WEBVTT - Supreme Court Reverses Roe v. Wade

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>Today is Supreme Courts the United States expressly took away

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<v Speaker 1>a constus right from the American people. President Joe Biden

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<v Speaker 1>condemned the Supreme Court decision that stripped away the constitutional

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<v Speaker 1>right to abortion, while acknowledging there was little he could

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<v Speaker 1>do about it. The decision on Friday overturned Roe v.

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<v Speaker 1>Wade and wiped out the constitutional protections for abortion that

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<v Speaker 1>had stood for nearly a half century. The impact promises

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<v Speaker 1>to be transformational, likely making abortion illegal and half the

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<v Speaker 1>country from a court that was divided down ideological lines.

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<v Speaker 1>My guest is Katherine Frankie, a professor at Columbia Law

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<v Speaker 1>School and the director of the Center for Gender and

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<v Speaker 1>Sexuality Law. Broadly speaking, Catherine, what does this decision tell you? Well?

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<v Speaker 1>Would it tells me? Is that my mother had greater

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<v Speaker 1>rights to her own liberty and equality than my daughter will.

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<v Speaker 1>Access to abortion, access to the full range of reproductive

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<v Speaker 1>health care is fundamental to the idea of women's citizenship,

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<v Speaker 1>and for the Court to withdraw that right, and to

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<v Speaker 1>do it in such a snarky fashion, feels like a

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<v Speaker 1>punch in the face I think for women across this

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<v Speaker 1>country as well as other people who get pregnant, you

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<v Speaker 1>said snarky fashion. So that leads to my next question,

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<v Speaker 1>which is, can you explain the reasoning that Justice Alito

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<v Speaker 1>used to get to reversing Roe v. Wade. Well, he

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<v Speaker 1>takes the position the row was wrongly decided in nineteen

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<v Speaker 1>seventy three, that it was a weekly decided decision, poorly reasoned,

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<v Speaker 1>and that there's nothing that stands in the way of

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<v Speaker 1>the Court now over ruling it. And he does so

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<v Speaker 1>by turning to thirteenth century fourteenth century legal treatises to

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<v Speaker 1>show the abortion was something that was considered criminal in

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<v Speaker 1>England that many years ago, and almost all of the

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<v Speaker 1>citations the Justice League, though uses are from old white

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<v Speaker 1>men who don't have a stake, or at least don't

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<v Speaker 1>have the same stake in this issue that we do today.

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<v Speaker 1>So it really it not only freezes the Constitution in

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<v Speaker 1>a pre nineteen seventies place, it actually frees the Constitution

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<v Speaker 1>in the thirteenth century, which I just think is appalling, appalling.

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<v Speaker 1>On Thursday, the Supreme Court went back to the seventeen

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<v Speaker 1>hundreds and eighteen hundreds to declare that the Second Amendment

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<v Speaker 1>allows citizens to carry handguns in public. Is this the

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<v Speaker 1>revenge of the textualists? Well, some of these judges are

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<v Speaker 1>die hard textualists and some of them are opportunists. And

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<v Speaker 1>so when history helps you for the arguments you're going

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<v Speaker 1>to make, they will turn to it. You know, in

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<v Speaker 1>this case, what we learned in a twenty four hour

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<v Speaker 1>period is that states have no power and no constitutional

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<v Speaker 1>right to regulate guns. And at the same time, states

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<v Speaker 1>have the absolute power and right to regulate women's bodies.

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<v Speaker 1>And it makes you question what kind of citizens women

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<v Speaker 1>are in this country after those two decisions. Is the

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<v Speaker 1>majority opinion just playing wrong? Is it unprincipled? How would

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<v Speaker 1>you characterize it? Well, I think the majority is ideological.

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<v Speaker 1>Most of these members of the majority were appointed to

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<v Speaker 1>the Court precisely because they took this position on abortion.

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<v Speaker 1>There's no mistaking that fact. And what they do is

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<v Speaker 1>they cherry pick history. They cherry pick Supreme Court decisions

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<v Speaker 1>from the past to say that Row was wrongly decided.

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<v Speaker 1>But as the long distense in this case shows, from

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<v Speaker 1>three members of the court, there are parallel histories with

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<v Speaker 1>competing narratives about what it means to be free, what

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<v Speaker 1>privacy might mean in this country, and what equality might mean.

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<v Speaker 1>So it's not a surprise that we have a majority

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<v Speaker 1>of the Court now that disfavored abortion as a constitutional right.

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<v Speaker 1>What I find most shocking is the way in which

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<v Speaker 1>they did it, And I think Chief Justice Roberts's a

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<v Speaker 1>concurrence really brings that home by describing Justice Alito's opinion

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<v Speaker 1>as a jolt to the legal system, the descent in

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<v Speaker 1>which the three liberal Johnice is united says that no

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<v Speaker 1>one should be confident that this majority is done with

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<v Speaker 1>its work, and Justice Clarence Thomas and his concurrence says,

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<v Speaker 1>you know, we should reconsider all of the courts substantive

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<v Speaker 1>due process precedents like same sex marriage and contraception. Justice Alito,

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<v Speaker 1>in his majority opinion says, look, we're only deciding the

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<v Speaker 1>abortion case today. All those other matters of sex and sexuality,

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<v Speaker 1>whether it's to write to contraception or the decriminalization of

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<v Speaker 1>sodomy or same sex marriage rights, those are not implicated

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<v Speaker 1>in this decision. But to be honest, the way in

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<v Speaker 1>which Justice Alito's opinion kicks the legs out from the

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<v Speaker 1>Constitution that held up rovers his weight, it's hard to

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<v Speaker 1>imagine our all those other rights have anything left to

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<v Speaker 1>stand on. There's a lot of talk about what will

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<v Speaker 1>happen next, and one thing that's that people are concerned

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<v Speaker 1>about is that read states will try to prosecute in

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<v Speaker 1>some way women who cross state lines. Justice kavan on

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<v Speaker 1>his concurrence says that's not going to happen. I mean,

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<v Speaker 1>can we trust his opinion there? Well, he's no expert

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<v Speaker 1>in state prosecutions. I think he's completely out of order

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<v Speaker 1>and saying that won't happen because the Supreme Court's decision

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<v Speaker 1>is actually an invitation to local prosecutors to enforce the

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<v Speaker 1>criminal laws in exactly that way. So we'll have to

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<v Speaker 1>wait and see. But um, I there are many many

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<v Speaker 1>people who feel very strongly about this issue as we know, uh,

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<v Speaker 1>and then do feel that abortion is murder, and why

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<v Speaker 1>wouldn't they prosecute, um, those laws just as robustly as

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<v Speaker 1>they prosecute the murderer of already born people. Is this

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<v Speaker 1>the first time the Court has taken away a constitutional

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<v Speaker 1>right in modern history? Well know, the Court does reverse

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<v Speaker 1>itself from time to time. Their both to do so,

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<v Speaker 1>and Justice Alito gives us a very long footnote where

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<v Speaker 1>he goes through the other places where the Court has

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<v Speaker 1>reversed itself. But this is the first time that we've

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<v Speaker 1>seen something is such a fundamental right central to half

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<v Speaker 1>the population's idea of being full citizens obliterated in such

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<v Speaker 1>a crude and I would say cruel way. President Biden

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<v Speaker 1>says it's up to Congress now to pass a law

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<v Speaker 1>protecting the right to abortion. We're unlikely to see that

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<v Speaker 1>anytime soon. Is there anything else that can be done

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<v Speaker 1>at this point? Vote right? This issue now is a

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<v Speaker 1>state by state issue. We have to show up in

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<v Speaker 1>the at the polls. We have to get different people

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<v Speaker 1>in our state legislatures and protect abortion rights as contraceptive

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<v Speaker 1>rights and the whole range of rights having to do

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<v Speaker 1>with reproductive healthcare, and in the ballot box, because that's

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<v Speaker 1>now where this issue has been kicked by the Supreme

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<v Speaker 1>Court is into the state legis Slaters, Thanks Catherine. That's

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<v Speaker 1>Professor Catherine Frankie of Columbia Law School coming up next,

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<v Speaker 1>the reprecautions of this decision. This is Bloomberg. Here's Justice

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<v Speaker 1>Samuel Alito at his Supreme Court confirmation hearings in two

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<v Speaker 1>thousand six versus weight. It is an important precedent of

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<v Speaker 1>the Supreme Court. It was decided in three so it's

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<v Speaker 1>been on the books for a long time. It has

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<v Speaker 1>been challenged on a number of occasions, and I think

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<v Speaker 1>that when a decision is challenged and it is reaffirmed,

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<v Speaker 1>that strengthens its value as starry decisive for at least

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<v Speaker 1>two reasons. First of all, the more often a decision

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<v Speaker 1>is reaffirmed, the more people tend to rely on it.

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<v Speaker 1>And secondly, I think starry decisive reflects the view that

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<v Speaker 1>there is wisdom embedded in decisions that have been made

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<v Speaker 1>by prior justices. But on Friday, josephs Aledo refused to

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<v Speaker 1>follow that precedent I prior justices, which has been relied

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<v Speaker 1>on by women for nearly half a century, and wrote

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<v Speaker 1>the majority opinion saying that Roe v. Wade was egregiously

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<v Speaker 1>wrong from the day it was decided and there is

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<v Speaker 1>no constitutional right to abortion. Joining me is Jennie Schanzano,

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<v Speaker 1>Bloomberg political contributor and a professor I own a college.

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<v Speaker 1>Genie put this decision in the context of Supreme Court history.

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<v Speaker 1>Will this day stand out? It will stand out, you know.

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<v Speaker 1>I think the word that keeps coming to my mind.

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<v Speaker 1>Isn't momentous? That is the one word that captures this.

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<v Speaker 1>I have been racking my brain just as an example,

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<v Speaker 1>to try to come up with a time at which

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<v Speaker 1>the Supreme Court had a right that they then took away.

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<v Speaker 1>You look throughout American history, and maybe other people can

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<v Speaker 1>identify one. I cannot. And so if you think about,

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<v Speaker 1>you know, women for half a century enjoying this right

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<v Speaker 1>and that it's been can await? I think momentous is

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<v Speaker 1>the one word to put this in perspective. And you know,

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<v Speaker 1>I was struck, just as an aside by the fact

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<v Speaker 1>that in the majority decision, Alito actually compares Row to Plessy,

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<v Speaker 1>And you know that really struck me. When he's trying

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<v Speaker 1>to make the case that we've overturned over ruled precedent,

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<v Speaker 1>he uses Plessy Federal times as an example of that,

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<v Speaker 1>and that to me is astonishing and will be as

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<v Speaker 1>we look back on this decision. Speaking about precedent, and

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<v Speaker 1>of course the Court overrules precedent from time to time,

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<v Speaker 1>but does the Court this week say, well, we don't

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<v Speaker 1>care about precedent. They essentially say, you know, we're not

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<v Speaker 1>going to be held hostage by precedent, and that again

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<v Speaker 1>is a quite astonishing statement by the majority in this court.

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<v Speaker 1>And you know, in the majority decision, he does go

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<v Speaker 1>through in some real grave detail the fact that the

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<v Speaker 1>Court has overruled precedents in the past, and he goes

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<v Speaker 1>through this litany and this idea they're not going to

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<v Speaker 1>be helped hostage by precedents. But again, it's important distress

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<v Speaker 1>as I'm reading through this the precedent that they're talking

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<v Speaker 1>about that they've overruled in the past. You don't see

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<v Speaker 1>any in which a right was granted and then they

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<v Speaker 1>took it away. And that's what I think is really

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<v Speaker 1>astonishing about what we're living through at this point. I

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<v Speaker 1>know that anti abortion activists have been working since Roe v.

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<v Speaker 1>Wade was decided to get it reversed, but it still

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<v Speaker 1>seems fast to see a constitutional right wiped out. Sitting

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<v Speaker 1>here today, it does feel stunning lee fast. But if

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<v Speaker 1>we look back, this has been almost half a century

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<v Speaker 1>long quest by members of the Republican Party. But not

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<v Speaker 1>just the Republican Party, you also Democrats, of course, who

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<v Speaker 1>are pro life, and you know row be Wade came

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<v Speaker 1>out in three and since that moment, you have a

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<v Speaker 1>real committed group of people in this country who have

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<v Speaker 1>done everything they can, including voting on this issue, focusing

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<v Speaker 1>on getting the judges and justices in place who would overturn.

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<v Speaker 1>Eventually wrote So it really has been a decades long

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<v Speaker 1>quest that has finally come to fruition. And you know,

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<v Speaker 1>one thing I think it's important to underscore is that

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<v Speaker 1>this is always the danger. When a right is protected

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<v Speaker 1>in the court, then the membership of the court matters

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<v Speaker 1>an awful lot. And so I am of the opinion

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<v Speaker 1>that if you want to protect the right, you best

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<v Speaker 1>do it at the ballot box, because when you do

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<v Speaker 1>it in the courts, it means these confirmation hearings and

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<v Speaker 1>one or two justices on the court can take that

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<v Speaker 1>right away. And that's what we've you know, been seeing

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<v Speaker 1>over the last several years. The fear of these confirmation

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<v Speaker 1>processes for these three Trump pointees have almost exclusively been

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<v Speaker 1>about row And of course it doesn't matter because they

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<v Speaker 1>got on the court and they overruled it. This also

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<v Speaker 1>puts a question mark in my mind about the utility

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<v Speaker 1>of confirmation hearings because each and every one of these

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<v Speaker 1>justices said during those hearings that row was right embedded

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<v Speaker 1>in the constitution. I mean, Justice Kavanaugh in particular was

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<v Speaker 1>very emphatic about that. Yeah, and I'm so glad you

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<v Speaker 1>said that, because, you know, for so long we've looked

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<v Speaker 1>at these confirmation processes, particularly since Robert Bourke and people

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<v Speaker 1>have been wondering, you know, what is really the value

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<v Speaker 1>of these And to your point, now we see, and

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<v Speaker 1>we heard Susan Collins of Mainspace that the senators were

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<v Speaker 1>misled both privately, we understand in individual meetings with the

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<v Speaker 1>senators and of course publicly, you know, most of them

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<v Speaker 1>taking this argument that they don't have an opinion on

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<v Speaker 1>the issue, um others taking these sort of stamps that

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<v Speaker 1>they value precedent, they value story decisis, so they wouldn't

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<v Speaker 1>think of overturning a long standing right. And of course

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<v Speaker 1>that's not at all what happened. So I think, and

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<v Speaker 1>you know, just as in the side, we we have

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<v Speaker 1>a president who's one of the only presidents who has

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<v Speaker 1>also Senate, you know, the leader of the Senate Judiciary Committee,

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<v Speaker 1>and whoever saw so many of these confirmation processes that

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<v Speaker 1>I think we really do need to rethink the process

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<v Speaker 1>by which we make these appointments and they are confirmed

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<v Speaker 1>at the Senate level. UM. So I think that's something

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<v Speaker 1>that's going to have to happen. Um. I think it's

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<v Speaker 1>something that should have happened already because a lot of

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<v Speaker 1>people have thought for very long that these were you know,

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<v Speaker 1>more show than they were substance. And of course now

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<v Speaker 1>we come to recognize that people feel you know, completely

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<v Speaker 1>misled um at the best, and lied to at the

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<v Speaker 1>at the worst. Americans approval of the Supreme Court is

0:13:59.320 --> 0:14:02.720
<v Speaker 1>that it's low list in modern times. What does this

0:14:02.800 --> 0:14:06.400
<v Speaker 1>decision due to the legitimacy of the Court, I think

0:14:06.440 --> 0:14:08.840
<v Speaker 1>it puts it very much in question. And as somebody

0:14:08.880 --> 0:14:11.760
<v Speaker 1>who you know studies the Court like you do, and

0:14:11.760 --> 0:14:15.920
<v Speaker 1>and one of my favorite institutions to talk about, I

0:14:16.040 --> 0:14:19.280
<v Speaker 1>am so sad about where the Court finds itself today,

0:14:19.320 --> 0:14:23.520
<v Speaker 1>not just with this decision, but with the decision on guns.

0:14:23.640 --> 0:14:28.000
<v Speaker 1>And the reason is is because in some ways, the Court,

0:14:28.160 --> 0:14:31.280
<v Speaker 1>at least the majority, seems terribly out of touch with

0:14:31.360 --> 0:14:34.320
<v Speaker 1>what's going on in the United States. As you look

0:14:34.320 --> 0:14:36.560
<v Speaker 1>at these sort of back to back decisions in the

0:14:36.640 --> 0:14:39.320
<v Speaker 1>last couple of days, you know, I was looking at

0:14:39.320 --> 0:14:41.960
<v Speaker 1>the descent in the gun case and they start out

0:14:42.000 --> 0:14:46.480
<v Speaker 1>by talking about the number of people murdered by guns

0:14:46.480 --> 0:14:50.520
<v Speaker 1>in this country in and the number is utterly astonishing.

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<v Speaker 1>And you couple that then with the fact that the

0:14:53.600 --> 0:14:55.520
<v Speaker 1>Court has said to the State of New York and

0:14:55.640 --> 0:15:00.360
<v Speaker 1>other like minded states that they can't protect their citizens

0:15:00.400 --> 0:15:04.320
<v Speaker 1>this regulation on conceal and carry. It seems terribly out

0:15:04.320 --> 0:15:06.480
<v Speaker 1>of touch if you think about it that way. And

0:15:06.520 --> 0:15:09.120
<v Speaker 1>I think also in this decision, you know, women have

0:15:09.280 --> 0:15:12.520
<v Speaker 1>enjoyed this right, people have enjoyed this right to choose

0:15:12.600 --> 0:15:15.400
<v Speaker 1>for half a century. For the Court to come in

0:15:15.920 --> 0:15:19.360
<v Speaker 1>and not even to just incrementally like the Chief Justice wanted,

0:15:19.400 --> 0:15:22.160
<v Speaker 1>but to go to the extent of ripping that out

0:15:22.200 --> 0:15:24.760
<v Speaker 1>from under, pulling the rug out from under, in other words,

0:15:25.240 --> 0:15:28.560
<v Speaker 1>I think, is going to create an enormous problem for

0:15:28.640 --> 0:15:31.760
<v Speaker 1>the Court. The justices themselves have been talking about this,

0:15:31.800 --> 0:15:34.680
<v Speaker 1>as you know, they've been saying the Court has become politicized.

0:15:34.960 --> 0:15:38.640
<v Speaker 1>They should be very concerned about the legitimacy of the court.

0:15:39.080 --> 0:15:42.000
<v Speaker 1>And that's why I liken this to a certain extent.

0:15:42.040 --> 0:15:44.040
<v Speaker 1>It's probably a little bit early to say this, but

0:15:44.640 --> 0:15:47.160
<v Speaker 1>you know, the two or three worst decisions in court

0:15:47.240 --> 0:15:51.560
<v Speaker 1>history dread Koramatsu, and Plessy. This could end up being

0:15:51.600 --> 0:15:54.800
<v Speaker 1>among those and one of the reasons they were so traumatic,

0:15:54.920 --> 0:15:59.200
<v Speaker 1>amongst other reasons, was because the court essentially lost its

0:15:59.240 --> 0:16:01.720
<v Speaker 1>legitimacy in the eyes of Americans in all three of

0:16:01.760 --> 0:16:05.160
<v Speaker 1>those cases, and it suffered for decades to come and

0:16:05.240 --> 0:16:08.480
<v Speaker 1>struggle to find its footing again. And I fear the

0:16:08.520 --> 0:16:11.840
<v Speaker 1>Court may find itself in the same position today if

0:16:11.880 --> 0:16:14.200
<v Speaker 1>we simply just look at the amount of protests going

0:16:14.240 --> 0:16:16.920
<v Speaker 1>on outside the court and the threats of violence, and

0:16:16.960 --> 0:16:20.120
<v Speaker 1>the frustration that people feel with a court that's terribly

0:16:20.160 --> 0:16:22.880
<v Speaker 1>out of touch with the lives of so many Americans.

0:16:22.880 --> 0:16:25.000
<v Speaker 1>It's great to have you on, Jennie, Thanks so much.

0:16:25.400 --> 0:16:29.440
<v Speaker 1>That's Jennie Chanzano, Bloomberg political contributor and a professor at

0:16:29.440 --> 0:16:31.840
<v Speaker 1>I own a College. And that's it for this edition

0:16:31.840 --> 0:16:34.560
<v Speaker 1>of The Bloomberg Law Show. Remember you can always get

0:16:34.560 --> 0:16:37.720
<v Speaker 1>the latest legal news on our Bloomberg Law Podcast. You

0:16:37.720 --> 0:16:41.800
<v Speaker 1>can find them on Apple Podcasts, Spotify, and at www

0:16:41.960 --> 0:16:46.240
<v Speaker 1>dot Bloomberg dot com, slash podcast Slash Law, And remember

0:16:46.240 --> 0:16:48.640
<v Speaker 1>to tune in to The Bloomberg Law Show every week

0:16:48.760 --> 0:16:52.280
<v Speaker 1>night at ten pm Wall Street Time. I'm June Grosso

0:16:52.440 --> 0:16:54.040
<v Speaker 1>and you're listening to Bloomberg