Speaker 1: You're listening to a special interview of The Cloakroom, a
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Speaker 1: Com slash Plus. All right, welcome back everyone. I'm Liz Wheeler.
Speaker 1: This is the Cloak Room on Verdict Plus. I'm sitting
Speaker 1: here with Senator Ted Cruz and this is such an amazing,
Speaker 1: insane time to be alive in our country. Rovie Wade
Speaker 1: has just been overturned by the Supreme Court. And I
Speaker 1: don't know about you, Senator, but when I saw this news,
Speaker 1: I was I was obviously following the Supreme Court issuing
Speaker 1: their opinions. And I'm on the West coast right now.
Speaker 1: I'm out in Santa Barbara, California. So it was early
Speaker 1: in the morning. It was just after seven am, and
Speaker 1: I start frantically texting our producers. Are you awake? Are
Speaker 1: you asleep? Do you see what's happening? This is absolutely bananas.
Speaker 1: I don't think we're going to forget that moment. Yeah, no,
Speaker 1: it was. It was extraordinary. Um. I was in DC
Speaker 1: at the time. I had the night before, we had
Speaker 1: been late on the Senate floor battling over gun control. Uh.
Speaker 1: And then after that I had gone and filmed a verdict.
Speaker 1: So so we had Thursday night. We we did a
Speaker 1: verdict at twelve thirty at night, and so we finished
Speaker 1: at h I think I got home about two in
Speaker 1: the morning. Uh. And so Friday morning, I was still
Speaker 1: in DC. I was in my apartment and saw the
Speaker 1: opinion came down, and shortly thereafter I had a flight
Speaker 1: to Milwaukee. I'm in Milwaukee right now at a political
Speaker 1: conference to energize and mobilize grassroots activists here in Wisconsin.
Speaker 1: But my flight wasn't until late afternoon. So I actually
Speaker 1: played basketball for two hours, uh, Friday morning with several
Speaker 1: guys on my staff, and we we did played three
Speaker 1: on three and four on four for a couple hours
Speaker 1: and then uh, and then I up from the shower
Speaker 1: and wet and did a Fox hitt talking about the
Speaker 1: DABS ruling, and then jumped on a plane and flew
Speaker 1: to Milwaukee. It's first basketball game in a post row America.
Speaker 1: But you never thought that would happen. There you go.
Speaker 1: And in fact, on the plane I had with me
Speaker 1: this binder with the full text of all of DABS,
Speaker 1: and so I spent the entire flight just reading carefully
Speaker 1: word for word the opinion and DABS, which was which
Speaker 1: was pretty cool too to go through it and to
Speaker 1: try to although I will say a three wing binder
Speaker 1: on Southwest Airlines with a guy in the middle seat
Speaker 1: next to you is a little hard to like not
Speaker 1: jab him in the leg with, so you try to
Speaker 1: somehow managed to hold it and your diet coke call
Speaker 1: at the same time. It wasn't easy. That's when your
Speaker 1: Senate negotiation skills come in. You say, I get I'll
Speaker 1: give you the arm rest if you don't mind that
Speaker 1: my binder is going to be blacking you the whole time.
Speaker 1: I want to talk about what the most unpopular part
Speaker 1: of this opinion. I read all two hundred and thirteen pages.
Speaker 1: I think it was of the ruling as well. It's
Speaker 1: it's beautifully written. Not the Descent the Mage already opinions
Speaker 1: beautifully written. But I want to talk about Roberts. Robert's
Speaker 1: ruling for a second. He voted to uphold the Mississippi
Speaker 1: law which bands abortion at fifteen weeks. He voted not
Speaker 1: to overturn Rove Wade. His reasoning is absurd, It's ridiculous.
Speaker 1: You and Michael talked about that in depth on Verdict.
Speaker 1: I highly recommend if anybody hasn't watched that, it's a
Speaker 1: really good episode that you guys just filmed. It hasn't
Speaker 1: aired yet, but I said here and watched the whole
Speaker 1: thing behind the scenes. But Alan Dershowitz, Harvard law professor,
Speaker 1: went on Fox News and on Newsmax last night and
Speaker 1: said that Roberts was correct. Now, Dershowitz is the only
Speaker 1: person that I've heard in the entire country who says
Speaker 1: that Roberts is correct. But his reasoning is kind of
Speaker 1: legalistic and something that I want us to dig into.
Speaker 1: I do, and I think it should never be done
Speaker 1: under any circumstances. But I do think the Supreme Court
Speaker 1: should never have had to reach beyond the fifteen weeks.
Speaker 1: That's what was before the Subreme Court, and everybody on
Speaker 1: this show seems to think that fifteen weeks is reasonable.
Speaker 1: Senator Ruby thinks fifteen weeks. The Europeans think fifteen weeks.
Speaker 1: Why did the Supreme Court have to jump into this
Speaker 1: and say, we're not going to decide the case before us,
Speaker 1: We're gonna ban. We're gonna ban ROVERSUS way to overrule
Speaker 1: it and allow states, allow states to be sure, allow
Speaker 1: states to abolish abortion completely. That was judicial activism, overreaching,
Speaker 1: and seoan you oppose judicial activism, you should join me
Speaker 1: and agree with Justice Roberts that judicial activism was at
Speaker 1: play here and it was unnecessary. I would take issue
Speaker 1: with Sippi case. So, Liz, it may surprise you. I
Speaker 1: actually don't think either Roberts or Dershowitz are crazy and
Speaker 1: what they're saying, and I think they have a reasonable
Speaker 1: basis for what they're saying. I don't agree with it,
Speaker 1: but it's not It's not a shocking thing for them
Speaker 1: to be advocating for. And the reason I say that,
Speaker 1: I mean, let's look at Roberts's re Robert's approaches cases,
Speaker 1: and he's an incrementalist, and there is a principle of
Speaker 1: judicial restraint which is that the court should not decide
Speaker 1: any more than is necessary to resolve the issue before
Speaker 1: it in the case that is being litigated. That is
Speaker 1: a sound principle of judicial restraint and it is a
Speaker 1: right way to approach most issues. That's what Dershawitz is
Speaker 1: focusing on there as well. Now, what I especially don't
Speaker 1: agree with is Dershawitz saying this is judicial activism. I
Speaker 1: think that is that's being provocative. And as you know,
Speaker 1: I know Dershawitz very well. He was my criminal law
Speaker 1: professor and he's a friend. I think he's being deliberately
Speaker 1: provocative with that. I don't think he's right. But the
Speaker 1: instinct of don't do more than is necessary is a
Speaker 1: sound judicial instinct. So why do I think it wasn't
Speaker 1: right here? Well, I would commend people to read the
Speaker 1: majority opinion, where on pages seventy two and the next
Speaker 1: several pages of the opinion, the majority opinion squarely addresses
Speaker 1: what Chief Justice Roberts advocated for, which was uphold the
Speaker 1: Mississippi Statute but don't overturn rug And I think the
Speaker 1: majority opinion dismantles the argument as a legal matter. What
Speaker 1: does the majority point out? It points out Number one,
Speaker 1: Roberts doesn't attempt to defend rose reasoning nobody does. Number
Speaker 1: two Roberts doesn't even pretend to defend Casey's reason. Instead,
Speaker 1: he grounds his argument on starry decisis, which Casey did
Speaker 1: as well. But starry decisis means not overturning decisions, and
Speaker 1: what Roberts advocates would overrule much of RUG. So what
Speaker 1: he says is well, Okay, Row prohibited restrictions on abortion
Speaker 1: before viability. He said, we should get rid of the
Speaker 1: viability requirement, but we should. Here's what the majority. How
Speaker 1: the majority puts it. The Concurrence would leave for another
Speaker 1: day whether to reject any right to an abortion at all,
Speaker 1: and would hold only that if the Constitution protects any
Speaker 1: such right, the right ends once women have had a
Speaker 1: quote reasonable opportunity to obtain an abortion. The Concurrence does
Speaker 1: not specify what period of time is sufficient to provide
Speaker 1: such an opportunity, but it would hold that fifteen weeks,
Speaker 1: the period allowed under Mississippi's law, is enough at least
Speaker 1: quote absent rare circumstances. So Roberts is proposing overrule a
Speaker 1: big chunk of Row, but create this new reasonable opportunity rule, which, notably,
Speaker 1: he doesn't find anywhere in the Constitution, he doesn't find
Speaker 1: anywhere in the Supreme Courts precedence, he doesn't find anywhere
Speaker 1: in anything resembling law. He just makes it up, says, well, gosh,
Speaker 1: if we make up this rule, then we don't have
Speaker 1: to over rule Row. That isn't that being a legislator? Though, yes,
Speaker 1: that's exactly what and it's what Row did. He's got
Speaker 1: a new standard. He thinks he's smarter than Harry Blackman.
Speaker 1: He is unquestionably smarter than Harry Blackman, and so he
Speaker 1: likes he likes his standard, and his standard, this reasonable
Speaker 1: opportunity standard. But it is not you know. The majority
Speaker 1: opinion points out the rule that Roberts is advocating. The
Speaker 1: Concurrence would do exactly what it criticizes Row for doing,
Speaker 1: pulling quote out of thin air a test that quote
Speaker 1: no party or amicus asked the court to adopt. So
Speaker 1: neither of the parties in this case asked for that.
Speaker 1: None of the amiki, I think there were one hundred
Speaker 1: and thirty amiki, none of them put forward this theory.
Speaker 1: But look, John Roberts is a very smart man. He
Speaker 1: came up with his own theory. It's like, well, let's
Speaker 1: go with this one instead. And it's based on the
Speaker 1: idea that they don't have to do anything that will
Speaker 1: be seen as politically as traumatic as overturning Row. But
Speaker 1: Roberts is advocating overturning what the court and Casey called
Speaker 1: the central holding of Row, which is the viability standard.
Speaker 1: And Roberts wants to get rid of the central holding. Well,
Speaker 1: if you're getting rid of the central holding of a case,
Speaker 1: you're overturning the case. Like his proposed minimalism isn't very minimal,
Speaker 1: and it would create a whole new host of problems
Speaker 1: that are likewise not found in the law or the constitution.
Speaker 1: This is why Liz what Dershowitz says is wrong. He
Speaker 1: calls it activism. Activism is a court imposing its own
Speaker 1: policy preferences and not following the law. Let me ask
Speaker 1: you about the leaker. Though this has gone out of
Speaker 1: the news very quickly, the left was not interested in
Speaker 1: discussing the identity of who this person that publicized gave
Speaker 1: to the media the draft majority opinion, which by the way,
Speaker 1: is very very similar to Aldo's final draft of his
Speaker 1: majority opinion, which I was glad to see that they
Speaker 1: weren't bullied into into changing any of their verbiage, any
Speaker 1: of their language, any of their arguments based on this.
Speaker 1: What do you think the proper course of action is
Speaker 1: now regarding this leaker? Should we continue to investigate? Should
Speaker 1: the name be revealed publicly? Should they be should this
Speaker 1: person be prosecuted? And will they yes? Yes, yes, And
Speaker 1: I don't know. Look, the investigation should continue. Roberts has
Speaker 1: announced that the Court has launched an investigation. The Marshall's
Speaker 1: Office is leading the investigation. I think it's critical that
Speaker 1: we fight out who the leaker is. I think their
Speaker 1: name needs to be made public. I think they need
Speaker 1: to be criminally prosecuted to the maximum extent possible. Will
Speaker 1: it happen? I don't know. The Marshall's Office, generally speaking,
Speaker 1: doesn't have a whole lot of experience investigating crime. That's
Speaker 1: not there. Their principal focus is protecting the court, which
Speaker 1: is a different It is a law enforcement function, but
Speaker 1: it is not It is not typically investigatory, So I
Speaker 1: don't know how effective the Marshall's Office will be at
Speaker 1: the investigation. I also don't know there's been no public
Speaker 1: reports about how much the law clerks are cooperating. So
Speaker 1: for example, it's been reported that the clerks were at
Speaker 1: We're asked to sign a statement, presumably saying they did
Speaker 1: not hand the opinion over to anyone. I don't know
Speaker 1: if they're clerks who refused to side it don't. I
Speaker 1: don't know that, and nobody knows outside the court what
Speaker 1: has happened. But I think it is critical both for
Speaker 1: the long term integrity of the court and for the
Speaker 1: rule of law, that we find and prosecute the leaker.
Speaker 1: I hope that happens. On the question of prosecution, it
Speaker 1: will depend on Merritt Garland's Justice Department, And unfortunately, this
Speaker 1: Justice Department has been so political that I could easily
Speaker 1: see the Department of Justice refusing to prosecute it. I
Speaker 1: hope they don't, but I think that's a risk. Step
Speaker 1: number one is find the leaker, and then step number
Speaker 1: two should be ensuring that there are real and meaningful
Speaker 1: consequences for the gross violation of duty to the court
Speaker 1: and to the rule of law. All right, verdic Clause
Speaker 1: members wigh in post below. Do you think that we're
Speaker 1: gonna find out who the leaker is the identity of
Speaker 1: this person and if so, do you think that they
Speaker 1: will be prosecuted? Do you think Mary Garland will do
Speaker 1: anything or not, and if so, what do you think
Speaker 1: the charges will be or should be? Comment below way,
Speaker 1: and I'm really interested in everybody's opinion. Also, a little
Speaker 1: behind the scenes going on here. The Senator is at
Speaker 1: an activism conference in Wisconsin right now and his staff
Speaker 1: is about to pull him up out of the chair
Speaker 1: because we've run so late talking about this topic. So Senator,
Speaker 1: I'm going to let you go. Thank you everyone for watching.
Speaker 1: This was a really great discussion. I'm Liz Wheeler. This
Speaker 1: is the Cloakroom on Verdict Plus