1
00:00:03,160 --> 00:00:11,960
Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

2
00:00:11,200 --> 00:00:18,439
Speaker 1: My Joy, My Joy, My joys. The leak of the

3
00:00:18,520 --> 00:00:22,439
Speaker 1: explosive draft of a Supreme Court opinion striking down the

4
00:00:22,560 --> 00:00:26,319
Speaker 1: landmark ruling of Roevie Wade sent shock waves across the

5
00:00:26,400 --> 00:00:30,320
Speaker 1: country on Monday night, igniting protests at the Court within

6
00:00:30,400 --> 00:00:34,839
Speaker 1: hours and across the nation since then Vice President Kamala

7
00:00:34,920 --> 00:00:38,720
Speaker 1: Harris denounced the decision to take away the constitutional right

8
00:00:38,800 --> 00:00:42,920
Speaker 1: of women to abortion, established for nearly half a century.

9
00:00:43,240 --> 00:00:45,559
Speaker 1: How dare they tell a woman what she can do

10
00:00:45,640 --> 00:00:49,960
Speaker 1: and cannot do with her own body? How dare they?

11
00:00:51,800 --> 00:00:55,000
Speaker 1: How dare they try to stop her from determining her

12
00:00:55,040 --> 00:01:00,600
Speaker 1: own future? How dare they? While abortion rights advocates are

13
00:01:00,640 --> 00:01:03,880
Speaker 1: planning how to fight back against the decision, which has

14
00:01:03,920 --> 00:01:06,920
Speaker 1: been called the most damaging setback to the rights of

15
00:01:06,959 --> 00:01:10,960
Speaker 1: women in our history, and politicians are considering how it

16
00:01:10,959 --> 00:01:14,120
Speaker 1: will affect the mid terms, where control of the narrowly

17
00:01:14,200 --> 00:01:18,360
Speaker 1: divided House and Senator up for grabs, legal experts are

18
00:01:18,480 --> 00:01:23,280
Speaker 1: speculating how the unprecedented leak at a court normally shrouded

19
00:01:23,319 --> 00:01:28,240
Speaker 1: in secrecy will further decimate trust among the justices joining

20
00:01:28,280 --> 00:01:31,039
Speaker 1: me is Stephen Vladick, a professor at the University of

21
00:01:31,120 --> 00:01:34,920
Speaker 1: Texas Law School. There have been leaks before in the

22
00:01:34,959 --> 00:01:38,880
Speaker 1: modern history of the Supreme Court, leaks about internal deliberations,

23
00:01:38,880 --> 00:01:42,319
Speaker 1: even leaks of the results of row hours before it

24
00:01:42,400 --> 00:01:45,760
Speaker 1: was issued, but nothing like this, uh, leak of a

25
00:01:45,880 --> 00:01:49,160
Speaker 1: draft months before the ruling will be issued. What does

26
00:01:49,240 --> 00:01:53,480
Speaker 1: this say about this court at this time? Well, I mean,

27
00:01:53,520 --> 00:01:55,920
Speaker 1: I think the leak is only sort of part of

28
00:01:55,960 --> 00:01:59,360
Speaker 1: the story compared to what the leak actually portend. But June,

29
00:01:59,400 --> 00:02:02,680
Speaker 1: I think it's as something pretty dramatic about whoever the

30
00:02:02,760 --> 00:02:06,400
Speaker 1: leaker is, their perception of the Court's role, and about

31
00:02:06,440 --> 00:02:08,800
Speaker 1: the politicization of the court. I mean, whether the league

32
00:02:09,000 --> 00:02:12,440
Speaker 1: came from the Court's left side or right side. Either way,

33
00:02:12,760 --> 00:02:15,880
Speaker 1: it's a pretty stunning development to have a draft majority

34
00:02:15,919 --> 00:02:19,720
Speaker 1: opinion like this out in public, presumably to either galvanized

35
00:02:19,800 --> 00:02:22,840
Speaker 1: public opposition or to lock in votes. And so I

36
00:02:22,840 --> 00:02:25,400
Speaker 1: think to me, what is though telling about the leak

37
00:02:25,800 --> 00:02:27,640
Speaker 1: is that we've come to a point in the Court's

38
00:02:27,680 --> 00:02:29,639
Speaker 1: history at where it could even happen at all, and

39
00:02:29,680 --> 00:02:31,560
Speaker 1: where we could get to a place where a decision

40
00:02:31,960 --> 00:02:35,280
Speaker 1: this monumental in this momentous is being leased out for

41
00:02:35,320 --> 00:02:38,680
Speaker 1: one reason or another in ways that are completely and

42
00:02:38,800 --> 00:02:43,800
Speaker 1: unastailably political. Do you think that this is rattling the justices? Well,

43
00:02:43,840 --> 00:02:45,919
Speaker 1: I mean, I can't speak to sort of how they're

44
00:02:45,919 --> 00:02:48,800
Speaker 1: reacting other than the note that we know. For example,

45
00:02:48,880 --> 00:02:51,440
Speaker 1: Justice the Leado was supposed to speak on Friday at

46
00:02:51,440 --> 00:02:54,640
Speaker 1: the Fifth Circuit Judicial Conference that he's canceled that appearance

47
00:02:54,680 --> 00:02:57,000
Speaker 1: only since the league happened. You know, we have this

48
00:02:57,080 --> 00:02:59,840
Speaker 1: remarkable statement from the Court and that came out on Tuesday,

49
00:03:00,080 --> 00:03:02,800
Speaker 1: including the statement from Chief as Roberts himself. So I

50
00:03:02,880 --> 00:03:05,800
Speaker 1: don't doubt that the leak has rattled at least some

51
00:03:05,919 --> 00:03:07,880
Speaker 1: within the court. But again, I also think it's worth

52
00:03:07,919 --> 00:03:10,360
Speaker 1: keeping Sims in perspective. I mean, the leak is only

53
00:03:10,480 --> 00:03:12,840
Speaker 1: part of the story here, part of why such a

54
00:03:12,880 --> 00:03:15,000
Speaker 1: big deals because what's in the league. You know, if

55
00:03:15,000 --> 00:03:17,000
Speaker 1: what has lead doubt June were a draft majority of

56
00:03:17,080 --> 00:03:20,120
Speaker 1: the bankruptcy case, I don't think we'd be having this conversation.

57
00:03:20,680 --> 00:03:24,160
Speaker 1: So true, the Chief Justice said that statement he issued

58
00:03:24,280 --> 00:03:26,800
Speaker 1: the work of the Court will not be affected in

59
00:03:26,919 --> 00:03:31,720
Speaker 1: any way. Is that too optimistic? Yes, I mean, I

60
00:03:31,760 --> 00:03:34,560
Speaker 1: think it's what he has to say, but I think everyone,

61
00:03:35,040 --> 00:03:38,080
Speaker 1: the Chief Justice first of all, knows exactly how untrue

62
00:03:38,160 --> 00:03:41,040
Speaker 1: that is. You know. I think it's impossible to imagine

63
00:03:41,240 --> 00:03:44,240
Speaker 1: this having no impact either in how the Court resolves

64
00:03:44,280 --> 00:03:47,600
Speaker 1: this case specifically dobbed, or in the courts business going forward.

65
00:03:47,600 --> 00:03:50,800
Speaker 1: And I think we are certain to, if not publicly see,

66
00:03:50,840 --> 00:03:53,320
Speaker 1: at least come to be aware of changes behind the

67
00:03:53,320 --> 00:03:57,040
Speaker 1: scenes and how the Court handles draft distributions, in whether

68
00:03:57,080 --> 00:03:59,760
Speaker 1: the Court tries to actually formalize some kind of co

69
00:04:00,000 --> 00:04:02,560
Speaker 1: with of secrecy, and whether the Court tries to actually

70
00:04:02,560 --> 00:04:05,960
Speaker 1: create some kind of formal investigative mechanisms. So I think

71
00:04:06,040 --> 00:04:09,640
Speaker 1: things are going to be irrevocably changed by this leak.

72
00:04:10,000 --> 00:04:11,480
Speaker 1: Whether that's a good thing or a bad thing, I

73
00:04:11,480 --> 00:04:13,720
Speaker 1: think for me is to be seen. The Marshal of

74
00:04:13,760 --> 00:04:17,039
Speaker 1: the Supreme Court is investigating the leak. I just wonder

75
00:04:17,160 --> 00:04:21,159
Speaker 1: whether the leaker will be found. Chief Justice Warren Burger

76
00:04:21,200 --> 00:04:24,679
Speaker 1: threatened to call the FBI to administer lie detector tests

77
00:04:24,680 --> 00:04:27,839
Speaker 1: with the leak of Row. Will it be really difficult

78
00:04:27,920 --> 00:04:30,640
Speaker 1: to find out perhaps impossible to find out who leaked

79
00:04:31,000 --> 00:04:33,159
Speaker 1: I took? It depends, you know, if it was a

80
00:04:33,320 --> 00:04:36,200
Speaker 1: current law clerk and if they weren't very clever about

81
00:04:36,240 --> 00:04:38,719
Speaker 1: covering their tracks, they might actually be pretty easy to

82
00:04:38,800 --> 00:04:41,080
Speaker 1: figure it out. But if it was either someone who's

83
00:04:41,160 --> 00:04:43,760
Speaker 1: not currently in the building, or if it was someone

84
00:04:43,800 --> 00:04:47,240
Speaker 1: who worked really hard to obscure their identity, I think

85
00:04:47,320 --> 00:04:49,800
Speaker 1: it gets much harder, and so everyone has their own

86
00:04:50,040 --> 00:04:52,440
Speaker 1: theory about who the leaker is. I think it's also

87
00:04:52,480 --> 00:04:54,960
Speaker 1: possible that we the public will never find out, even

88
00:04:55,000 --> 00:04:57,960
Speaker 1: if the Supreme Court does, because imagine a scenario where

89
00:04:57,960 --> 00:05:00,080
Speaker 1: it turns out that the leaker is, you know, of

90
00:05:00,160 --> 00:05:02,560
Speaker 1: the justices, or someone very close to one of the

91
00:05:02,600 --> 00:05:04,400
Speaker 1: justices and not a law clerk. You know, I could

92
00:05:04,440 --> 00:05:07,120
Speaker 1: see reasons why if I'm John Roberts, I don't want

93
00:05:07,160 --> 00:05:10,520
Speaker 1: that becoming public. So I think we will probably hear

94
00:05:10,680 --> 00:05:13,440
Speaker 1: something about the leak investigation, but whether we'll ever find

95
00:05:13,480 --> 00:05:16,599
Speaker 1: out publicly who leaked the opinion and why, I think

96
00:05:16,640 --> 00:05:18,719
Speaker 1: remains to be seen. I mean, even some of the

97
00:05:18,760 --> 00:05:21,279
Speaker 1: most famous leaks in Supreme Court history I think have

98
00:05:21,360 --> 00:05:24,880
Speaker 1: never been publicly identified, including the leak of the Resultant Row.

99
00:05:25,160 --> 00:05:29,080
Speaker 1: Senate Minority Leader Mitch McConnell is one of the Republicans

100
00:05:29,480 --> 00:05:34,200
Speaker 1: calling for the Justice Department to investigate and prosecute the leaker,

101
00:05:34,880 --> 00:05:40,200
Speaker 1: but what would they be prosecuted for? Wishful thinking? Uh? Leakend,

102
00:05:40,520 --> 00:05:43,080
Speaker 1: as Junior and I have discussed before, is not by

103
00:05:43,200 --> 00:05:45,800
Speaker 1: self a crime. In the national security space, there are

104
00:05:45,880 --> 00:05:49,240
Speaker 1: criminal statutes that are specifically about leaking class sized information.

105
00:05:49,360 --> 00:05:51,719
Speaker 1: Whatever else you might say about the draft opinion and Dobbs,

106
00:05:51,760 --> 00:05:54,520
Speaker 1: it wasn't classified, right, there are dastices. Don't make it

107
00:05:54,560 --> 00:05:58,920
Speaker 1: a crime if the leaker used various mechanisms to obtain

108
00:05:58,960 --> 00:06:01,680
Speaker 1: the draft. So if, for example, someone on the outside

109
00:06:01,720 --> 00:06:04,920
Speaker 1: hacked into the court's computer system and obtained the draft

110
00:06:05,000 --> 00:06:07,160
Speaker 1: that way, that might be a crime. But you know,

111
00:06:07,200 --> 00:06:09,919
Speaker 1: if I just happened to hand a confidential government document

112
00:06:09,960 --> 00:06:12,760
Speaker 1: to a reporter by itself, I am not committing a crime.

113
00:06:13,040 --> 00:06:15,680
Speaker 1: And maybe there are folks who wish that that weren't true,

114
00:06:15,760 --> 00:06:17,720
Speaker 1: but that's the laws of them. Let's talk about the

115
00:06:17,760 --> 00:06:21,560
Speaker 1: opinion itself. And a line that's been quoted a lot

116
00:06:21,720 --> 00:06:25,640
Speaker 1: is that Alito said Rowe was egregiously wrong from the start.

117
00:06:26,040 --> 00:06:29,320
Speaker 1: Critique is reasoning in the draft? Well, I mean I

118
00:06:29,400 --> 00:06:32,440
Speaker 1: since the draft is it is top to bottom and

119
00:06:32,480 --> 00:06:35,800
Speaker 1: exercise and motivated reason, I mean, Roe, you know, whatever

120
00:06:35,800 --> 00:06:38,000
Speaker 1: else may be said about it, Justice Blackman did try

121
00:06:38,160 --> 00:06:41,039
Speaker 1: very hard to explain exactly what he was doing. He

122
00:06:41,040 --> 00:06:44,040
Speaker 1: tried very hard to explain the baseline rights to privacy

123
00:06:44,080 --> 00:06:46,320
Speaker 1: that we got from Chris Wald, and that the draft

124
00:06:46,320 --> 00:06:49,560
Speaker 1: opinion in Dabbs does not purport to repudiate. How what

125
00:06:49,760 --> 00:06:52,479
Speaker 1: complicates the matter when you get in an abortion case

126
00:06:52,839 --> 00:06:55,839
Speaker 1: is that you have countervailing interests. You have the interests

127
00:06:55,920 --> 00:06:58,640
Speaker 1: of the president woman, but you also have the state's

128
00:06:58,680 --> 00:07:02,600
Speaker 1: interest in protecting what Justice Blackman calls potential life. And so,

129
00:07:02,680 --> 00:07:05,560
Speaker 1: you know, I think what's frustrating about the draft opinion

130
00:07:05,760 --> 00:07:08,920
Speaker 1: June is that it really doesn't take Row seriously. It

131
00:07:09,040 --> 00:07:13,920
Speaker 1: just sort of accepts as a default proposition Rose wrongness,

132
00:07:13,960 --> 00:07:16,840
Speaker 1: and then I think goes into even more detail about

133
00:07:16,840 --> 00:07:20,720
Speaker 1: the difficulties anytime the Supreme Court recognizes right that justice

134
00:07:20,760 --> 00:07:24,200
Speaker 1: the Leader says are not deeply rooted in our historical tradition.

135
00:07:24,400 --> 00:07:26,040
Speaker 1: But of course that would call him to question a

136
00:07:26,080 --> 00:07:28,440
Speaker 1: whole lot of stuff beyond Row. So, you know, I

137
00:07:28,440 --> 00:07:30,760
Speaker 1: guess what is striking about the draft opinion is that

138
00:07:30,840 --> 00:07:34,200
Speaker 1: it's not an effort really to persuade anyone who wasn't

139
00:07:34,200 --> 00:07:36,800
Speaker 1: already persuaded that row is wrong, and it's not really

140
00:07:36,800 --> 00:07:39,000
Speaker 1: even an effort to convince the reader that Rose wrong

141
00:07:39,040 --> 00:07:42,400
Speaker 1: on its own term. Does Aldo just throw precedent out

142
00:07:42,440 --> 00:07:46,680
Speaker 1: the window, as he's done before in for example, when

143
00:07:46,720 --> 00:07:49,640
Speaker 1: he threw out a thirty year old precedent in saying

144
00:07:49,640 --> 00:07:53,440
Speaker 1: that government employees have a constitutional right not to pay

145
00:07:53,560 --> 00:07:55,680
Speaker 1: union fees. No, I mean, I think Janet is a

146
00:07:55,680 --> 00:07:58,200
Speaker 1: great comparison June, because yes, I mean I think you know,

147
00:07:58,680 --> 00:08:02,120
Speaker 1: here we're seeing just how little regard and respect right

148
00:08:02,240 --> 00:08:04,760
Speaker 1: that Justice the Lado seems to have. First story decisis

149
00:08:04,760 --> 00:08:07,120
Speaker 1: for the principle that oftens being equal right, the court

150
00:08:07,120 --> 00:08:09,760
Speaker 1: should follow his precedence. You know, Aldo's draft opinion does

151
00:08:10,000 --> 00:08:12,600
Speaker 1: try to offer at least the argument for why rowan

152
00:08:12,720 --> 00:08:15,120
Speaker 1: Casey shouldn't be followed as a matter of story decisis.

153
00:08:15,400 --> 00:08:17,800
Speaker 1: What's ironic about those arguments is that those were the

154
00:08:17,920 --> 00:08:22,160
Speaker 1: very arguments that the joint opinion and Casey by Justices O'Connor,

155
00:08:22,240 --> 00:08:25,680
Speaker 1: Kennedy and Suitor had relied upon um And so he

156
00:08:25,720 --> 00:08:28,160
Speaker 1: basically has to say, well, they were either they were wrong,

157
00:08:30,200 --> 00:08:32,720
Speaker 1: or things have changed dramatically in the last thirty years.

158
00:08:32,720 --> 00:08:34,679
Speaker 1: And I'm not sure either of those are are true,

159
00:08:34,840 --> 00:08:37,400
Speaker 1: So you know, Jude, part of why since that's important again,

160
00:08:37,440 --> 00:08:39,760
Speaker 1: I think folks who want to be persuaded will be persuaded.

161
00:08:40,160 --> 00:08:42,120
Speaker 1: But part of why that's important is because if this

162
00:08:42,200 --> 00:08:46,440
Speaker 1: is the sort of casual and cavalier attitude that Justice

163
00:08:46,440 --> 00:08:49,199
Speaker 1: Aldo and whoever else signs its opinion is going to

164
00:08:49,280 --> 00:08:53,160
Speaker 1: have towards starry decisis, why shouldn't we be worried about

165
00:08:53,240 --> 00:08:57,000
Speaker 1: other rights? Why shouldn't we be worried about Griswold and contraception,

166
00:08:57,280 --> 00:09:00,640
Speaker 1: or about Lawrence versus Texas and same sex stotomy, or

167
00:09:00,679 --> 00:09:02,400
Speaker 1: even though Berto fell in same sex marriage. I mean,

168
00:09:02,400 --> 00:09:04,760
Speaker 1: the question is, you know, when the draft's opinion says

169
00:09:04,800 --> 00:09:07,080
Speaker 1: this is just about abortion, but it it takes an

170
00:09:07,080 --> 00:09:10,520
Speaker 1: approach to storry decisive that calls into question all prior

171
00:09:10,559 --> 00:09:14,880
Speaker 1: decisions recognize him unenumerated constitutional rights. There's a pretty jarring contrast.

172
00:09:14,920 --> 00:09:20,439
Speaker 1: There is the reasoning so wrong or is the language

173
00:09:20,440 --> 00:09:24,720
Speaker 1: so extreme that he may lose some of the five justices?

174
00:09:25,080 --> 00:09:27,360
Speaker 1: You know, we'll find out. I mean, I guess you know,

175
00:09:27,480 --> 00:09:30,960
Speaker 1: one theory that I think is not implausible for why

176
00:09:31,040 --> 00:09:34,040
Speaker 1: this opinion leaked out is that you know, perhaps there

177
00:09:34,120 --> 00:09:37,240
Speaker 1: was a separate opinion written by Chief Justice Roberts, who,

178
00:09:37,280 --> 00:09:40,440
Speaker 1: according to the political story accompanied the leak, did not

179
00:09:40,600 --> 00:09:43,559
Speaker 1: vote to overrule Rowan Casey at conference. Perhaps there was

180
00:09:43,600 --> 00:09:47,480
Speaker 1: a separate opinion that you know, was sufficiently compelling and

181
00:09:47,720 --> 00:09:50,400
Speaker 1: or critical that someone was worried that at least one

182
00:09:50,400 --> 00:09:52,840
Speaker 1: of the justices who had voted to over rule Rowan

183
00:09:52,880 --> 00:09:55,680
Speaker 1: Casey at conference might be softening and might be wobbling.

184
00:09:55,840 --> 00:09:57,240
Speaker 1: And so I've I've always thought that one of the

185
00:09:57,240 --> 00:09:59,600
Speaker 1: better theories here is that the leak was designed to

186
00:09:59,600 --> 00:10:02,680
Speaker 1: actually lock in the five votes to overrule Rowan Casey,

187
00:10:02,679 --> 00:10:05,320
Speaker 1: since now it would be very obvious to everyone if

188
00:10:05,400 --> 00:10:08,040
Speaker 1: when the final decision comes down this is not where

189
00:10:08,040 --> 00:10:10,680
Speaker 1: the court ends up, that someone flip flock. So we

190
00:10:10,720 --> 00:10:13,560
Speaker 1: don't know if that's what's happening. We won't know, perhaps

191
00:10:13,640 --> 00:10:16,280
Speaker 1: even when the final decision comes down, if that's what happened.

192
00:10:16,280 --> 00:10:19,280
Speaker 1: But it seems like at least a possibility. So is

193
00:10:19,280 --> 00:10:22,360
Speaker 1: there a chance at least that row may not be

194
00:10:23,040 --> 00:10:26,000
Speaker 1: reversed in the end. I mean, never say never, June, right,

195
00:10:26,200 --> 00:10:28,960
Speaker 1: you know, Rowan Casey are themselves a good lessons here.

196
00:10:29,040 --> 00:10:31,960
Speaker 1: I mean the original vote at conference in Casey when

197
00:10:31,960 --> 00:10:34,840
Speaker 1: the case was argued during the October one term was

198
00:10:34,880 --> 00:10:37,320
Speaker 1: to overrule Row. And we know what happened. We know

199
00:10:37,400 --> 00:10:40,559
Speaker 1: the court didn't, So you know, I think it's possible

200
00:10:41,000 --> 00:10:43,000
Speaker 1: that what we get when the Court hands down its

201
00:10:43,040 --> 00:10:46,280
Speaker 1: final ruling doesn't look like this. The problem is that

202
00:10:46,400 --> 00:10:49,160
Speaker 1: because of the leak, and this is why I'm skeptical

203
00:10:49,200 --> 00:10:51,959
Speaker 1: that the leak came from the dissenters. Because of the leak,

204
00:10:52,080 --> 00:10:54,320
Speaker 1: I think that makes it a lot harder for Justice

205
00:10:54,360 --> 00:10:56,760
Speaker 1: who might have been pushing the leader to moderate the opinion,

206
00:10:56,880 --> 00:10:58,520
Speaker 1: or Justice who might even be turned off by the

207
00:10:58,559 --> 00:11:02,640
Speaker 1: opinion to not now just line up behind it. What's

208
00:11:02,960 --> 00:11:07,040
Speaker 1: startling to me is that it's been less than two

209
00:11:07,120 --> 00:11:11,160
Speaker 1: years since Amy Coney Barrett joined the Court and they're

210
00:11:11,200 --> 00:11:14,960
Speaker 1: ready to overturn Row. So am I just being naive

211
00:11:15,160 --> 00:11:18,280
Speaker 1: that this is awfully fast? I mean, we've talked before

212
00:11:18,280 --> 00:11:22,640
Speaker 1: about how the Chief Justice likes to do change in moderation.

213
00:11:22,960 --> 00:11:26,240
Speaker 1: This is just you know, wholesale reversal. Well, I mean,

214
00:11:26,320 --> 00:11:28,560
Speaker 1: you know, June, I think this has been one of

215
00:11:28,600 --> 00:11:30,920
Speaker 1: the themes that folks have been trying to point out

216
00:11:30,960 --> 00:11:35,520
Speaker 1: since Justice by Justice Ginsborough, Like yes, when Kavanaugh replaced Kennedy.

217
00:11:36,880 --> 00:11:39,959
Speaker 1: That created a very solid Piper four majority. But with

218
00:11:40,000 --> 00:11:43,200
Speaker 1: the Chief Justice as basically the speed break and with

219
00:11:43,240 --> 00:11:46,800
Speaker 1: the Chief Justice, you know, and his preference for moderate

220
00:11:47,000 --> 00:11:49,640
Speaker 1: and I would say moderation, but for sort of incrementalism.

221
00:11:49,640 --> 00:11:51,640
Speaker 1: I think that's the right word, right, that that would

222
00:11:51,640 --> 00:11:54,520
Speaker 1: be what decided how fast the court moves. Well, it's

223
00:11:54,600 --> 00:11:56,679
Speaker 1: been clear now, right for the better part of the

224
00:11:56,760 --> 00:11:58,920
Speaker 1: year and a half that is no longer up to

225
00:11:58,920 --> 00:12:01,400
Speaker 1: the Chief and we've seen sort of smaller and less

226
00:12:01,440 --> 00:12:05,439
Speaker 1: significant examples of the Court moving much faster than the

227
00:12:05,520 --> 00:12:08,000
Speaker 1: Chief might be inclined. You know, we've talked before June

228
00:12:08,040 --> 00:12:10,560
Speaker 1: about some of these shadow doctor rulings where the Chief

229
00:12:10,600 --> 00:12:13,920
Speaker 1: has joined the three liberals in descentive because he thinks

230
00:12:14,000 --> 00:12:17,000
Speaker 1: that the Court is moving too quickly by you know,

231
00:12:17,120 --> 00:12:20,680
Speaker 1: changing the law through unsigned, unexplained orders. So, you know,

232
00:12:20,760 --> 00:12:23,200
Speaker 1: I think if this is where this ends up, you know,

233
00:12:23,240 --> 00:12:25,160
Speaker 1: with a five to four or five to one to

234
00:12:25,280 --> 00:12:28,120
Speaker 1: three ruling getting rid of Rowan casey, that really is

235
00:12:28,160 --> 00:12:29,839
Speaker 1: the day new maw of the pattern I think has

236
00:12:29,840 --> 00:12:32,160
Speaker 1: been building since the day Justin Barrett joined the Court,

237
00:12:32,400 --> 00:12:34,160
Speaker 1: and it's just for the proof of how this really

238
00:12:34,240 --> 00:12:37,400
Speaker 1: is no longer the Roberts Court. How will that affect

239
00:12:37,480 --> 00:12:41,199
Speaker 1: the legitimacy of the Court in the eyes of the public.

240
00:12:41,679 --> 00:12:42,959
Speaker 1: I mean, I think we're going to see what we've

241
00:12:42,960 --> 00:12:46,720
Speaker 1: already been seeing, which is just further polarization. And I

242
00:12:46,760 --> 00:12:50,160
Speaker 1: think a further wise name of the devise between those

243
00:12:50,280 --> 00:12:53,280
Speaker 1: Americans who view the Court is legitimate for no other

244
00:12:53,280 --> 00:12:55,200
Speaker 1: reason than because they like what the Court is ding

245
00:12:55,440 --> 00:12:57,640
Speaker 1: and those who be the Court is illegitimate, whether because

246
00:12:57,640 --> 00:12:59,080
Speaker 1: they don't like what the Court is doing because they

247
00:12:59,120 --> 00:13:01,800
Speaker 1: think the Court is doing it inappropriately. And I guess

248
00:13:01,800 --> 00:13:04,319
Speaker 1: one of the things that leaves me, you know, deeply

249
00:13:04,360 --> 00:13:07,120
Speaker 1: word about the courts and institution is that I would

250
00:13:07,120 --> 00:13:09,520
Speaker 1: think it would be in the Court's interest to care

251
00:13:09,880 --> 00:13:11,640
Speaker 1: about that latter group, That it would be in the

252
00:13:11,679 --> 00:13:14,920
Speaker 1: Court's interest to actually want to have at least some

253
00:13:14,960 --> 00:13:18,920
Speaker 1: semblance of legitimacy, even among those not inclined to agree

254
00:13:18,920 --> 00:13:20,560
Speaker 1: with the results of its decisions. I mean, this was

255
00:13:20,600 --> 00:13:23,679
Speaker 1: the theme of Justice barrett speech at the Ronald Reagan

256
00:13:23,760 --> 00:13:26,800
Speaker 1: Library last month, when she said, you know, don't just

257
00:13:26,920 --> 00:13:29,439
Speaker 1: call us hacks. Read our opinions deep for yourself, that

258
00:13:29,520 --> 00:13:31,520
Speaker 1: there are principles in them. You may not agree with

259
00:13:31,559 --> 00:13:34,079
Speaker 1: the principles, but at least you'll see that there are principles.

260
00:13:34,080 --> 00:13:35,600
Speaker 1: And so I think, you know, one of the things

261
00:13:35,640 --> 00:13:39,720
Speaker 1: that I really loose leap over is the increasing appearance,

262
00:13:39,760 --> 00:13:43,439
Speaker 1: if not reality, that there's a chunk of justice is

263
00:13:43,520 --> 00:13:46,760
Speaker 1: perhaps the majority of justices for whom how the Court

264
00:13:46,840 --> 00:13:50,480
Speaker 1: is perceived by those on the political left is increasingly

265
00:13:50,559 --> 00:13:52,959
Speaker 1: less relevant, and I think that that's a very dangerous

266
00:13:53,000 --> 00:13:57,560
Speaker 1: road to go down. Alito attempts to distinguish abortion from

267
00:13:57,559 --> 00:14:01,160
Speaker 1: other rights grounded in the constitutional right to privacy, But

268
00:14:01,440 --> 00:14:06,280
Speaker 1: does his reasoning jeopardize other protections that are not quote,

269
00:14:06,320 --> 00:14:10,240
Speaker 1: deeply rooted in this nation's history and tradition. Yeah, this

270
00:14:10,320 --> 00:14:12,200
Speaker 1: is the problem. Yes, the leader says, I'm only talking

271
00:14:12,200 --> 00:14:15,880
Speaker 1: about abortion, But the grounds that he deploys for justifying

272
00:14:15,920 --> 00:14:18,760
Speaker 1: the overruling the rowing casey are grounds that are not

273
00:14:18,840 --> 00:14:21,320
Speaker 1: limited to abortion. And this notion that you know, rights

274
00:14:21,360 --> 00:14:23,240
Speaker 1: have to be deeply rooted in our history and tradition

275
00:14:23,320 --> 00:14:26,040
Speaker 1: to be recognized by the Supreme Court would call into

276
00:14:26,120 --> 00:14:28,040
Speaker 1: question a whole lot of things that the leader says

277
00:14:28,120 --> 00:14:31,520
Speaker 1: he's not calling into question, things like bands on interracial marriage,

278
00:14:31,560 --> 00:14:35,040
Speaker 1: bans on same sex marriage, bands on homosexual stodomy. I mean,

279
00:14:35,120 --> 00:14:37,920
Speaker 1: there's a lot June here that if you take the

280
00:14:38,040 --> 00:14:41,320
Speaker 1: reasoning seriously as opposed to the rhetoric, could be vulnerable.

281
00:14:41,440 --> 00:14:43,680
Speaker 1: Now that doesn't mean that, like overnight, you know, the

282
00:14:43,680 --> 00:14:45,920
Speaker 1: Supreme Court is going to start overruling those cases too.

283
00:14:45,960 --> 00:14:49,280
Speaker 1: You'd have to have first state tried to scale back

284
00:14:49,360 --> 00:14:52,160
Speaker 1: these protections, that tried to sort of restore bands on

285
00:14:52,240 --> 00:14:55,880
Speaker 1: certain kinds of intimate conduct or gay marriage. But you know, June,

286
00:14:55,880 --> 00:14:59,120
Speaker 1: I live in Texas. Um, it's not hard to imagine

287
00:14:59,480 --> 00:15:02,240
Speaker 1: elected a officials in states like mine, they are going

288
00:15:02,280 --> 00:15:04,560
Speaker 1: to be pretty aggressive. I mean, just the other day

289
00:15:04,640 --> 00:15:07,640
Speaker 1: Governor Abbott, right, Texas As governor, talked about trying to

290
00:15:07,680 --> 00:15:10,040
Speaker 1: push the Supreme Court to revisit the nine eight two

291
00:15:10,040 --> 00:15:14,080
Speaker 1: decision recognizing the right of the children of undocumented immigrants

292
00:15:14,080 --> 00:15:16,880
Speaker 1: to go to public school. So it's really hard to

293
00:15:16,960 --> 00:15:21,160
Speaker 1: take seriously the protestations in the draft opinion and then

294
00:15:21,200 --> 00:15:23,280
Speaker 1: by by some who are defending it that this is

295
00:15:23,360 --> 00:15:26,680
Speaker 1: only going to be about abortion. Once you've crossed the rubicon,

296
00:15:26,880 --> 00:15:29,880
Speaker 1: once you've shown that you're willing to overrule cases like

297
00:15:29,960 --> 00:15:33,240
Speaker 1: Rowan Casey simply because you don't believe those rights are

298
00:15:33,400 --> 00:15:35,760
Speaker 1: deeply rooted in our country's history. I don't know what

299
00:15:35,800 --> 00:15:39,120
Speaker 1: the stopping point is other June than politics. And you know,

300
00:15:39,280 --> 00:15:41,600
Speaker 1: if the stopping point is politics, the stopping point is

301
00:15:41,600 --> 00:15:44,720
Speaker 1: that overruling those other decisions would be deeply unpopular. I mean,

302
00:15:45,120 --> 00:15:49,040
Speaker 1: one those politics could always change. But to what does

303
00:15:49,040 --> 00:15:51,400
Speaker 1: that say about the principle here? If the only reason

304
00:15:51,440 --> 00:15:54,000
Speaker 1: why Rowan Casey are not safe that those other cases

305
00:15:54,040 --> 00:15:56,960
Speaker 1: are is because of political support, then that suggests that

306
00:15:57,000 --> 00:15:59,880
Speaker 1: this is politics all the way down and not constitutional laws.

307
00:16:00,120 --> 00:16:03,800
Speaker 1: What's the next battle line? Some are saying that medication

308
00:16:03,840 --> 00:16:06,840
Speaker 1: abortion would be the next battleground. Well, I mean, I

309
00:16:06,840 --> 00:16:09,240
Speaker 1: think we're going to see multiple battlegrounds at once. Medication

310
00:16:09,280 --> 00:16:11,280
Speaker 1: abortion is going to be one front in the war.

311
00:16:11,400 --> 00:16:13,520
Speaker 1: I think we're gonna see states try to make it

312
00:16:13,640 --> 00:16:16,640
Speaker 1: unlawful for their residents to travel out of states to

313
00:16:16,720 --> 00:16:18,920
Speaker 1: obtain abortion, so that we're going to have a fight

314
00:16:18,960 --> 00:16:22,200
Speaker 1: over whether states can limit their own residents from leaving

315
00:16:22,240 --> 00:16:24,120
Speaker 1: the state to go to states that will still have

316
00:16:24,160 --> 00:16:26,760
Speaker 1: abortions after this decision, and so on the abortion front,

317
00:16:26,800 --> 00:16:28,960
Speaker 1: I think that's where the fight will be joined. But

318
00:16:29,000 --> 00:16:30,520
Speaker 1: I also think, because you know, we talked about with

319
00:16:30,520 --> 00:16:32,720
Speaker 1: regards to Governor Abbott, We're going to see efforts by

320
00:16:32,760 --> 00:16:35,720
Speaker 1: other especially Red states, to push the envelope and to

321
00:16:35,760 --> 00:16:38,080
Speaker 1: see what other rights the Court is willing to reconsider.

322
00:16:38,280 --> 00:16:42,240
Speaker 1: Because the one undeniable thing about a ruling like the

323
00:16:42,320 --> 00:16:44,360
Speaker 1: draft opinion, if that becomes the law of the land,

324
00:16:44,520 --> 00:16:47,000
Speaker 1: is it's basically an invitation to court and to state

325
00:16:47,080 --> 00:16:50,120
Speaker 1: to be cynical and to be political and to push

326
00:16:50,160 --> 00:16:52,240
Speaker 1: the Court to actually revisit these rights one at a

327
00:16:52,320 --> 00:16:54,280
Speaker 1: time in a way that would not have been true

328
00:16:54,280 --> 00:16:58,720
Speaker 1: without this kind of decision. You know, states banning people

329
00:16:58,720 --> 00:17:02,040
Speaker 1: from leaving the state to get an abortion, it seems

330
00:17:02,040 --> 00:17:06,720
Speaker 1: to me like that's just unworkable and even for conservatives,

331
00:17:06,880 --> 00:17:10,080
Speaker 1: hard to defend. I mean maybe maybe not. You know,

332
00:17:10,200 --> 00:17:12,600
Speaker 1: I think it depends on, you know, what, how you

333
00:17:12,640 --> 00:17:15,880
Speaker 1: set up the law, depends on you know, sort of

334
00:17:16,200 --> 00:17:19,960
Speaker 1: if you impose as Texas has mandatory reporting requirements on

335
00:17:20,119 --> 00:17:23,719
Speaker 1: medical providers when it comes to you know, individuals who

336
00:17:23,760 --> 00:17:27,000
Speaker 1: are pregnant and then lose their presidency. Um. You know,

337
00:17:27,200 --> 00:17:29,920
Speaker 1: I think it's ugly and I think it would incentivize

338
00:17:29,920 --> 00:17:33,679
Speaker 1: a very sort of dangerous and surveillance oriented regime. But

339
00:17:33,760 --> 00:17:35,640
Speaker 1: you know, June, And I don't know if folks appreciate

340
00:17:35,720 --> 00:17:38,879
Speaker 1: how close to that we already hard here in Texas um.

341
00:17:38,960 --> 00:17:41,240
Speaker 1: And you know, one response might be, oh, well, the

342
00:17:41,240 --> 00:17:44,439
Speaker 1: Supreme Court would never countenance that. And I think this

343
00:17:44,520 --> 00:17:47,439
Speaker 1: is the you know, in the final analysis, this is

344
00:17:47,480 --> 00:17:50,800
Speaker 1: the central problem with the draft opinion in Jobs, which

345
00:17:50,840 --> 00:17:54,080
Speaker 1: is arguments that the Supreme Court would quote never countenance

346
00:17:54,440 --> 00:17:57,920
Speaker 1: you know, insert crazy things here really do go out

347
00:17:57,960 --> 00:17:59,600
Speaker 1: the window once you have an opinion like this on

348
00:17:59,640 --> 00:18:02,320
Speaker 1: the books. Thanks so much for your insights, Steve. That's

349
00:18:02,320 --> 00:18:05,879
Speaker 1: Professor Stephen Vladdock of the University of Texas Law School.

350
00:18:07,440 --> 00:18:11,560
Speaker 1: At their confirmation hearings, the five Conservative justices who have

351
00:18:11,640 --> 00:18:16,080
Speaker 1: signed onto a draft decision overturning Roe v. Wade acknowledged

352
00:18:16,160 --> 00:18:19,399
Speaker 1: that Roe was a precedent of the Supreme Court. It

353
00:18:19,520 --> 00:18:22,560
Speaker 1: is an important precedent of the Supreme Court. By it,

354
00:18:22,640 --> 00:18:26,080
Speaker 1: I mean Roe v. Wade and planned parenthood versus Casey

355
00:18:26,359 --> 00:18:32,480
Speaker 1: been reaffirmed many times. Casey is precedent on precedent. It

356
00:18:32,560 --> 00:18:35,320
Speaker 1: has been reaffirmed, so a good judge will consider it

357
00:18:35,400 --> 00:18:38,920
Speaker 1: as president of the United States Supreme Court worthy as

358
00:18:38,960 --> 00:18:44,119
Speaker 1: treatment of precedent like any other and scholars across the

359
00:18:44,160 --> 00:18:47,800
Speaker 1: spectrum say that doesn't mean that Roe should be overruled.

360
00:18:49,600 --> 00:18:54,960
Speaker 1: I believe the Constitution protects the right to privacy. Versus

361
00:18:54,960 --> 00:18:58,240
Speaker 1: Wade is an important precedent of the Supreme Court. It

362
00:18:58,359 --> 00:19:02,240
Speaker 1: was decided in three so it's been on the books

363
00:19:02,240 --> 00:19:06,000
Speaker 1: for a long time. The last justice testifying in that

364
00:19:06,119 --> 00:19:11,080
Speaker 1: clip was Samuel Alito, who authored the draft opinion reversing

365
00:19:11,160 --> 00:19:14,920
Speaker 1: Roe v. Wade. My guest is Katherine Frankie, a professor

366
00:19:14,960 --> 00:19:17,760
Speaker 1: at Columbia Law School and the director of the Center

367
00:19:17,840 --> 00:19:21,479
Speaker 1: for Gender and Sexuality Law. If the Court does in

368
00:19:21,560 --> 00:19:25,320
Speaker 1: fact reverse Roe v. Wade, how big of a setback

369
00:19:25,480 --> 00:19:28,960
Speaker 1: would that be to the rights of women in this country. Well,

370
00:19:29,000 --> 00:19:33,080
Speaker 1: this draft opinion threatens to turn back constitutional law for

371
00:19:33,160 --> 00:19:36,199
Speaker 1: three generations back in time, to set us back to

372
00:19:36,359 --> 00:19:39,520
Speaker 1: really the early part of the twentieth century. The breadth

373
00:19:39,600 --> 00:19:43,359
Speaker 1: of the opinion reaches not just the right to abortion

374
00:19:43,520 --> 00:19:46,280
Speaker 1: and where it might be protected under the Constitution, but

375
00:19:46,359 --> 00:19:48,960
Speaker 1: a wide range of other rights. So they're planting the

376
00:19:49,080 --> 00:19:52,159
Speaker 1: seeds for the next cases coming down the road. And

377
00:19:52,200 --> 00:19:55,159
Speaker 1: in this sense, I think what this opinion threatens to

378
00:19:55,200 --> 00:19:58,119
Speaker 1: do is to write women and pregnant people in particular

379
00:19:58,359 --> 00:20:01,679
Speaker 1: out of the Constitution and Irey, let's talk about the

380
00:20:01,720 --> 00:20:06,400
Speaker 1: reasoning in his draft opinion, Row was egregiously wrong from

381
00:20:06,400 --> 00:20:10,560
Speaker 1: the start. The Constitution makes no reference to abortion. Give

382
00:20:10,560 --> 00:20:14,600
Speaker 1: me your opinion of the way he reasoned out this opinion. Well,

383
00:20:14,600 --> 00:20:17,879
Speaker 1: Justice Alito articulates a view that is held by several

384
00:20:17,920 --> 00:20:19,800
Speaker 1: other members of the Court, which is that if the

385
00:20:19,920 --> 00:20:24,639
Speaker 1: right is not specifically listed or mentioned in the Constitution,

386
00:20:24,720 --> 00:20:28,440
Speaker 1: then it doesn't exist. And we saw Justice Gorsets use

387
00:20:28,640 --> 00:20:32,159
Speaker 1: very similar language in one of the COVID religious liberty

388
00:20:32,200 --> 00:20:36,879
Speaker 1: cases in twenty and here the idea is that what

389
00:20:36,960 --> 00:20:39,760
Speaker 1: the word abortion doesn't appear in the Constitution, but actually

390
00:20:40,080 --> 00:20:43,879
Speaker 1: neither does the word sex or sex equality. But we

391
00:20:43,920 --> 00:20:47,760
Speaker 1: don't also see the word internet or electricity. I mean,

392
00:20:47,760 --> 00:20:50,400
Speaker 1: there are all sorts of things that are legally relevant

393
00:20:50,400 --> 00:20:53,640
Speaker 1: that have been invented or at least become socially important

394
00:20:53,680 --> 00:20:56,159
Speaker 1: since the drafting of the Constitution. So to say that

395
00:20:56,240 --> 00:21:00,360
Speaker 1: there's no right to privacy, no right to reproductive liberty

396
00:21:00,760 --> 00:21:05,040
Speaker 1: in the Constitution because those words don't exist is a

397
00:21:05,080 --> 00:21:08,520
Speaker 1: foolish way, a kind of immature and simple way to

398
00:21:08,680 --> 00:21:13,359
Speaker 1: interpret a constitution in a modern society. There's been a

399
00:21:13,400 --> 00:21:17,680
Speaker 1: lot of criticism of Row, even by liberals like the

400
00:21:17,800 --> 00:21:22,480
Speaker 1: late Justice Ruth Bader Ginsburg. Why such criticism, Well, there's

401
00:21:22,480 --> 00:21:25,200
Speaker 1: been a number of decisions from the Supreme Court since

402
00:21:25,240 --> 00:21:30,680
Speaker 1: its founding that have not landed as successfully as perhaps

403
00:21:30,680 --> 00:21:33,400
Speaker 1: some other decisions. So, for instance, the Brown versus Board

404
00:21:33,400 --> 00:21:37,520
Speaker 1: of Education decision in the nineteen fifties also was responded

405
00:21:37,560 --> 00:21:41,520
Speaker 1: to with enormous resistance and backlash from the South. And

406
00:21:41,560 --> 00:21:45,399
Speaker 1: what we see with these kinds of decisions where significant

407
00:21:45,680 --> 00:21:48,159
Speaker 1: changes in the society are being taken up by the

408
00:21:48,240 --> 00:21:52,720
Speaker 1: Supreme Court is that there's usually a conversation between the

409
00:21:52,720 --> 00:21:55,840
Speaker 1: Court and the people that goes back and forth of

410
00:21:55,960 --> 00:21:58,360
Speaker 1: will take one step, you take one step, will take

411
00:21:58,400 --> 00:22:01,960
Speaker 1: one step, you take one step. And with Row, the

412
00:22:02,040 --> 00:22:08,080
Speaker 1: resistance to abortion rights was unrelenting, notwithstanding the fact that

413
00:22:08,160 --> 00:22:12,439
Speaker 1: abortion rights always pulled as being something that people in

414
00:22:12,480 --> 00:22:16,560
Speaker 1: the United States fully and robustly supported, but the megaphone

415
00:22:16,760 --> 00:22:21,160
Speaker 1: of the Christian radical right drowned out what has been

416
00:22:21,200 --> 00:22:24,680
Speaker 1: really a consensus among most people in this country that

417
00:22:24,720 --> 00:22:27,879
Speaker 1: the Supreme Court's decision and Row was correct. And so

418
00:22:28,000 --> 00:22:30,880
Speaker 1: it's not unusual for the Court to take up issues

419
00:22:30,920 --> 00:22:34,879
Speaker 1: that are that are still somewhat contested in society, But

420
00:22:35,119 --> 00:22:37,440
Speaker 1: in fact that is the job of the Supreme Court

421
00:22:37,520 --> 00:22:41,520
Speaker 1: is to say, even rights which aren't popular may actually

422
00:22:41,560 --> 00:22:44,560
Speaker 1: have a ground in the Constitution. And I think the

423
00:22:44,640 --> 00:22:48,359
Speaker 1: right to racial equality is exactly the right analogy. Those

424
00:22:48,480 --> 00:22:51,280
Speaker 1: rights also weren't popular at the time in some parts

425
00:22:51,280 --> 00:22:55,240
Speaker 1: of American society, but little by little they gained traction,

426
00:22:55,320 --> 00:22:57,600
Speaker 1: and we now take them as given. One of the

427
00:22:57,680 --> 00:23:01,679
Speaker 1: focuses of Alitos ap Union is that there's no mention

428
00:23:01,720 --> 00:23:05,760
Speaker 1: of abortion in the Constitution. Tell us about the implications

429
00:23:05,760 --> 00:23:09,480
Speaker 1: of that kind of reasoning, well, Justice Alito articulates a

430
00:23:09,560 --> 00:23:12,040
Speaker 1: view that is held by several other members of the Court,

431
00:23:12,119 --> 00:23:15,440
Speaker 1: which is that if the right is not specifically listed

432
00:23:15,640 --> 00:23:19,560
Speaker 1: or mentioned in the Constitution, then it doesn't exist. And

433
00:23:19,600 --> 00:23:23,400
Speaker 1: we saw Justice Gorsets use very similar language in one

434
00:23:23,440 --> 00:23:28,160
Speaker 1: of the COVID religious liberty cases in twenty and here

435
00:23:28,200 --> 00:23:30,720
Speaker 1: the idea is that what the word abortion doesn't appear

436
00:23:30,760 --> 00:23:34,120
Speaker 1: in the Constitution, but actually neither does the word sex

437
00:23:34,240 --> 00:23:36,760
Speaker 1: or sex equality. But we don't also see the words

438
00:23:36,880 --> 00:23:40,359
Speaker 1: internet or electricity. I mean, there are all sorts of

439
00:23:40,400 --> 00:23:43,560
Speaker 1: things that are legally relevant that have been invented or

440
00:23:43,600 --> 00:23:47,120
Speaker 1: at least become socially important since the drafting of the Constitution.

441
00:23:47,200 --> 00:23:50,119
Speaker 1: So to say that there's no right to privacy, no

442
00:23:50,359 --> 00:23:54,200
Speaker 1: right to reproductive liberty in the Constitution because those words

443
00:23:54,240 --> 00:23:58,359
Speaker 1: don't exist is a foolish way. It kind of immature

444
00:23:58,480 --> 00:24:01,639
Speaker 1: and simple way to inter for a constitution in a

445
00:24:01,680 --> 00:24:05,800
Speaker 1: modern society. Do you really think the ultimate aim is

446
00:24:05,840 --> 00:24:09,439
Speaker 1: to erase women from the constitution For some members of

447
00:24:09,440 --> 00:24:12,239
Speaker 1: the Supreme Court, yes, or at least some version of

448
00:24:12,240 --> 00:24:15,560
Speaker 1: what women's rights are. And by saying that we instead

449
00:24:15,600 --> 00:24:19,680
Speaker 1: should look to fifty individual state legislatures for what kinds

450
00:24:19,720 --> 00:24:23,520
Speaker 1: of fundamental rights people enjoy, what kinds of protections they

451
00:24:23,560 --> 00:24:26,280
Speaker 1: have based on their sex or gender in this society,

452
00:24:26,560 --> 00:24:28,919
Speaker 1: is to say that those are second class rights. Certain

453
00:24:29,040 --> 00:24:31,680
Speaker 1: rights like religious liberty, for instance, and I think we'll

454
00:24:31,680 --> 00:24:34,160
Speaker 1: see in the courts gun rights cases that are coming

455
00:24:34,200 --> 00:24:38,600
Speaker 1: down later this term. Those rights deserve the robust protection

456
00:24:38,640 --> 00:24:42,240
Speaker 1: of the federal Constitution. But other rights like women's rights

457
00:24:42,280 --> 00:24:45,639
Speaker 1: or rights to abortion, well, those are actually less fundamental.

458
00:24:45,880 --> 00:24:48,320
Speaker 1: And you can enjoy that right if you are lucky

459
00:24:48,440 --> 00:24:51,280
Speaker 1: enough to live in a state where your state legislature

460
00:24:51,480 --> 00:24:55,119
Speaker 1: respects the right to reproductive rights. Do you think that

461
00:24:55,320 --> 00:24:59,520
Speaker 1: other rights that are grounded in privacy might be also

462
00:25:00,200 --> 00:25:07,600
Speaker 1: at risk here? Talking about interracial marriage, gay marriage, contraception. Well,

463
00:25:07,640 --> 00:25:11,720
Speaker 1: Justice Alito's draft decision says, we're only deciding the abortion

464
00:25:11,800 --> 00:25:15,480
Speaker 1: question now, we are not necessarily deciding these other hot

465
00:25:15,480 --> 00:25:18,400
Speaker 1: button issues, like a right to contraception, like a right

466
00:25:18,440 --> 00:25:21,919
Speaker 1: to marriage for same sex couples, interracial marriage. But the

467
00:25:22,000 --> 00:25:24,440
Speaker 1: way in which they kick the legs out from under

468
00:25:24,720 --> 00:25:30,400
Speaker 1: roversus Wade makes any reasonable reader of constitutional law say

469
00:25:30,520 --> 00:25:34,320
Speaker 1: that those other issues have no legs to stand on anymore.

470
00:25:34,680 --> 00:25:39,399
Speaker 1: So I think it's predictable and foreseeable that this Court

471
00:25:39,440 --> 00:25:42,480
Speaker 1: will take those next steps, and certainly advocates will urge

472
00:25:42,520 --> 00:25:45,480
Speaker 1: them to do so, to reverse the ol bergha Felt

473
00:25:45,480 --> 00:25:48,639
Speaker 1: decision securing rights to marriage for same sex couples, and

474
00:25:48,760 --> 00:25:51,840
Speaker 1: earlier cases that dealt with the right to contraception and

475
00:25:52,080 --> 00:25:56,240
Speaker 1: cases that found that bands on interracial marriage also violated

476
00:25:56,280 --> 00:26:01,320
Speaker 1: privacy and other fundamental rights secured under the Constitution. Explain

477
00:26:01,480 --> 00:26:08,040
Speaker 1: how he explains away reversing precedent, which discourt seems a

478
00:26:08,080 --> 00:26:12,040
Speaker 1: little more willing to do than other courts. Well, he's

479
00:26:12,080 --> 00:26:15,200
Speaker 1: inventing a new test that if there are certain prior

480
00:26:15,280 --> 00:26:19,639
Speaker 1: decisions of the Court that are really wrong, then a

481
00:26:20,119 --> 00:26:23,359
Speaker 1: later Supreme Court has the authority and indeed the duty,

482
00:26:23,400 --> 00:26:26,800
Speaker 1: I think he would say, to overrule those decisions, and

483
00:26:26,840 --> 00:26:30,959
Speaker 1: he uses the term egregiously wrongly decided. But we have

484
00:26:31,040 --> 00:26:34,840
Speaker 1: no criteria for what it means to be really wrong.

485
00:26:35,200 --> 00:26:37,800
Speaker 1: So he points to some of the race discrimination cases,

486
00:26:37,800 --> 00:26:40,560
Speaker 1: which I think today most people would agree, um the

487
00:26:40,680 --> 00:26:44,399
Speaker 1: early cases in the nineteenth century that upheld separate but

488
00:26:44,560 --> 00:26:49,000
Speaker 1: equal based race discrimination, that those were egregiously wrong. But

489
00:26:49,160 --> 00:26:52,800
Speaker 1: there's nothing in the Row versus Weight decision that would

490
00:26:52,840 --> 00:26:56,520
Speaker 1: put it on the same level of wrongness as plusy

491
00:26:56,640 --> 00:26:59,879
Speaker 1: versus Ferguson or some of the other early cases that

492
00:27:00,040 --> 00:27:04,280
Speaker 1: Justice Alito also points to as examples of the Court

493
00:27:04,880 --> 00:27:08,760
Speaker 1: issuing decisions that were so badly decided in the first

494
00:27:08,800 --> 00:27:13,240
Speaker 1: instance they deserve to be overruled later. After listening to

495
00:27:13,280 --> 00:27:18,040
Speaker 1: the oral arguments in this case, was it sort of

496
00:27:18,080 --> 00:27:23,240
Speaker 1: apparent that they were going to either affirm the Mississippi

497
00:27:23,320 --> 00:27:28,639
Speaker 1: law or they were going to go further and overrule

498
00:27:28,800 --> 00:27:32,680
Speaker 1: Roe v. Wade. So was this that much of a shock? Well,

499
00:27:32,680 --> 00:27:34,960
Speaker 1: the Supreme Court watchers came down in a number of

500
00:27:35,000 --> 00:27:37,960
Speaker 1: different places. I think most people felt that the Court

501
00:27:38,000 --> 00:27:42,320
Speaker 1: now had enough vote to at least radically limit Roll

502
00:27:42,440 --> 00:27:46,560
Speaker 1: versus Wade and Chief Justice Roberts, I think, still believed

503
00:27:46,720 --> 00:27:50,000
Speaker 1: deeply in the integrity of the Court and is worried

504
00:27:50,000 --> 00:27:52,280
Speaker 1: about the reputation of the Court as being just a

505
00:27:52,359 --> 00:27:56,280
Speaker 1: political body that you can pack with political conservatives and

506
00:27:56,320 --> 00:27:59,199
Speaker 1: they will willy nilly over rule cases they don't agree with.

507
00:27:59,320 --> 00:28:03,000
Speaker 1: He's very worried that that's how this kind of decision

508
00:28:03,000 --> 00:28:05,440
Speaker 1: will be read by the public. But it seems he's

509
00:28:05,520 --> 00:28:08,400
Speaker 1: lost control of the Court and the much more radical

510
00:28:08,440 --> 00:28:12,600
Speaker 1: wing of the Court, embodied most prominently by Justice the Leado,

511
00:28:13,240 --> 00:28:16,159
Speaker 1: who on the bench manifest the kind of anger and

512
00:28:16,320 --> 00:28:20,280
Speaker 1: in judicious behavior in his questioning of people who are

513
00:28:20,880 --> 00:28:24,600
Speaker 1: honorably presenting questions and arguments to the Court. That he

514
00:28:24,680 --> 00:28:28,679
Speaker 1: has this opinion and is using such outrageous language in

515
00:28:28,720 --> 00:28:33,720
Speaker 1: the opinion shows us that the kind of tempered, judicial

516
00:28:33,880 --> 00:28:37,000
Speaker 1: like conduct and tone that we're used to from Chief

517
00:28:37,040 --> 00:28:40,920
Speaker 1: Justice Roberts will no longer garner a majority of this Court,

518
00:28:41,000 --> 00:28:43,880
Speaker 1: and that's quite troubling. This is only a draft. Is

519
00:28:43,920 --> 00:28:48,040
Speaker 1: it likely that at least the language will be tempered,

520
00:28:48,560 --> 00:28:52,120
Speaker 1: and is there a chance that perhaps one of the

521
00:28:52,240 --> 00:28:56,480
Speaker 1: justices will sort of go for a middle ground as

522
00:28:56,600 --> 00:29:00,880
Speaker 1: Chief Justice Roberts would like to see. It's it's quite

523
00:29:00,920 --> 00:29:03,480
Speaker 1: difficult to know how the Court will respond to this

524
00:29:03,720 --> 00:29:06,760
Speaker 1: unauthorized leak of a draft opinion in one of the

525
00:29:06,800 --> 00:29:10,800
Speaker 1: most awaited opinions in the Court's history. We don't have

526
00:29:11,160 --> 00:29:13,920
Speaker 1: really much evidence from the past to go on of

527
00:29:14,000 --> 00:29:16,960
Speaker 1: what they will do. One possibility is that some of

528
00:29:17,000 --> 00:29:19,800
Speaker 1: the other justices will be so concerned about the Court's

529
00:29:19,800 --> 00:29:24,160
Speaker 1: reputation that they will urge Justice the Leado or another

530
00:29:24,240 --> 00:29:28,160
Speaker 1: author to issue on a more temperate opinion. But one

531
00:29:28,160 --> 00:29:31,640
Speaker 1: could also see that what was the motivation for releasing

532
00:29:31,680 --> 00:29:34,160
Speaker 1: this draft is to prepare the American people for the

533
00:29:34,200 --> 00:29:36,680
Speaker 1: bomb that's about to be dropped by the U. S.

534
00:29:36,680 --> 00:29:40,240
Speaker 1: Supreme Court, so that the outrage we're having today will

535
00:29:40,280 --> 00:29:42,960
Speaker 1: have dissipated a little bit by June when they issue

536
00:29:42,960 --> 00:29:46,080
Speaker 1: their final opinion. So I think it's kind of impossible

537
00:29:46,160 --> 00:29:49,520
Speaker 1: at this point to know how this leak will affect

538
00:29:49,560 --> 00:29:52,760
Speaker 1: what the ultimate decision official decision is from this court.

539
00:29:53,800 --> 00:29:57,440
Speaker 1: Democratic lawmakers say they want to codify Row with the

540
00:29:57,480 --> 00:30:00,840
Speaker 1: political divide in our country what are the chances that

541
00:30:01,080 --> 00:30:05,400
Speaker 1: something like that could be successful? Zero. I think it's

542
00:30:05,480 --> 00:30:08,280
Speaker 1: highly unlikely that we would be able to get a

543
00:30:08,400 --> 00:30:12,640
Speaker 1: majority of Senators to vote for a codification of ROVERSUS Wade,

544
00:30:12,920 --> 00:30:16,880
Speaker 1: never mind a filibuster proof sixty votes at this point,

545
00:30:16,880 --> 00:30:20,280
Speaker 1: because there's some Democrats who were actually anti abortion in

546
00:30:20,320 --> 00:30:23,720
Speaker 1: the Senate. And perhaps even more importantly, if we're going

547
00:30:23,760 --> 00:30:26,760
Speaker 1: to spend an enormous amount of capital in the Senate

548
00:30:26,800 --> 00:30:29,959
Speaker 1: to try to get if a filibuster proof majority for

549
00:30:30,080 --> 00:30:33,200
Speaker 1: some sort of codification of abortion rights, why fight for

550
00:30:33,320 --> 00:30:36,880
Speaker 1: ROVERSUS way. It was a flawed decision from the beginning,

551
00:30:37,120 --> 00:30:40,320
Speaker 1: and there is other legislation in Congress right now that

552
00:30:40,320 --> 00:30:43,480
Speaker 1: would secure reproductive rights and justice in a much more

553
00:30:43,680 --> 00:30:47,400
Speaker 1: robust way. The other option is to finally ratify the

554
00:30:47,440 --> 00:30:50,120
Speaker 1: Equal Rights Amendment, which is only a couple of votes

555
00:30:50,160 --> 00:30:53,520
Speaker 1: away from final ratification in the Senate, where they would

556
00:30:53,520 --> 00:30:56,600
Speaker 1: lift the deadline that had been imposed by the Congress

557
00:30:56,640 --> 00:31:00,920
Speaker 1: back in the nineteen seventies. So adding explicit sex equality

558
00:31:00,960 --> 00:31:04,640
Speaker 1: protections to the Constitution for the first time would have

559
00:31:04,720 --> 00:31:08,560
Speaker 1: the effect undermining the argument that Justice Alito relies on

560
00:31:08,640 --> 00:31:11,760
Speaker 1: so heavily, which is the sex equality doesn't appear anywhere

561
00:31:11,760 --> 00:31:14,840
Speaker 1: in the Constitution. The group I work with here at Columbia,

562
00:31:14,920 --> 00:31:18,080
Speaker 1: the Equal Rights Amendment Project, has issued talking points on

563
00:31:18,120 --> 00:31:20,760
Speaker 1: how the r A may actually come safe the day

564
00:31:20,800 --> 00:31:23,800
Speaker 1: when it comes to reproductive rights. What do you think

565
00:31:23,800 --> 00:31:28,640
Speaker 1: the effect will be of this decision on the ground

566
00:31:28,880 --> 00:31:32,720
Speaker 1: in states? Well, I think there's probably fifty different answers

567
00:31:32,720 --> 00:31:35,480
Speaker 1: to that question. In New York City and if it

568
00:31:35,520 --> 00:31:39,240
Speaker 1: will be having a major rally downtown. It's kind of

569
00:31:39,240 --> 00:31:43,320
Speaker 1: a sad commentary on the left and on the pro

570
00:31:43,480 --> 00:31:47,000
Speaker 1: choice left in this country that it takes the entire

571
00:31:47,080 --> 00:31:49,160
Speaker 1: house to be on fire before we show up in

572
00:31:49,200 --> 00:31:52,960
Speaker 1: the streets to defend reproductive rights. The right wing, the

573
00:31:53,000 --> 00:31:55,760
Speaker 1: opponents of abortion rights, and the opponents of ROW have

574
00:31:56,000 --> 00:32:01,880
Speaker 1: been doing this every day or an izing since ninety

575
00:32:01,960 --> 00:32:04,800
Speaker 1: three when the Supreme Court issued this opinion. And it

576
00:32:04,880 --> 00:32:08,600
Speaker 1: may be that that organizing is happening too late to

577
00:32:08,720 --> 00:32:12,520
Speaker 1: defend ROW. But I certainly would imagine we'll see bills

578
00:32:12,520 --> 00:32:15,560
Speaker 1: and state legislatures across the country to try to codify ROW.

579
00:32:15,600 --> 00:32:18,680
Speaker 1: We've already done that New York State, California has as well,

580
00:32:19,160 --> 00:32:23,000
Speaker 1: But there are numerous bills that have been passed or

581
00:32:23,040 --> 00:32:26,720
Speaker 1: are pending in many state legislatures across the country that

582
00:32:26,760 --> 00:32:31,920
Speaker 1: would criminalize abortion immediately upon Row being overruled. And that's

583
00:32:32,040 --> 00:32:34,720
Speaker 1: much more where the trend is going in many states

584
00:32:34,720 --> 00:32:39,640
Speaker 1: in this country than the codification of Row. Unfortunately, Finally,

585
00:32:40,360 --> 00:32:45,560
Speaker 1: Justice Sotomayor said during the oral argument, will this institution

586
00:32:46,400 --> 00:32:52,800
Speaker 1: survive the stinch that this creates in the public perception

587
00:32:54,280 --> 00:33:01,080
Speaker 1: that the Constitution and it's reading are just political acts.

588
00:33:02,160 --> 00:33:06,959
Speaker 1: I don't see how it is possible. What kind of

589
00:33:07,000 --> 00:33:09,880
Speaker 1: impact do you think this has on the Court as

590
00:33:09,920 --> 00:33:15,080
Speaker 1: an institution and on the public's perception and belief in

591
00:33:15,120 --> 00:33:20,320
Speaker 1: the Court. This will have a profound and lasting destructive

592
00:33:20,320 --> 00:33:24,520
Speaker 1: effect on the reputation of the Supreme Court. The magic

593
00:33:25,000 --> 00:33:28,200
Speaker 1: of having a Supreme Court is that their opinions, their

594
00:33:28,320 --> 00:33:32,719
Speaker 1: decisions are abided by by the American people as a

595
00:33:32,760 --> 00:33:36,880
Speaker 1: matter of voluntary consent. The Supreme Court doesn't have an

596
00:33:36,960 --> 00:33:40,760
Speaker 1: army that can enforce their rules. They have to have

597
00:33:40,880 --> 00:33:45,480
Speaker 1: the kind of legitimacy and authority that the American public

598
00:33:45,520 --> 00:33:49,400
Speaker 1: respects because we live in a society governed by law,

599
00:33:50,000 --> 00:33:53,360
Speaker 1: not just by politics. And for the Court to issue

600
00:33:53,440 --> 00:33:58,000
Speaker 1: this kind of radical decision so quickly after acquiring a

601
00:33:58,080 --> 00:34:01,520
Speaker 1: majority that enables them legal you to do so, we'll

602
00:34:01,560 --> 00:34:06,520
Speaker 1: have long lasting destructive effects and that stench that Justice

603
00:34:06,520 --> 00:34:09,919
Speaker 1: Soda Mayora referred to certainly I think for the rest

604
00:34:09,960 --> 00:34:13,799
Speaker 1: of my lifetime. And it's a tragedy. It's an enormous

605
00:34:13,840 --> 00:34:18,719
Speaker 1: attack and assault on the very idea of democracy that

606
00:34:18,760 --> 00:34:23,440
Speaker 1: we have both elected officials and judges who interpret the

607
00:34:23,520 --> 00:34:27,759
Speaker 1: Constitution in an enduring and a political way, and that

608
00:34:28,440 --> 00:34:32,560
Speaker 1: that last principle I think will be severely undermined m

609
00:34:32,680 --> 00:34:36,520
Speaker 1: by this opinion, this draft opinion from Justice Alito, if

610
00:34:36,560 --> 00:34:39,040
Speaker 1: it ends up being the actual law of the land.

611
00:34:39,600 --> 00:34:43,840
Speaker 1: Thanks Catherine. That's Professor Katherine Frankie of Columbia Law School.

612
00:34:44,160 --> 00:34:46,480
Speaker 1: And that's it for this edition of the Bloomberg Law Show.

613
00:34:46,800 --> 00:34:49,120
Speaker 1: Remember you can always get the latest legal news on

614
00:34:49,200 --> 00:34:53,480
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

615
00:34:53,680 --> 00:34:58,719
Speaker 1: and at www dot Bloomberg dot com, slash podcast, Slash Law.

616
00:34:59,120 --> 00:35:02,000
Speaker 1: And remember to to the Bloomberg Glass Show every week

617
00:35:02,160 --> 00:35:05,680
Speaker 1: night at ten pm Wall Street Time. I'm June Grosso

618
00:35:05,800 --> 00:35:07,440
Speaker 1: and you're listening to Bloomberg