Speaker 1: The Constitution does not confer a right to abortion. Roe
Speaker 1: and Casey are overruled, and the authority to regulate abortion
Speaker 1: is returned to the people and their elected representatives. So
Speaker 1: declares the United States Supreme Court. This is verdict with
Speaker 1: Ted Cruz. Welcome back to verdict with Ted Cruz. I'm
Speaker 1: Michael Knowles. It is the greatest political event of my lifetime,
Speaker 1: I suspect Senator, of your lifetime. We are not in
Speaker 1: our usual locations right now. I am in Chicago for
Speaker 1: a wedding. You are in Milwaukee, and we said we
Speaker 1: need an emergency bonus verdict to discuss and to celebrate
Speaker 1: the Supreme Court's overruling of Revuewade. Well, Michael, it's truly
Speaker 1: extraordinary and right. This has been forty nine years in coming.
Speaker 1: You have never lived a day on planet Earth without
Speaker 1: Roe versus Wade being the law of the land. I
Speaker 1: was two when Roe was decided, and for forty nine
Speaker 1: years that was unshakable and unstoppable. And today we've returned
Speaker 1: to what the country was for the first one hundred
Speaker 1: and eighty five years, which is the elected people, the
Speaker 1: elected representatives of the people. The voters now have the
Speaker 1: right to decide questions of life. That that's how the
Speaker 1: Constitution was designed in the first place. But but I
Speaker 1: got to just pause and reflect on the extraordinary efforts
Speaker 1: that led to yesterday's decision. Millions of activists, an entire movement,
Speaker 1: millions of young women and old women, and people marching
Speaker 1: in the March for Life every year, millions of grassroots
Speaker 1: activists who mobilized, who mobilized but behind the campaign of
Speaker 1: Ronald Reagan, who mobilized behind the campaign of George Herbert
Speaker 1: Walker Bush, who mobilized behind the campaign of George W. Bush,
Speaker 1: who mobilized behind the campaign of Donald Trump. This is
Speaker 1: the culmination of forty nine years of work, of organizing,
Speaker 1: of mobilizing, of incredible and fervent prayer. And it's truly
Speaker 1: an extraordinary moment because a lot of us in the
Speaker 1: pro life movement have wondered would this ever happen, would
Speaker 1: Row ever be overturned? Was this feudal? Was this a
Speaker 1: waste of time? I can't count how many times I've
Speaker 1: heard people raise those questions, This will never happen. These
Speaker 1: you know, these damn politicians are just they're just lying
Speaker 1: to us. They're just pretending and this will never happen.
Speaker 1: It there aren't words to scribe. It is the most
Speaker 1: consequential Supreme Court decision of the last fifty years, since
Speaker 1: Roe in nineteen seventy three that started us on this journey.
Speaker 1: It is. I have to say, I didn't I didn't
Speaker 1: expect it, even I didn't want to allow myself to
Speaker 1: hope that it could actually happen. Even after the leaked opinion,
Speaker 1: I still sort of thought it was fifty fifty. I
Speaker 1: didn't know if the people who showed up outside the
Speaker 1: justice's homes and the attempted assassination of Brett Havanon and
Speaker 1: all the craziness, if that would succeed in in bullying
Speaker 1: the justices. It obviously did not. And so now i'd
Speaker 1: like your take, not just as someone who's been in
Speaker 1: the pro life movement for a very long time, not
Speaker 1: even just as a US Senator, but as an expert
Speaker 1: on the constitution, someone who has argued cases before the
Speaker 1: Supreme Court, someone who clerked for the Chief Justice. What
Speaker 1: does the opinion say and do? Because there's the opinion,
Speaker 1: there's the opinion of the Court on the pro life
Speaker 1: law that brought this issue to the four that was
Speaker 1: the Mississippi pro life Law six three. All the Conservatives,
Speaker 1: joined by Chief Justice Roberts, vote to uphold the Mississippi law.
Speaker 1: Then the Chief Justice splits off. He does not vote
Speaker 1: to overrule Row and Casey. So that's a five four decision.
Speaker 1: You've got Thomas, Alito, Barrett, Kavanaugh, and Gorsage vote to
Speaker 1: overrule Row and Casey. But then it gets even more
Speaker 1: complicated because Kavanaugh files his own concurring opinion, which seems
Speaker 1: somewhat modest. Justice Thomas files his concurring opinion, which seems
Speaker 1: perhaps more ambitious, and then you've got the dissent from
Speaker 1: the liberals. I'm sorry. Chief Justice Roberts has his own
Speaker 1: concurring opinion. So anyway, what does it all mean. Well,
Speaker 1: let's walk through it, and let's walk through it systematically.
Speaker 1: So let's turn to the decision itself. So I would
Speaker 1: encourage Look, many of you, presumably are not lawyers, I
Speaker 1: would encourage you to sit down and read this opinion.
Speaker 1: Justice Alito wrote this opinion for the ages, and yes
Speaker 1: it is a legal opinion and a Supreme Court opinion,
Speaker 1: but it is designed to be accessible for a reader
Speaker 1: to walk through. Not why Row was wrong, but it
Speaker 1: also explains how constitutional law is supposed to work. So
Speaker 1: the opinion begins the first paragraph. Justice Alito talks about
Speaker 1: their three different groups in America. There's one group that
Speaker 1: are convinced passionately that an unborn child is a human
Speaker 1: life that is precious, that needs to be protected, that
Speaker 1: has full rights. He acknowledges, There's another group that is
Speaker 1: justice passionate, they're justice heartfelt that are convinced an unborn
Speaker 1: child is not a human right, that abortion is about
Speaker 1: the liberty of a woman to control her body and
Speaker 1: her life. And then he points out there's yet a
Speaker 1: third group that is in neither of the two camps,
Speaker 1: but thinks that abortion should be allowed in some circumstances,
Speaker 1: but there should be significant restrictions on any points out
Speaker 1: where those restrictions are run. The gamut, I like that
Speaker 1: opening observation. One of the things that the majority opinion
Speaker 1: does a good job of doing is not denigrating those
Speaker 1: who have different views. The majority opinion, I think it's
Speaker 1: fair to say, is not necessarily a pro life opinion.
Speaker 1: It's a pro constitution opinion. It's saying, we're judges, we
Speaker 1: don't know any better than you do. How to answer
Speaker 1: questions that are fundamentally moral questions or scientific questions or
Speaker 1: philosophical questions about whether an unborn child is entitled to
Speaker 1: the same rights as the rest of us. I think
Speaker 1: that modesty is important. And the opinion goes through systematically
Speaker 1: points out for the first one hundred and eighty five years,
Speaker 1: those questions were decided by electedgislatures. That's how the Constitution operated.
Speaker 1: And it points out, and we've talked about this before.
Speaker 1: On the second page, Justice Alito says, after cataloging a
Speaker 1: wealth of other information having no bearing on the meaning
Speaker 1: of the Constitution, he's talking about roversus way. The opinion
Speaker 1: concluded with a numbered set of rules, much like those
Speaker 1: that might be found in a statute enacted by a legislature.
Speaker 1: And it's Harry Blackman's opinion in row is really one
Speaker 1: of the worst judicial opinions ever written, and it's universally
Speaker 1: criticize it. In fact, the majority opinion here then quotes
Speaker 1: John Hardelet, who was a revered liberal constitutional scholar, and
Speaker 1: here's what he says. One prominent constitutional scholar wrote that
Speaker 1: he quote would vote for a statute very much like
Speaker 1: the one the Court ended up drafting. If he were
Speaker 1: a legislator. So he agreed with abortion as a policy matter.
Speaker 1: But he then describes Row and says Roe quote was
Speaker 1: not constitutional law at all and gave quote almost no
Speaker 1: sense of an obligation to try to be This is
Speaker 1: a liberal talking about Justice Byron White, who was one
Speaker 1: of the original dissenters in Row. He was appointed to
Speaker 1: the Court by President John F. Kennedy was on many
Speaker 1: issues a liberal, but Justice White in Rowe described the
Speaker 1: opinion as quote, the exercise of raw judicial power. Yeah,
Speaker 1: it's powerful. And then Rowe was the law until nineteen
Speaker 1: ninety two. And nineteen ninety two the Supreme Court decided Casey.
Speaker 1: And one of the reasons so many conservatives felt frustrated
Speaker 1: is a lot of us thought Casey would overrule Row.
Speaker 1: You'd had the ragged revolution, you had justices, you had
Speaker 1: justices put on by presidents who had campaigned against Row.
Speaker 1: And what happened is that three of them, Justice Kennedy,
Speaker 1: Justice O'Connor, and Justice Suitor shocked everyone and together wrote
Speaker 1: a joint opinion in Casey, reaffirming Row. And look, the
Speaker 1: Casey opinion is another terrible opinion. It is an opinion.
Speaker 1: It doesn't attempt to defend Rowe. It doesn't attempt to
Speaker 1: go through and say Rowe was right. Roe is based
Speaker 1: on the Constitution, Rowe was well reasoned. Well, it actually
Speaker 1: overrules parts of Row, significant parts of Row. Instead, it
Speaker 1: just says, under the principle of starry decisive starry descisi
Speaker 1: is a very important principle in law, which is that
Speaker 1: you respect precedents. The court was not going to overturn it,
Speaker 1: and it created a new standard. So instead of Row
Speaker 1: drew lines during the pregnancy of the first trimester, the
Speaker 1: second trimester, the third trimester, and it laid out the
Speaker 1: different standards, and it said only in the third trimester
Speaker 1: does the state have an interest in protecting what it
Speaker 1: called potential life. Well, Casey came in and said, all right,
Speaker 1: don't don't use the Row standard anymore. Instead, what is permissible.
Speaker 1: What is impermissible is a law that imposes an undue burden, Yeah,
Speaker 1: on a woman's right to access an abortion. Now, the
Speaker 1: problem is, what the heck is the difference between a
Speaker 1: due burden and an undue bird And nobody knows. This
Speaker 1: is magic. And so the majority opinion in Dabbs describes
Speaker 1: says the decision provided no clear guidance about the difference
Speaker 1: between a due and an undue bird. But the three
Speaker 1: justices who authored the controlling opinion quote, and this is
Speaker 1: one of the more grandiose, condescending statements in it. Here's
Speaker 1: what Casey said. Quote called the contending sides of the
Speaker 1: national controversy to end their national division by treating the
Speaker 1: Court's decision is the final settlement of the question of
Speaker 1: the constitutional right on abortion. So, like philosopher kings on High,
Speaker 1: they say, you stupid people, stop bickering. We have decided.
Speaker 1: And you might think you have a right to vote,
Speaker 1: you might think you have a right to engage, but
Speaker 1: you are wrong. Well, their assessment that suddenly after Casey
Speaker 1: people would say, okay, never mind, we accept that is
Speaker 1: not what played out. The operative paragraph of the opinion,
Speaker 1: found on page five weld that Rowan Casey must be overruled.
Speaker 1: The Constitution makes no reference to abortion, and no such
Speaker 1: right is implicitly protected by any constitutional provision, including the
Speaker 1: one on which the defenders of Rowan Casey now chiefly
Speaker 1: rely the due process clause of the Fourteenth Amendment. That
Speaker 1: provision has been held to guarantee some rights that are
Speaker 1: not mentioned in the Constitution, But any such right must
Speaker 1: be deeply rooted in this nation's history and tradition and
Speaker 1: implicit in the concept of ordered liberty. Now there's a
Speaker 1: lot of substance there, so let's try to unpack that
Speaker 1: a little bit. And actually the court does a very
Speaker 1: good job of that. What is the source of the
Speaker 1: right to abortion? Well, Rowe doesn't say, and in fact,
Speaker 1: as Dobbs says, Rowe was egregiously wrong from the start,
Speaker 1: that phrase is used a couple of times. The source though,
Speaker 1: I want to flip over to the discussion because it's
Speaker 1: so Alito is particularly withering, saying, okay, well, what part
Speaker 1: of the Constitution are you finding this this new found right?
Speaker 1: And the dab's opinion says Rowe expressed the quote feeling
Speaker 1: that the fourteenth Amendment was the provision that did the work.
Speaker 1: But its message seemed to be that the abortion right
Speaker 1: could be found somewhere in the Constitution, and that specifying
Speaker 1: the exact location was not a paramount importance. It could
Speaker 1: be this amendment, it could be that amendment. It's the
Speaker 1: emanation of the pnumbra of the invisible inc They say,
Speaker 1: it's it's there and find it wherever you want to
Speaker 1: find it well. And in fact they drop a footnote
Speaker 1: quoting from Rowe of a provision that is just really so,
Speaker 1: here's what Footnote sixteen says the court's words, whereas follows
Speaker 1: quote this right of privacy, whether it be founded in
Speaker 1: the fourteenth Amendments, contup to personal liberty and restrictions on
Speaker 1: state state action, as we feel it is. No, this
Speaker 1: is not reasoning, This is not thinking, this is feelings
Speaker 1: we feel it is. Or as the District Court determined
Speaker 1: in the ninth Amendments, reservation of rights to the people
Speaker 1: is broad enough to accompass encompass a woman's decision whether
Speaker 1: or not determinate her pregnancy. What the majority opinion does
Speaker 1: as systematically dismantles the reasoning and row it's not explicitly
Speaker 1: protected in the Constitution and then says, Okay, just because
Speaker 1: it's not explicitly protected, that doesn't mean it's it's not there.
Speaker 1: It might be implicitly protected, but if it's implicitly protected,
Speaker 1: there's got to be something implying in So the court
Speaker 1: systematically goes through where does this come from? And the
Speaker 1: principal basis that the defenders of Row and Casey allege
Speaker 1: it that it comes from as the fourteen Amendment to
Speaker 1: the Constitution, and in particular, in particular the due process Protection.
Speaker 1: The due process protection prohibits states from depriving people of life, liberty,
Speaker 1: or property without due process of law. And it is
Speaker 1: liberty in particular. And so the argument is, what is
Speaker 1: the liberty you cannot be deprived of without due process
Speaker 1: of law? And how do you determine them? Now, there
Speaker 1: are two different legal questions that let's walk through for
Speaker 1: a second, because they also highlight a disagreement that then
Speaker 1: comes up with Justice Thomas in his dissent. There's a
Speaker 1: notion called substantive due process and there's a notion called
Speaker 1: procedural due process. Procedural due process is what the actual
Speaker 1: provision in the Fourteenth Amendment and also the Fifth Amendment
Speaker 1: protects due process against the federal government. The Fourteenth Amendment
Speaker 1: protect next due process against the states. Procedural due process
Speaker 1: says the state can't take your life from you, can't
Speaker 1: take your liberty from you, can't take your property from
Speaker 1: you without due process of law, which means without illegal proceeding,
Speaker 1: without notice, without opportunity to be heard. There's got to be.
Speaker 1: They can't just come in and seize your stuff and
Speaker 1: say ha ha. There's got to be a process. It
Speaker 1: protects procedural rights, which you would think call it something
Speaker 1: saying we're protecting due process would protect process right. So
Speaker 1: that's the ordinary understanding of due process. But the Supreme
Speaker 1: Court has created a second category that is called substantive
Speaker 1: due process. And the idea is that there are some
Speaker 1: things that are just protected in substance that it doesn't
Speaker 1: matter what the process is, the government can't do them.
Speaker 1: There have been many constitutional scholars and some justices that
Speaker 1: have argued substantive due process is nonsense, it's made up.
Speaker 1: John Hardilier, i quoted before, had a great phrase also
Speaker 1: about substanti due process. He said, that's like saying green
Speaker 1: pastel redness, because substantive and process are the opposite of
Speaker 1: each other. Like, it doesn't mean anything to say, but
Speaker 1: what the majority opinion does, it doesn't do anything significant
Speaker 1: in changing substant of due processes. And look, we've had
Speaker 1: lots of decisions that we've found things are protected by
Speaker 1: substant of due process. But they fall into two categories.
Speaker 1: One are rights that are explicitly enumerated in the Bill
Speaker 1: of Rights that the Court has incorporated against the States.
Speaker 1: And we've talked about this before, how the Bill of
Speaker 1: Rights only applies to the federal government by its terms,
Speaker 1: but over the years, the Supreme Court has interpreted the
Speaker 1: due process clause to apply them against the states as well.
Speaker 1: So that's one mechanism, and virtually every right in the
Speaker 1: Bill of Rights has now been incorporated and applies against
Speaker 1: the states and against local governments as well. That's a
Speaker 1: fairly straightforward way of determining. And what the Court is
Speaker 1: essentially says is they're all packed into the word liberty
Speaker 1: in saying, no staial deprive you of life, liberty, or
Speaker 1: property without due process of law. In addition to that,
Speaker 1: there are some unenumerated rights that are not in the
Speaker 1: Bill of Rights that the Court has incorporated in but
Speaker 1: it has required pretty strict and the test it is
Speaker 1: laid out is whether or right is deeply rooted in
Speaker 1: our history and tradition and whether it is essential to
Speaker 1: our nation's scheme of ordered liberty. So that's the test.
Speaker 1: And look, part of the reason is if you're just saying,
Speaker 1: what does liberty mean? If judges are allowed to define
Speaker 1: what they think liberty means you can have lots of
Speaker 1: different definitions of liberty, and very quickly judges become legislators
Speaker 1: saying here's what I think you ought to be able
Speaker 1: to do. And so part of the reason the Court
Speaker 1: over the centuries has adopted this test, it's a way
Speaker 1: to constrain judicial power to say, okay, there will be
Speaker 1: implicit protections, and so for example, on page twelve of
Speaker 1: the opinion in Dabbs, it talks about one example of
Speaker 1: incorporating an express right against the states, and it says
Speaker 1: Justice Ginsburg's opinion for the Court in Tims is a
Speaker 1: recent example in concluding that the Eighth Amendments protection against
Speaker 1: excessive finds is quote fundamental to our scheme of ordered
Speaker 1: liberty and deeply rooted in this nation's history and tradition.
Speaker 1: Her opinion traced the right back to the Magna cartam,
Speaker 1: Blackstone's commentaries, and thirty five of the thirty seven state
Speaker 1: constitutions in effect at the ratification of the Fourteenth Amendment.
Speaker 1: So that's an example of what looking to those texts
Speaker 1: means as well. Right has this right been protected for centuries?
Speaker 1: Was it protected throughout law? Was it deeply rooted in
Speaker 1: our history. So this applies some limits, which obviously you
Speaker 1: would need because, as you say, otherwise, you would have
Speaker 1: these philosopher kings on the Supreme Court defining liberty however
Speaker 1: they would like. But this issue of substantive due process
Speaker 1: does seem to me to be the point where all
Speaker 1: of the liberals, all of the I shouldn't even say liberals,
Speaker 1: all of the pro abortion advocates are focusing their fire,
Speaker 1: because you even see this in the descent. They're not
Speaker 1: even so much making a substantive argument for abortion rights rights,
Speaker 1: quote unquote, as they are saying, if we get rid
Speaker 1: of this, we're going to have to overrule Griswold, which
Speaker 1: which finds a constitutional right to contraception. We're going to
Speaker 1: have to overrule Lawrence fee Texas, which finds constitutional right
Speaker 1: to homosexual sodomy. We're going to have to overrule a
Speaker 1: Berghafel which finds a redefinition of marriage to include same
Speaker 1: sex unions, all of which rely on substantive due process.
Speaker 1: And so then this question that the disagreement here between
Speaker 1: the Court's majority opinion and then Thomas's concurrence, which goes further,
Speaker 1: this does seem to be the biggest point that the
Speaker 1: liberals are going to focus on. Well, that's right, and
Speaker 1: I think it's worth reflecting on what that tells us.
Speaker 1: It tells us that even the far left thinks abortion
Speaker 1: is not a winning issue for it. Like they're not
Speaker 1: arguing many of them, they're not arguing the substance of
Speaker 1: this decision because they recognize that the vast majority of
Speaker 1: Americans favor at least some significant restrictions on abortions, that
Speaker 1: the positions of the left of unlimited abortion on demand
Speaker 1: up until the moment of birth, partial birth abortion with
Speaker 1: no restrictions is a fringe view. Less than nine percent
Speaker 1: of Americans support that view. And so smart liberals, which
Speaker 1: may be oxymoronic, but smart liberals and smart Democrats they
Speaker 1: don't actually defend their view on this issue because they
Speaker 1: know it's unpopular. What they say is, well, what this
Speaker 1: means is all of these other decisions are going to
Speaker 1: be struck down. And I got to say the majority,
Speaker 1: and Dabbs says, I think four separate times, No, it doesn't.
Speaker 1: We're not overruling those opinions. We're not calling question into
Speaker 1: those opinions. Those opinions are totally different. Like it at
Speaker 1: one point, they say, we don't know how we could
Speaker 1: be any clearer, and the majority opinion points out says,
Speaker 1: so the ones they focus on, they focus on contraception,
Speaker 1: and you have two decisions, Griswald and Eisenstatt. Griswald was
Speaker 1: a right to access contraceptives for married couples. Eisenstatt was
Speaker 1: a right to access contraceptives for single people. They also
Speaker 1: focus on Loving versus Virginia, which it was a right
Speaker 1: to marry regardless of race, so interracial marriage. And then
Speaker 1: they focus on Lawrence the right to homosexual sodomy and
Speaker 1: consensual sexual acts between adults, and then berger Fell gay marriage.
Speaker 1: And what the court says repeatedly is, look, those are
Speaker 1: all completely different decisions. Why because none of them involve
Speaker 1: ending a human life. Abortion is fundamentally different. Ending a
Speaker 1: human life is a big deal, even rowe called it
Speaker 1: potential life. And so repeated the majority goes jumps up
Speaker 1: and down and says, we are not calling into question
Speaker 1: these decisions. This has nothing do with it. The left
Speaker 1: keeps saying, oh, but these other issues, I think they're telegraphing. Listen,
Speaker 1: if you had a referendum on should we ban contraceptives
Speaker 1: in America, nobody would vote for I mean, Michael, you might,
Speaker 1: but the rest of us would. The rest I don't
Speaker 1: think there's a majority for it. That's certainly the case.
Speaker 1: And it also I've talked to friends of mine who
Speaker 1: are gay, for instance, and who support gay marriage. You
Speaker 1: know if they if they went out to vote, they
Speaker 1: would vote to redefine marriage to include same sex unions.
Speaker 1: And many of my gay conservative friends will say, yeah,
Speaker 1: all of that notwithstanding, Oh, Berghafell is a crap decision
Speaker 1: by the Court that the Court actually it doesn't make
Speaker 1: a ton of sense. And So while I support this
Speaker 1: issue and I support it in the legislature, and I
Speaker 1: would vote for people who are going to vote for
Speaker 1: this kind of thing, I don't think that's the role
Speaker 1: for the Supreme Court. So one can be in favor
Speaker 1: of all sorts of outcomes of certain Supreme Court cases
Speaker 1: and still oppose a principle that was made up in
Speaker 1: the twentieth century that seems bogus from a judicial perspective. Well,
Speaker 1: that's exactly right. And you talked about so Justice Thomas
Speaker 1: wrote a concurrence. He joined the majority in full. So
Speaker 1: the majority opinion is a majority opinion of the Court,
Speaker 1: it is binding law. Justice Thomas wrote a concurrence in
Speaker 1: which he said he would go further and the Court
Speaker 1: should reconsider. He actually didn't say overrule. He said reconsider
Speaker 1: all of its substantive due process cases, basically. And he said,
Speaker 1: for a long time, substantive due process as gobbledygook, and
Speaker 1: we ought to reconsider it all. If you look at
Speaker 1: like he's referred to, let's say, the contraceptives law, so
Speaker 1: Griswold versus Connecticut was a Connecticut law that restricted the
Speaker 1: sale of contraceptives. Justice Thomas is referred to that as
Speaker 1: quote an uncommonly silly law. He's record saying this is
Speaker 1: a stupid law. I don't support this law, but he
Speaker 1: says the Constitution doesn't prohibit silly laws. It's up to
Speaker 1: the voters to get rid of that. I think that
Speaker 1: is a right and principled legal distinction. But I also
Speaker 1: think it speaks volumes that Justice Thomas's concurrence was alone,
Speaker 1: that the other justices have no interest in going down
Speaker 1: that road, and the number of times the majority opinion
Speaker 1: says no, no, no, no, no, And it's worth look.
Speaker 1: The distinction the majority opinion makes is abortion ends a
Speaker 1: human life. But there's another distinction, which is those opinions,
Speaker 1: unlike Row, Row, created enormous societal divisions, deep long felt
Speaker 1: people didn't listen to Casey's admonitions of just accept that
Speaker 1: you're wrong and put it behind you. Millions of people
Speaker 1: care passionately about this issue. None of these other issues
Speaker 1: have created that kind of long lasting, multidecorate decade division
Speaker 1: that there are not. There's a march for life every
Speaker 1: year in DC. There's not a march against condoms every year. Yeah,
Speaker 1: but like the rights at issue have not prompted the
Speaker 1: kind of massive societal disagreement the way that that that
Speaker 1: abortion uniquely has. And so points Some commentators will leap
Speaker 1: on Justice Thomas's concurrence, but I think the chances that
Speaker 1: the Court goes down that road are zero. And I
Speaker 1: think even Justice Thomas knows that he's arguing this would
Speaker 1: be the most principled way to interpret the Constitution. But
Speaker 1: I don't think even Justice Thomas thinks that other justices
Speaker 1: are going to agree with that, or that any of
Speaker 1: these decisions are going to be revisited. You know, it
Speaker 1: seemed clear to me reading his concurrence, which I thought
Speaker 1: was brilliant and marvelous. It seemed clear to me he's
Speaker 1: writing this for his principal stance and for law students.
Speaker 1: You know, this is not this is not to persuade
Speaker 1: people right now in this moment in American politics. Before
Speaker 1: we get to the mailbag, I do think we have
Speaker 1: to touch on the Kavanaugh concurrence and the Roberts concurrence.
Speaker 1: Roberts basically says, yes, I vote to uphold the pro
Speaker 1: life law, but command, guys, do we really have to
Speaker 1: deal with rowe? I really don't want to do this.
Speaker 1: Can't we do this at a later date? And then
Speaker 1: Kavanaugh's concurrence here doesn't seem all that different from the
Speaker 1: opinion of the Court, but he it seems almost as
Speaker 1: if that concurrence is taking aim at one of the
Speaker 1: amicus briefs that was submitted by the Oxford professor John
Speaker 1: Finnis and by your old professor, Senator Robbie George, which
Speaker 1: argued that the Supreme Court actually does not need to
Speaker 1: send the abortion question back to the legislatures. The Supreme
Speaker 1: Court can outlaw abortion based on the Fourteenth Amendment. Kavanaugh
Speaker 1: seems to just spend most of his concurrence rejecting that
Speaker 1: idea outright, although he doesn't call it out by name. Yeah, look,
Speaker 1: I think that's right. Let's start with the Roberts concurrence.
Speaker 1: So Chief Justice Roberts concurs in the judgment. Now, what
Speaker 1: is concurring in the judgment means it means he agrees
Speaker 1: with the outcome of the case. And the judgment of
Speaker 1: the case is whether the decision below is affirmed or reversed.
Speaker 1: And in this instance, the judgment was that the Mississippi
Speaker 1: law banning abortion after fifteen weeks is upheld. Roberts agrees
Speaker 1: with that. So he concurs in the judgment in the
Speaker 1: conclusion that that law is valid, but he did not
Speaker 1: join the majority opinion, and he doesn't agree with the
Speaker 1: majority opinion. And what he says is, we should just
Speaker 1: conclude that this law is okay. We should abandon Rowe
Speaker 1: versus Wade's viability standard, which in Casey they referred to
Speaker 1: as the core holding of Rowe. He said, we should
Speaker 1: abandoned the viability standard. I agree, that doesn't make any sense.
Speaker 1: They made that up. But we should have a new
Speaker 1: standard that says, does a woman have a reasonable chance
Speaker 1: to get an abortion? And if she has a reasonable chance,
Speaker 1: then it's okay. And you know, I gotta say the
Speaker 1: majority opinion in Dobbs. It's interesting. One of the things
Speaker 1: I'm very glad about. Much of the majority opinion is
Speaker 1: word for word identical to the leak draft. I'm really
Speaker 1: glad Justice Alito changed very little. I think it really
Speaker 1: is a statement from the Court that lawlessness, that leaking
Speaker 1: an opinion, that rioting that attempted murder is not going
Speaker 1: to change the operation of our judicial system. And virtually
Speaker 1: all of that leaked opinion is still in this draft.
Speaker 1: The main changes he did was responding to the other opinions.
Speaker 1: So there are passages that are responding to for example,
Speaker 1: Chief Justice Roberts, and I think Alito eviscerates. Roberts says, well, gosh,
Speaker 1: you say you want to do this for Starry decisis,
Speaker 1: but then you're overruling Row, the core holding of Row.
Speaker 1: How exactly is that a decision for starry deciss If
Speaker 1: you're overruling the core holding a Row and the test
Speaker 1: you're putting out a reasonable chance, He points out, none
Speaker 1: of the parties advocated for it, none of the Amiki
Speaker 1: advocated for it. Roberts is just making this up. And
Speaker 1: in fact, both sides in this litigation and said, no,
Speaker 1: you've either got to overturn row or uphold it entirely.
Speaker 1: Both of them agreed this is the whole enchilada. And
Speaker 1: he points out, you know, gosh, the Chief Justice has
Speaker 1: proposed standards, So how is a reasonable chance different from
Speaker 1: an undue burden or a due burden or an unreasonable
Speaker 1: stance And this is all just you're just making this
Speaker 1: crap up. Yeah, And I think Aldo does a very
Speaker 1: effective job. Robert's instincts are caution that he wants to
Speaker 1: proceed incrementally, and I think Aldo makes the case that
Speaker 1: this has been forty nine years is too long and
Speaker 1: the opinion is wrong. By the way, I do want
Speaker 1: to go back to something Aldo said. We were talking
Speaker 1: about different kinds of liberty, and like if you just said, well,
Speaker 1: you can say liberty means whatever you want it to mean.
Speaker 1: He has a quote that I've never heard before, but
Speaker 1: it's a very very good one. It's from Abraham Lincoln
Speaker 1: who says, we all declare for liberty, but in using
Speaker 1: the same word, we do not all mean the same thing.
Speaker 1: And he goes on to say, in a well known essay.
Speaker 1: Isaiah Berlin reported that quote historians of ideas, By the way,
Speaker 1: that sounds like a cool profession. Historians of ideas had
Speaker 1: cataloged more than two hundred senses in which the term
Speaker 1: had been used. The term liberty, So I just thought
Speaker 1: that those were very interesting points in Alito's majority opinion.
Speaker 1: I'm quite confident I can't come up with two hundred
Speaker 1: senses in which liberty has been used. But then again,
Speaker 1: I'm not an historian of ideas. I'm not so Look,
Speaker 1: I think Roberts's opinion was derived from political caution rather
Speaker 1: than legal fidelity to the Institution. I just don't understand
Speaker 1: the political caution. I agree with your assessment of his motivations.
Speaker 1: My only thought was, if he's seeking to preserve the
Speaker 1: integrity and credibility of the Supreme Court, wouldn't a six
Speaker 1: three ruling accomplish that much more likely than this sort
Speaker 1: of six three ruling on the case, but five to
Speaker 1: four on the over rule of Row and this gobbledegook
Speaker 1: concurrence that he presents that says it's going to get
Speaker 1: rid of this certain viability standard but doesn't really do
Speaker 1: for I mean to me, it just it seemed to
Speaker 1: have the opposite political effect of the one he might
Speaker 1: have intended. You know, I think that's right, and a
Speaker 1: couple of things. Number one, I do think it's worth
Speaker 1: pointing out that the opinion that came out yesterday is
Speaker 1: almost identical to the opinion you and I predicted the
Speaker 1: week after the oral argument. If you go back and
Speaker 1: listen to the Verdict podcast, we told Verdict listener, the
Speaker 1: decision will be six to three. Roberts will up will
Speaker 1: support upholding the Mississippi law, but not overturning Row. And
Speaker 1: we'll try very hard to get someone to join him,
Speaker 1: but five justices will stand together and overturn Row. And
Speaker 1: it's exactly what happened. I think this was evident at
Speaker 1: the time of the argument. I will say this, I
Speaker 1: was somewhat surprised after the league. I put the odds
Speaker 1: that maybe thirty to forty percent. This is just my
Speaker 1: own kind of internal odds making that Roberts would turn
Speaker 1: around and join the majority opinion, and it I could
Speaker 1: have seen. What's interesting is they don't refer to the league,
Speaker 1: which I was. I was quite curious if they were
Speaker 1: going to I could have seen Roberts joining the majority
Speaker 1: and writing an opinion something to the effect of I
Speaker 1: had concerns and would not go as far as this
Speaker 1: majority opinion did in this case. But given the historic
Speaker 1: and unprecedented leak designed to change the outcome, I believe
Speaker 1: the best way to protect the Court is to say
Speaker 1: our opinions will not change based on leaks. I could
Speaker 1: see him doing that. He didn't do that, but I
Speaker 1: thought there was some chance that he might have decided to,
Speaker 1: and ultimately he did. So that's the Roberts concurrence. Senator,
Speaker 1: what's your take on the Kavanaugh concurrence. Well, the Kavanaugh concurrence,
Speaker 1: Justice Kavanaugh joins the majority opinion in full, so he
Speaker 1: is supporting every word in the majority opinion, and that's
Speaker 1: what gives it the force of law. For it to
Speaker 1: be a majority opinion, five justices have to join it
Speaker 1: in full, and in fact, the way it becomes a
Speaker 1: majority opinion typically is the opinion will be circulated to
Speaker 1: the justices, and each justice that joins will say in writing,
Speaker 1: I join this opinion, and that is you are essentially
Speaker 1: adopting all of the words and the majority opinions saying
Speaker 1: those are my words too. So Alito's opinion. He is
Speaker 1: speaking for all five justices, and it is as if
Speaker 1: they have said exactly those words. Now Kavanaugh's concurrence, he's
Speaker 1: just speaking for himself, and he adds some additional thoughts.
Speaker 1: In particular, what he says he says on the question
Speaker 1: of abortion, the Constitution is therefore neither pro life nor
Speaker 1: pro choice. He is defending the proposition that we've explained
Speaker 1: on this podcast multiple times, which is the consequences of
Speaker 1: rob being overturned are not that abortion is suddenly illegal everywhere,
Speaker 1: but rather that it returns to elected legislatures to make
Speaker 1: the decisions, and different states will make different decisions. But
Speaker 1: as you note, he takes on an argument advanced by Amiki.
Speaker 1: In particular, he says, some amicust briefs argue that the
Speaker 1: Court today should not only over rule Row and return
Speaker 1: to a position of judicial neutrality on abortion, but should
Speaker 1: go further and hold the Constitution outlaws abortion throughout the
Speaker 1: United States. I respect those who advocate for that position,
Speaker 1: just as I respect those who argue this Court should
Speaker 1: hold that the Constitution legalizes pre viability abortion throughout the
Speaker 1: United States. But both positions are wrong as a constitutional matter.
Speaker 1: In my view. The Constitution neither outlaws abortion nor legalizes abortion.
Speaker 1: That point, I think is clearly where all nine justices are.
Speaker 1: One of the things Kavanaugh says, and he's right, no
Speaker 1: justice of this Court has ever advocated that position. So
Speaker 1: the idea that the Court should prohibit abortion nationally, there's
Speaker 1: never been a Supreme Court justice advocate that, and kavanon
Speaker 1: as now on record saying that would be wrong to
Speaker 1: do so. The legal argument, there's always been an interesting
Speaker 1: academic legal argument, and you mentioned the amicus brief from
Speaker 1: from my old professor, Robbie George. Robbie George amicus, Yes, yeah, indeed.
Speaker 1: And by the way, amicus is short for amicus curii,
Speaker 1: which is Latin for friend of the court. And so
Speaker 1: that amicus brief or amiki, if there are multiple of them,
Speaker 1: are filed to urge the court to give someone another perspective.
Speaker 1: So they are briefs that are separate from the parties,
Speaker 1: but lots of amiki will file briefs, typically in Supreme
Speaker 1: Court cases. Robbie George was my thesis advisor at Princeton.
Speaker 1: He's a brilliant sky he is a brilliant lawyer. And
Speaker 1: the argument we talked about before the Fourteenth Amendment protects
Speaker 1: says no States shall deprive any person of life, liberty,
Speaker 1: or property without due process of law. The argument is
Speaker 1: pretty straightforward that for an unborn child who is being aborted,
Speaker 1: you are being denied life. Your life is taken away
Speaker 1: from you, and there is no due process of law.
Speaker 1: You don't have the ability to challenge that in court,
Speaker 1: you don't have the ability, you don't have notice, you
Speaker 1: don't have an opportunity to be heard. There's a Supreme
Speaker 1: Court decision called Caroline Products, and footnote four of it
Speaker 1: described the equal Protection clause protects what it called discreet
Speaker 1: and insular minorities. In other words, if you're small and
Speaker 1: limited and politically powerless, unable to defend yourself, then equal
Speaker 1: protection protects you from the majority. And the argument goes,
Speaker 1: it is difficult to think of a more discreet and
Speaker 1: insular minority than unborn children, who by definition are not
Speaker 1: able to speak out and defend themselves, don't have a voice,
Speaker 1: don't have an ability to engage in the political process,
Speaker 1: or an ability to engage in the legal process. That's
Speaker 1: the argument. I think Justice Kavanaugh is right that there
Speaker 1: is not a single justice who has ever suggested the
Speaker 1: Court should adopt it. And I will say, if the
Speaker 1: Court were to issue such a ruling, just as Justice
Speaker 1: Alito walked through the over two centuries of our nation's history,
Speaker 1: at no point has any justice ever intimated such a right,
Speaker 1: At no point as the Court ever issued such a ruling.
Speaker 1: A ruling like that would be a dramatic break from
Speaker 1: our constitutional history. And I think that's one of the
Speaker 1: reasons why why Kavanaugh says what he does. So I
Speaker 1: have an aw concurrence as putting the legal academic debate aside,
Speaker 1: He's just also making a sort of historical point, which is,
Speaker 1: if you look throughout our tradition, it's not there. And
Speaker 1: so I just want to be crystal clear I'm not
Speaker 1: I'm not with Robbie George and John Finnis. Before before
Speaker 1: we get to the mail back too, I suppose we
Speaker 1: have to touch on the liberals in the Descent. I
Speaker 1: am not a lawyer. I did not go to Harvard
Speaker 1: Law School, and yet when I read the Descent, I
Speaker 1: was not impressed. What little I can make sense of,
Speaker 1: you know, in these legal arguments, I just thought they
Speaker 1: weren't really making a whole whole lot of constitutional or
Speaker 1: legal arguments, and am I being too harsh? You're not.
Speaker 1: And I think the majority opinion eviscerates the descent, I mean,
Speaker 1: just just shreds it. The Descent doesn't try to defend
Speaker 1: row Row on its own is indefensible. I mean, the reasoning,
Speaker 1: there's nobody that defends row Um, the reasoning of it,
Speaker 1: and the defect. The Descent doesn't even really try to
Speaker 1: defend casey other than to say, start decisis, start decisis,
Speaker 1: star descisis that that you can overturn it. You know.
Speaker 1: The majority opinion explicitly addresses uh, star decisis and points
Speaker 1: out that, yes, star descisis is very important. But the
Speaker 1: Court has many, many times overturned precedent and and and
Speaker 1: there's a two page footnote outlining the many landmark cases
Speaker 1: that were overturning precedents and and many, if not most,
Speaker 1: of the biggest cases of the Supreme Court are cases
Speaker 1: that are overturning precedent. And what the majority says is,
Speaker 1: on many other occasions, this Court has overruled important constitutional decisions.
Speaker 1: And they have the two page footnote, and then they
Speaker 1: say something that is really powerful. They say, without these
Speaker 1: decisions overruling precedent American constitutional law as we know it
Speaker 1: would be unrecognizable and this would be a different country.
Speaker 1: I think the Majority does a tremendous job of refuting
Speaker 1: the Descent and in particular taking its task for You
Speaker 1: don't defend Roe. You can't point to any constitutional provision
Speaker 1: this comes from. You can't point to any laws before
Speaker 1: the late twentieth century that reflected what you said. You
Speaker 1: can't point to any Supreme Court decisions, you can't point
Speaker 1: to any judicial decisions. I mean, it just systematically goes
Speaker 1: through and the Descent has no response to that. The
Speaker 1: Descent can't say anything other than other than they do
Speaker 1: what we talked about a few minutes ago. They say, well, gosh,
Speaker 1: this is gonna undermine contraception, and the Majority says, no, no, no,
Speaker 1: it's not. But the Descent can't defend the position on
Speaker 1: the merits, so they've got to find other issues to
Speaker 1: press instead. There's one mail bad question that came in
Speaker 1: thought offered a really interesting perspective, and this is kind
Speaker 1: of zooming out now from the nitty gritty of the
Speaker 1: opinion itself. Questions from Laurel, who asks, do you think
Speaker 1: the language shift from safe, legal and rare to shout
Speaker 1: your abortion helped people really wake up and fight against
Speaker 1: abortion or do you think the left started to shift
Speaker 1: their narrative once they saw the hostility toward abortion start
Speaker 1: to become more vocal. I think the cause of the
Speaker 1: shift of the language is the Democratic Party became radicalized
Speaker 1: on it that in many ways, today's Democratic Party, on
Speaker 1: issue after issue, is captured by their extremes. I do
Speaker 1: think some of that language probably helped move public opinion.
Speaker 1: You know, some of the most interesting polling we see
Speaker 1: is that young people are getting consistently more pro life,
Speaker 1: and that's different from historically. Look, you think historically young
Speaker 1: people usually you think of as big being more liberal
Speaker 1: on issues. That that that that you know, those crazy
Speaker 1: youth that's like that. And by the way, our parents
Speaker 1: said that, and their parents said that, like that's that
Speaker 1: this is we're dealing with millennia of human development. That
Speaker 1: that that young people often are more liberal in one
Speaker 1: sense or the other. But it is mark, It is
Speaker 1: really striking that that younger voters today are significantly more
Speaker 1: more pro life than than than my generation, then than
Speaker 1: jen x Um. And I think the extremes of the
Speaker 1: Democratic party has certainly played a part. I also think
Speaker 1: the advance of scientific knowledge has played a part. Uh
Speaker 1: seeing a sonogram, Uh, that plays a part. I think.
Speaker 1: I think the pro life community and the pro life
Speaker 1: movement was very smart and savvy in in waging a
Speaker 1: political campaign against extremes. And for example, I think focusing
Speaker 1: on partial birth abortion was a smart decision because the
Speaker 1: act was so gruesome that people who were not really
Speaker 1: closely engaged with the issue not paying attention when they
Speaker 1: confronted how gruesome it was. I think that helped change
Speaker 1: people's minds. No, I totally agree with what you've said,
Speaker 1: and in particular on the advance of modern medical science.
Speaker 1: And I think it applies to the language too, which
Speaker 1: is that ideas have a habit of coming to their
Speaker 1: logical conclusions. Knowledge has a habit of this, and so
Speaker 1: when we're talking about the language of safe, legal and rare,
Speaker 1: it never made a lot of sense. If the baby
Speaker 1: is a baby, then it shouldn't be legal, and if
Speaker 1: the baby is not a baby, then there's no reason
Speaker 1: why it should be rare, and so there was always
Speaker 1: an unstable slogan that collapsed into I think it's logical
Speaker 1: conclusion which is abortion on demand without apology. And it's
Speaker 1: the same with the advance of science babies and on pregnancy.
Speaker 1: The more that we know about this thing, the more
Speaker 1: people can see it, as you describe, Senator, the more
Speaker 1: we see, oh yeah, it's it's a baby, and you
Speaker 1: don't need to have your nose in the philosophy books
Speaker 1: or the bioethics books to realize that it's a baby
Speaker 1: and that there's just something wrong about killing that baby.
Speaker 1: And so, you know, part of it was this natural
Speaker 1: progression of these ideas. And then of course that comes
Speaker 1: with the courage of these justices on the court. Courage
Speaker 1: is a virtue, it's the prerequisite of all of the
Speaker 1: other virtues, and they exhibited that. And now we're we're
Speaker 1: experiencing this truly historic moment, so historic, of course, that
Speaker 1: we can't leave it. We've we've run late here as
Speaker 1: usual on the show. But there's so much more to say,
Speaker 1: which is why people ought to go check out the
Speaker 1: cloak Room with our friend Liz Wheeler. Liz, what are
Speaker 1: you going to talk about? Hi, Michael High, Senator, I
Speaker 1: really enjoyed this was such a phenomenal episode. Listening to
Speaker 1: the words of the majority opinion, and particularly actually the
Speaker 1: concurrence Thomas's opinion. It's like listening to classical music. It's
Speaker 1: what's good and what's true, and what's beautiful, and what's logical,
Speaker 1: and it's phenomenal. There is a really interesting aspect of this, though.
Speaker 1: There have been very few people who have praised Robert's
Speaker 1: concurrence or Robert's writing where he upholds the finding but
Speaker 1: not doesn't want to overturn review it. There is one person, though,
Speaker 1: Alan Dershowitz, Harvard law professor Alan Dershowitz, says that Roberts
Speaker 1: is right on this and actually slams the rest of
Speaker 1: the courts, saying that they engaged in judicial activism. I do,
Speaker 1: and I think it should never be done under any circumstances.
Speaker 1: But I do think the Supreme Court should never have
Speaker 1: had to reach beyond the fifteen weeks. That's what was
Speaker 1: before the Supreme Court, and everybody on this show seems
Speaker 1: to think that fifteen weeks is reasonable. Senator Rubio thinks
Speaker 1: fifteen weeks. The Europeans think fifteen weeks. Why did the
Speaker 1: Supreme Court have to jump into this and say we're
Speaker 1: not going to decide the case be for us, we're
Speaker 1: gonna ban, We're gonna ban ro versus Wade overrule it
Speaker 1: and allow states, allow states to be sure, allow states
Speaker 1: to abolish abortion completely. That was judicial activism overreaching. And Sean,
Speaker 1: you oppose judicial activism, you should join me and agree
Speaker 1: with Justice Roberts that judicial activism was at play here
Speaker 1: and it was unnecessary. I would take issue with you,
Speaker 1: sippy case. Okay, So the question is was this judicial activism?
Speaker 1: Did the justices abandoned judicial restraint? Or is Roberts as
Speaker 1: nutty as we all think? Is That's what we're going
Speaker 1: to talk about on Cloakroom. You can join us at
Speaker 1: Verdict with Ted Cruise dot com slash Plus. If you
Speaker 1: use my promo code, which is obviously Cloakroom, you can
Speaker 1: get your first month free on your annual subscription. That
Speaker 1: is Verdict with Ted Cruise dot Com slash plus promo
Speaker 1: code Cloakroom. Leave it to Alan Dershowitz to have the
Speaker 1: single least popular opinion on this ruling. It sounds very interesting, though.
Speaker 1: I look forward to ring the episode. You know, we
Speaker 1: had already taped an episode on another wonderful ruling from
Speaker 1: this Supreme Court term. We had already pre taped that
Speaker 1: the night before this ruling came out, so that that
Speaker 1: episode is going to be released this coming week, just
Speaker 1: more to celebrate, and so I will be sitting back
Speaker 1: listening to this wonderful discussion that will follow this episode,
Speaker 1: probably with a cigar and maybe a drink to real
Speaker 1: a toast and celebrate this historic and wonderful turn of events.
Speaker 1: I'm Michael Knowles. This is Verdict with Ted Cruz. This
Speaker 1: episode of Verdict with Ted Cruz is being brought to
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Speaker 1: and helped the Republican Party across the nation