WEBVTT - Roe v. Wade on the Brink of Extinction 0:00:03.160 --> 0:00:11.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:11.200 --> 0:00:18.439 My Joy, My Joy, My joys. The leak of the 0:00:18.520 --> 0:00:22.439 explosive draft of a Supreme Court opinion striking down the 0:00:22.560 --> 0:00:26.319 landmark ruling of Roevie Wade sent shock waves across the 0:00:26.400 --> 0:00:30.320 country on Monday night, igniting protests at the Court within 0:00:30.400 --> 0:00:34.839 hours and across the nation since then Vice President Kamala 0:00:34.920 --> 0:00:38.720 Harris denounced the decision to take away the constitutional right 0:00:38.800 --> 0:00:42.920 of women to abortion, established for nearly half a century. 0:00:43.240 --> 0:00:45.559 How dare they tell a woman what she can do 0:00:45.640 --> 0:00:49.960 and cannot do with her own body? How dare they? 0:00:51.800 --> 0:00:55.000 How dare they try to stop her from determining her 0:00:55.040 --> 0:01:00.600 own future? How dare they? While abortion rights advocates are 0:01:00.640 --> 0:01:03.880 planning how to fight back against the decision, which has 0:01:03.920 --> 0:01:06.920 been called the most damaging setback to the rights of 0:01:06.959 --> 0:01:10.960 women in our history, and politicians are considering how it 0:01:10.959 --> 0:01:14.120 will affect the mid terms, where control of the narrowly 0:01:14.200 --> 0:01:18.360 divided House and Senator up for grabs, legal experts are 0:01:18.480 --> 0:01:23.280 speculating how the unprecedented leak at a court normally shrouded 0:01:23.319 --> 0:01:28.240 in secrecy will further decimate trust among the justices joining 0:01:28.280 --> 0:01:31.039 me is Stephen Vladick, a professor at the University of 0:01:31.120 --> 0:01:34.920 Texas Law School. There have been leaks before in the 0:01:34.959 --> 0:01:38.880 modern history of the Supreme Court, leaks about internal deliberations, 0:01:38.880 --> 0:01:42.319 even leaks of the results of row hours before it 0:01:42.400 --> 0:01:45.760 was issued, but nothing like this, uh, leak of a 0:01:45.880 --> 0:01:49.160 draft months before the ruling will be issued. What does 0:01:49.240 --> 0:01:53.480 this say about this court at this time? Well, I mean, 0:01:53.520 --> 0:01:55.920 I think the leak is only sort of part of 0:01:55.960 --> 0:01:59.360 the story compared to what the leak actually portend. But June, 0:01:59.400 --> 0:02:02.680 I think it's as something pretty dramatic about whoever the 0:02:02.760 --> 0:02:06.400 leaker is, their perception of the Court's role, and about 0:02:06.440 --> 0:02:08.800 the politicization of the court. I mean, whether the league 0:02:09.000 --> 0:02:12.440 came from the Court's left side or right side. Either way, 0:02:12.760 --> 0:02:15.880 it's a pretty stunning development to have a draft majority 0:02:15.919 --> 0:02:19.720 opinion like this out in public, presumably to either galvanized 0:02:19.800 --> 0:02:22.840 public opposition or to lock in votes. And so I 0:02:22.840 --> 0:02:25.400 think to me, what is though telling about the leak 0:02:25.800 --> 0:02:27.640 is that we've come to a point in the Court's 0:02:27.680 --> 0:02:29.639 history at where it could even happen at all, and 0:02:29.680 --> 0:02:31.560 where we could get to a place where a decision 0:02:31.960 --> 0:02:35.280 this monumental in this momentous is being leased out for 0:02:35.320 --> 0:02:38.680 one reason or another in ways that are completely and 0:02:38.800 --> 0:02:43.800 unastailably political. Do you think that this is rattling the justices? Well, 0:02:43.840 --> 0:02:45.919 I mean, I can't speak to sort of how they're 0:02:45.919 --> 0:02:48.800 reacting other than the note that we know. For example, 0:02:48.880 --> 0:02:51.440 Justice the Leado was supposed to speak on Friday at 0:02:51.440 --> 0:02:54.640 the Fifth Circuit Judicial Conference that he's canceled that appearance 0:02:54.680 --> 0:02:57.000 only since the league happened. You know, we have this 0:02:57.080 --> 0:02:59.840 remarkable statement from the Court and that came out on Tuesday, 0:03:00.080 --> 0:03:02.800 including the statement from Chief as Roberts himself. So I 0:03:02.880 --> 0:03:05.800 don't doubt that the leak has rattled at least some 0:03:05.919 --> 0:03:07.880 within the court. But again, I also think it's worth 0:03:07.919 --> 0:03:10.360 keeping Sims in perspective. I mean, the leak is only 0:03:10.480 --> 0:03:12.840 part of the story here, part of why such a 0:03:12.880 --> 0:03:15.000 big deals because what's in the league. You know, if 0:03:15.000 --> 0:03:17.000 what has lead doubt June were a draft majority of 0:03:17.080 --> 0:03:20.120 the bankruptcy case, I don't think we'd be having this conversation. 0:03:20.680 --> 0:03:24.160 So true, the Chief Justice said that statement he issued 0:03:24.280 --> 0:03:26.800 the work of the Court will not be affected in 0:03:26.919 --> 0:03:31.720 any way. Is that too optimistic? Yes, I mean, I 0:03:31.760 --> 0:03:34.560 think it's what he has to say, but I think everyone, 0:03:35.040 --> 0:03:38.080 the Chief Justice first of all, knows exactly how untrue 0:03:38.160 --> 0:03:41.040 that is. You know. I think it's impossible to imagine 0:03:41.240 --> 0:03:44.240 this having no impact either in how the Court resolves 0:03:44.280 --> 0:03:47.600 this case specifically dobbed, or in the courts business going forward. 0:03:47.600 --> 0:03:50.800 And I think we are certain to, if not publicly see, 0:03:50.840 --> 0:03:53.320 at least come to be aware of changes behind the 0:03:53.320 --> 0:03:57.040 scenes and how the Court handles draft distributions, in whether 0:03:57.080 --> 0:03:59.760 the Court tries to actually formalize some kind of co 0:04:00.000 --> 0:04:02.560 with of secrecy, and whether the Court tries to actually 0:04:02.560 --> 0:04:05.960 create some kind of formal investigative mechanisms. So I think 0:04:06.040 --> 0:04:09.640 things are going to be irrevocably changed by this leak. 0:04:10.000 --> 0:04:11.480 Whether that's a good thing or a bad thing, I 0:04:11.480 --> 0:04:13.720 think for me is to be seen. The Marshal of 0:04:13.760 --> 0:04:17.039 the Supreme Court is investigating the leak. I just wonder 0:04:17.160 --> 0:04:21.159 whether the leaker will be found. Chief Justice Warren Burger 0:04:21.200 --> 0:04:24.679 threatened to call the FBI to administer lie detector tests 0:04:24.680 --> 0:04:27.839 with the leak of Row. Will it be really difficult 0:04:27.920 --> 0:04:30.640 to find out perhaps impossible to find out who leaked 0:04:31.000 --> 0:04:33.159 I took? It depends, you know, if it was a 0:04:33.320 --> 0:04:36.200 current law clerk and if they weren't very clever about 0:04:36.240 --> 0:04:38.719 covering their tracks, they might actually be pretty easy to 0:04:38.800 --> 0:04:41.080 figure it out. But if it was either someone who's 0:04:41.160 --> 0:04:43.760 not currently in the building, or if it was someone 0:04:43.800 --> 0:04:47.240 who worked really hard to obscure their identity, I think 0:04:47.320 --> 0:04:49.800 it gets much harder, and so everyone has their own 0:04:50.040 --> 0:04:52.440 theory about who the leaker is. I think it's also 0:04:52.480 --> 0:04:54.960 possible that we the public will never find out, even 0:04:55.000 --> 0:04:57.960 if the Supreme Court does, because imagine a scenario where 0:04:57.960 --> 0:05:00.080 it turns out that the leaker is, you know, of 0:05:00.160 --> 0:05:02.560 the justices, or someone very close to one of the 0:05:02.600 --> 0:05:04.400 justices and not a law clerk. You know, I could 0:05:04.440 --> 0:05:07.120 see reasons why if I'm John Roberts, I don't want 0:05:07.160 --> 0:05:10.520 that becoming public. So I think we will probably hear 0:05:10.680 --> 0:05:13.440 something about the leak investigation, but whether we'll ever find 0:05:13.480 --> 0:05:16.599 out publicly who leaked the opinion and why, I think 0:05:16.640 --> 0:05:18.719 remains to be seen. I mean, even some of the 0:05:18.760 --> 0:05:21.279 most famous leaks in Supreme Court history I think have 0:05:21.360 --> 0:05:24.880 never been publicly identified, including the leak of the Resultant Row. 0:05:25.160 --> 0:05:29.080 Senate Minority Leader Mitch McConnell is one of the Republicans 0:05:29.480 --> 0:05:34.200 calling for the Justice Department to investigate and prosecute the leaker, 0:05:34.880 --> 0:05:40.200 but what would they be prosecuted for? Wishful thinking? Uh? Leakend, 0:05:40.520 --> 0:05:43.080 as Junior and I have discussed before, is not by 0:05:43.200 --> 0:05:45.800 self a crime. In the national security space, there are 0:05:45.880 --> 0:05:49.240 criminal statutes that are specifically about leaking class sized information. 0:05:49.360 --> 0:05:51.719 Whatever else you might say about the draft opinion and Dobbs, 0:05:51.760 --> 0:05:54.520 it wasn't classified, right, there are dastices. Don't make it 0:05:54.560 --> 0:05:58.920 a crime if the leaker used various mechanisms to obtain 0:05:58.960 --> 0:06:01.680 the draft. So if, for example, someone on the outside 0:06:01.720 --> 0:06:04.920 hacked into the court's computer system and obtained the draft 0:06:05.000 --> 0:06:07.160 that way, that might be a crime. But you know, 0:06:07.200 --> 0:06:09.919 if I just happened to hand a confidential government document 0:06:09.960 --> 0:06:12.760 to a reporter by itself, I am not committing a crime. 0:06:13.040 --> 0:06:15.680 And maybe there are folks who wish that that weren't true, 0:06:15.760 --> 0:06:17.720 but that's the laws of them. Let's talk about the 0:06:17.760 --> 0:06:21.560 opinion itself. And a line that's been quoted a lot 0:06:21.720 --> 0:06:25.640 is that Alito said Rowe was egregiously wrong from the start. 0:06:26.040 --> 0:06:29.320 Critique is reasoning in the draft? Well, I mean I 0:06:29.400 --> 0:06:32.440 since the draft is it is top to bottom and 0:06:32.480 --> 0:06:35.800 exercise and motivated reason, I mean, Roe, you know, whatever 0:06:35.800 --> 0:06:38.000 else may be said about it, Justice Blackman did try 0:06:38.160 --> 0:06:41.039 very hard to explain exactly what he was doing. He 0:06:41.040 --> 0:06:44.040 tried very hard to explain the baseline rights to privacy 0:06:44.080 --> 0:06:46.320 that we got from Chris Wald, and that the draft 0:06:46.320 --> 0:06:49.560 opinion in Dabbs does not purport to repudiate. How what 0:06:49.760 --> 0:06:52.479 complicates the matter when you get in an abortion case 0:06:52.839 --> 0:06:55.839 is that you have countervailing interests. You have the interests 0:06:55.920 --> 0:06:58.640 of the president woman, but you also have the state's 0:06:58.680 --> 0:07:02.600 interest in protecting what Justice Blackman calls potential life. And so, 0:07:02.680 --> 0:07:05.560 you know, I think what's frustrating about the draft opinion 0:07:05.760 --> 0:07:08.920 June is that it really doesn't take Row seriously. It 0:07:09.040 --> 0:07:13.920 just sort of accepts as a default proposition Rose wrongness, 0:07:13.960 --> 0:07:16.840 and then I think goes into even more detail about 0:07:16.840 --> 0:07:20.720 the difficulties anytime the Supreme Court recognizes right that justice 0:07:20.760 --> 0:07:24.200 the Leader says are not deeply rooted in our historical tradition. 0:07:24.400 --> 0:07:26.040 But of course that would call him to question a 0:07:26.080 --> 0:07:28.440 whole lot of stuff beyond Row. So, you know, I 0:07:28.440 --> 0:07:30.760 guess what is striking about the draft opinion is that 0:07:30.840 --> 0:07:34.200 it's not an effort really to persuade anyone who wasn't 0:07:34.200 --> 0:07:36.800 already persuaded that row is wrong, and it's not really 0:07:36.800 --> 0:07:39.000 even an effort to convince the reader that Rose wrong 0:07:39.040 --> 0:07:42.400 on its own term. Does Aldo just throw precedent out 0:07:42.440 --> 0:07:46.680 the window, as he's done before in for example, when 0:07:46.720 --> 0:07:49.640 he threw out a thirty year old precedent in saying 0:07:49.640 --> 0:07:53.440 that government employees have a constitutional right not to pay 0:07:53.560 --> 0:07:55.680 union fees. No, I mean, I think Janet is a 0:07:55.680 --> 0:07:58.200 great comparison June, because yes, I mean I think you know, 0:07:58.680 --> 0:08:02.120 here we're seeing just how little regard and respect right 0:08:02.240 --> 0:08:04.760 that Justice the Lado seems to have. First story decisis 0:08:04.760 --> 0:08:07.120 for the principle that oftens being equal right, the court 0:08:07.120 --> 0:08:09.760 should follow his precedence. You know, Aldo's draft opinion does 0:08:10.000 --> 0:08:12.600 try to offer at least the argument for why rowan 0:08:12.720 --> 0:08:15.120 Casey shouldn't be followed as a matter of story decisis. 0:08:15.400 --> 0:08:17.800 What's ironic about those arguments is that those were the 0:08:17.920 --> 0:08:22.160 very arguments that the joint opinion and Casey by Justices O'Connor, 0:08:22.240 --> 0:08:25.680 Kennedy and Suitor had relied upon um And so he 0:08:25.720 --> 0:08:28.160 basically has to say, well, they were either they were wrong, 0:08:30.200 --> 0:08:32.720 or things have changed dramatically in the last thirty years. 0:08:32.720 --> 0:08:34.679 And I'm not sure either of those are are true, 0:08:34.840 --> 0:08:37.400 So you know, Jude, part of why since that's important again, 0:08:37.440 --> 0:08:39.760 I think folks who want to be persuaded will be persuaded. 0:08:40.160 --> 0:08:42.120 But part of why that's important is because if this 0:08:42.200 --> 0:08:46.440 is the sort of casual and cavalier attitude that Justice 0:08:46.440 --> 0:08:49.199 Aldo and whoever else signs its opinion is going to 0:08:49.280 --> 0:08:53.160 have towards starry decisis, why shouldn't we be worried about 0:08:53.240 --> 0:08:57.000 other rights? Why shouldn't we be worried about Griswold and contraception, 0:08:57.280 --> 0:09:00.640 or about Lawrence versus Texas and same sex stotomy, or 0:09:00.679 --> 0:09:02.400 even though Berto fell in same sex marriage. I mean, 0:09:02.400 --> 0:09:04.760 the question is, you know, when the draft's opinion says 0:09:04.800 --> 0:09:07.080 this is just about abortion, but it it takes an 0:09:07.080 --> 0:09:10.520 approach to storry decisive that calls into question all prior 0:09:10.559 --> 0:09:14.880 decisions recognize him unenumerated constitutional rights. There's a pretty jarring contrast. 0:09:14.920 --> 0:09:20.439 There is the reasoning so wrong or is the language 0:09:20.440 --> 0:09:24.720 so extreme that he may lose some of the five justices? 0:09:25.080 --> 0:09:27.360 You know, we'll find out. I mean, I guess you know, 0:09:27.480 --> 0:09:30.960 one theory that I think is not implausible for why 0:09:31.040 --> 0:09:34.040 this opinion leaked out is that you know, perhaps there 0:09:34.120 --> 0:09:37.240 was a separate opinion written by Chief Justice Roberts, who, 0:09:37.280 --> 0:09:40.440 according to the political story accompanied the leak, did not 0:09:40.600 --> 0:09:43.559 vote to overrule Rowan Casey at conference. Perhaps there was 0:09:43.600 --> 0:09:47.480 a separate opinion that you know, was sufficiently compelling and 0:09:47.720 --> 0:09:50.400 or critical that someone was worried that at least one 0:09:50.400 --> 0:09:52.840 of the justices who had voted to over rule Rowan 0:09:52.880 --> 0:09:55.680 Casey at conference might be softening and might be wobbling. 0:09:55.840 --> 0:09:57.240 And so I've I've always thought that one of the 0:09:57.240 --> 0:09:59.600 better theories here is that the leak was designed to 0:09:59.600 --> 0:10:02.680 actually lock in the five votes to overrule Rowan Casey, 0:10:02.679 --> 0:10:05.320 since now it would be very obvious to everyone if 0:10:05.400 --> 0:10:08.040 when the final decision comes down this is not where 0:10:08.040 --> 0:10:10.680 the court ends up, that someone flip flock. So we 0:10:10.720 --> 0:10:13.560 don't know if that's what's happening. We won't know, perhaps 0:10:13.640 --> 0:10:16.280 even when the final decision comes down, if that's what happened. 0:10:16.280 --> 0:10:19.280 But it seems like at least a possibility. So is 0:10:19.280 --> 0:10:22.360 there a chance at least that row may not be 0:10:23.040 --> 0:10:26.000 reversed in the end. I mean, never say never, June, right, 0:10:26.200 --> 0:10:28.960 you know, Rowan Casey are themselves a good lessons here. 0:10:29.040 --> 0:10:31.960 I mean the original vote at conference in Casey when 0:10:31.960 --> 0:10:34.840 the case was argued during the October one term was 0:10:34.880 --> 0:10:37.320 to overrule Row. And we know what happened. We know 0:10:37.400 --> 0:10:40.559 the court didn't, So you know, I think it's possible 0:10:41.000 --> 0:10:43.000 that what we get when the Court hands down its 0:10:43.040 --> 0:10:46.280 final ruling doesn't look like this. The problem is that 0:10:46.400 --> 0:10:49.160 because of the leak, and this is why I'm skeptical 0:10:49.200 --> 0:10:51.959 that the leak came from the dissenters. Because of the leak, 0:10:52.080 --> 0:10:54.320 I think that makes it a lot harder for Justice 0:10:54.360 --> 0:10:56.760 who might have been pushing the leader to moderate the opinion, 0:10:56.880 --> 0:10:58.520 or Justice who might even be turned off by the 0:10:58.559 --> 0:11:02.640 opinion to not now just line up behind it. What's 0:11:02.960 --> 0:11:07.040 startling to me is that it's been less than two 0:11:07.120 --> 0:11:11.160 years since Amy Coney Barrett joined the Court and they're 0:11:11.200 --> 0:11:14.960 ready to overturn Row. So am I just being naive 0:11:15.160 --> 0:11:18.280 that this is awfully fast? I mean, we've talked before 0:11:18.280 --> 0:11:22.640 about how the Chief Justice likes to do change in moderation. 0:11:22.960 --> 0:11:26.240 This is just you know, wholesale reversal. Well, I mean, 0:11:26.320 --> 0:11:28.560 you know, June, I think this has been one of 0:11:28.600 --> 0:11:30.920 the themes that folks have been trying to point out 0:11:30.960 --> 0:11:35.520 since Justice by Justice Ginsborough, Like yes, when Kavanaugh replaced Kennedy. 0:11:36.880 --> 0:11:39.959 That created a very solid Piper four majority. But with 0:11:40.000 --> 0:11:43.200 the Chief Justice as basically the speed break and with 0:11:43.240 --> 0:11:46.800 the Chief Justice, you know, and his preference for moderate 0:11:47.000 --> 0:11:49.640 and I would say moderation, but for sort of incrementalism. 0:11:49.640 --> 0:11:51.640 I think that's the right word, right, that that would 0:11:51.640 --> 0:11:54.520 be what decided how fast the court moves. Well, it's 0:11:54.600 --> 0:11:56.679 been clear now, right for the better part of the 0:11:56.760 --> 0:11:58.920 year and a half that is no longer up to 0:11:58.920 --> 0:12:01.400 the Chief and we've seen sort of smaller and less 0:12:01.440 --> 0:12:05.439 significant examples of the Court moving much faster than the 0:12:05.520 --> 0:12:08.000 Chief might be inclined. You know, we've talked before June 0:12:08.040 --> 0:12:10.560 about some of these shadow doctor rulings where the Chief 0:12:10.600 --> 0:12:13.920 has joined the three liberals in descentive because he thinks 0:12:14.000 --> 0:12:17.000 that the Court is moving too quickly by you know, 0:12:17.120 --> 0:12:20.680 changing the law through unsigned, unexplained orders. So, you know, 0:12:20.760 --> 0:12:23.200 I think if this is where this ends up, you know, 0:12:23.240 --> 0:12:25.160 with a five to four or five to one to 0:12:25.280 --> 0:12:28.120 three ruling getting rid of Rowan casey, that really is 0:12:28.160 --> 0:12:29.839 the day new maw of the pattern I think has 0:12:29.840 --> 0:12:32.160 been building since the day Justin Barrett joined the Court, 0:12:32.400 --> 0:12:34.160 and it's just for the proof of how this really 0:12:34.240 --> 0:12:37.400 is no longer the Roberts Court. How will that affect 0:12:37.480 --> 0:12:41.199 the legitimacy of the Court in the eyes of the public. 0:12:41.679 --> 0:12:42.959 I mean, I think we're going to see what we've 0:12:42.960 --> 0:12:46.720 already been seeing, which is just further polarization. And I 0:12:46.760 --> 0:12:50.160 think a further wise name of the devise between those 0:12:50.280 --> 0:12:53.280 Americans who view the Court is legitimate for no other 0:12:53.280 --> 0:12:55.200 reason than because they like what the Court is ding 0:12:55.440 --> 0:12:57.640 and those who be the Court is illegitimate, whether because 0:12:57.640 --> 0:12:59.080 they don't like what the Court is doing because they 0:12:59.120 --> 0:13:01.800 think the Court is doing it inappropriately. And I guess 0:13:01.800 --> 0:13:04.319 one of the things that leaves me, you know, deeply 0:13:04.360 --> 0:13:07.120 word about the courts and institution is that I would 0:13:07.120 --> 0:13:09.520 think it would be in the Court's interest to care 0:13:09.880 --> 0:13:11.640 about that latter group, That it would be in the 0:13:11.679 --> 0:13:14.920 Court's interest to actually want to have at least some 0:13:14.960 --> 0:13:18.920 semblance of legitimacy, even among those not inclined to agree 0:13:18.920 --> 0:13:20.560 with the results of its decisions. I mean, this was 0:13:20.600 --> 0:13:23.679 the theme of Justice barrett speech at the Ronald Reagan 0:13:23.760 --> 0:13:26.800 Library last month, when she said, you know, don't just 0:13:26.920 --> 0:13:29.439 call us hacks. Read our opinions deep for yourself, that 0:13:29.520 --> 0:13:31.520 there are principles in them. You may not agree with 0:13:31.559 --> 0:13:34.079 the principles, but at least you'll see that there are principles. 0:13:34.080 --> 0:13:35.600 And so I think, you know, one of the things 0:13:35.640 --> 0:13:39.720 that I really loose leap over is the increasing appearance, 0:13:39.760 --> 0:13:43.439 if not reality, that there's a chunk of justice is 0:13:43.520 --> 0:13:46.760 perhaps the majority of justices for whom how the Court 0:13:46.840 --> 0:13:50.480 is perceived by those on the political left is increasingly 0:13:50.559 --> 0:13:52.959 less relevant, and I think that that's a very dangerous 0:13:53.000 --> 0:13:57.560 road to go down. Alito attempts to distinguish abortion from 0:13:57.559 --> 0:14:01.160 other rights grounded in the constitutional right to privacy, But 0:14:01.440 --> 0:14:06.280 does his reasoning jeopardize other protections that are not quote, 0:14:06.320 --> 0:14:10.240 deeply rooted in this nation's history and tradition. Yeah, this 0:14:10.320 --> 0:14:12.200 is the problem. Yes, the leader says, I'm only talking 0:14:12.200 --> 0:14:15.880 about abortion, But the grounds that he deploys for justifying 0:14:15.920 --> 0:14:18.760 the overruling the rowing casey are grounds that are not 0:14:18.840 --> 0:14:21.320 limited to abortion. And this notion that you know, rights 0:14:21.360 --> 0:14:23.240 have to be deeply rooted in our history and tradition 0:14:23.320 --> 0:14:26.040 to be recognized by the Supreme Court would call into 0:14:26.120 --> 0:14:28.040 question a whole lot of things that the leader says 0:14:28.120 --> 0:14:31.520 he's not calling into question, things like bands on interracial marriage, 0:14:31.560 --> 0:14:35.040 bans on same sex marriage, bands on homosexual stodomy. I mean, 0:14:35.120 --> 0:14:37.920 there's a lot June here that if you take the 0:14:38.040 --> 0:14:41.320 reasoning seriously as opposed to the rhetoric, could be vulnerable. 0:14:41.440 --> 0:14:43.680 Now that doesn't mean that, like overnight, you know, the 0:14:43.680 --> 0:14:45.920 Supreme Court is going to start overruling those cases too. 0:14:45.960 --> 0:14:49.280 You'd have to have first state tried to scale back 0:14:49.360 --> 0:14:52.160 these protections, that tried to sort of restore bands on 0:14:52.240 --> 0:14:55.880 certain kinds of intimate conduct or gay marriage. But you know, June, 0:14:55.880 --> 0:14:59.120 I live in Texas. Um, it's not hard to imagine 0:14:59.480 --> 0:15:02.240 elected a officials in states like mine, they are going 0:15:02.280 --> 0:15:04.560 to be pretty aggressive. I mean, just the other day 0:15:04.640 --> 0:15:07.640 Governor Abbott, right, Texas As governor, talked about trying to 0:15:07.680 --> 0:15:10.040 push the Supreme Court to revisit the nine eight two 0:15:10.040 --> 0:15:14.080 decision recognizing the right of the children of undocumented immigrants 0:15:14.080 --> 0:15:16.880 to go to public school. So it's really hard to 0:15:16.960 --> 0:15:21.160 take seriously the protestations in the draft opinion and then 0:15:21.200 --> 0:15:23.280 by by some who are defending it that this is 0:15:23.360 --> 0:15:26.680 only going to be about abortion. Once you've crossed the rubicon, 0:15:26.880 --> 0:15:29.880 once you've shown that you're willing to overrule cases like 0:15:29.960 --> 0:15:33.240 Rowan Casey simply because you don't believe those rights are 0:15:33.400 --> 0:15:35.760 deeply rooted in our country's history. I don't know what 0:15:35.800 --> 0:15:39.120 the stopping point is other June than politics. And you know, 0:15:39.280 --> 0:15:41.600 if the stopping point is politics, the stopping point is 0:15:41.600 --> 0:15:44.720 that overruling those other decisions would be deeply unpopular. I mean, 0:15:45.120 --> 0:15:49.040 one those politics could always change. But to what does 0:15:49.040 --> 0:15:51.400 that say about the principle here? If the only reason 0:15:51.440 --> 0:15:54.000 why Rowan Casey are not safe that those other cases 0:15:54.040 --> 0:15:56.960 are is because of political support, then that suggests that 0:15:57.000 --> 0:15:59.880 this is politics all the way down and not constitutional laws. 0:16:00.120 --> 0:16:03.800 What's the next battle line? Some are saying that medication 0:16:03.840 --> 0:16:06.840 abortion would be the next battleground. Well, I mean, I 0:16:06.840 --> 0:16:09.240 think we're going to see multiple battlegrounds at once. Medication 0:16:09.280 --> 0:16:11.280 abortion is going to be one front in the war. 0:16:11.400 --> 0:16:13.520 I think we're gonna see states try to make it 0:16:13.640 --> 0:16:16.640 unlawful for their residents to travel out of states to 0:16:16.720 --> 0:16:18.920 obtain abortion, so that we're going to have a fight 0:16:18.960 --> 0:16:22.200 over whether states can limit their own residents from leaving 0:16:22.240 --> 0:16:24.120 the state to go to states that will still have 0:16:24.160 --> 0:16:26.760 abortions after this decision, and so on the abortion front, 0:16:26.800 --> 0:16:28.960 I think that's where the fight will be joined. But 0:16:29.000 --> 0:16:30.520 I also think, because you know, we talked about with 0:16:30.520 --> 0:16:32.720 regards to Governor Abbott, We're going to see efforts by 0:16:32.760 --> 0:16:35.720 other especially Red states, to push the envelope and to 0:16:35.760 --> 0:16:38.080 see what other rights the Court is willing to reconsider. 0:16:38.280 --> 0:16:42.240 Because the one undeniable thing about a ruling like the 0:16:42.320 --> 0:16:44.360 draft opinion, if that becomes the law of the land, 0:16:44.520 --> 0:16:47.000 is it's basically an invitation to court and to state 0:16:47.080 --> 0:16:50.120 to be cynical and to be political and to push 0:16:50.160 --> 0:16:52.240 the Court to actually revisit these rights one at a 0:16:52.320 --> 0:16:54.280 time in a way that would not have been true 0:16:54.280 --> 0:16:58.720 without this kind of decision. You know, states banning people 0:16:58.720 --> 0:17:02.040 from leaving the state to get an abortion, it seems 0:17:02.040 --> 0:17:06.720 to me like that's just unworkable and even for conservatives, 0:17:06.880 --> 0:17:10.080 hard to defend. I mean maybe maybe not. You know, 0:17:10.200 --> 0:17:12.600 I think it depends on, you know, what, how you 0:17:12.640 --> 0:17:15.880 set up the law, depends on you know, sort of 0:17:16.200 --> 0:17:19.960 if you impose as Texas has mandatory reporting requirements on 0:17:20.119 --> 0:17:23.719 medical providers when it comes to you know, individuals who 0:17:23.760 --> 0:17:27.000 are pregnant and then lose their presidency. Um. You know, 0:17:27.200 --> 0:17:29.920 I think it's ugly and I think it would incentivize 0:17:29.920 --> 0:17:33.679 a very sort of dangerous and surveillance oriented regime. But 0:17:33.760 --> 0:17:35.640 you know, June, And I don't know if folks appreciate 0:17:35.720 --> 0:17:38.879 how close to that we already hard here in Texas um. 0:17:38.960 --> 0:17:41.240 And you know, one response might be, oh, well, the 0:17:41.240 --> 0:17:44.439 Supreme Court would never countenance that. And I think this 0:17:44.520 --> 0:17:47.439 is the you know, in the final analysis, this is 0:17:47.480 --> 0:17:50.800 the central problem with the draft opinion in Jobs, which 0:17:50.840 --> 0:17:54.080 is arguments that the Supreme Court would quote never countenance 0:17:54.440 --> 0:17:57.920 you know, insert crazy things here really do go out 0:17:57.960 --> 0:17:59.600 the window once you have an opinion like this on 0:17:59.640 --> 0:18:02.320 the books. Thanks so much for your insights, Steve. That's 0:18:02.320 --> 0:18:05.879 Professor Stephen Vladdock of the University of Texas Law School. 0:18:07.440 --> 0:18:11.560 At their confirmation hearings, the five Conservative justices who have 0:18:11.640 --> 0:18:16.080 signed onto a draft decision overturning Roe v. Wade acknowledged 0:18:16.160 --> 0:18:19.399 that Roe was a precedent of the Supreme Court. It 0:18:19.520 --> 0:18:22.560 is an important precedent of the Supreme Court. By it, 0:18:22.640 --> 0:18:26.080 I mean Roe v. Wade and planned parenthood versus Casey 0:18:26.359 --> 0:18:32.480 been reaffirmed many times. Casey is precedent on precedent. It 0:18:32.560 --> 0:18:35.320 has been reaffirmed, so a good judge will consider it 0:18:35.400 --> 0:18:38.920 as president of the United States Supreme Court worthy as 0:18:38.960 --> 0:18:44.119 treatment of precedent like any other and scholars across the 0:18:44.160 --> 0:18:47.800 spectrum say that doesn't mean that Roe should be overruled. 0:18:49.600 --> 0:18:54.960 I believe the Constitution protects the right to privacy. Versus 0:18:54.960 --> 0:18:58.240 Wade is an important precedent of the Supreme Court. It 0:18:58.359 --> 0:19:02.240 was decided in three so it's been on the books 0:19:02.240 --> 0:19:06.000 for a long time. The last justice testifying in that 0:19:06.119 --> 0:19:11.080 clip was Samuel Alito, who authored the draft opinion reversing 0:19:11.160 --> 0:19:14.920 Roe v. Wade. My guest is Katherine Frankie, a professor 0:19:14.960 --> 0:19:17.760 at Columbia Law School and the director of the Center 0:19:17.840 --> 0:19:21.479 for Gender and Sexuality Law. If the Court does in 0:19:21.560 --> 0:19:25.320 fact reverse Roe v. Wade, how big of a setback 0:19:25.480 --> 0:19:28.960 would that be to the rights of women in this country. Well, 0:19:29.000 --> 0:19:33.080 this draft opinion threatens to turn back constitutional law for 0:19:33.160 --> 0:19:36.199 three generations back in time, to set us back to 0:19:36.359 --> 0:19:39.520 really the early part of the twentieth century. The breadth 0:19:39.600 --> 0:19:43.359 of the opinion reaches not just the right to abortion 0:19:43.520 --> 0:19:46.280 and where it might be protected under the Constitution, but 0:19:46.359 --> 0:19:48.960 a wide range of other rights. So they're planting the 0:19:49.080 --> 0:19:52.159 seeds for the next cases coming down the road. And 0:19:52.200 --> 0:19:55.159 in this sense, I think what this opinion threatens to 0:19:55.200 --> 0:19:58.119 do is to write women and pregnant people in particular 0:19:58.359 --> 0:20:01.679 out of the Constitution and Irey, let's talk about the 0:20:01.720 --> 0:20:06.400 reasoning in his draft opinion, Row was egregiously wrong from 0:20:06.400 --> 0:20:10.560 the start. The Constitution makes no reference to abortion. Give 0:20:10.560 --> 0:20:14.600 me your opinion of the way he reasoned out this opinion. Well, 0:20:14.600 --> 0:20:17.879 Justice Alito articulates a view that is held by several 0:20:17.920 --> 0:20:19.800 other members of the Court, which is that if the 0:20:19.920 --> 0:20:24.639 right is not specifically listed or mentioned in the Constitution, 0:20:24.720 --> 0:20:28.440 then it doesn't exist. And we saw Justice Gorsets use 0:20:28.640 --> 0:20:32.159 very similar language in one of the COVID religious liberty 0:20:32.200 --> 0:20:36.879 cases in twenty and here the idea is that what 0:20:36.960 --> 0:20:39.760 the word abortion doesn't appear in the Constitution, but actually 0:20:40.080 --> 0:20:43.879 neither does the word sex or sex equality. But we 0:20:43.920 --> 0:20:47.760 don't also see the word internet or electricity. I mean, 0:20:47.760 --> 0:20:50.400 there are all sorts of things that are legally relevant 0:20:50.400 --> 0:20:53.640 that have been invented or at least become socially important 0:20:53.680 --> 0:20:56.159 since the drafting of the Constitution. So to say that 0:20:56.240 --> 0:21:00.360 there's no right to privacy, no right to reproductive liberty 0:21:00.760 --> 0:21:05.040 in the Constitution because those words don't exist is a 0:21:05.080 --> 0:21:08.520 foolish way, a kind of immature and simple way to 0:21:08.680 --> 0:21:13.359 interpret a constitution in a modern society. There's been a 0:21:13.400 --> 0:21:17.680 lot of criticism of Row, even by liberals like the 0:21:17.800 --> 0:21:22.480 late Justice Ruth Bader Ginsburg. Why such criticism, Well, there's 0:21:22.480 --> 0:21:25.200