29:50,880 --> 00:29:57,080 Speaker 1: law banning abortion after fifteen weeks is upheld. Roberts agrees 433 00:29:57,160 --> 00:29:59,320 Speaker 1: with that. So he concurs in the judgment in the 434 00:29:59,360 --> 00:30:04,320 Speaker 1: conclusion that that law is valid, but he did not 435 00:30:04,400 --> 00:30:08,280 Speaker 1: join the majority opinion, and he doesn't agree with the 436 00:30:08,320 --> 00:30:12,160 Speaker 1: majority opinion. And what he says is, we should just 437 00:30:13,280 --> 00:30:20,040 Speaker 1: conclude that this law is okay. We should abandon Rowe 438 00:30:20,160 --> 00:30:26,160 Speaker 1: versus Wade's viability standard, which in Casey they referred to 439 00:30:26,280 --> 00:30:29,920 Speaker 1: as the core holding of Rowe. He said, we should 440 00:30:29,960 --> 00:30:32,480 Speaker 1: abandoned the viability standard. I agree, that doesn't make any sense. 441 00:30:32,480 --> 00:30:35,520 Speaker 1: They made that up. But we should have a new 442 00:30:35,640 --> 00:30:41,440 Speaker 1: standard that says, does a woman have a reasonable chance 443 00:30:41,920 --> 00:30:44,880 Speaker 1: to get an abortion? And if she has a reasonable chance, 444 00:30:45,920 --> 00:30:48,800 Speaker 1: then it's okay. And you know, I gotta say the 445 00:30:48,840 --> 00:30:51,120 Speaker 1: majority opinion in Dobbs. It's interesting. One of the things 446 00:30:51,120 --> 00:30:54,720 Speaker 1: I'm very glad about. Much of the majority opinion is 447 00:30:54,800 --> 00:30:58,840 Speaker 1: word for word identical to the leak draft. I'm really 448 00:30:58,880 --> 00:31:03,400 Speaker 1: glad Justice Alito changed very little. I think it really 449 00:31:03,800 --> 00:31:08,320 Speaker 1: is a statement from the Court that lawlessness, that leaking 450 00:31:08,320 --> 00:31:11,880 Speaker 1: an opinion, that rioting that attempted murder is not going 451 00:31:11,880 --> 00:31:16,480 Speaker 1: to change the operation of our judicial system. And virtually 452 00:31:16,520 --> 00:31:18,880 Speaker 1: all of that leaked opinion is still in this draft. 453 00:31:18,920 --> 00:31:22,640 Speaker 1: The main changes he did was responding to the other opinions. 454 00:31:22,640 --> 00:31:26,400 Speaker 1: So there are passages that are responding to for example, 455 00:31:26,480 --> 00:31:33,040 Speaker 1: Chief Justice Roberts, and I think Alito eviscerates. Roberts says, well, gosh, 456 00:31:33,160 --> 00:31:35,480 Speaker 1: you say you want to do this for Starry decisis, 457 00:31:36,760 --> 00:31:40,280 Speaker 1: but then you're overruling Row, the core holding of Row. 458 00:31:40,760 --> 00:31:43,640 Speaker 1: How exactly is that a decision for starry deciss If 459 00:31:43,640 --> 00:31:47,160 Speaker 1: you're overruling the core holding a Row and the test 460 00:31:47,240 --> 00:31:51,040 Speaker 1: you're putting out a reasonable chance, He points out, none 461 00:31:51,040 --> 00:31:54,040 Speaker 1: of the parties advocated for it, none of the Amiki 462 00:31:54,080 --> 00:31:56,720 Speaker 1: advocated for it. Roberts is just making this up. And 463 00:31:56,840 --> 00:32:00,560 Speaker 1: in fact, both sides in this litigation and said, no, 464 00:32:00,720 --> 00:32:03,920 Speaker 1: you've either got to overturn row or uphold it entirely. 465 00:32:04,000 --> 00:32:07,760 Speaker 1: Both of them agreed this is the whole enchilada. And 466 00:32:09,480 --> 00:32:12,120 Speaker 1: he points out, you know, gosh, the Chief Justice has 467 00:32:12,200 --> 00:32:15,959 Speaker 1: proposed standards, So how is a reasonable chance different from 468 00:32:16,000 --> 00:32:18,680 Speaker 1: an undue burden or a due burden or an unreasonable 469 00:32:18,720 --> 00:32:21,400 Speaker 1: stance And this is all just you're just making this 470 00:32:21,440 --> 00:32:27,120 Speaker 1: crap up. Yeah, And I think Aldo does a very 471 00:32:27,160 --> 00:32:36,880 Speaker 1: effective job. Robert's instincts are caution that he wants to 472 00:32:36,960 --> 00:32:40,720 Speaker 1: proceed incrementally, and I think Aldo makes the case that 473 00:32:40,760 --> 00:32:47,120 Speaker 1: this has been forty nine years is too long and 474 00:32:47,200 --> 00:32:48,840 Speaker 1: the opinion is wrong. By the way, I do want 475 00:32:48,840 --> 00:32:51,120 Speaker 1: to go back to something Aldo said. We were talking 476 00:32:51,160 --> 00:32:54,000 Speaker 1: about different kinds of liberty, and like if you just said, well, 477 00:32:54,040 --> 00:32:56,120 Speaker 1: you can say liberty means whatever you want it to mean. 478 00:32:56,880 --> 00:32:58,800 Speaker 1: He has a quote that I've never heard before, but 479 00:32:58,840 --> 00:33:01,120 Speaker 1: it's a very very good one. It's from Abraham Lincoln 480 00:33:01,640 --> 00:33:06,280 Speaker 1: who says, we all declare for liberty, but in using 481 00:33:06,320 --> 00:33:09,880 Speaker 1: the same word, we do not all mean the same thing. 482 00:33:10,640 --> 00:33:12,840 Speaker 1: And he goes on to say, in a well known essay. 483 00:33:12,960 --> 00:33:19,000 Speaker 1: Isaiah Berlin reported that quote historians of ideas, By the way, 484 00:33:19,000 --> 00:33:23,160 Speaker 1: that sounds like a cool profession. Historians of ideas had 485 00:33:23,320 --> 00:33:29,240 Speaker 1: cataloged more than two hundred senses in which the term 486 00:33:29,320 --> 00:33:31,840 Speaker 1: had been used. The term liberty, So I just thought 487 00:33:31,840 --> 00:33:35,440 Speaker 1: that those were very interesting points in Alito's majority opinion. 488 00:33:36,360 --> 00:33:38,640 Speaker 1: I'm quite confident I can't come up with two hundred 489 00:33:38,640 --> 00:33:41,880 Speaker 1: senses in which liberty has been used. But then again, 490 00:33:41,920 --> 00:33:48,560 Speaker 1: I'm not an historian of ideas. I'm not so Look, 491 00:33:48,600 --> 00:33:56,960 Speaker 1: I think Roberts's opinion was derived from political caution rather 492 00:33:57,120 --> 00:34:02,080 Speaker 1: than legal fidelity to the Institution. I just don't understand 493 00:34:02,200 --> 00:34:06,000 Speaker 1: the political caution. I agree with your assessment of his motivations. 494 00:34:06,840 --> 00:34:10,040 Speaker 1: My only thought was, if he's seeking to preserve the 495 00:34:10,120 --> 00:34:14,720 Speaker 1: integrity and credibility of the Supreme Court, wouldn't a six 496 00:34:14,920 --> 00:34:20,319 Speaker 1: three ruling accomplish that much more likely than this sort 497 00:34:20,360 --> 00:34:22,920 Speaker 1: of six three ruling on the case, but five to 498 00:34:23,000 --> 00:34:25,439 Speaker 1: four on the over rule of Row and this gobbledegook 499 00:34:25,520 --> 00:34:28,799 Speaker 1: concurrence that he presents that says it's going to get 500 00:34:28,880 --> 00:34:31,600 Speaker 1: rid of this certain viability standard but doesn't really do 501 00:34:31,680 --> 00:34:33,480 Speaker 1: for I mean to me, it just it seemed to 502 00:34:33,480 --> 00:34:36,160 Speaker 1: have the opposite political effect of the one he might 503 00:34:36,160 --> 00:34:40,680 Speaker 1: have intended. You know, I think that's right, and a 504 00:34:40,719 --> 00:34:44,320 Speaker 1: couple of things. Number one, I do think it's worth 505 00:34:44,360 --> 00:34:47,680 Speaker 1: pointing out that the opinion that came out yesterday is 506 00:34:47,880 --> 00:34:52,320 Speaker 1: almost identical to the opinion you and I predicted the 507 00:34:52,360 --> 00:34:54,520 Speaker 1: week after the oral argument. If you go back and 508 00:34:54,600 --> 00:35:00,200 Speaker 1: listen to the Verdict podcast, we told Verdict listener, the 509 00:35:00,280 --> 00:35:05,520 Speaker 1: decision will be six to three. Roberts will up will 510 00:35:05,560 --> 00:35:10,400 Speaker 1: support upholding the Mississippi law, but not overturning Row. And 511 00:35:10,440 --> 00:35:12,799 Speaker 1: we'll try very hard to get someone to join him, 512 00:35:13,160 --> 00:35:15,960 Speaker 1: but five justices will stand together and overturn Row. And 513 00:35:15,960 --> 00:35:20,200 Speaker 1: it's exactly what happened. I think this was evident at 514 00:35:20,200 --> 00:35:22,359 Speaker 1: the time of the argument. I will say this, I 515 00:35:22,520 --> 00:35:29,880 Speaker 1: was somewhat surprised after the league. I put the odds 516 00:35:29,920 --> 00:35:33,880 Speaker 1: that maybe thirty to forty percent. This is just my 517 00:35:33,960 --> 00:35:38,600 Speaker 1: own kind of internal odds making that Roberts would turn 518 00:35:38,640 --> 00:35:45,520 Speaker 1: around and join the majority opinion, and it I could 519 00:35:45,560 --> 00:35:48,560 Speaker 1: have seen. What's interesting is they don't refer to the league, 520 00:35:48,840 --> 00:35:50,680 Speaker 1: which I was. I was quite curious if they were 521 00:35:50,719 --> 00:35:56,480 Speaker 1: going to I could have seen Roberts joining the majority 522 00:35:56,480 --> 00:36:02,400 Speaker 1: and writing an opinion something to the effect of I 523 00:36:02,560 --> 00:36:06,279 Speaker 1: had concerns and would not go as far as this 524 00:36:06,320 --> 00:36:11,080 Speaker 1: majority opinion did in this case. But given the historic 525 00:36:11,120 --> 00:36:17,480 Speaker 1: and unprecedented leak designed to change the outcome, I believe 526 00:36:17,640 --> 00:36:21,520 Speaker 1: the best way to protect the Court is to say 527 00:36:21,640 --> 00:36:25,680 Speaker 1: our opinions will not change based on leaks. I could 528 00:36:25,800 --> 00:36:27,840 Speaker 1: see him doing that. He didn't do that, but I 529 00:36:27,880 --> 00:36:31,520 Speaker 1: thought there was some chance that he might have decided to, 530 00:36:31,680 --> 00:36:36,080 Speaker 1: and ultimately he did. So that's the Roberts concurrence. Senator, 531 00:36:36,400 --> 00:36:41,600 Speaker 1: what's your take on the Kavanaugh concurrence. Well, the Kavanaugh concurrence, 532 00:36:42,800 --> 00:36:46,440 Speaker 1: Justice Kavanaugh joins the majority opinion in full, so he 533 00:36:47,800 --> 00:36:52,200 Speaker 1: is supporting every word in the majority opinion, and that's 534 00:36:52,200 --> 00:36:53,799 Speaker 1: what gives it the force of law. For it to 535 00:36:53,840 --> 00:36:56,440 Speaker 1: be a majority opinion, five justices have to join it 536 00:36:56,480 --> 00:37:00,400 Speaker 1: in full, and in fact, the way it becomes a 537 00:37:00,480 --> 00:37:04,440 Speaker 1: majority opinion typically is the opinion will be circulated to 538 00:37:04,480 --> 00:37:07,640 Speaker 1: the justices, and each justice that joins will say in writing, 539 00:37:07,760 --> 00:37:11,760 Speaker 1: I join this opinion, and that is you are essentially 540 00:37:11,800 --> 00:37:15,400 Speaker 1: adopting all of the words and the majority opinions saying 541 00:37:15,480 --> 00:37:19,640 Speaker 1: those are my words too. So Alito's opinion. He is 542 00:37:19,680 --> 00:37:22,359 Speaker 1: speaking for all five justices, and it is as if 543 00:37:22,920 --> 00:37:27,080 Speaker 1: they have said exactly those words. Now Kavanaugh's concurrence, he's 544 00:37:27,080 --> 00:37:30,040 Speaker 1: just speaking for himself, and he adds some additional thoughts. 545 00:37:30,080 --> 00:37:33,160 Speaker 1: In particular, what he says he says on the question 546 00:37:33,239 --> 00:37:38,960 Speaker 1: of abortion, the Constitution is therefore neither pro life nor 547 00:37:39,080 --> 00:37:44,480 Speaker 1: pro choice. He is defending the proposition that we've explained 548 00:37:44,520 --> 00:37:47,520 Speaker 1: on this podcast multiple times, which is the consequences of 549 00:37:47,600 --> 00:37:52,320 Speaker 1: rob being overturned are not that abortion is suddenly illegal everywhere, 550 00:37:53,040 --> 00:37:56,759 Speaker 1: but rather that it returns to elected legislatures to make 551 00:37:56,760 --> 00:38:00,319 Speaker 1: the decisions, and different states will make different decisions. But 552 00:38:00,400 --> 00:38:05,040 Speaker 1: as you note, he takes on an argument advanced by Amiki. 553 00:38:05,360 --> 00:38:09,440 Speaker 1: In particular, he says, some amicust briefs argue that the 554 00:38:09,520 --> 00:38:13,600 Speaker 1: Court today should not only over rule Row and return 555 00:38:13,680 --> 00:38:17,440 Speaker 1: to a position of judicial neutrality on abortion, but should 556 00:38:17,480 --> 00:38:22,400 Speaker 1: go further and hold the Constitution outlaws abortion throughout the 557 00:38:22,480 --> 00:38:27,240 Speaker 1: United States. I respect those who advocate for that position, 558 00:38:28,000 --> 00:38:31,480 Speaker 1: just as I respect those who argue this Court should 559 00:38:31,520 --> 00:38:36,160 Speaker 1: hold that the Constitution legalizes pre viability abortion throughout the 560 00:38:36,239 --> 00:38:41,120 Speaker 1: United States. But both positions are wrong as a constitutional matter. 561 00:38:41,239 --> 00:38:47,760 Speaker 1: In my view. The Constitution neither outlaws abortion nor legalizes abortion. 562 00:38:51,280 --> 00:38:55,359 Speaker 1: That point, I think is clearly where all nine justices are. 563 00:38:55,440 --> 00:38:57,360 Speaker 1: One of the things Kavanaugh says, and he's right, no 564 00:38:57,520 --> 00:39:01,600 Speaker 1: justice of this Court has ever advocated that position. So 565 00:39:01,640 --> 00:39:07,879 Speaker 1: the idea that the Court should prohibit abortion nationally, there's 566 00:39:07,920 --> 00:39:11,520 Speaker 1: never been a Supreme Court justice advocate that, and kavanon 567 00:39:11,719 --> 00:39:14,759 Speaker 1: as now on record saying that would be wrong to 568 00:39:14,920 --> 00:39:19,480 Speaker 1: do so. The legal argument, there's always been an interesting 569 00:39:19,520 --> 00:39:23,000 Speaker 1: academic legal argument, and you mentioned the amicus brief from 570 00:39:23,160 --> 00:39:29,719 Speaker 1: from my old professor, Robbie George. Robbie George amicus, Yes, yeah, indeed. 571 00:39:31,920 --> 00:39:35,040 Speaker 1: And by the way, amicus is short for amicus curii, 572 00:39:35,200 --> 00:39:38,160 Speaker 1: which is Latin for friend of the court. And so 573 00:39:38,320 --> 00:39:42,839 Speaker 1: that amicus brief or amiki, if there are multiple of them, 574 00:39:43,280 --> 00:39:48,680 Speaker 1: are filed to urge the court to give someone another perspective. 575 00:39:48,719 --> 00:39:50,920 Speaker 1: So they are briefs that are separate from the parties, 576 00:39:50,920 --> 00:39:54,600 Speaker 1: but lots of amiki will file briefs, typically in Supreme 577 00:39:54,600 --> 00:39:58,400 Speaker 1: Court cases. Robbie George was my thesis advisor at Princeton. 578 00:39:58,480 --> 00:40:02,680 Speaker 1: He's a brilliant sky he is a brilliant lawyer. And 579 00:40:02,880 --> 00:40:08,440 Speaker 1: the argument we talked about before the Fourteenth Amendment protects 580 00:40:08,880 --> 00:40:12,040 Speaker 1: says no States shall deprive any person of life, liberty, 581 00:40:12,120 --> 00:40:14,600 Speaker 1: or property without due process of law. The argument is 582 00:40:14,600 --> 00:40:18,759 Speaker 1: pretty straightforward that for an unborn child who is being aborted, 583 00:40:18,800 --> 00:40:21,720 Speaker 1: you are being denied life. Your life is taken away 584 00:40:21,760 --> 00:40:25,120 Speaker 1: from you, and there is no due process of law. 585 00:40:25,200 --> 00:40:27,239 Speaker 1: You don't have the ability to challenge that in court, 586 00:40:27,280 --> 00:40:28,799 Speaker 1: you don't have the ability, you don't have notice, you 587 00:40:28,800 --> 00:40:33,240 Speaker 1: don't have an opportunity to be heard. There's a Supreme 588 00:40:33,239 --> 00:40:37,440 Speaker 1: Court decision called Caroline Products, and footnote four of it 589 00:40:38,440 --> 00:40:45,200 Speaker 1: described the equal Protection clause protects what it called discreet 590 00:40:45,880 --> 00:40:51,799 Speaker 1: and insular minorities. In other words, if you're small and 591 00:40:51,960 --> 00:40:57,640 Speaker 1: limited and politically powerless, unable to defend yourself, then equal 592 00:40:57,680 --> 00:41:01,680 Speaker 1: protection protects you from the majority. And the argument goes, 593 00:41:02,640 --> 00:41:04,920 Speaker 1: it is difficult to think of a more discreet and 594 00:41:05,000 --> 00:41:09,160 Speaker 1: insular minority than unborn children, who by definition are not 595 00:41:09,280 --> 00:41:12,240 Speaker 1: able to speak out and defend themselves, don't have a voice, 596 00:41:12,280 --> 00:41:15,839 Speaker 1: don't have an ability to engage in the political process, 597 00:41:16,000 --> 00:41:20,520 Speaker 1: or an ability to engage in the legal process. That's 598 00:41:20,600 --> 00:41:24,480 Speaker 1: the argument. I think Justice Kavanaugh is right that there 599 00:41:24,600 --> 00:41:27,600 Speaker 1: is not a single justice who has ever suggested the 600 00:41:27,640 --> 00:41:32,160 Speaker 1: Court should adopt it. And I will say, if the 601 00:41:32,239 --> 00:41:36,240 Speaker 1: Court were to issue such a ruling, just as Justice 602 00:41:36,280 --> 00:41:39,800 Speaker 1: Alito walked through the over two centuries of our nation's history, 603 00:41:41,360 --> 00:41:44,640 Speaker 1: at no point has any justice ever intimated such a right, 604 00:41:44,840 --> 00:41:47,400 Speaker 1: At no point as the Court ever issued such a ruling. 605 00:41:47,800 --> 00:41:52,600 Speaker 1: A ruling like that would be a dramatic break from 606 00:41:52,600 --> 00:41:55,160 Speaker 1: our constitutional history. And I think that's one of the 607 00:41:55,200 --> 00:42:00,040 Speaker 1: reasons why why Kavanaugh says what he does. So I 608 00:42:00,040 --> 00:42:05,600 Speaker 1: have an aw concurrence as putting the legal academic debate aside, 609 00:42:05,880 --> 00:42:09,759 Speaker 1: He's just also making a sort of historical point, which is, 610 00:42:10,200 --> 00:42:12,560 Speaker 1: if you look throughout our tradition, it's not there. And 611 00:42:12,600 --> 00:42:14,600 Speaker 1: so I just want to be crystal clear I'm not 612 00:42:14,760 --> 00:42:19,439 Speaker 1: I'm not with Robbie George and John Finnis. Before before 613 00:42:19,440 --> 00:42:20,799 Speaker 1: we get to the mail back too, I suppose we 614 00:42:20,840 --> 00:42:23,960 Speaker 1: have to touch on the liberals in the Descent. I 615 00:42:24,000 --> 00:42:26,320 Speaker 1: am not a lawyer. I did not go to Harvard 616 00:42:26,400 --> 00:42:29,120 Speaker 1: Law School, and yet when I read the Descent, I 617 00:42:29,800 --> 00:42:33,480 Speaker 1: was not impressed. What little I can make sense of, 618 00:42:33,560 --> 00:42:36,480 Speaker 1: you know, in these legal arguments, I just thought they 619 00:42:36,520 --> 00:42:39,840 Speaker 1: weren't really making a whole whole lot of constitutional or 620 00:42:39,960 --> 00:42:42,960 Speaker 1: legal arguments, and am I being too harsh? You're not. 621 00:42:43,160 --> 00:42:48,399 Speaker 1: And I think the majority opinion eviscerates the descent, I mean, 622 00:42:48,600 --> 00:42:55,120 Speaker 1: just just shreds it. The Descent doesn't try to defend 623 00:42:55,200 --> 00:42:58,280 Speaker 1: row Row on its own is indefensible. I mean, the reasoning, 624 00:42:58,320 --> 00:43:02,120 Speaker 1: there's nobody that defends row Um, the reasoning of it, 625 00:43:02,520 --> 00:43:05,759 Speaker 1: and the defect. The Descent doesn't even really try to 626 00:43:05,840 --> 00:43:08,680 Speaker 1: defend casey other than to say, start decisis, start decisis, 627 00:43:08,680 --> 00:43:11,440 Speaker 1: star descisis that that you can overturn it. You know. 628 00:43:11,560 --> 00:43:16,200 Speaker 1: The majority opinion explicitly addresses uh, star decisis and points 629 00:43:16,239 --> 00:43:19,120 Speaker 1: out that, yes, star descisis is very important. But the 630 00:43:19,280 --> 00:43:23,840 Speaker 1: Court has many, many times overturned precedent and and and 631 00:43:24,000 --> 00:43:29,840 Speaker 1: there's a two page footnote outlining the many landmark cases 632 00:43:30,520 --> 00:43:35,240 Speaker 1: that were overturning precedents and and many, if not most, 633 00:43:35,320 --> 00:43:37,960 Speaker 1: of the biggest cases of the Supreme Court are cases 634 00:43:38,040 --> 00:43:41,800 Speaker 1: that are overturning precedent. And what the majority says is, 635 00:43:42,040 --> 00:43:46,800 Speaker 1: on many other occasions, this Court has overruled important constitutional decisions. 636 00:43:46,840 --> 00:43:50,480 Speaker 1: And they have the two page footnote, and then they 637 00:43:50,560 --> 00:43:53,560 Speaker 1: say something that is really powerful. They say, without these 638 00:43:53,680 --> 00:43:59,520 Speaker 1: decisions overruling precedent American constitutional law as we know it 639 00:44:00,840 --> 00:44:04,920 Speaker 1: would be unrecognizable and this would be a different country. 640 00:44:05,920 --> 00:44:09,400 Speaker 1: I think the Majority does a tremendous job of refuting 641 00:44:09,960 --> 00:44:15,279 Speaker 1: the Descent and in particular taking its task for You 642 00:44:15,360 --> 00:44:18,840 Speaker 1: don't defend Roe. You can't point to any constitutional provision 643 00:44:18,920 --> 00:44:23,120 Speaker 1: this comes from. You can't point to any laws before 644 00:44:23,400 --> 00:44:27,680 Speaker 1: the late twentieth century that reflected what you said. You 645 00:44:27,760 --> 00:44:30,080 Speaker 1: can't point to any Supreme Court decisions, you can't point 646 00:44:30,120 --> 00:44:33,879 Speaker 1: to any judicial decisions. I mean, it just systematically goes 647 00:44:34,040 --> 00:44:37,600 Speaker 1: through and the Descent has no response to that. The 648 00:44:37,680 --> 00:44:40,880 Speaker 1: Descent can't say anything other than other than they do 649 00:44:40,960 --> 00:44:44,240 Speaker 1: what we talked about a few minutes ago. They say, well, gosh, 650 00:44:45,360 --> 00:44:49,960 Speaker 1: this is gonna undermine contraception, and the Majority says, no, no, no, 651 00:44:50,160 --> 00:44:53,680 Speaker 1: it's not. But the Descent can't defend the position on 652 00:44:53,760 --> 00:44:55,440 Speaker 1: the merits, so they've got to find other issues to 653 00:44:56,000 --> 00:44:59,360 Speaker 1: press instead. There's one mail bad question that came in 654 00:45:00,200 --> 00:45:03,239 Speaker 1: thought offered a really interesting perspective, and this is kind 655 00:45:03,239 --> 00:45:06,040 Speaker 1: of zooming out now from the nitty gritty of the 656 00:45:06,120 --> 00:45:10,160 Speaker 1: opinion itself. Questions from Laurel, who asks, do you think 657 00:45:10,320 --> 00:45:14,600 Speaker 1: the language shift from safe, legal and rare to shout 658 00:45:14,680 --> 00:45:17,880 Speaker 1: your abortion helped people really wake up and fight against 659 00:45:17,880 --> 00:45:21,440 Speaker 1: abortion or do you think the left started to shift 660 00:45:21,560 --> 00:45:25,839 Speaker 1: their narrative once they saw the hostility toward abortion start 661 00:45:25,920 --> 00:45:29,200 Speaker 1: to become more vocal. I think the cause of the 662 00:45:29,360 --> 00:45:33,799 Speaker 1: shift of the language is the Democratic Party became radicalized 663 00:45:33,880 --> 00:45:36,960 Speaker 1: on it that in many ways, today's Democratic Party, on 664 00:45:37,040 --> 00:45:42,400 Speaker 1: issue after issue, is captured by their extremes. I do 665 00:45:42,600 --> 00:45:45,400 Speaker 1: think some of that language probably helped move public opinion. 666 00:45:45,480 --> 00:45:47,919 Speaker 1: You know, some of the most interesting polling we see 667 00:45:48,080 --> 00:45:52,280 Speaker 1: is that young people are getting consistently more pro life, 668 00:45:53,040 --> 00:45:56,759 Speaker 1: and that's different from historically. Look, you think historically young 669 00:45:56,880 --> 00:46:00,640 Speaker 1: people usually you think of as big being more liberal 670 00:46:00,719 --> 00:46:03,120 Speaker 1: on issues. That that that that you know, those crazy 671 00:46:03,200 --> 00:46:06,040 Speaker 1: youth that's like that. And by the way, our parents 672 00:46:06,080 --> 00:46:08,200 Speaker 1: said that, and their parents said that, like that's that 673 00:46:08,400 --> 00:46:12,120 Speaker 1: this is we're dealing with millennia of human development. That 674 00:46:12,280 --> 00:46:15,480 Speaker 1: that that young people often are more liberal in one 675 00:46:15,520 --> 00:46:19,279 Speaker 1: sense or the other. But it is mark, It is 676 00:46:19,680 --> 00:46:25,359 Speaker 1: really striking that that younger voters today are significantly more 677 00:46:25,440 --> 00:46:29,440 Speaker 1: more pro life than than than my generation, then than 678 00:46:29,600 --> 00:46:35,600 Speaker 1: jen x Um. And I think the extremes of the 679 00:46:35,680 --> 00:46:38,160 Speaker 1: Democratic party has certainly played a part. I also think 680 00:46:38,239 --> 00:46:42,160 Speaker 1: the advance of scientific knowledge has played a part. Uh 681 00:46:42,440 --> 00:46:46,919 Speaker 1: seeing a sonogram, Uh, that plays a part. I think. 682 00:46:50,120 --> 00:46:53,120 Speaker 1: I think the pro life community and the pro life 683 00:46:53,200 --> 00:46:59,160 Speaker 1: movement was very smart and savvy in in waging a 684 00:46:59,320 --> 00:47:03,360 Speaker 1: political campaign against extremes. And for example, I think focusing 685 00:47:03,440 --> 00:47:07,640 Speaker 1: on partial birth abortion was a smart decision because the 686 00:47:08,680 --> 00:47:13,560 Speaker 1: act was so gruesome that people who were not really 687 00:47:15,440 --> 00:47:19,400 Speaker 1: closely engaged with the issue not paying attention when they 688 00:47:20,640 --> 00:47:24,640 Speaker 1: confronted how gruesome it was. I think that helped change 689 00:47:24,680 --> 00:47:28,240 Speaker 1: people's minds. No, I totally agree with what you've said, 690 00:47:28,719 --> 00:47:31,800 Speaker 1: and in particular on the advance of modern medical science. 691 00:47:31,840 --> 00:47:34,279 Speaker 1: And I think it applies to the language too, which 692 00:47:34,360 --> 00:47:38,000 Speaker 1: is that ideas have a habit of coming to their 693 00:47:38,080 --> 00:47:42,400 Speaker 1: logical conclusions. Knowledge has a habit of this, and so 694 00:47:42,680 --> 00:47:45,879 Speaker 1: when we're talking about the language of safe, legal and rare, 695 00:47:45,920 --> 00:47:48,240 Speaker 1: it never made a lot of sense. If the baby 696 00:47:48,360 --> 00:47:50,520 Speaker 1: is a baby, then it shouldn't be legal, and if 697 00:47:50,800 --> 00:47:52,799 Speaker 1: the baby is not a baby, then there's no reason 698 00:47:52,880 --> 00:47:55,200 Speaker 1: why it should be rare, and so there was always 699 00:47:55,239 --> 00:47:59,360 Speaker 1: an unstable slogan that collapsed into I think it's logical 700 00:47:59,400 --> 00:48:02,719 Speaker 1: conclusion which is abortion on demand without apology. And it's 701 00:48:02,760 --> 00:48:06,320 Speaker 1: the same with the advance of science babies and on pregnancy. 702 00:48:06,600 --> 00:48:09,120 Speaker 1: The more that we know about this thing, the more 703 00:48:09,160 --> 00:48:12,040 Speaker 1: people can see it, as you describe, Senator, the more 704 00:48:12,120 --> 00:48:14,600 Speaker 1: we see, oh yeah, it's it's a baby, and you 705 00:48:14,680 --> 00:48:17,400 Speaker 1: don't need to have your nose in the philosophy books 706 00:48:17,680 --> 00:48:20,200 Speaker 1: or the bioethics books to realize that it's a baby 707 00:48:20,320 --> 00:48:24,400 Speaker 1: and that there's just something wrong about killing that baby. 708 00:48:24,480 --> 00:48:28,400 Speaker 1: And so, you know, part of it was this natural 709 00:48:28,520 --> 00:48:32,360 Speaker 1: progression of these ideas. And then of course that comes 710 00:48:32,400 --> 00:48:34,960 Speaker 1: with the courage of these justices on the court. Courage 711 00:48:35,040 --> 00:48:37,320 Speaker 1: is a virtue, it's the prerequisite of all of the 712 00:48:37,400 --> 00:48:40,960 Speaker 1: other virtues, and they exhibited that. And now we're we're 713 00:48:41,200 --> 00:48:46,080 Speaker 1: experiencing this truly historic moment, so historic, of course, that 714 00:48:46,400 --> 00:48:48,440 Speaker 1: we can't leave it. We've we've run late here as 715 00:48:48,560 --> 00:48:50,640 Speaker 1: usual on the show. But there's so much more to say, 716 00:48:50,719 --> 00:48:53,160 Speaker 1: which is why people ought to go check out the 717 00:48:53,280 --> 00:48:55,520 Speaker 1: cloak Room with our friend Liz Wheeler. Liz, what are 718 00:48:55,560 --> 00:48:57,800 Speaker 1: you going to talk about? Hi, Michael High, Senator, I 719 00:48:57,920 --> 00:49:00,880 Speaker 1: really enjoyed this was such a phenomenal episode. Listening to 720 00:49:00,960 --> 00:49:04,640 Speaker 1: the words of the majority opinion, and particularly actually the 721 00:49:04,719 --> 00:49:07,799 Speaker 1: concurrence Thomas's opinion. It's like listening to classical music. It's 722 00:49:07,840 --> 00:49:10,640 Speaker 1: what's good and what's true, and what's beautiful, and what's logical, 723 00:49:10,800 --> 00:49:15,239 Speaker 1: and it's phenomenal. There is a really interesting aspect of this, though. 724 00:49:15,320 --> 00:49:18,480 Speaker 1: There have been very few people who have praised Robert's 725 00:49:18,719 --> 00:49:24,040 Speaker 1: concurrence or Robert's writing where he upholds the finding but 726 00:49:24,239 --> 00:49:26,600 Speaker 1: not doesn't want to overturn review it. There is one person, though, 727 00:49:26,640 --> 00:49:30,120 Speaker 1: Alan Dershowitz, Harvard law professor Alan Dershowitz, says that Roberts 728 00:49:30,320 --> 00:49:32,600 Speaker 1: is right on this and actually slams the rest of 729 00:49:32,680 --> 00:49:36,560 Speaker 1: the courts, saying that they engaged in judicial activism. I do, 730 00:49:36,800 --> 00:49:39,319 Speaker 1: and I think it should never be done under any circumstances. 731 00:49:39,400 --> 00:49:41,960 Speaker 1: But I do think the Supreme Court should never have 732 00:49:42,120 --> 00:49:45,360 Speaker 1: had to reach beyond the fifteen weeks. That's what was 733 00:49:45,440 --> 00:49:48,680 Speaker 1: before the Supreme Court, and everybody on this show seems 734 00:49:48,719 --> 00:49:52,439 Speaker 1: to think that fifteen weeks is reasonable. Senator Rubio thinks 735 00:49:52,520 --> 00:49:55,600 Speaker 1: fifteen weeks. The Europeans think fifteen weeks. Why did the 736 00:49:55,640 --> 00:49:58,640 Speaker 1: Supreme Court have to jump into this and say we're 737 00:49:58,680 --> 00:50:00,719 Speaker 1: not going to decide the case be for us, we're 738 00:50:00,760 --> 00:50:04,360 Speaker 1: gonna ban, We're gonna ban ro versus Wade overrule it 739 00:50:04,560 --> 00:50:08,760 Speaker 1: and allow states, allow states to be sure, allow states 740 00:50:09,040 --> 00:50:14,840 Speaker 1: to abolish abortion completely. That was judicial activism overreaching. And Sean, 741 00:50:14,960 --> 00:50:19,920 Speaker 1: you oppose judicial activism, you should join me and agree 742 00:50:20,000 --> 00:50:24,560 Speaker 1: with Justice Roberts that judicial activism was at play here 743 00:50:24,680 --> 00:50:28,000 Speaker 1: and it was unnecessary. I would take issue with you, 744 00:50:28,120 --> 00:50:31,760 Speaker 1: sippy case. Okay, So the question is was this judicial activism? 745 00:50:31,880 --> 00:50:35,040 Speaker 1: Did the justices abandoned judicial restraint? Or is Roberts as 746 00:50:35,120 --> 00:50:36,799 Speaker 1: nutty as we all think? Is That's what we're going 747 00:50:36,840 --> 00:50:38,960 Speaker 1: to talk about on Cloakroom. You can join us at 748 00:50:39,120 --> 00:50:42,040 Speaker 1: Verdict with Ted Cruise dot com slash Plus. If you 749 00:50:42,120 --> 00:50:44,440 Speaker 1: use my promo code, which is obviously Cloakroom, you can 750 00:50:44,480 --> 00:50:46,800 Speaker 1: get your first month free on your annual subscription. That 751 00:50:47,000 --> 00:50:50,040 Speaker 1: is Verdict with Ted Cruise dot Com slash plus promo 752 00:50:50,120 --> 00:50:53,520 Speaker 1: code Cloakroom. Leave it to Alan Dershowitz to have the 753 00:50:53,719 --> 00:50:58,759 Speaker 1: single least popular opinion on this ruling. It sounds very interesting, though. 754 00:50:58,760 --> 00:51:01,719 Speaker 1: I look forward to ring the episode. You know, we 755 00:51:01,840 --> 00:51:06,640 Speaker 1: had already taped an episode on another wonderful ruling from 756 00:51:06,719 --> 00:51:09,279 Speaker 1: this Supreme Court term. We had already pre taped that 757 00:51:09,360 --> 00:51:11,600 Speaker 1: the night before this ruling came out, so that that 758 00:51:11,680 --> 00:51:15,000 Speaker 1: episode is going to be released this coming week, just 759 00:51:15,760 --> 00:51:18,719 Speaker 1: more to celebrate, and so I will be sitting back 760 00:51:18,880 --> 00:51:23,120 Speaker 1: listening to this wonderful discussion that will follow this episode, 761 00:51:23,360 --> 00:51:26,719 Speaker 1: probably with a cigar and maybe a drink to real 762 00:51:26,800 --> 00:51:30,680 Speaker 1: a toast and celebrate this historic and wonderful turn of events. 763 00:51:30,960 --> 00:51:42,400 Speaker 1: I'm Michael Knowles. This is Verdict with Ted Cruz. This 764 00:51:42,640 --> 00:51:45,400 Speaker 1: episode of Verdict with Ted Cruz is being brought to 765 00:51:45,480 --> 00:51:48,880 Speaker 1: you by Jobs, Freedom and Security Pack, a political action 766 00:51:48,960 --> 00:51:53,960 Speaker 1: committee dedicated to supporting conservative causes, organizations, and candidates across 767 00:51:54,040 --> 00:51:57,400 Speaker 1: the country. In twenty twenty two, Jobs Freedom and Security 768 00:51:57,440 --> 00:52:00,920 Speaker 1: Pack plans to donate to conservative candidates running for Congress 769 00:52:01,040 --> 00:52:03,760 Speaker 1: and helped the Republican Party across the nation