WEBVTT - First Abortion Case With New More Conservative Court 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:07.160 --> 0:00:10.560 The Supreme Court has reinstated a requirement that women visit 0:00:10.600 --> 0:00:14.240 a medical facility to obtain abortion inducing pills. In a 0:00:14.320 --> 0:00:18.040 six to three vote, the Court granted a Trump administration 0:00:18.079 --> 0:00:20.760 request to end the mail deliveries a judge had allowed 0:00:20.840 --> 0:00:24.439 during the coronavirus pandemic. The order, which came over three 0:00:24.480 --> 0:00:27.680 descents by the liberal justices, marks a shift for the 0:00:27.720 --> 0:00:32.160 Court that let mail deliveries continue temporarily in October, before 0:00:32.240 --> 0:00:35.680 Justice Amy Coney Barrett had joined the court. My guest 0:00:35.760 --> 0:00:39.000 is Michelle Goodwin, a professor at the University of California 0:00:39.040 --> 0:00:42.880 Irvine School of Law. Her latest book is entitled Policing 0:00:42.880 --> 0:00:45.280 the Womb. Tell us a little bit about the background 0:00:45.360 --> 0:00:49.560 of this case. This case Food and Drug Administration versus 0:00:49.560 --> 0:00:54.480 the American College of Obstetricians and Gynecologists is a case 0:00:54.840 --> 0:00:59.680 that reflects COVID nineteen in many ways. So during this 0:00:59.760 --> 0:01:06.720 period of coronavirus pandemic and people sheltering in place, the 0:01:07.200 --> 0:01:14.480 SBA has waived in person requirements generally or a number 0:01:14.720 --> 0:01:19.160 of drugs, including certain controlled substances, but they have not 0:01:19.360 --> 0:01:21.720 done it for miss A press stone, which is a 0:01:21.800 --> 0:01:26.160 drug that's used during um to achieve an abortion for 0:01:26.520 --> 0:01:30.240 individuals who are within the first two weeks of pregnancy 0:01:30.640 --> 0:01:35.559 during COVID. For the first period of it, women did 0:01:35.640 --> 0:01:38.200 not have to go to a number states. Women did 0:01:38.200 --> 0:01:41.640 not have to go to a clinic in order to 0:01:41.640 --> 0:01:45.840 pick up this medication, which the FDA has wanted women 0:01:45.880 --> 0:01:49.920 to do. Federal court blocked that when it was challenged. 0:01:50.320 --> 0:01:54.720 What's interesting here is that the drugs used, and it's 0:01:54.720 --> 0:01:58.400 a two drug combinations. A press stone and ms aprostol 0:01:59.160 --> 0:02:02.200 are the two drugs that are used to achieve a 0:02:02.280 --> 0:02:05.720 medication abortion. What this means is that a person does 0:02:05.760 --> 0:02:08.600 not have to go through a surgery, but instead can 0:02:08.639 --> 0:02:12.720 take these two pills and achieve than a termination of 0:02:12.800 --> 0:02:16.880 the pregnancy at home. Now, this is the only drug 0:02:17.080 --> 0:02:23.560 out of over twenty thousand FDA approved drugs that fb 0:02:23.600 --> 0:02:27.760 A requires to be picked up in person for patients 0:02:27.800 --> 0:02:31.120 to take at home. So, out of more than twenty 0:02:31.160 --> 0:02:36.440 thousand drugs, the FDA has selected just this particular drugs 0:02:37.160 --> 0:02:40.520 where a woman has to or person who wants to 0:02:41.200 --> 0:02:46.160 achieve a pregnancy termination has to pick up in person. Now, 0:02:46.200 --> 0:02:50.320 what's interesting about this is that because it is a 0:02:50.480 --> 0:02:53.720 two drug regiment, even though a person has to go 0:02:53.880 --> 0:02:57.720 out and pick it up, that's not when the termination 0:02:57.800 --> 0:03:01.560 takes place. So the very idea that somehow this is 0:03:01.960 --> 0:03:06.840 promoting patient health and safety really is an illusory concept 0:03:07.320 --> 0:03:10.720 because the person isn't terminating the pregnancy at that time. 0:03:10.760 --> 0:03:13.560 It's actually what the second drug that they're taking while 0:03:13.600 --> 0:03:18.760 they are at home that the termination proceeds. What was 0:03:18.800 --> 0:03:22.640 the question before the court? Now, the question here was 0:03:22.680 --> 0:03:27.440 whether this case posed and undo or what the FDA 0:03:27.560 --> 0:03:31.519 is requiring during a period of pandemic that a person 0:03:31.639 --> 0:03:34.840 leave home to pick up this drug UM and to 0:03:34.920 --> 0:03:37.240 take it in a clinic or hospital or where have you, 0:03:37.960 --> 0:03:43.360 whether that creates an undue burden UM. Many people refer 0:03:43.520 --> 0:03:47.320 to Rowe v. Wade as the case under which abortion 0:03:47.640 --> 0:03:51.000 is is litigated in the United States, but it's really 0:03:51.120 --> 0:03:53.560 planned parenthood. Be Casey, which was a case that was 0:03:53.600 --> 0:03:56.920 about twenty years after Roe b. Waite, where the Supreme 0:03:56.960 --> 0:04:03.480 Court upheld Row and also modified Rose holding, and the 0:04:03.520 --> 0:04:09.040 Court said that it would be unconstitutional for a space 0:04:09.880 --> 0:04:14.160 to impose or government to impose an undue burden on 0:04:14.280 --> 0:04:17.279 the right to be able to terminate a pregnancy. And 0:04:17.320 --> 0:04:21.320 so the question here is what the FDA is requiring 0:04:21.800 --> 0:04:25.320 during a period of pandemic that a person leave home 0:04:25.480 --> 0:04:30.279 to pick up this drug, whether that creates an undue burden? 0:04:31.000 --> 0:04:34.359 So tell us how the Supreme Court ruled. Oh, this 0:04:34.520 --> 0:04:38.200 was a case where um six to three. There were 0:04:38.600 --> 0:04:43.960 Justice Sodomyer, Justice Kagan Um were um in this scent 0:04:44.120 --> 0:04:49.520 along with Brier and Sodomyer and Kagan wrote a decent 0:04:49.640 --> 0:04:53.560 in the case. But the majority, which is comprised of 0:04:53.680 --> 0:04:57.320 conservatives on the Court were the ones that said that 0:04:57.400 --> 0:05:00.480 this is not an undue burden and a In fact, 0:05:00.640 --> 0:05:04.200 what does Roberts thought to do was to even change 0:05:04.240 --> 0:05:07.159 the questions from whether this is an undue burden, and 0:05:07.160 --> 0:05:09.760 he said that that's not the right lens for which 0:05:09.839 --> 0:05:14.440 one should actually be looking at this particular case. And 0:05:14.520 --> 0:05:18.320 that too, one would find a bit of a specious argument, 0:05:18.400 --> 0:05:22.360 because it is actually the standard for which under which 0:05:22.400 --> 0:05:27.599 the Court analyzes abortion law, and undue burden standard. And 0:05:27.640 --> 0:05:31.359 so you see the Court shifting even there in terms 0:05:31.360 --> 0:05:34.760 of how a case such as this should be read. 0:05:35.440 --> 0:05:37.560 Many people are pointing to this and saying, well, this 0:05:37.640 --> 0:05:42.279 is the first case on abortion decided since Amy Coney 0:05:42.320 --> 0:05:45.640 Barrett has been a justice on the Court. But the 0:05:45.760 --> 0:05:50.680 vote was six to three. The Chief voted with the Conservatives. 0:05:50.720 --> 0:05:54.080 So did it really make a difference that Barrett is 0:05:54.120 --> 0:05:57.680 on the court. Well, it does make a difference that 0:05:57.800 --> 0:06:00.320 Barrett is on the court, even if the decision could 0:06:00.400 --> 0:06:04.080 have been five to four decision. And and here is why, 0:06:04.360 --> 0:06:07.159 is that we don't expect the Supreme Court to just 0:06:07.240 --> 0:06:11.240 simply be calling balls and strikes that may happen. And 0:06:11.360 --> 0:06:14.679 that's perhaps, um, the more cynical view of the court. 0:06:14.839 --> 0:06:16.880 And I think that there would be people who would 0:06:16.920 --> 0:06:22.080 be um in their right analysis to be skeptical about 0:06:22.200 --> 0:06:25.760 how some things happen in a court at a time 0:06:25.760 --> 0:06:29.960 in which, um, which abortion has become so deeply politicized. 0:06:30.200 --> 0:06:32.560 But if we were not to be as cynical, and 0:06:32.600 --> 0:06:34.479 if we were to think about the court as a 0:06:34.520 --> 0:06:40.520 place in which jurists are analyzing, communicating and thinking collectively 0:06:40.640 --> 0:06:45.920 through then even at five four, hopefully then that that 0:06:46.080 --> 0:06:50.719 fourth vote would have been one to further try to 0:06:51.240 --> 0:06:56.120 um educate and inform colleagues on the court. You know, 0:06:56.200 --> 0:06:59.960 there's a saying about jurisprudence and exile and the idea 0:07:00.000 --> 0:07:04.000 of being that while you might not have moved your 0:07:04.080 --> 0:07:07.599 colleagues on the Court on a particular day and in 0:07:07.640 --> 0:07:12.440 a particular issue, but what you leave behind in the argumentation, 0:07:12.560 --> 0:07:14.960 what you leave behind in the descent, what you leave 0:07:15.000 --> 0:07:19.360 behind even in a nuanced concurrence, is something that your 0:07:19.400 --> 0:07:22.480 colleagues can ponder over. That as the other justices on 0:07:22.520 --> 0:07:27.240 the Court, can influence um courts in the future. And 0:07:27.280 --> 0:07:29.800 I think that that matters here too, So so I 0:07:29.840 --> 0:07:32.600 would say that it's not just Chief Justice joint on 0:07:32.800 --> 0:07:35.119 and bear it on the court, but that it really 0:07:35.160 --> 0:07:40.240 does matter having a court um that recognize the justice 0:07:40.280 --> 0:07:43.920 issues associated with reproductive health and right. And I'd like 0:07:43.960 --> 0:07:47.560 to add one other thing too to this, which is, 0:07:48.200 --> 0:07:51.559 you know, Justice Robert, in the opinion that he writes, 0:07:51.640 --> 0:07:54.760 he says, my view is that the Court's owe significant 0:07:54.840 --> 0:07:59.680 deference to to the politically accountable entities with the background, 0:07:59.720 --> 0:08:03.360 com potence and expertise to assess public health. And here 0:08:03.440 --> 0:08:08.000 he's talking about the FDA decisions. But here's what's also 0:08:08.080 --> 0:08:11.240 important to note, which is that there are times in 0:08:11.320 --> 0:08:16.400 which America's agencies can be prone to political capture. That 0:08:16.600 --> 0:08:20.160 is to say that people leading those agencies can be 0:08:20.320 --> 0:08:24.920 people who have political points of view that are quite partisan. 0:08:25.080 --> 0:08:29.160 That reflects the individuals who have put them there. So 0:08:29.240 --> 0:08:32.720 it's not to say that agency determinations come about through 0:08:33.160 --> 0:08:36.160 neutral fact finding UM. And in fact, what we know 0:08:36.240 --> 0:08:38.959 is that there has been a history with regard to 0:08:39.240 --> 0:08:43.920 women's health where in fact, the FDA has been quite politicized, 0:08:44.320 --> 0:08:48.960 and how it has made recommendations with regards to drugs 0:08:49.000 --> 0:08:51.640 that women would um take, and we could go through 0:08:51.679 --> 0:08:54.040 a lengthy history of m Max. I'd love to do 0:08:54.080 --> 0:08:57.080 that on your show and just talk about how politicized 0:08:57.120 --> 0:09:02.120 the FDA has been visa the women's health. Let's look forward, 0:09:02.400 --> 0:09:05.640 because there are many constitutional scholars who are looking at 0:09:05.640 --> 0:09:08.520 Amy Cony Barrett on the Court and saying be ready 0:09:08.600 --> 0:09:13.760 for some changes in abortion law. So do you take 0:09:13.840 --> 0:09:17.760 any comfort in the fact that the justices didn't take 0:09:17.800 --> 0:09:21.520 on lower court ruling a third Circuit ruling that allowed 0:09:21.600 --> 0:09:27.960 Pittsburgh's fifteen foot buffer zone around abortion clinics to remain. Well, 0:09:28.000 --> 0:09:33.040 what you're pointing to is that abortion right um are 0:09:33.240 --> 0:09:38.480 a hot button political issue. They've become deeply politicized in 0:09:38.559 --> 0:09:43.040 ways that are partisans and that are quite distinct from 0:09:43.080 --> 0:09:46.000 what they used to be forty fifty years ago in 0:09:46.120 --> 0:09:48.079 the space of Roe v. Wade. I mean, let's keep 0:09:48.080 --> 0:09:51.400 in mind that Roe was the seven to two opinion, 0:09:51.880 --> 0:09:55.679 and that five of the seven justices in support of 0:09:55.800 --> 0:10:01.040 Roe v. Wade were Republican appointed. UM Richard Nixon famously 0:10:01.400 --> 0:10:04.880 talked about family planning as being a basic public health issue. 0:10:05.360 --> 0:10:08.800 It was Prescott Bush, who was the father of George Bush, 0:10:08.920 --> 0:10:13.520 the first President UM, who is the treasurer for planned parenthood. 0:10:13.800 --> 0:10:16.079 So what we see today is actually not a part 0:10:16.280 --> 0:10:20.280 of a Republican legacy UM in the United States, where 0:10:20.320 --> 0:10:23.760 there was a sense of both Democrats and Republicans being 0:10:23.760 --> 0:10:26.600 able to see eye to eye in terms of women's 0:10:26.720 --> 0:10:29.480 reproductive health care and safety as being just basic public 0:10:29.480 --> 0:10:32.440 health and family planning being public health and leave these 0:10:32.480 --> 0:10:35.920 decisions to women and their health care providers. But instead 0:10:36.000 --> 0:10:40.760 these issues have now become mired um in in politics 0:10:40.760 --> 0:10:43.240 and politics in such a way that are not really 0:10:43.559 --> 0:10:47.960 about preserving or promoting women's health or anything like that. UM. 0:10:48.080 --> 0:10:53.080 They've become deeply contested and deeply contested and fundamentalist religious ways. 0:10:53.160 --> 0:10:55.680 That's very clear in terms of what's happening and what's 0:10:55.679 --> 0:10:58.960 being articulated. The future of what these rights look like 0:10:59.040 --> 0:11:03.520 will be heavily dependant upon what this Congress does, what 0:11:03.720 --> 0:11:08.240 this next President, Joe Biden does. UM. The president has 0:11:08.440 --> 0:11:13.520 a significant authority through his the ability to UM, the 0:11:13.520 --> 0:11:19.400 ability to make executive orders that then can be effective 0:11:19.440 --> 0:11:23.440 both domestically and also internationally, and that really matters within 0:11:23.520 --> 0:11:26.880 the realm of reproductive healthcare and rights. But you know, 0:11:27.040 --> 0:11:29.679 to be clear, this is one of the areas in 0:11:29.679 --> 0:11:34.280 which those who are fundamentally opposed to reproductive health rights 0:11:34.280 --> 0:11:37.280 and justice have been able to score victories. They've been 0:11:37.320 --> 0:11:40.160 able to score victories in state legislatures, and they've been 0:11:40.160 --> 0:11:44.120 able to score victories in federal appellate courts, and they've 0:11:44.120 --> 0:11:47.439 been able to score some measure of victory before the 0:11:47.559 --> 0:11:50.720 United States Supreme Court. One of the things that we 0:11:50.800 --> 0:11:54.920 saw last year in the Supreme Court's ruling in June 0:11:55.000 --> 0:12:00.280 Medicals was that John robert sided with the live rules 0:12:00.440 --> 0:12:03.680 on the court up holding a prior case whole woman's health. 0:12:04.480 --> 0:12:07.160 What was important about that decision is that I think 0:12:07.360 --> 0:12:11.080 John Roberts was looking to make sure that the Court 0:12:11.120 --> 0:12:13.960 could be perceived as one of the rule rules of law, 0:12:14.600 --> 0:12:18.959 one that is not captured by the political whims of 0:12:19.000 --> 0:12:21.720 the day. That was very clear by a number of 0:12:21.760 --> 0:12:25.000 things that he has said in recent years, including making 0:12:25.040 --> 0:12:28.240 statements that there's no such thing as Trump justices or 0:12:29.240 --> 0:12:33.240 or Obama justices, etcetera. And I think what was clear 0:12:33.240 --> 0:12:35.480 about that case is that it was hard to do 0:12:35.520 --> 0:12:39.480 anything differently, given that just a few years before um 0:12:39.640 --> 0:12:44.000 the Supreme Court had a ruling and Whole Woman's Health 0:12:44.040 --> 0:12:47.640 striking down the very same laws being contested in June 0:12:47.640 --> 0:12:52.800 Medical that aside, I think one can't overstate where John 0:12:52.920 --> 0:12:57.240 Roberts is on these questions at all. He is a conservative. 0:12:57.240 --> 0:13:00.760 In this case, he sided with other conservatives on the Court, 0:13:01.200 --> 0:13:03.720 and one can see that this will be a time 0:13:04.240 --> 0:13:07.880 in which those who are committed to ending abortion rights 0:13:07.880 --> 0:13:11.800 and making it difficult even to obtain contraception will continue 0:13:11.880 --> 0:13:15.080 to try to beseech this court for the kinds of 0:13:15.120 --> 0:13:17.640 outcomes they desire. And I think they're happy that Amy 0:13:17.679 --> 0:13:20.320 County Barrett is on the court. Now, what do you 0:13:20.360 --> 0:13:23.600 make of the fact that for months the justices have 0:13:23.720 --> 0:13:26.640 been deliberating whether or not to take a case on 0:13:27.240 --> 0:13:32.959 Mississippi's abortion ban after the fifteenth week of pregnancy. It's 0:13:32.960 --> 0:13:37.960 in conference over and over, right. Well, you know, I 0:13:38.000 --> 0:13:41.320 think that there's a measure of sporting that the Court 0:13:41.720 --> 0:13:44.160 is trying to do. You know what, You know, this 0:13:44.280 --> 0:13:48.480 is a court that is not isolated from the real 0:13:48.600 --> 0:13:53.080 life scenarios that are occurring in our society. You know 0:13:53.440 --> 0:13:58.000 exactly what those deliberations are. I don't have privy to them, 0:13:58.040 --> 0:14:03.200 and most Americans and American professors and lawyers don't have 0:14:03.400 --> 0:14:05.960 privy to those. But I think that they are being 0:14:06.000 --> 0:14:09.840 mindful of what's happening in terms of the political atmosphere 0:14:10.280 --> 0:14:14.440 in the United States. And typically what courts want to 0:14:14.559 --> 0:14:20.200 do is to avoid being entangled, um in legislative matters. 0:14:20.240 --> 0:14:24.160 Where they seek to intervene are in the instances where 0:14:24.280 --> 0:14:30.960 individual liberties have been compromised, where those individual liberties have 0:14:31.200 --> 0:14:36.000 been harmed, and you know, certainly these cases reflect that. 0:14:36.520 --> 0:14:39.080 But I think that they're also mindful that we were 0:14:39.120 --> 0:14:45.000 coming through um a big election and that would shape 0:14:45.880 --> 0:14:49.720 the presidency and that also could shape Congress as well, 0:14:50.000 --> 0:14:52.920 and that in fact has happened. Now. It will be 0:14:53.000 --> 0:14:56.480 interesting to see how the Court moves forward in terms 0:14:56.480 --> 0:15:00.320 of the cases that it will decide to take. I 0:15:00.480 --> 0:15:03.880 also offer one additional thing, which is that as the 0:15:04.000 --> 0:15:07.960 court is considering which case is to take, we are 0:15:08.040 --> 0:15:12.720 seeing cases that challenge um the sort of fundamental norms 0:15:12.920 --> 0:15:18.880 with regard to the very presidential value of Rovi Wade Plan, 0:15:19.000 --> 0:15:22.720 parents who v. Casey and whole woman's health. And we 0:15:22.880 --> 0:15:26.240 see that with the kind of legislation that is coming 0:15:26.280 --> 0:15:31.680 out of states like Indiana uh now um mandating that 0:15:31.920 --> 0:15:37.239 a person vary or cremate the remains after an abortion, 0:15:37.560 --> 0:15:40.800 and and also other ones. I mean, clearly, these are 0:15:40.840 --> 0:15:44.440 what we would frame as targeted regulations of abortion providers, 0:15:44.440 --> 0:15:47.720 These kind of trapped laws that really do seek to 0:15:47.800 --> 0:15:51.560 harm the interests of people who are seeking determinate a pregrency. 0:15:51.760 --> 0:15:55.800 Even though they don't directly interfere. Even though they don't 0:15:55.960 --> 0:15:59.800 directly say that you cannot have an abortion, they do 0:16:00.040 --> 0:16:03.120 create the kinds of burdens and barriers that can make 0:16:03.120 --> 0:16:06.920 it financially difficult to obtain an abortion, or make it 0:16:07.040 --> 0:16:11.400 actually um physically difficult to get into a clinic, or 0:16:11.480 --> 0:16:15.320 make it psychologically difficult because of what the state is 0:16:15.480 --> 0:16:19.120 imposing on a person before she can terminate a pregnancy. 0:16:19.160 --> 0:16:22.680 Thanks Michelle. That's Michelle Goodwin, Professor at the University of 0:16:22.720 --> 0:16:26.160 California Irvine School of Law. Her new book is called 0:16:26.200 --> 0:16:31.440 Policing The womb A Case involving the Boston Marathon bomber 0:16:31.800 --> 0:16:34.080 is going to be pressed and to elect Joe Biden's 0:16:34.240 --> 0:16:37.480 first test about his position on the death penalty. Joining 0:16:37.560 --> 0:16:40.880 me is Bloomberg Law editor Jordan Ruben tell us about 0:16:40.960 --> 0:16:47.160 this late round of federal executions. So this past week, 0:16:47.240 --> 0:16:52.160 the Trump administration carried out its thirteen execution since the 0:16:52.200 --> 0:16:56.000 federal government resumed them in July after a seventeen year break. 0:16:56.320 --> 0:16:59.760 The executions that were carried out after election day during 0:16:59.760 --> 0:17:02.000 the a duck period were the first ones that were 0:17:02.000 --> 0:17:05.000 carried out since the late nineteenth century. So what we've 0:17:05.040 --> 0:17:10.000 seen finish up here is an unprecedented run of federal executions, 0:17:10.040 --> 0:17:12.560 certainly in the modern era. And when it comes to 0:17:13.200 --> 0:17:15.919 lane duck executions, one is not seen in over a 0:17:15.960 --> 0:17:19.879 hundred years, the first federal execution of a woman since 0:17:20.000 --> 0:17:23.760 the nineteen fifties. Tell us about the late night of 0:17:24.200 --> 0:17:30.240 litigation before that. So, as is typical in death penalty 0:17:30.280 --> 0:17:32.480 litigation that's coming to a head at the Supreme Court, 0:17:32.800 --> 0:17:35.600 there will typically be a number of issues that are 0:17:35.600 --> 0:17:38.560 to be sorted out really coming down to the last minute. 0:17:38.880 --> 0:17:42.960 Sometimes that's owing to delays on the defendant's part. Sometimes 0:17:43.000 --> 0:17:46.480 that's owing to delays on the government's part. Because here 0:17:46.520 --> 0:17:50.560 we had a new federal execution protocol that was introduced 0:17:50.600 --> 0:17:53.919 during the Trump administration, and that's what led to many 0:17:54.040 --> 0:17:57.840 of the delays in the litigation. And so in Lisa 0:17:57.840 --> 0:18:01.080 Montgomery's case, as in other cases that we've seen not 0:18:01.160 --> 0:18:05.520 just during these federal executions, but another execution litigation, we 0:18:05.600 --> 0:18:10.080 saw the justices confronted with this late night of decisions 0:18:10.119 --> 0:18:12.600 that the justices had to make in terms of whether 0:18:12.640 --> 0:18:15.879 to let the execution go forward or whether to grant 0:18:15.880 --> 0:18:19.640 the stay. And has happened in all of these federal 0:18:19.640 --> 0:18:23.439 execution cases, the majority of the court sided with the 0:18:23.440 --> 0:18:27.959 Trump administration over dissent from the Democratic appointees on the 0:18:28.000 --> 0:18:31.840 Court that would have granted stays. Have the liberal justices 0:18:32.320 --> 0:18:36.400 been writing dissents, so not necessarily in every case. For example, 0:18:36.480 --> 0:18:41.520 in Leasta Montgomery's case, just the three justices Briar, Kagan 0:18:41.560 --> 0:18:45.280 and Soda Mayor, they only noted their descent. However, in 0:18:45.480 --> 0:18:50.639 the last execution that took place of Dustin Higgs, and 0:18:50.680 --> 0:18:55.200 we saw Justices Soda Mayor and Briar, both right dissents 0:18:55.200 --> 0:18:58.479 really that took stock of this whole run of federal 0:18:58.520 --> 0:19:02.359 executions in various pro problems that they saw with the process. 0:19:02.400 --> 0:19:06.119 We saw Justice Brier, as it has in the past, 0:19:06.320 --> 0:19:10.320 question the constitutionality of the death penalty itself and saying, 0:19:10.600 --> 0:19:13.040 as he predicted in the beginning, that the resumption of 0:19:13.080 --> 0:19:16.000 these federal executions was going to lead to a lot 0:19:16.000 --> 0:19:19.520 of novel legal questions, which he criticized the Majority for 0:19:19.560 --> 0:19:23.280 not resolving and instead letting these executions go forward. Justice 0:19:23.320 --> 0:19:26.280 Soda Mayor took a similar tax and really had some 0:19:26.280 --> 0:19:29.439 strong language for her colleagues in the majority, saying that 0:19:29.480 --> 0:19:32.200 what the Court was doing was not justice and letting 0:19:32.200 --> 0:19:36.280 these executions go forward without resolving the merits of these 0:19:36.320 --> 0:19:41.760 inmates claims. Has the Court stopped an execution in any 0:19:41.840 --> 0:19:46.840 case recently, not really. The last executions stay that I 0:19:46.880 --> 0:19:50.960 can think of came in the case of Reuben Gautierrez, 0:19:51.119 --> 0:19:53.720 a Texas inmate, and that was on the subject that 0:19:53.720 --> 0:19:56.639 we've seen some litigation in at the Court in recent 0:19:56.720 --> 0:20:00.080 years over the ability to have uh faith advice. Is 0:20:00.160 --> 0:20:04.120 there a minister of one's choice in the execution chamber, 0:20:04.560 --> 0:20:08.399 and so based on that claim, the justice had stayed 0:20:08.560 --> 0:20:11.800 his execution, and that case is still playing out, and 0:20:11.800 --> 0:20:15.080 it's actually back at the Supreme Court after some more 0:20:15.520 --> 0:20:20.080 litigation in the lower courts. And remember before that stay, 0:20:20.119 --> 0:20:23.840 there was different conclusions that the justices came to, and 0:20:23.880 --> 0:20:27.120 some people saw disparities, for example, in the way that 0:20:27.600 --> 0:20:31.679 Muslim inmate was treated, who did not get to have 0:20:31.880 --> 0:20:34.879 his a mom into chamber with him when he was executed, 0:20:34.920 --> 0:20:38.200 as opposed to different action that the court took in 0:20:38.480 --> 0:20:41.560 other cases. And so that's the latest in that genre 0:20:41.600 --> 0:20:44.320 of cases of having a minister of one's choosing in 0:20:44.359 --> 0:20:48.000 the execution chamber. But generally when it comes to the 0:20:48.040 --> 0:20:53.119 merits of whether an execution can go forward eventually, really 0:20:53.160 --> 0:20:55.960 the majority of the court anyway has not recently been 0:20:56.000 --> 0:20:59.760 siding with any inmates. There was a lot of controversy 0:20:59.760 --> 0:21:04.960 about the protocol for lethal injection. Has that all been settled? 0:21:05.920 --> 0:21:08.760 It hasn't. That's one of the many questions that was 0:21:09.240 --> 0:21:12.240 left open by the court and really unresolved. So it's 0:21:12.240 --> 0:21:15.320 been settled in the sense that the government's position has 0:21:15.359 --> 0:21:19.359 been effectively upheld by a majority of the Supreme Court, 0:21:19.680 --> 0:21:23.440 but there have been numerous lower court trial court rulings 0:21:23.480 --> 0:21:26.159 that have been up ended and not allowed to go 0:21:26.280 --> 0:21:29.040 forward for it to really be tested to what extent 0:21:29.520 --> 0:21:33.639 that the government's protocol violates the Eighth Amendments ban on 0:21:33.800 --> 0:21:37.360 cool and unusual punishment. So there have been some litigation 0:21:37.440 --> 0:21:39.880 that's played out in the lower courts, but on that 0:21:40.240 --> 0:21:44.240 issue and a bunch of others. That's what Justice Soda 0:21:44.280 --> 0:21:47.840 Mayor and Justice Brier we're complaining about in Descent, which 0:21:47.880 --> 0:21:50.600 is that many of these claims just haven't really been 0:21:50.680 --> 0:21:53.560 tested and fully litigated as much as they should be 0:21:53.560 --> 0:21:58.080 before deciding on this important issue, and so the litigation 0:21:58.080 --> 0:22:01.000 has been kind of short circus it in a way 0:22:01.080 --> 0:22:04.280 in order to allow the executions to go forward. But 0:22:04.320 --> 0:22:06.439 that's part of a pattern that we've been seeing in 0:22:06.480 --> 0:22:10.080 these capital cases, not just starting this year, but certainly 0:22:10.119 --> 0:22:13.879 it's been magnified this year with all these executions coming 0:22:14.280 --> 0:22:17.480 one after another from the federal government. So what is 0:22:17.560 --> 0:22:23.359 Joe Biden's position on capital punishment. Joe Biden, after having 0:22:23.440 --> 0:22:27.200 been as a senator, really tough on crime politician who's 0:22:27.240 --> 0:22:30.600 supported the death penalty, and during the Obama administration, when 0:22:30.600 --> 0:22:35.399 he was vice president, Certainly they oversaw capital prosecutions and 0:22:35.400 --> 0:22:38.760 did not commute death row sentences. He now said that 0:22:38.840 --> 0:22:42.439 he's wanting to eliminate the death penalty completely. Now he 0:22:42.480 --> 0:22:45.199 hasn't laid out exactly what he's going to do to 0:22:45.240 --> 0:22:47.640 try and accomplish that. We'll have to wait and see 0:22:47.680 --> 0:22:49.359 a bit. But he has said that he wants to 0:22:49.800 --> 0:22:55.280 support legislation ending the death penalty and supporting states to 0:22:55.600 --> 0:22:58.359 do so as well, so easily saying that he's against 0:22:58.440 --> 0:23:01.200 the death penalty, and we'll have to see what specific 0:23:01.240 --> 0:23:06.080 action he's going to take. So Jordan's he doesn't need legislation, 0:23:06.160 --> 0:23:08.679 does he? He can just stop the death penalty the 0:23:08.760 --> 0:23:13.000 same way that President Trump and Attorney General William Barr 0:23:13.400 --> 0:23:17.359 restarted the death penalty. Well, it depends exactly what he 0:23:17.400 --> 0:23:20.040 wants to accomplish. Certainly, he has the right not to 0:23:20.119 --> 0:23:23.760 carry out executions while he's the president, and that was 0:23:23.800 --> 0:23:27.880 the case when he was vice president during the Obama administration. However, 0:23:28.200 --> 0:23:31.840 what antideath penalty activists are saying when they point to 0:23:31.880 --> 0:23:34.359 that period, they say, if all you do is not 0:23:34.480 --> 0:23:38.320 carry out executions, that allows for President life President Trum 0:23:38.560 --> 0:23:41.000 to then resume them. And so what some people are 0:23:41.000 --> 0:23:44.919 calling on President Biden to do when he takes office 0:23:45.280 --> 0:23:48.679 is commute all of the existing death row sentences to 0:23:48.760 --> 0:23:52.360 life so that a future president can't carry out these executions. 0:23:52.520 --> 0:23:54.960 And they want him to dismantle the death Chamber to 0:23:55.080 --> 0:23:58.120 again make it more difficult for a future president inclined 0:23:58.160 --> 0:24:01.600 to resume them to then carry amount. So they're not 0:24:01.680 --> 0:24:05.000 a fan of what happened during the Obama administration, even 0:24:05.000 --> 0:24:06.920 if at first glance it seems like they might be. 0:24:06.920 --> 0:24:10.680 Because no executions were carried out. They're saying, that's not enough. 0:24:10.760 --> 0:24:13.359 You have to stop this so a future president can't 0:24:13.400 --> 0:24:17.199 do what President Trump did. So now entering into this 0:24:17.320 --> 0:24:22.080 picture is the case of johars Or Nayev, known as 0:24:22.119 --> 0:24:26.040 the Marathon bomber. The jury did give him the death penalty. 0:24:26.119 --> 0:24:29.960 Tell us what has happened since then? Sure, so, this 0:24:30.119 --> 0:24:34.240 past summer, an appeals court vacated his death sentence. Is 0:24:34.280 --> 0:24:38.000 not his conviction, just his his best sentences, on the 0:24:38.040 --> 0:24:42.000 grounds that the judge didn't do enough to screen potential 0:24:42.080 --> 0:24:45.160 jurors for pre trial publicity bias. And so the appeals 0:24:45.200 --> 0:24:49.000 court vacated his death sentences and affirms his life sentences. 0:24:49.040 --> 0:24:52.439 So the defending is going to die in prison either way. 0:24:52.720 --> 0:24:55.320 But now the government is in a position where those 0:24:55.480 --> 0:24:59.359 best sentences are apended, and so the Justice Department, while 0:24:59.400 --> 0:25:03.359 President was still president, appealed to the Supreme Court in 0:25:03.440 --> 0:25:07.000 trying to reinstate those death sentences, and that petition is 0:25:07.040 --> 0:25:11.199 still pending at the court right now. So this was 0:25:11.640 --> 0:25:17.119 one of the most important terrorism prosecutions that we've seen 0:25:17.280 --> 0:25:22.200 in recent years. Do people think that might change what 0:25:22.320 --> 0:25:27.720 a Biden administration might do about it? Well, that's the question. 0:25:27.880 --> 0:25:30.760 If Joe Biden is against the death penalty, then he 0:25:30.800 --> 0:25:32.800 has to be against the death penalty, right. It can't 0:25:32.800 --> 0:25:35.840 be used just when it's really bad. And so we'll 0:25:35.880 --> 0:25:38.720 have to see what exactly Joe Biden means when he 0:25:38.760 --> 0:25:41.200 says he's against the death penalty now. And so this 0:25:41.240 --> 0:25:45.320 case prevents really an important test at the beginning of 0:25:45.359 --> 0:25:48.880 his administration for whether he's truly against the death penalty. 0:25:49.359 --> 0:25:54.280 Is there a complicating factor? Merrick Garland is going to 0:25:54.320 --> 0:25:58.240 be most likely the next Attorney General and he was 0:25:58.320 --> 0:26:02.800 involved in the prosecution of Timothy McVeigh and the death 0:26:02.800 --> 0:26:06.280