WEBVTT - Roe and Casey Are Overruled 0:00:00.200 --> 0:00:04.600 The Constitution does not confer a right to abortion. Roe 0:00:04.680 --> 0:00:09.320 and Casey are overruled, and the authority to regulate abortion 0:00:09.760 --> 0:00:13.680 is returned to the people and their elected representatives. So 0:00:13.880 --> 0:00:17.720 declares the United States Supreme Court. This is verdict with 0:00:17.760 --> 0:00:27.160 Ted Cruz. Welcome back to verdict with Ted Cruz. I'm 0:00:27.200 --> 0:00:34.440 Michael Knowles. It is the greatest political event of my lifetime, 0:00:34.960 --> 0:00:38.279 I suspect Senator, of your lifetime. We are not in 0:00:38.320 --> 0:00:42.360 our usual locations right now. I am in Chicago for 0:00:42.440 --> 0:00:46.800 a wedding. You are in Milwaukee, and we said we 0:00:46.880 --> 0:00:53.120 need an emergency bonus verdict to discuss and to celebrate 0:00:53.440 --> 0:00:58.560 the Supreme Court's overruling of Revuewade. Well, Michael, it's truly 0:00:58.600 --> 0:01:02.400 extraordinary and right. This has been forty nine years in coming. 0:01:03.200 --> 0:01:05.520 You have never lived a day on planet Earth without 0:01:05.680 --> 0:01:08.280 Roe versus Wade being the law of the land. I 0:01:08.400 --> 0:01:12.360 was two when Roe was decided, and for forty nine 0:01:12.480 --> 0:01:21.840 years that was unshakable and unstoppable. And today we've returned 0:01:21.840 --> 0:01:24.320 to what the country was for the first one hundred 0:01:24.319 --> 0:01:27.120 and eighty five years, which is the elected people, the 0:01:27.160 --> 0:01:31.399 elected representatives of the people. The voters now have the 0:01:31.480 --> 0:01:34.560 right to decide questions of life. That that's how the 0:01:34.600 --> 0:01:38.160 Constitution was designed in the first place. But but I 0:01:38.200 --> 0:01:44.040 got to just pause and reflect on the extraordinary efforts 0:01:44.120 --> 0:01:51.640 that led to yesterday's decision. Millions of activists, an entire movement, 0:01:51.760 --> 0:01:57.240 millions of young women and old women, and people marching 0:01:57.320 --> 0:02:01.680 in the March for Life every year, millions of grassroots 0:02:01.720 --> 0:02:05.000 activists who mobilized, who mobilized but behind the campaign of 0:02:05.080 --> 0:02:08.880 Ronald Reagan, who mobilized behind the campaign of George Herbert 0:02:08.880 --> 0:02:12.320 Walker Bush, who mobilized behind the campaign of George W. Bush, 0:02:12.360 --> 0:02:18.919 who mobilized behind the campaign of Donald Trump. This is 0:02:19.000 --> 0:02:25.440 the culmination of forty nine years of work, of organizing, 0:02:25.520 --> 0:02:31.600 of mobilizing, of incredible and fervent prayer. And it's truly 0:02:31.639 --> 0:02:36.240 an extraordinary moment because a lot of us in the 0:02:36.280 --> 0:02:40.440 pro life movement have wondered would this ever happen, would 0:02:40.520 --> 0:02:43.880 Row ever be overturned? Was this feudal? Was this a 0:02:43.919 --> 0:02:47.119 waste of time? I can't count how many times I've 0:02:47.120 --> 0:02:50.800 heard people raise those questions, This will never happen. These 0:02:51.200 --> 0:02:54.080 you know, these damn politicians are just they're just lying 0:02:54.120 --> 0:02:57.440 to us. They're just pretending and this will never happen. 0:02:57.600 --> 0:03:02.000 It there aren't words to scribe. It is the most 0:03:02.040 --> 0:03:07.360 consequential Supreme Court decision of the last fifty years, since 0:03:07.480 --> 0:03:11.920 Roe in nineteen seventy three that started us on this journey. 0:03:12.320 --> 0:03:15.040 It is. I have to say, I didn't I didn't 0:03:15.040 --> 0:03:19.040 expect it, even I didn't want to allow myself to 0:03:19.080 --> 0:03:22.000 hope that it could actually happen. Even after the leaked opinion, 0:03:22.720 --> 0:03:24.720 I still sort of thought it was fifty fifty. I 0:03:24.800 --> 0:03:27.080 didn't know if the people who showed up outside the 0:03:27.120 --> 0:03:30.600 justice's homes and the attempted assassination of Brett Havanon and 0:03:30.680 --> 0:03:33.560 all the craziness, if that would succeed in in bullying 0:03:33.800 --> 0:03:37.520 the justices. It obviously did not. And so now i'd 0:03:37.520 --> 0:03:39.560 like your take, not just as someone who's been in 0:03:39.560 --> 0:03:41.440 the pro life movement for a very long time, not 0:03:41.480 --> 0:03:44.760 even just as a US Senator, but as an expert 0:03:44.760 --> 0:03:47.160 on the constitution, someone who has argued cases before the 0:03:47.200 --> 0:03:50.800 Supreme Court, someone who clerked for the Chief Justice. What 0:03:50.880 --> 0:03:54.520 does the opinion say and do? Because there's the opinion, 0:03:54.720 --> 0:03:56.600 there's the opinion of the Court on the pro life 0:03:56.680 --> 0:03:58.720 law that brought this issue to the four that was 0:03:58.760 --> 0:04:02.279 the Mississippi pro life Law six three. All the Conservatives, 0:04:02.360 --> 0:04:05.839 joined by Chief Justice Roberts, vote to uphold the Mississippi law. 0:04:06.160 --> 0:04:10.080 Then the Chief Justice splits off. He does not vote 0:04:10.120 --> 0:04:13.920 to overrule Row and Casey. So that's a five four decision. 0:04:14.160 --> 0:04:19.120 You've got Thomas, Alito, Barrett, Kavanaugh, and Gorsage vote to 0:04:19.160 --> 0:04:22.760 overrule Row and Casey. But then it gets even more 0:04:22.800 --> 0:04:28.240 complicated because Kavanaugh files his own concurring opinion, which seems 0:04:28.279 --> 0:04:33.719 somewhat modest. Justice Thomas files his concurring opinion, which seems 0:04:33.760 --> 0:04:36.480 perhaps more ambitious, and then you've got the dissent from 0:04:36.480 --> 0:04:38.800 the liberals. I'm sorry. Chief Justice Roberts has his own 0:04:38.839 --> 0:04:41.760 concurring opinion. So anyway, what does it all mean. Well, 0:04:41.839 --> 0:04:44.919 let's walk through it, and let's walk through it systematically. 0:04:45.160 --> 0:04:47.440 So let's turn to the decision itself. So I would 0:04:47.560 --> 0:04:51.640 encourage Look, many of you, presumably are not lawyers, I 0:04:51.640 --> 0:04:53.839 would encourage you to sit down and read this opinion. 0:04:54.720 --> 0:04:59.400 Justice Alito wrote this opinion for the ages, and yes 0:04:59.520 --> 0:05:02.239 it is a legal opinion and a Supreme Court opinion, 0:05:03.360 --> 0:05:07.120 but it is designed to be accessible for a reader 0:05:07.120 --> 0:05:13.839 to walk through. Not why Row was wrong, but it 0:05:13.920 --> 0:05:17.640 also explains how constitutional law is supposed to work. So 0:05:17.680 --> 0:05:23.320 the opinion begins the first paragraph. Justice Alito talks about 0:05:23.360 --> 0:05:26.960 their three different groups in America. There's one group that 0:05:27.000 --> 0:05:32.240 are convinced passionately that an unborn child is a human 0:05:32.320 --> 0:05:34.760 life that is precious, that needs to be protected, that 0:05:34.880 --> 0:05:39.159 has full rights. He acknowledges, There's another group that is 0:05:39.240 --> 0:05:43.520 justice passionate, they're justice heartfelt that are convinced an unborn 0:05:43.600 --> 0:05:46.520 child is not a human right, that abortion is about 0:05:46.560 --> 0:05:49.760 the liberty of a woman to control her body and 0:05:49.880 --> 0:05:52.880 her life. And then he points out there's yet a 0:05:52.920 --> 0:05:55.200 third group that is in neither of the two camps, 0:05:55.240 --> 0:05:58.320 but thinks that abortion should be allowed in some circumstances, 0:05:59.000 --> 0:06:02.520 but there should be significant restrictions on any points out 0:06:02.560 --> 0:06:07.400 where those restrictions are run. The gamut, I like that 0:06:07.480 --> 0:06:10.320 opening observation. One of the things that the majority opinion 0:06:10.320 --> 0:06:14.520 does a good job of doing is not denigrating those 0:06:14.560 --> 0:06:18.640 who have different views. The majority opinion, I think it's 0:06:18.640 --> 0:06:24.640 fair to say, is not necessarily a pro life opinion. 0:06:25.560 --> 0:06:31.800 It's a pro constitution opinion. It's saying, we're judges, we 0:06:31.920 --> 0:06:35.320 don't know any better than you do. How to answer 0:06:35.440 --> 0:06:41.040 questions that are fundamentally moral questions or scientific questions or 0:06:41.080 --> 0:06:47.560 philosophical questions about whether an unborn child is entitled to 0:06:47.640 --> 0:06:50.520 the same rights as the rest of us. I think 0:06:50.600 --> 0:06:54.320 that modesty is important. And the opinion goes through systematically 0:06:54.400 --> 0:06:56.840 points out for the first one hundred and eighty five years, 0:06:57.760 --> 0:07:02.240 those questions were decided by electedgislatures. That's how the Constitution operated. 0:07:03.279 --> 0:07:06.560 And it points out, and we've talked about this before. 0:07:06.680 --> 0:07:11.240 On the second page, Justice Alito says, after cataloging a 0:07:11.280 --> 0:07:13.920 wealth of other information having no bearing on the meaning 0:07:13.920 --> 0:07:17.520 of the Constitution, he's talking about roversus way. The opinion 0:07:17.560 --> 0:07:23.040 concluded with a numbered set of rules, much like those 0:07:23.120 --> 0:07:27.280 that might be found in a statute enacted by a legislature. 0:07:27.840 --> 0:07:30.480 And it's Harry Blackman's opinion in row is really one 0:07:30.520 --> 0:07:33.480 of the worst judicial opinions ever written, and it's universally 0:07:34.480 --> 0:07:39.480 criticize it. In fact, the majority opinion here then quotes 0:07:39.600 --> 0:07:45.880 John Hardelet, who was a revered liberal constitutional scholar, and 0:07:45.960 --> 0:07:51.000 here's what he says. One prominent constitutional scholar wrote that 0:07:51.160 --> 0:07:55.240 he quote would vote for a statute very much like 0:07:55.480 --> 0:07:58.120 the one the Court ended up drafting. If he were 0:07:58.120 --> 0:08:01.960 a legislator. So he agreed with abortion as a policy matter. 0:08:03.160 --> 0:08:07.520 But he then describes Row and says Roe quote was 0:08:07.640 --> 0:08:13.720 not constitutional law at all and gave quote almost no 0:08:13.840 --> 0:08:18.560 sense of an obligation to try to be This is 0:08:18.600 --> 0:08:22.760 a liberal talking about Justice Byron White, who was one 0:08:22.800 --> 0:08:25.800 of the original dissenters in Row. He was appointed to 0:08:25.840 --> 0:08:29.000 the Court by President John F. Kennedy was on many 0:08:29.040 --> 0:08:33.680 issues a liberal, but Justice White in Rowe described the 0:08:33.760 --> 0:08:40.880 opinion as quote, the exercise of raw judicial power. Yeah, 0:08:44.120 --> 0:08:52.200 it's powerful. And then Rowe was the law until nineteen 0:08:52.280 --> 0:08:55.360 ninety two. And nineteen ninety two the Supreme Court decided Casey. 0:08:55.720 --> 0:08:58.960 And one of the reasons so many conservatives felt frustrated 0:08:59.120 --> 0:09:01.559 is a lot of us thought Casey would overrule Row. 0:09:02.400 --> 0:09:06.239 You'd had the ragged revolution, you had justices, you had 0:09:06.320 --> 0:09:09.839 justices put on by presidents who had campaigned against Row. 0:09:11.679 --> 0:09:14.600 And what happened is that three of them, Justice Kennedy, 0:09:14.640 --> 0:09:19.560 Justice O'Connor, and Justice Suitor shocked everyone and together wrote 0:09:19.760 --> 0:09:24.559 a joint opinion in Casey, reaffirming Row. And look, the 0:09:24.600 --> 0:09:29.520 Casey opinion is another terrible opinion. It is an opinion. 0:09:29.600 --> 0:09:33.120 It doesn't attempt to defend Rowe. It doesn't attempt to 0:09:33.160 --> 0:09:35.400 go through and say Rowe was right. Roe is based 0:09:35.400 --> 0:09:38.840 on the Constitution, Rowe was well reasoned. Well, it actually 0:09:38.880 --> 0:09:43.480 overrules parts of Row, significant parts of Row. Instead, it 0:09:43.559 --> 0:09:46.640 just says, under the principle of starry decisive starry descisi 0:09:46.640 --> 0:09:48.640 is a very important principle in law, which is that 0:09:48.720 --> 0:09:52.920 you respect precedents. The court was not going to overturn it, 0:09:53.880 --> 0:09:58.640 and it created a new standard. So instead of Row 0:10:00.480 --> 0:10:04.480 drew lines during the pregnancy of the first trimester, the 0:10:04.520 --> 0:10:08.280 second trimester, the third trimester, and it laid out the 0:10:08.360 --> 0:10:11.520 different standards, and it said only in the third trimester 0:10:12.080 --> 0:10:14.480 does the state have an interest in protecting what it 0:10:14.520 --> 0:10:18.760 called potential life. Well, Casey came in and said, all right, 0:10:18.800 --> 0:10:23.520 don't don't use the Row standard anymore. Instead, what is permissible. 0:10:23.840 --> 0:10:31.360 What is impermissible is a law that imposes an undue burden, Yeah, 0:10:31.440 --> 0:10:35.760 on a woman's right to access an abortion. Now, the 0:10:35.800 --> 0:10:38.720 problem is, what the heck is the difference between a 0:10:38.880 --> 0:10:42.640 due burden and an undue bird And nobody knows. This 0:10:43.280 --> 0:10:49.559 is magic. And so the majority opinion in Dabbs describes 0:10:50.080 --> 0:10:53.120 says the decision provided no clear guidance about the difference 0:10:53.160 --> 0:10:57.640 between a due and an undue bird. But the three 0:10:57.760 --> 0:11:01.800 justices who authored the controlling opinion quote, and this is 0:11:01.800 --> 0:11:06.840 one of the more grandiose, condescending statements in it. Here's 0:11:06.880 --> 0:11:11.640 what Casey said. Quote called the contending sides of the 0:11:11.720 --> 0:11:17.760 national controversy to end their national division by treating the 0:11:17.800 --> 0:11:20.920 Court's decision is the final settlement of the question of 0:11:20.960 --> 0:11:26.080 the constitutional right on abortion. So, like philosopher kings on High, 0:11:26.840 --> 0:11:33.640 they say, you stupid people, stop bickering. We have decided. 0:11:34.559 --> 0:11:36.720 And you might think you have a right to vote, 0:11:36.760 --> 0:11:39.240 you might think you have a right to engage, but 0:11:39.360 --> 0:11:45.040 you are wrong. Well, their assessment that suddenly after Casey 0:11:45.120 --> 0:11:48.440 people would say, okay, never mind, we accept that is 0:11:48.480 --> 0:11:56.040 not what played out. The operative paragraph of the opinion, 0:11:57.360 --> 0:12:02.199 found on page five weld that Rowan Casey must be overruled. 0:12:02.880 --> 0:12:07.439 The Constitution makes no reference to abortion, and no such 0:12:07.559 --> 0:12:12.040 right is implicitly protected by any constitutional provision, including the 0:12:12.080 --> 0:12:14.560 one on which the defenders of Rowan Casey now chiefly 0:12:14.600 --> 0:12:18.160 rely the due process clause of the Fourteenth Amendment. That 0:12:18.280 --> 0:12:21.120 provision has been held to guarantee some rights that are 0:12:21.120 --> 0:12:26.199 not mentioned in the Constitution, But any such right must 0:12:26.240 --> 0:12:30.040 be deeply rooted in this nation's history and tradition and 0:12:30.200 --> 0:12:34.080 implicit in the concept of ordered liberty. Now there's a 0:12:34.120 --> 0:12:36.360 lot of substance there, so let's try to unpack that 0:12:36.400 --> 0:12:38.480 a little bit. And actually the court does a very 0:12:38.520 --> 0:12:42.400 good job of that. What is the source of the 0:12:42.480 --> 0:12:47.000 right to abortion? Well, Rowe doesn't say, and in fact, 0:12:47.360 --> 0:12:50.839 as Dobbs says, Rowe was egregiously wrong from the start, 0:12:50.920 --> 0:12:54.480 that phrase is used a couple of times. The source though, 0:12:55.200 --> 0:12:58.040 I want to flip over to the discussion because it's 0:13:00.120 --> 0:13:02.920 so Alito is particularly withering, saying, okay, well, what part 0:13:02.960 --> 0:13:05.719 of the Constitution are you finding this this new found right? 0:13:06.559 --> 0:13:13.280 And the dab's opinion says Rowe expressed the quote feeling 0:13:14.920 --> 0:13:18.600 that the fourteenth Amendment was the provision that did the work. 0:13:19.520 --> 0:13:22.040 But its message seemed to be that the abortion right 0:13:22.080 --> 0:13:26.839 could be found somewhere in the Constitution, and that specifying 0:13:26.880 --> 0:13:32.240 the exact location was not a paramount importance. It could 0:13:32.240 --> 0:13:34.520 be this amendment, it could be that amendment. It's the 0:13:34.520 --> 0:13:38.120 emanation of the pnumbra of the invisible inc They say, 0:13:37.880 --> 0:13:40.680 it's it's there and find it wherever you want to 0:13:40.720 --> 0:13:44.000 find it well. And in fact they drop a footnote 0:13:44.080 --> 0:13:49.160 quoting from Rowe of a provision that is just really so, 0:13:49.960 --> 0:13:53.720 here's what Footnote sixteen says the court's words, whereas follows 0:13:53.800 --> 0:13:58.599 quote this right of privacy, whether it be founded in 0:13:58.640 --> 0:14:01.840 the fourteenth Amendments, contup to personal liberty and restrictions on 0:14:01.880 --> 0:14:07.000 state state action, as we feel it is. No, this 0:14:07.160 --> 0:14:09.880 is not reasoning, This is not thinking, this is feelings 0:14:10.480 --> 0:14:14.400 we feel it is. Or as the District Court determined 0:14:14.440 --> 0:14:16.840 in the ninth Amendments, reservation of rights to the people 0:14:17.480 --> 0:14:22.200 is broad enough to accompass encompass a woman's decision whether 0:14:22.320 --> 0:14:27.880 or not determinate her pregnancy. What the majority opinion does 0:14:27.960 --> 0:14:34.120 as systematically dismantles the reasoning and row it's not explicitly 0:14:34.160 --> 0:14:37.440 protected in the Constitution and then says, Okay, just because 0:14:37.440 --> 0:14:41.080 it's not explicitly protected, that doesn't mean it's it's not there. 0:14:41.120 --> 0:14:46.040 It might be implicitly protected, but if it's implicitly protected, 0:14:46.080 --> 0:14:48.360 there's got to be something implying in So the court 0:14:48.480 --> 0:14:52.720 systematically goes through where does this come from? And the 0:14:52.800 --> 0:14:58.160 principal basis that the defenders of Row and Casey allege 0:14:58.200 --> 0:15:00.600 it that it comes from as the fourteen Amendment to 0:15:00.600 --> 0:15:05.200 the Constitution, and in particular, in particular the due process Protection. 0:15:05.200 --> 0:15:12.480 The due process protection prohibits states from depriving people of life, liberty, 0:15:12.640 --> 0:15:17.000 or property without due process of law. And it is 0:15:17.080 --> 0:15:20.240 liberty in particular. And so the argument is, what is 0:15:20.280 --> 0:15:24.000 the liberty you cannot be deprived of without due process 0:15:24.040 --> 0:15:32.120 of law? And how do you determine them? Now, there 0:15:32.160 --> 0:15:35.920 are two different legal questions that let's walk through for 0:15:35.960 --> 0:15:38.840 a second, because they also highlight a disagreement that then 0:15:38.960 --> 0:15:43.360 comes up with Justice Thomas in his dissent. There's a 0:15:43.440 --> 0:15:48.200 notion called substantive due process and there's a notion called 0:15:48.280 --> 0:15:53.600 procedural due process. Procedural due process is what the actual 0:15:53.640 --> 0:15:56.400 provision in the Fourteenth Amendment and also the Fifth Amendment 0:15:56.440 --> 0:15:59.720 protects due process against the federal government. The Fourteenth Amendment 0:15:59.720 --> 0:16:05.240 protect next due process against the states. Procedural due process 0:16:05.320 --> 0:16:08.320 says the state can't take your life from you, can't 0:16:08.320 --> 0:16:10.600 take your liberty from you, can't take your property from 0:16:10.680 --> 0:16:14.560 you without due process of law, which means without illegal proceeding, 0:16:14.600 --> 0:16:18.480 without notice, without opportunity to be heard. There's got to be. 0:16:18.600 --> 0:16:20.920 They can't just come in and seize your stuff and 0:16:20.920 --> 0:16:25.560 say ha ha. There's got to be a process. It 0:16:25.760 --> 0:16:29.560 protects procedural rights, which you would think call it something 0:16:29.640 --> 0:16:36.080 saying we're protecting due process would protect process right. So 0:16:36.440 --> 0:16:39.600 that's the ordinary understanding of due process. But the Supreme 0:16:39.640 --> 0:16:44.400 Court has created a second category that is called substantive 0:16:44.480 --> 0:16:49.440 due process. And the idea is that there are some 0:16:49.520 --> 0:16:52.600 things that are just protected in substance that it doesn't 0:16:52.600 --> 0:16:56.240 matter what the process is, the government can't do them. 0:16:58.760 --> 0:17:04.240 There have been many constitutional scholars and some justices that 0:17:04.280 --> 0:17:08.959 have argued substantive due process is nonsense, it's made up. 0:17:11.400 --> 0:17:14.240 John Hardilier, i quoted before, had a great phrase also 0:17:14.280 --> 0:17:17.720 about substanti due process. He said, that's like saying green 0:17:17.840 --> 0:17:24.520 pastel redness, because substantive and process are the opposite of 0:17:24.520 --> 0:17:29.760 each other. Like, it doesn't mean anything to say, but 0:17:31.520 --> 0:17:37.159 what the majority opinion does, it doesn't do anything significant 0:17:37.240 --> 0:17:40.000 in changing substant of due processes. And look, we've had 0:17:40.000 --> 0:17:42.560 lots of decisions that we've found things are protected by 0:17:42.560 --> 0:17:46.080 substant of due process. But they fall into two categories. 0:17:47.240 --> 0:17:52.640 One are rights that are explicitly enumerated in the Bill 0:17:52.720 --> 0:17:57.719 of Rights that the Court has incorporated against the States. 0:17:57.760 --> 0:18:00.760 And we've talked about this before, how the Bill of 0:18:00.880 --> 0:18:05.480 Rights only applies to the federal government by its terms, 0:18:05.520 --> 0:18:09.080 but over the years, the Supreme Court has interpreted the 0:18:09.160 --> 0:18:14.600 due process clause to apply them against the states as well. 0:18:14.720 --> 0:18:17.359 So that's one mechanism, and virtually every right in the 0:18:17.400 --> 0:18:21.040 Bill of Rights has now been incorporated and applies against 0:18:21.080 --> 0:18:24.280 the states and against local governments as well. That's a 0:18:24.320 --> 0:18:27.840 fairly straightforward way of determining. And what the Court is 0:18:27.920 --> 0:18:31.600 essentially says is they're all packed into the word liberty 0:18:32.560 --> 0:18:36.080 in saying, no staial deprive you of life, liberty, or 0:18:36.119 --> 0:18:40.640 property without due process of law. In addition to that, 0:18:41.440 --> 0:18:43.960 there are some unenumerated rights that are not in the 0:18:43.960 --> 0:18:49.119 Bill of Rights that the Court has incorporated in but 0:18:49.280 --> 0:18:55.960 it has required pretty strict and the test it is 0:18:56.040 --> 0:19:02.040 laid out is whether or right is deeply rooted in 0:19:02.080 --> 0:19:06.600 our history and tradition and whether it is essential to 0:19:06.720 --> 0:19:10.920 our nation's scheme of ordered liberty. So that's the test. 0:19:11.000 --> 0:19:13.160 And look, part of the reason is if you're just saying, 0:19:13.200 --> 0:19:17.000 what does liberty mean? If judges are allowed to define 0:19:17.040 --> 0:19:21.639 what they think liberty means you can have lots of 0:19:21.680 --> 0:19:25.600 different definitions of liberty, and very quickly judges become legislators 0:19:25.600 --> 0:19:27.840 saying here's what I think you ought to be able 0:19:27.840 --> 0:19:31.600 to do. And so part of the reason the Court 0:19:31.680 --> 0:19:37.520 over the centuries has adopted this test, it's a way 0:19:37.520 --> 0:19:41.239 to constrain judicial power to say, okay, there will be 0:19:41.520 --> 0:19:47.240 implicit protections, and so for example, on page twelve of 0:19:47.240 --> 0:19:52.480 the opinion in Dabbs, it talks about one example of 0:19:52.600 --> 0:19:55.880 incorporating an express right against the states, and it says 0:19:55.920 --> 0:19:59.000 Justice Ginsburg's opinion for the Court in Tims is a 0:19:59.080 --> 0:20:03.159 recent example in concluding that the Eighth Amendments protection against 0:20:03.160 --> 0:20:06.320 excessive finds is quote fundamental to our scheme of ordered 0:20:06.320 --> 0:20:08.960 liberty and deeply rooted in this nation's history and tradition. 0:20:09.760 --> 0:20:12.560 Her opinion traced the right back to the Magna cartam, 0:20:13.960 --> 0:20:17.760 Blackstone's commentaries, and thirty five of the thirty seven state 0:20:17.800 --> 0:20:21.800 constitutions in effect at the ratification of the Fourteenth Amendment. 0:20:21.840 --> 0:20:24.280 So that's an example of what looking to those texts 0:20:24.280 --> 0:20:28.160 means as well. Right has this right been protected for centuries? 0:20:28.240 --> 0:20:31.199 Was it protected throughout law? Was it deeply rooted in 0:20:31.200 --> 0:20:35.840 our history. So this applies some limits, which obviously you 0:20:35.840 --> 0:20:38.239 would need because, as you say, otherwise, you would have 0:20:38.280 --> 0:20:42.120 these philosopher kings on the Supreme Court defining liberty however 0:20:42.160 --> 0:20:45.560 they would like. But this issue of substantive due process 0:20:46.119 --> 0:20:48.720 does seem to me to be the point where all 0:20:48.800 --> 0:20:51.560 of the liberals, all of the I shouldn't even say liberals, 0:20:51.600 --> 0:20:56.399 all of the pro abortion advocates are focusing their fire, 0:20:56.720 --> 0:21:00.439 because you even see this in the descent. They're not 0:21:00.480 --> 0:21:04.680 even so much making a substantive argument for abortion rights rights, 0:21:04.760 --> 0:21:07.719 quote unquote, as they are saying, if we get rid 0:21:07.760 --> 0:21:10.960 of this, we're going to have to overrule Griswold, which 0:21:11.160 --> 0:21:14.000 which finds a constitutional right to contraception. We're going to 0:21:14.040 --> 0:21:17.639 have to overrule Lawrence fee Texas, which finds constitutional right 0:21:17.720 --> 0:21:20.399 to homosexual sodomy. We're going to have to overrule a 0:21:20.480 --> 0:21:24.560 Berghafel which finds a redefinition of marriage to include same 0:21:24.560 --> 0:21:27.960 sex unions, all of which rely on substantive due process. 0:21:28.160 --> 0:21:31.560 And so then this question that the disagreement here between 0:21:31.760 --> 0:21:36.399 the Court's majority opinion and then Thomas's concurrence, which goes further, 0:21:36.800 --> 0:21:40.119 this does seem to be the biggest point that the 0:21:40.160 --> 0:21:43.159 liberals are going to focus on. Well, that's right, and 0:21:44.600 --> 0:21:47.000 I think it's worth reflecting on what that tells us. 0:21:47.920 --> 0:21:52.520 It tells us that even the far left thinks abortion 0:21:52.640 --> 0:21:55.680 is not a winning issue for it. Like they're not 0:21:55.800 --> 0:21:58.879 arguing many of them, they're not arguing the substance of 0:21:58.880 --> 0:22:03.919 this decision because they recognize that the vast majority of 0:22:03.960 --> 0:22:07.520 Americans favor at least some significant restrictions on abortions, that 0:22:07.600 --> 0:22:11.399 the positions of the left of unlimited abortion on demand 0:22:11.480 --> 0:22:14.040 up until the moment of birth, partial birth abortion with 0:22:14.119 --> 0:22:18.520 no restrictions is a fringe view. Less than nine percent 0:22:18.520 --> 0:22:23.080 of Americans support that view. And so smart liberals, which 0:22:23.080 --> 0:22:26.840 may be oxymoronic, but smart liberals and smart Democrats they 0:22:26.920 --> 0:22:30.560 don't actually defend their view on this issue because they 0:22:30.560 --> 0:22:34.840 know it's unpopular. What they say is, well, what this 0:22:34.920 --> 0:22:37.040 means is all of these other decisions are going to 0:22:37.080 --> 0:22:39.560 be struck down. And I got to say the majority, 0:22:39.640 --> 0:22:45.600 and Dabbs says, I think four separate times, No, it doesn't. 0:22:46.080 --> 0:22:49.760 We're not overruling those opinions. We're not calling question into 0:22:49.760 --> 0:22:53.000 those opinions. Those opinions are totally different. Like it at 0:22:53.040 --> 0:22:55.359 one point, they say, we don't know how we could 0:22:55.359 --> 0:22:59.800 be any clearer, and the majority opinion points out says, 0:23:01.080 --> 0:23:04.280 so the ones they focus on, they focus on contraception, 0:23:04.320 --> 0:23:08.199 and you have two decisions, Griswald and Eisenstatt. Griswald was 0:23:08.320 --> 0:23:12.879 a right to access contraceptives for married couples. Eisenstatt was 0:23:12.880 --> 0:23:17.159 a right to access contraceptives for single people. They also 0:23:17.240 --> 0:23:20.920 focus on Loving versus Virginia, which it was a right 0:23:20.960 --> 0:23:27.680 to marry regardless of race, so interracial marriage. And then 0:23:27.720 --> 0:23:33.399 they focus on Lawrence the right to homosexual sodomy and 0:23:33.440 --> 0:23:38.240 consensual sexual acts between adults, and then berger Fell gay marriage. 0:23:38.960 --> 0:23:41.280 And what the court says repeatedly is, look, those are 0:23:41.320 --> 0:23:45.440 all completely different decisions. Why because none of them involve 0:23:46.080 --> 0:23:50.840 ending a human life. Abortion is fundamentally different. Ending a 0:23:50.960 --> 0:23:56.080 human life is a big deal, even rowe called it 0:23:56.160 --> 0:24:03.080 potential life. And so repeated the majority goes jumps up 0:24:03.080 --> 0:24:05.800 and down and says, we are not calling into question 0:24:05.880 --> 0:24:09.280 these decisions. This has nothing do with it. The left 0:24:09.400 --> 0:24:15.840 keeps saying, oh, but these other issues, I think they're telegraphing. Listen, 0:24:15.920 --> 0:24:19.440 if you had a referendum on should we ban contraceptives 0:24:19.440 --> 0:24:22.440 in America, nobody would vote for I mean, Michael, you might, 0:24:22.520 --> 0:24:25.320 but the rest of us would. The rest I don't 0:24:25.320 --> 0:24:27.760 think there's a majority for it. That's certainly the case. 0:24:27.920 --> 0:24:31.639 And it also I've talked to friends of mine who 0:24:31.640 --> 0:24:34.960 are gay, for instance, and who support gay marriage. You 0:24:34.960 --> 0:24:36.520 know if they if they went out to vote, they 0:24:36.520 --> 0:24:41.000 would vote to redefine marriage to include same sex unions. 0:24:41.080 --> 0:24:45.000 And many of my gay conservative friends will say, yeah, 0:24:45.080 --> 0:24:48.640 all of that notwithstanding, Oh, Berghafell is a crap decision 0:24:48.720 --> 0:24:51.800 by the Court that the Court actually it doesn't make 0:24:51.800 --> 0:24:55.239 a ton of sense. And So while I support this 0:24:55.280 --> 0:24:57.760 issue and I support it in the legislature, and I 0:24:57.800 --> 0:24:59.320 would vote for people who are going to vote for 0:24:59.359 --> 0:25:01.960 this kind of thing, I don't think that's the role 0:25:02.280 --> 0:25:04.719 for the Supreme Court. So one can be in favor 0:25:04.760 --> 0:25:08.160 of all sorts of outcomes of certain Supreme Court cases 0:25:08.320 --> 0:25:12.240 and still oppose a principle that was made up in 0:25:13.240 --> 0:25:18.119 the twentieth century that seems bogus from a judicial perspective. Well, 0:25:18.160 --> 0:25:21.199 that's exactly right. And you talked about so Justice Thomas 0:25:21.200 --> 0:25:23.320 wrote a concurrence. He joined the majority in full. So 0:25:23.400 --> 0:25:26.680 the majority opinion is a majority opinion of the Court, 0:25:26.680 --> 0:25:30.240 it is binding law. Justice Thomas wrote a concurrence in 0:25:30.280 --> 0:25:33.359 which he said he would go further and the Court 0:25:33.440 --> 0:25:36.960 should reconsider. He actually didn't say overrule. He said reconsider 0:25:37.960 --> 0:25:41.040 all of its substantive due process cases, basically. And he said, 0:25:41.080 --> 0:25:43.720 for a long time, substantive due process as gobbledygook, and 0:25:43.760 --> 0:25:46.720 we ought to reconsider it all. If you look at 0:25:46.840 --> 0:25:50.399 like he's referred to, let's say, the contraceptives law, so 0:25:50.440 --> 0:25:53.280 Griswold versus Connecticut was a Connecticut law that restricted the 0:25:53.280 --> 0:25:56.560 sale of contraceptives. Justice Thomas is referred to that as 0:25:56.640 --> 0:26:00.760 quote an uncommonly silly law. He's record saying this is 0:26:00.800 --> 0:26:03.720 a stupid law. I don't support this law, but he 0:26:03.840 --> 0:26:07.480 says the Constitution doesn't prohibit silly laws. It's up to 0:26:07.560 --> 0:26:10.119 the voters to get rid of that. I think that 0:26:10.280 --> 0:26:15.040 is a right and principled legal distinction. But I also 0:26:15.160 --> 0:26:19.840 think it speaks volumes that Justice Thomas's concurrence was alone, 0:26:21.000 --> 0:26:25.359 that the other justices have no interest in going down 0:26:25.400 --> 0:26:30.760 that road, and the number of times the majority opinion 0:26:30.840 --> 0:26:35.480 says no, no, no, no, no, And it's worth look. 0:26:36.800 --> 0:26:39.440 The distinction the majority opinion makes is abortion ends a 0:26:39.520 --> 0:26:43.919 human life. But there's another distinction, which is those opinions, 0:26:44.080 --> 0:26:52.760 unlike Row, Row, created enormous societal divisions, deep long felt 0:26:52.880 --> 0:26:56.880 people didn't listen to Casey's admonitions of just accept that 0:26:56.920 --> 0:27:00.840 you're wrong and put it behind you. Millions of people 0:27:00.880 --> 0:27:05.000 care passionately about this issue. None of these other issues 0:27:05.080 --> 0:27:11.560 have created that kind of long lasting, multidecorate decade division 0:27:11.760 --> 0:27:16.200 that there are not. There's a march for life every 0:27:16.280 --> 0:27:21.360 year in DC. There's not a march against condoms every year. Yeah, 0:27:21.400 --> 0:27:28.399 but like the rights at issue have not prompted the 0:27:28.520 --> 0:27:35.680 kind of massive societal disagreement the way that that that 0:27:35.960 --> 0:27:41.440 abortion uniquely has. And so points Some commentators will leap 0:27:41.520 --> 0:27:44.840 on Justice Thomas's concurrence, but I think the chances that 0:27:44.880 --> 0:27:49.440 the Court goes down that road are zero. And I 0:27:49.520 --> 0:27:52.200 think even Justice Thomas knows that he's arguing this would 0:27:52.240 --> 0:27:55.719