Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: My Joy, My Joy, My joys. The leak of the
Speaker 1: explosive draft of a Supreme Court opinion striking down the
Speaker 1: landmark ruling of Roevie Wade sent shock waves across the
Speaker 1: country on Monday night, igniting protests at the Court within
Speaker 1: hours and across the nation since then Vice President Kamala
Speaker 1: Harris denounced the decision to take away the constitutional right
Speaker 1: of women to abortion, established for nearly half a century.
Speaker 1: How dare they tell a woman what she can do
Speaker 1: and cannot do with her own body? How dare they?
Speaker 1: How dare they try to stop her from determining her
Speaker 1: own future? How dare they? While abortion rights advocates are
Speaker 1: planning how to fight back against the decision, which has
Speaker 1: been called the most damaging setback to the rights of
Speaker 1: women in our history, and politicians are considering how it
Speaker 1: will affect the mid terms, where control of the narrowly
Speaker 1: divided House and Senator up for grabs, legal experts are
Speaker 1: speculating how the unprecedented leak at a court normally shrouded
Speaker 1: in secrecy will further decimate trust among the justices joining
Speaker 1: me is Stephen Vladick, a professor at the University of
Speaker 1: Texas Law School. There have been leaks before in the
Speaker 1: modern history of the Supreme Court, leaks about internal deliberations,
Speaker 1: even leaks of the results of row hours before it
Speaker 1: was issued, but nothing like this, uh, leak of a
Speaker 1: draft months before the ruling will be issued. What does
Speaker 1: this say about this court at this time? Well, I mean,
Speaker 1: I think the leak is only sort of part of
Speaker 1: the story compared to what the leak actually portend. But June,
Speaker 1: I think it's as something pretty dramatic about whoever the
Speaker 1: leaker is, their perception of the Court's role, and about
Speaker 1: the politicization of the court. I mean, whether the league
Speaker 1: came from the Court's left side or right side. Either way,
Speaker 1: it's a pretty stunning development to have a draft majority
Speaker 1: opinion like this out in public, presumably to either galvanized
Speaker 1: public opposition or to lock in votes. And so I
Speaker 1: think to me, what is though telling about the leak
Speaker 1: is that we've come to a point in the Court's
Speaker 1: history at where it could even happen at all, and
Speaker 1: where we could get to a place where a decision
Speaker 1: this monumental in this momentous is being leased out for
Speaker 1: one reason or another in ways that are completely and
Speaker 1: unastailably political. Do you think that this is rattling the justices? Well,
Speaker 1: I mean, I can't speak to sort of how they're
Speaker 1: reacting other than the note that we know. For example,
Speaker 1: Justice the Leado was supposed to speak on Friday at
Speaker 1: the Fifth Circuit Judicial Conference that he's canceled that appearance
Speaker 1: only since the league happened. You know, we have this
Speaker 1: remarkable statement from the Court and that came out on Tuesday,
Speaker 1: including the statement from Chief as Roberts himself. So I
Speaker 1: don't doubt that the leak has rattled at least some
Speaker 1: within the court. But again, I also think it's worth
Speaker 1: keeping Sims in perspective. I mean, the leak is only
Speaker 1: part of the story here, part of why such a
Speaker 1: big deals because what's in the league. You know, if
Speaker 1: what has lead doubt June were a draft majority of
Speaker 1: the bankruptcy case, I don't think we'd be having this conversation.
Speaker 1: So true, the Chief Justice said that statement he issued
Speaker 1: the work of the Court will not be affected in
Speaker 1: any way. Is that too optimistic? Yes, I mean, I
Speaker 1: think it's what he has to say, but I think everyone,
Speaker 1: the Chief Justice first of all, knows exactly how untrue
Speaker 1: that is. You know. I think it's impossible to imagine
Speaker 1: this having no impact either in how the Court resolves
Speaker 1: this case specifically dobbed, or in the courts business going forward.
Speaker 1: And I think we are certain to, if not publicly see,
Speaker 1: at least come to be aware of changes behind the
Speaker 1: scenes and how the Court handles draft distributions, in whether
Speaker 1: the Court tries to actually formalize some kind of co
Speaker 1: with of secrecy, and whether the Court tries to actually
Speaker 1: create some kind of formal investigative mechanisms. So I think
Speaker 1: things are going to be irrevocably changed by this leak.
Speaker 1: Whether that's a good thing or a bad thing, I
Speaker 1: think for me is to be seen. The Marshal of
Speaker 1: the Supreme Court is investigating the leak. I just wonder
Speaker 1: whether the leaker will be found. Chief Justice Warren Burger
Speaker 1: threatened to call the FBI to administer lie detector tests
Speaker 1: with the leak of Row. Will it be really difficult
Speaker 1: to find out perhaps impossible to find out who leaked
Speaker 1: I took? It depends, you know, if it was a
Speaker 1: current law clerk and if they weren't very clever about
Speaker 1: covering their tracks, they might actually be pretty easy to
Speaker 1: figure it out. But if it was either someone who's
Speaker 1: not currently in the building, or if it was someone
Speaker 1: who worked really hard to obscure their identity, I think
Speaker 1: it gets much harder, and so everyone has their own
Speaker 1: theory about who the leaker is. I think it's also
Speaker 1: possible that we the public will never find out, even
Speaker 1: if the Supreme Court does, because imagine a scenario where
Speaker 1: it turns out that the leaker is, you know, of
Speaker 1: the justices, or someone very close to one of the
Speaker 1: justices and not a law clerk. You know, I could
Speaker 1: see reasons why if I'm John Roberts, I don't want
Speaker 1: that becoming public. So I think we will probably hear
Speaker 1: something about the leak investigation, but whether we'll ever find
Speaker 1: out publicly who leaked the opinion and why, I think
Speaker 1: remains to be seen. I mean, even some of the
Speaker 1: most famous leaks in Supreme Court history I think have
Speaker 1: never been publicly identified, including the leak of the Resultant Row.
Speaker 1: Senate Minority Leader Mitch McConnell is one of the Republicans
Speaker 1: calling for the Justice Department to investigate and prosecute the leaker,
Speaker 1: but what would they be prosecuted for? Wishful thinking? Uh? Leakend,
Speaker 1: as Junior and I have discussed before, is not by
Speaker 1: self a crime. In the national security space, there are
Speaker 1: criminal statutes that are specifically about leaking class sized information.
Speaker 1: Whatever else you might say about the draft opinion and Dobbs,
Speaker 1: it wasn't classified, right, there are dastices. Don't make it
Speaker 1: a crime if the leaker used various mechanisms to obtain
Speaker 1: the draft. So if, for example, someone on the outside
Speaker 1: hacked into the court's computer system and obtained the draft
Speaker 1: that way, that might be a crime. But you know,
Speaker 1: if I just happened to hand a confidential government document
Speaker 1: to a reporter by itself, I am not committing a crime.
Speaker 1: And maybe there are folks who wish that that weren't true,
Speaker 1: but that's the laws of them. Let's talk about the
Speaker 1: opinion itself. And a line that's been quoted a lot
Speaker 1: is that Alito said Rowe was egregiously wrong from the start.
Speaker 1: Critique is reasoning in the draft? Well, I mean I
Speaker 1: since the draft is it is top to bottom and
Speaker 1: exercise and motivated reason, I mean, Roe, you know, whatever
Speaker 1: else may be said about it, Justice Blackman did try
Speaker 1: very hard to explain exactly what he was doing. He
Speaker 1: tried very hard to explain the baseline rights to privacy
Speaker 1: that we got from Chris Wald, and that the draft
Speaker 1: opinion in Dabbs does not purport to repudiate. How what
Speaker 1: complicates the matter when you get in an abortion case
Speaker 1: is that you have countervailing interests. You have the interests
Speaker 1: of the president woman, but you also have the state's
Speaker 1: interest in protecting what Justice Blackman calls potential life. And so,
Speaker 1: you know, I think what's frustrating about the draft opinion
Speaker 1: June is that it really doesn't take Row seriously. It
Speaker 1: just sort of accepts as a default proposition Rose wrongness,
Speaker 1: and then I think goes into even more detail about
Speaker 1: the difficulties anytime the Supreme Court recognizes right that justice
Speaker 1: the Leader says are not deeply rooted in our historical tradition.
Speaker 1: But of course that would call him to question a
Speaker 1: whole lot of stuff beyond Row. So, you know, I
Speaker 1: guess what is striking about the draft opinion is that
Speaker 1: it's not an effort really to persuade anyone who wasn't
Speaker 1: already persuaded that row is wrong, and it's not really
Speaker 1: even an effort to convince the reader that Rose wrong
Speaker 1: on its own term. Does Aldo just throw precedent out
Speaker 1: the window, as he's done before in for example, when
Speaker 1: he threw out a thirty year old precedent in saying
Speaker 1: that government employees have a constitutional right not to pay
Speaker 1: union fees. No, I mean, I think Janet is a
Speaker 1: great comparison June, because yes, I mean I think you know,
Speaker 1: here we're seeing just how little regard and respect right
Speaker 1: that Justice the Lado seems to have. First story decisis
Speaker 1: for the principle that oftens being equal right, the court
Speaker 1: should follow his precedence. You know, Aldo's draft opinion does
Speaker 1: try to offer at least the argument for why rowan
Speaker 1: Casey shouldn't be followed as a matter of story decisis.
Speaker 1: What's ironic about those arguments is that those were the
Speaker 1: very arguments that the joint opinion and Casey by Justices O'Connor,
Speaker 1: Kennedy and Suitor had relied upon um And so he
Speaker 1: basically has to say, well, they were either they were wrong,
Speaker 1: or things have changed dramatically in the last thirty years.
Speaker 1: And I'm not sure either of those are are true,
Speaker 1: So you know, Jude, part of why since that's important again,
Speaker 1: I think folks who want to be persuaded will be persuaded.
Speaker 1: But part of why that's important is because if this
Speaker 1: is the sort of casual and cavalier attitude that Justice
Speaker 1: Aldo and whoever else signs its opinion is going to
Speaker 1: have towards starry decisis, why shouldn't we be worried about
Speaker 1: other rights? Why shouldn't we be worried about Griswold and contraception,
Speaker 1: or about Lawrence versus Texas and same sex stotomy, or
Speaker 1: even though Berto fell in same sex marriage. I mean,
Speaker 1: the question is, you know, when the draft's opinion says
Speaker 1: this is just about abortion, but it it takes an
Speaker 1: approach to storry decisive that calls into question all prior
Speaker 1: decisions recognize him unenumerated constitutional rights. There's a pretty jarring contrast.
Speaker 1: There is the reasoning so wrong or is the language
Speaker 1: so extreme that he may lose some of the five justices?
Speaker 1: You know, we'll find out. I mean, I guess you know,
Speaker 1: one theory that I think is not implausible for why
Speaker 1: this opinion leaked out is that you know, perhaps there
Speaker 1: was a separate opinion written by Chief Justice Roberts, who,
Speaker 1: according to the political story accompanied the leak, did not
Speaker 1: vote to overrule Rowan Casey at conference. Perhaps there was
Speaker 1: a separate opinion that you know, was sufficiently compelling and
Speaker 1: or critical that someone was worried that at least one
Speaker 1: of the justices who had voted to over rule Rowan
Speaker 1: Casey at conference might be softening and might be wobbling.
Speaker 1: And so I've I've always thought that one of the
Speaker 1: better theories here is that the leak was designed to
Speaker 1: actually lock in the five votes to overrule Rowan Casey,
Speaker 1: since now it would be very obvious to everyone if
Speaker 1: when the final decision comes down this is not where
Speaker 1: the court ends up, that someone flip flock. So we
Speaker 1: don't know if that's what's happening. We won't know, perhaps
Speaker 1: even when the final decision comes down, if that's what happened.
Speaker 1: But it seems like at least a possibility. So is
Speaker 1: there a chance at least that row may not be
Speaker 1: reversed in the end. I mean, never say never, June, right,
Speaker 1: you know, Rowan Casey are themselves a good lessons here.
Speaker 1: I mean the original vote at conference in Casey when
Speaker 1: the case was argued during the October one term was
Speaker 1: to overrule Row. And we know what happened. We know
Speaker 1: the court didn't, So you know, I think it's possible
Speaker 1: that what we get when the Court hands down its
Speaker 1: final ruling doesn't look like this. The problem is that
Speaker 1: because of the leak, and this is why I'm skeptical
Speaker 1: that the leak came from the dissenters. Because of the leak,
Speaker 1: I think that makes it a lot harder for Justice
Speaker 1: who might have been pushing the leader to moderate the opinion,
Speaker 1: or Justice who might even be turned off by the
Speaker 1: opinion to not now just line up behind it. What's
Speaker 1: startling to me is that it's been less than two
Speaker 1: years since Amy Coney Barrett joined the Court and they're
Speaker 1: ready to overturn Row. So am I just being naive
Speaker 1: that this is awfully fast? I mean, we've talked before
Speaker 1: about how the Chief Justice likes to do change in moderation.
Speaker 1: This is just you know, wholesale reversal. Well, I mean,
Speaker 1: you know, June, I think this has been one of
Speaker 1: the themes that folks have been trying to point out
Speaker 1: since Justice by Justice Ginsborough, Like yes, when Kavanaugh replaced Kennedy.
Speaker 1: That created a very solid Piper four majority. But with
Speaker 1: the Chief Justice as basically the speed break and with
Speaker 1: the Chief Justice, you know, and his preference for moderate
Speaker 1: and I would say moderation, but for sort of incrementalism.
Speaker 1: I think that's the right word, right, that that would
Speaker 1: be what decided how fast the court moves. Well, it's
Speaker 1: been clear now, right for the better part of the
Speaker 1: year and a half that is no longer up to
Speaker 1: the Chief and we've seen sort of smaller and less
Speaker 1: significant examples of the Court moving much faster than the
Speaker 1: Chief might be inclined. You know, we've talked before June
Speaker 1: about some of these shadow doctor rulings where the Chief
Speaker 1: has joined the three liberals in descentive because he thinks
Speaker 1: that the Court is moving too quickly by you know,
Speaker 1: changing the law through unsigned, unexplained orders. So, you know,
Speaker 1: I think if this is where this ends up, you know,
Speaker 1: with a five to four or five to one to
Speaker 1: three ruling getting rid of Rowan casey, that really is
Speaker 1: the day new maw of the pattern I think has
Speaker 1: been building since the day Justin Barrett joined the Court,
Speaker 1: and it's just for the proof of how this really
Speaker 1: is no longer the Roberts Court. How will that affect
Speaker 1: the legitimacy of the Court in the eyes of the public.
Speaker 1: I mean, I think we're going to see what we've
Speaker 1: already been seeing, which is just further polarization. And I
Speaker 1: think a further wise name of the devise between those
Speaker 1: Americans who view the Court is legitimate for no other
Speaker 1: reason than because they like what the Court is ding
Speaker 1: and those who be the Court is illegitimate, whether because
Speaker 1: they don't like what the Court is doing because they
Speaker 1: think the Court is doing it inappropriately. And I guess
Speaker 1: one of the things that leaves me, you know, deeply
Speaker 1: word about the courts and institution is that I would
Speaker 1: think it would be in the Court's interest to care
Speaker 1: about that latter group, That it would be in the
Speaker 1: Court's interest to actually want to have at least some
Speaker 1: semblance of legitimacy, even among those not inclined to agree
Speaker 1: with the results of its decisions. I mean, this was
Speaker 1: the theme of Justice barrett speech at the Ronald Reagan
Speaker 1: Library last month, when she said, you know, don't just
Speaker 1: call us hacks. Read our opinions deep for yourself, that
Speaker 1: there are principles in them. You may not agree with
Speaker 1: the principles, but at least you'll see that there are principles.
Speaker 1: And so I think, you know, one of the things
Speaker 1: that I really loose leap over is the increasing appearance,
Speaker 1: if not reality, that there's a chunk of justice is
Speaker 1: perhaps the majority of justices for whom how the Court
Speaker 1: is perceived by those on the political left is increasingly
Speaker 1: less relevant, and I think that that's a very dangerous
Speaker 1: road to go down. Alito attempts to distinguish abortion from
Speaker 1: other rights grounded in the constitutional right to privacy, But
Speaker 1: does his reasoning jeopardize other protections that are not quote,
Speaker 1: deeply rooted in this nation's history and tradition. Yeah, this
Speaker 1: is the problem. Yes, the leader says, I'm only talking
Speaker 1: about abortion, But the grounds that he deploys for justifying
Speaker 1: the overruling the rowing casey are grounds that are not
Speaker 1: limited to abortion. And this notion that you know, rights
Speaker 1: have to be deeply rooted in our history and tradition
Speaker 1: to be recognized by the Supreme Court would call into
Speaker 1: question a whole lot of things that the leader says
Speaker 1: he's not calling into question, things like bands on interracial marriage,
Speaker 1: bans on same sex marriage, bands on homosexual stodomy. I mean,
Speaker 1: there's a lot June here that if you take the
Speaker 1: reasoning seriously as opposed to the rhetoric, could be vulnerable.
Speaker 1: Now that doesn't mean that, like overnight, you know, the
Speaker 1: Supreme Court is going to start overruling those cases too.
Speaker 1: You'd have to have first state tried to scale back
Speaker 1: these protections, that tried to sort of restore bands on
Speaker 1: certain kinds of intimate conduct or gay marriage. But you know, June,
Speaker 1: I live in Texas. Um, it's not hard to imagine
Speaker 1: elected a officials in states like mine, they are going
Speaker 1: to be pretty aggressive. I mean, just the other day
Speaker 1: Governor Abbott, right, Texas As governor, talked about trying to
Speaker 1: push the Supreme Court to revisit the nine eight two
Speaker 1: decision recognizing the right of the children of undocumented immigrants
Speaker 1: to go to public school. So it's really hard to
Speaker 1: take seriously the protestations in the draft opinion and then
Speaker 1: by by some who are defending it that this is
Speaker 1: only going to be about abortion. Once you've crossed the rubicon,
Speaker 1: once you've shown that you're willing to overrule cases like
Speaker 1: Rowan Casey simply because you don't believe those rights are
Speaker 1: deeply rooted in our country's history. I don't know what
Speaker 1: the stopping point is other June than politics. And you know,
Speaker 1: if the stopping point is politics, the stopping point is
Speaker 1: that overruling those other decisions would be deeply unpopular. I mean,
Speaker 1: one those politics could always change. But to what does
Speaker 1: that say about the principle here? If the only reason
Speaker 1: why Rowan Casey are not safe that those other cases
Speaker 1: are is because of political support, then that suggests that
Speaker 1: this is politics all the way down and not constitutional laws.
Speaker 1: What's the next battle line? Some are saying that medication
Speaker 1: abortion would be the next battleground. Well, I mean, I
Speaker 1: think we're going to see multiple battlegrounds at once. Medication
Speaker 1: abortion is going to be one front in the war.
Speaker 1: I think we're gonna see states try to make it
Speaker 1: unlawful for their residents to travel out of states to
Speaker 1: obtain abortion, so that we're going to have a fight
Speaker 1: over whether states can limit their own residents from leaving
Speaker 1: the state to go to states that will still have
Speaker 1: abortions after this decision, and so on the abortion front,
Speaker 1: I think that's where the fight will be joined. But
Speaker 1: I also think, because you know, we talked about with
Speaker 1: regards to Governor Abbott, We're going to see efforts by
Speaker 1: other especially Red states, to push the envelope and to
Speaker 1: see what other rights the Court is willing to reconsider.
Speaker 1: Because the one undeniable thing about a ruling like the
Speaker 1: draft opinion, if that becomes the law of the land,
Speaker 1: is it's basically an invitation to court and to state
Speaker 1: to be cynical and to be political and to push
Speaker 1: the Court to actually revisit these rights one at a
Speaker 1: time in a way that would not have been true
Speaker 1: without this kind of decision. You know, states banning people
Speaker 1: from leaving the state to get an abortion, it seems
Speaker 1: to me like that's just unworkable and even for conservatives,
Speaker 1: hard to defend. I mean maybe maybe not. You know,
Speaker 1: I think it depends on, you know, what, how you
Speaker 1: set up the law, depends on you know, sort of
Speaker 1: if you impose as Texas has mandatory reporting requirements on
Speaker 1: medical providers when it comes to you know, individuals who
Speaker 1: are pregnant and then lose their presidency. Um. You know,
Speaker 1: I think it's ugly and I think it would incentivize
Speaker 1: a very sort of dangerous and surveillance oriented regime. But
Speaker 1: you know, June, And I don't know if folks appreciate
Speaker 1: how close to that we already hard here in Texas um.
Speaker 1: And you know, one response might be, oh, well, the
Speaker 1: Supreme Court would never countenance that. And I think this
Speaker 1: is the you know, in the final analysis, this is
Speaker 1: the central problem with the draft opinion in Jobs, which
Speaker 1: is arguments that the Supreme Court would quote never countenance
Speaker 1: you know, insert crazy things here really do go out
Speaker 1: the window once you have an opinion like this on
Speaker 1: the books. Thanks so much for your insights, Steve. That's
Speaker 1: Professor Stephen Vladdock of the University of Texas Law School.
Speaker 1: At their confirmation hearings, the five Conservative justices who have
Speaker 1: signed onto a draft decision overturning Roe v. Wade acknowledged
Speaker 1: that Roe was a precedent of the Supreme Court. It
Speaker 1: is an important precedent of the Supreme Court. By it,
Speaker 1: I mean Roe v. Wade and planned parenthood versus Casey
Speaker 1: been reaffirmed many times. Casey is precedent on precedent. It
Speaker 1: has been reaffirmed, so a good judge will consider it
Speaker 1: as president of the United States Supreme Court worthy as
Speaker 1: treatment of precedent like any other and scholars across the
Speaker 1: spectrum say that doesn't mean that Roe should be overruled.
Speaker 1: I believe the Constitution protects the right to privacy. Versus
Speaker 1: Wade is an important precedent of the Supreme Court. It
Speaker 1: was decided in three so it's been on the books
Speaker 1: for a long time. The last justice testifying in that
Speaker 1: clip was Samuel Alito, who authored the draft opinion reversing
Speaker 1: Roe v. Wade. My guest is Katherine Frankie, a professor
Speaker 1: at Columbia Law School and the director of the Center
Speaker 1: for Gender and Sexuality Law. If the Court does in
Speaker 1: fact reverse Roe v. Wade, how big of a setback
Speaker 1: would that be to the rights of women in this country. Well,
Speaker 1: this draft opinion threatens to turn back constitutional law for
Speaker 1: three generations back in time, to set us back to
Speaker 1: really the early part of the twentieth century. The breadth
Speaker 1: of the opinion reaches not just the right to abortion
Speaker 1: and where it might be protected under the Constitution, but
Speaker 1: a wide range of other rights. So they're planting the
Speaker 1: seeds for the next cases coming down the road. And
Speaker 1: in this sense, I think what this opinion threatens to
Speaker 1: do is to write women and pregnant people in particular
Speaker 1: out of the Constitution and Irey, let's talk about the
Speaker 1: reasoning in his draft opinion, Row was egregiously wrong from
Speaker 1: the start. The Constitution makes no reference to abortion. Give
Speaker 1: me your opinion of the way he reasoned out this opinion. Well,
Speaker 1: Justice Alito articulates a view that is held by several
Speaker 1: other members of the Court, which is that if the
Speaker 1: right is not specifically listed or mentioned in the Constitution,
Speaker 1: then it doesn't exist. And we saw Justice Gorsets use
Speaker 1: very similar language in one of the COVID religious liberty
Speaker 1: cases in twenty and here the idea is that what
Speaker 1: the word abortion doesn't appear in the Constitution, but actually
Speaker 1: neither does the word sex or sex equality. But we
Speaker 1: don't also see the word internet or electricity. I mean,
Speaker 1: there are all sorts of things that are legally relevant
Speaker 1: that have been invented or at least become socially important
Speaker 1: since the drafting of the Constitution. So to say that
Speaker 1: there's no right to privacy, no right to reproductive liberty
Speaker 1: in the Constitution because those words don't exist is a
Speaker 1: foolish way, a kind of immature and simple way to
Speaker 1: interpret a constitution in a modern society. There's been a
Speaker 1: lot of criticism of Row, even by liberals like the
Speaker 1: late Justice Ruth Bader Ginsburg. Why such criticism, Well, there's
Speaker 1: been a number of decisions from the Supreme Court since
Speaker 1: its founding that have not landed as successfully as perhaps
Speaker 1: some other decisions. So, for instance, the Brown versus Board
Speaker 1: of Education decision in the nineteen fifties also was responded
Speaker 1: to with enormous resistance and backlash from the South. And
Speaker 1: what we see with these kinds of decisions where significant
Speaker 1: changes in the society are being taken up by the
Speaker 1: Supreme Court is that there's usually a conversation between the
Speaker 1: Court and the people that goes back and forth of
Speaker 1: will take one step, you take one step, will take
Speaker 1: one step, you take one step. And with Row, the
Speaker 1: resistance to abortion rights was unrelenting, notwithstanding the fact that
Speaker 1: abortion rights always pulled as being something that people in
Speaker 1: the United States fully and robustly supported, but the megaphone
Speaker 1: of the Christian radical right drowned out what has been
Speaker 1: really a consensus among most people in this country that
Speaker 1: the Supreme Court's decision and Row was correct. And so
Speaker 1: it's not unusual for the Court to take up issues
Speaker 1: that are that are still somewhat contested in society, But
Speaker 1: in fact that is the job of the Supreme Court
Speaker 1: is to say, even rights which aren't popular may actually
Speaker 1: have a ground in the Constitution. And I think the
Speaker 1: right to racial equality is exactly the right analogy. Those
Speaker 1: rights also weren't popular at the time in some parts
Speaker 1: of American society, but little by little they gained traction,
Speaker 1: and we now take them as given. One of the
Speaker 1: focuses of Alitos ap Union is that there's no mention
Speaker 1: of abortion in the Constitution. Tell us about the implications
Speaker 1: of that kind of reasoning, well, Justice Alito articulates a
Speaker 1: view that is held by several other members of the Court,
Speaker 1: which is that if the right is not specifically listed
Speaker 1: or mentioned in the Constitution, then it doesn't exist. And
Speaker 1: we saw Justice Gorsets use very similar language in one
Speaker 1: of the COVID religious liberty cases in twenty and here
Speaker 1: the idea is that what the word abortion doesn't appear
Speaker 1: in the Constitution, but actually neither does the word sex
Speaker 1: or sex equality. But we don't also see the words
Speaker 1: internet or electricity. I mean, there are all sorts of
Speaker 1: things that are legally relevant that have been invented or
Speaker 1: at least become socially important since the drafting of the Constitution.
Speaker 1: So to say that there's no right to privacy, no
Speaker 1: right to reproductive liberty in the Constitution because those words
Speaker 1: don't exist is a foolish way. It kind of immature
Speaker 1: and simple way to inter for a constitution in a
Speaker 1: modern society. Do you really think the ultimate aim is
Speaker 1: to erase women from the constitution For some members of
Speaker 1: the Supreme Court, yes, or at least some version of
Speaker 1: what women's rights are. And by saying that we instead
Speaker 1: should look to fifty individual state legislatures for what kinds
Speaker 1: of fundamental rights people enjoy, what kinds of protections they
Speaker 1: have based on their sex or gender in this society,
Speaker 1: is to say that those are second class rights. Certain
Speaker 1: rights like religious liberty, for instance, and I think we'll
Speaker 1: see in the courts gun rights cases that are coming
Speaker 1: down later this term. Those rights deserve the robust protection
Speaker 1: of the federal Constitution. But other rights like women's rights
Speaker 1: or rights to abortion, well, those are actually less fundamental.
Speaker 1: And you can enjoy that right if you are lucky
Speaker 1: enough to live in a state where your state legislature
Speaker 1: respects the right to reproductive rights. Do you think that
Speaker 1: other rights that are grounded in privacy might be also
Speaker 1: at risk here? Talking about interracial marriage, gay marriage, contraception. Well,
Speaker 1: Justice Alito's draft decision says, we're only deciding the abortion
Speaker 1: question now, we are not necessarily deciding these other hot
Speaker 1: button issues, like a right to contraception, like a right
Speaker 1: to marriage for same sex couples, interracial marriage. But the
Speaker 1: way in which they kick the legs out from under
Speaker 1: roversus Wade makes any reasonable reader of constitutional law say
Speaker 1: that those other issues have no legs to stand on anymore.
Speaker 1: So I think it's predictable and foreseeable that this Court
Speaker 1: will take those next steps, and certainly advocates will urge
Speaker 1: them to do so, to reverse the ol bergha Felt
Speaker 1: decision securing rights to marriage for same sex couples, and
Speaker 1: earlier cases that dealt with the right to contraception and
Speaker 1: cases that found that bands on interracial marriage also violated
Speaker 1: privacy and other fundamental rights secured under the Constitution. Explain
Speaker 1: how he explains away reversing precedent, which discourt seems a
Speaker 1: little more willing to do than other courts. Well, he's
Speaker 1: inventing a new test that if there are certain prior
Speaker 1: decisions of the Court that are really wrong, then a
Speaker 1: later Supreme Court has the authority and indeed the duty,
Speaker 1: I think he would say, to overrule those decisions, and
Speaker 1: he uses the term egregiously wrongly decided. But we have
Speaker 1: no criteria for what it means to be really wrong.
Speaker 1: So he points to some of the race discrimination cases,
Speaker 1: which I think today most people would agree, um the
Speaker 1: early cases in the nineteenth century that upheld separate but
Speaker 1: equal based race discrimination, that those were egregiously wrong. But
Speaker 1: there's nothing in the Row versus Weight decision that would
Speaker 1: put it on the same level of wrongness as plusy
Speaker 1: versus Ferguson or some of the other early cases that
Speaker 1: Justice Alito also points to as examples of the Court
Speaker 1: issuing decisions that were so badly decided in the first
Speaker 1: instance they deserve to be overruled later. After listening to
Speaker 1: the oral arguments in this case, was it sort of
Speaker 1: apparent that they were going to either affirm the Mississippi
Speaker 1: law or they were going to go further and overrule
Speaker 1: Roe v. Wade. So was this that much of a shock? Well,
Speaker 1: the Supreme Court watchers came down in a number of
Speaker 1: different places. I think most people felt that the Court
Speaker 1: now had enough vote to at least radically limit Roll
Speaker 1: versus Wade and Chief Justice Roberts, I think, still believed
Speaker 1: deeply in the integrity of the Court and is worried
Speaker 1: about the reputation of the Court as being just a
Speaker 1: political body that you can pack with political conservatives and
Speaker 1: they will willy nilly over rule cases they don't agree with.
Speaker 1: He's very worried that that's how this kind of decision
Speaker 1: will be read by the public. But it seems he's
Speaker 1: lost control of the Court and the much more radical
Speaker 1: wing of the Court, embodied most prominently by Justice the Leado,
Speaker 1: who on the bench manifest the kind of anger and
Speaker 1: in judicious behavior in his questioning of people who are
Speaker 1: honorably presenting questions and arguments to the Court. That he
Speaker 1: has this opinion and is using such outrageous language in
Speaker 1: the opinion shows us that the kind of tempered, judicial
Speaker 1: like conduct and tone that we're used to from Chief
Speaker 1: Justice Roberts will no longer garner a majority of this Court,
Speaker 1: and that's quite troubling. This is only a draft. Is
Speaker 1: it likely that at least the language will be tempered,
Speaker 1: and is there a chance that perhaps one of the
Speaker 1: justices will sort of go for a middle ground as
Speaker 1: Chief Justice Roberts would like to see. It's it's quite
Speaker 1: difficult to know how the Court will respond to this
Speaker 1: unauthorized leak of a draft opinion in one of the
Speaker 1: most awaited opinions in the Court's history. We don't have
Speaker 1: really much evidence from the past to go on of
Speaker 1: what they will do. One possibility is that some of
Speaker 1: the other justices will be so concerned about the Court's
Speaker 1: reputation that they will urge Justice the Leado or another
Speaker 1: author to issue on a more temperate opinion. But one
Speaker 1: could also see that what was the motivation for releasing
Speaker 1: this draft is to prepare the American people for the
Speaker 1: bomb that's about to be dropped by the U. S.
Speaker 1: Supreme Court, so that the outrage we're having today will
Speaker 1: have dissipated a little bit by June when they issue
Speaker 1: their final opinion. So I think it's kind of impossible
Speaker 1: at this point to know how this leak will affect
Speaker 1: what the ultimate decision official decision is from this court.
Speaker 1: Democratic lawmakers say they want to codify Row with the
Speaker 1: political divide in our country what are the chances that
Speaker 1: something like that could be successful? Zero. I think it's
Speaker 1: highly unlikely that we would be able to get a
Speaker 1: majority of Senators to vote for a codification of ROVERSUS Wade,
Speaker 1: never mind a filibuster proof sixty votes at this point,
Speaker 1: because there's some Democrats who were actually anti abortion in
Speaker 1: the Senate. And perhaps even more importantly, if we're going
Speaker 1: to spend an enormous amount of capital in the Senate
Speaker 1: to try to get if a filibuster proof majority for
Speaker 1: some sort of codification of abortion rights, why fight for
Speaker 1: ROVERSUS way. It was a flawed decision from the beginning,
Speaker 1: and there is other legislation in Congress right now that
Speaker 1: would secure reproductive rights and justice in a much more
Speaker 1: robust way. The other option is to finally ratify the
Speaker 1: Equal Rights Amendment, which is only a couple of votes
Speaker 1: away from final ratification in the Senate, where they would
Speaker 1: lift the deadline that had been imposed by the Congress
Speaker 1: back in the nineteen seventies. So adding explicit sex equality
Speaker 1: protections to the Constitution for the first time would have
Speaker 1: the effect undermining the argument that Justice Alito relies on
Speaker 1: so heavily, which is the sex equality doesn't appear anywhere
Speaker 1: in the Constitution. The group I work with here at Columbia,
Speaker 1: the Equal Rights Amendment Project, has issued talking points on
Speaker 1: how the r A may actually come safe the day
Speaker 1: when it comes to reproductive rights. What do you think
Speaker 1: the effect will be of this decision on the ground
Speaker 1: in states? Well, I think there's probably fifty different answers
Speaker 1: to that question. In New York City and if it
Speaker 1: will be having a major rally downtown. It's kind of
Speaker 1: a sad commentary on the left and on the pro
Speaker 1: choice left in this country that it takes the entire
Speaker 1: house to be on fire before we show up in
Speaker 1: the streets to defend reproductive rights. The right wing, the
Speaker 1: opponents of abortion rights, and the opponents of ROW have
Speaker 1: been doing this every day or an izing since ninety
Speaker 1: three when the Supreme Court issued this opinion. And it
Speaker 1: may be that that organizing is happening too late to
Speaker 1: defend ROW. But I certainly would imagine we'll see bills
Speaker 1: and state legislatures across the country to try to codify ROW.
Speaker 1: We've already done that New York State, California has as well,
Speaker 1: But there are numerous bills that have been passed or
Speaker 1: are pending in many state legislatures across the country that
Speaker 1: would criminalize abortion immediately upon Row being overruled. And that's
Speaker 1: much more where the trend is going in many states
Speaker 1: in this country than the codification of Row. Unfortunately, Finally,
Speaker 1: Justice Sotomayor said during the oral argument, will this institution
Speaker 1: survive the stinch that this creates in the public perception
Speaker 1: that the Constitution and it's reading are just political acts.
Speaker 1: I don't see how it is possible. What kind of
Speaker 1: impact do you think this has on the Court as
Speaker 1: an institution and on the public's perception and belief in
Speaker 1: the Court. This will have a profound and lasting destructive
Speaker 1: effect on the reputation of the Supreme Court. The magic
Speaker 1: of having a Supreme Court is that their opinions, their
Speaker 1: decisions are abided by by the American people as a
Speaker 1: matter of voluntary consent. The Supreme Court doesn't have an
Speaker 1: army that can enforce their rules. They have to have
Speaker 1: the kind of legitimacy and authority that the American public
Speaker 1: respects because we live in a society governed by law,
Speaker 1: not just by politics. And for the Court to issue
Speaker 1: this kind of radical decision so quickly after acquiring a
Speaker 1: majority that enables them legal you to do so, we'll
Speaker 1: have long lasting destructive effects and that stench that Justice
Speaker 1: Soda Mayora referred to certainly I think for the rest
Speaker 1: of my lifetime. And it's a tragedy. It's an enormous
Speaker 1: attack and assault on the very idea of democracy that
Speaker 1: we have both elected officials and judges who interpret the
Speaker 1: Constitution in an enduring and a political way, and that
Speaker 1: that last principle I think will be severely undermined m
Speaker 1: by this opinion, this draft opinion from Justice Alito, if
Speaker 1: it ends up being the actual law of the land.
Speaker 1: Thanks Catherine. That's Professor Katherine Frankie of Columbia Law School.
Speaker 1: And that's it for this edition of the Bloomberg Law Show.
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Speaker 1: night at ten pm Wall Street Time. I'm June Grosso
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