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