1 00:00:00,080 --> 00:00:03,760 Speaker 1: Thanks Michael. President elect Donald Trump was asked by Leslie 2 00:00:03,760 --> 00:00:06,840 Speaker 1: Stall in an interview on Sixty Minutes Last Night whether 3 00:00:06,880 --> 00:00:10,240 Speaker 1: he wanted to appoint Supreme Court justices who would overturn 4 00:00:10,480 --> 00:00:13,360 Speaker 1: Roe v. Wade. He answered that he was pro life 5 00:00:13,520 --> 00:00:18,079 Speaker 1: and the justices would be pro life. Having to do 6 00:00:18,200 --> 00:00:21,680 Speaker 1: with abortion, what if it ever were overturned, it would 7 00:00:21,720 --> 00:00:24,040 Speaker 1: go back to the states, So I would go back 8 00:00:24,079 --> 00:00:26,400 Speaker 1: to the women won't be able to get at abort, 9 00:00:26,480 --> 00:00:30,280 Speaker 1: So it'll go back to the state by state. Perhaps 10 00:00:30,280 --> 00:00:31,680 Speaker 1: you have to go to I have to go to 11 00:00:31,720 --> 00:00:35,080 Speaker 1: another state. However, when asked about the issue of marriage 12 00:00:35,080 --> 00:00:38,440 Speaker 1: equality in the US, Trump said that issue had been 13 00:00:38,440 --> 00:00:41,920 Speaker 1: settled by the Supreme Court. It's law. I was settled 14 00:00:41,920 --> 00:00:44,800 Speaker 1: to the Supreme Court. I mean it's done. So even 15 00:00:44,840 --> 00:00:47,280 Speaker 1: if you appointed judge that it's done it you have 16 00:00:48,400 --> 00:00:51,199 Speaker 1: these cases have gone to the Supreme Court, They've been settled, 17 00:00:52,120 --> 00:00:56,160 Speaker 1: and I think I'm fine with it. So why does 18 00:00:56,200 --> 00:00:59,920 Speaker 1: Trump think that last year's landmark decision validating same set 19 00:01:00,200 --> 00:01:03,600 Speaker 1: marriages is settled law? But the landmark decision of Roe v. 20 00:01:03,760 --> 00:01:07,600 Speaker 1: Wade recognizing abortion rights is not here to help us 21 00:01:07,640 --> 00:01:10,679 Speaker 1: answer that question? Is Erwin Schamerinsky the dean of the 22 00:01:10,760 --> 00:01:15,480 Speaker 1: u c. Irvine Law School and prominent constitutional scholar Irwin. 23 00:01:15,840 --> 00:01:18,360 Speaker 1: Roe v. Wade was decided by the Supreme Court in 24 00:01:18,440 --> 00:01:24,640 Speaker 1: ninety three, Overfell. The Hodges was decided last year. Is 25 00:01:24,640 --> 00:01:28,240 Speaker 1: there any difference in what Trump is calling settled law? 26 00:01:29,440 --> 00:01:32,360 Speaker 1: A Supreme Court precedent is settled only so long as 27 00:01:32,400 --> 00:01:35,400 Speaker 1: the justices wanted to be settled. If there's five votes 28 00:01:35,480 --> 00:01:38,640 Speaker 1: to overrule Roe v. Wade, Roe v. Wade will be overruled. 29 00:01:38,800 --> 00:01:43,600 Speaker 1: If there's five votes to overrule, then Overdges will be overruled. 30 00:01:44,120 --> 00:01:47,800 Speaker 1: One is no more settled than the other, Erwin. Is 31 00:01:47,800 --> 00:01:49,680 Speaker 1: there an argument that Roe v. Wade is actually more 32 00:01:49,680 --> 00:01:52,880 Speaker 1: settled than than Abergia Fell, given given how old it is, 33 00:01:52,920 --> 00:01:57,440 Speaker 1: given that the Court has has reaffirmed it UH a 34 00:01:57,480 --> 00:02:01,320 Speaker 1: couple of times. Of course, the Supreme Court is much 35 00:02:01,360 --> 00:02:05,960 Speaker 1: more reluctant overrule longstanding precedence. Ro v. Wade was decided 36 00:02:05,960 --> 00:02:10,920 Speaker 1: in January ninety three, Oberfelt was June of two thou fifteen. Also, 37 00:02:11,000 --> 00:02:14,680 Speaker 1: the Supreme Court says that it's reluctant overrule decisions when 38 00:02:14,720 --> 00:02:17,720 Speaker 1: there's been reliance upon them. Obviously, there's been a great 39 00:02:17,720 --> 00:02:21,640 Speaker 1: deal of reliance upon ro versus way. But the reality is, 40 00:02:21,880 --> 00:02:24,600 Speaker 1: I said, if there are five justices who want to 41 00:02:24,680 --> 00:02:27,520 Speaker 1: overrule Roe v. Wade, it's going to be overruled. If 42 00:02:27,520 --> 00:02:31,600 Speaker 1: there's five justice want to overrule OVERTHELT, it will be overruled. Now, 43 00:02:31,639 --> 00:02:36,080 Speaker 1: I think that Roe v. Wade is probably more controversial 44 00:02:36,560 --> 00:02:39,040 Speaker 1: and will be more controversial in the years ahead than 45 00:02:39,160 --> 00:02:44,000 Speaker 1: over Society seems to a relatively quickly accepted mirroage equality. 46 00:02:44,360 --> 00:02:48,760 Speaker 1: There's a group society who vehemently opposes ro versus Wade. 47 00:02:49,040 --> 00:02:51,959 Speaker 1: But keep in mind in that regard that Chief Justice 48 00:02:52,080 --> 00:02:57,600 Speaker 1: Roberts and Justices Thomas and Alito vehement the sense and OVERTHELT. 49 00:02:58,240 --> 00:03:01,640 Speaker 1: If two justices who are like minded join the Court, 50 00:03:01,960 --> 00:03:05,000 Speaker 1: there will be five votes to overrule Overthall, just like 51 00:03:05,040 --> 00:03:08,040 Speaker 1: five votes to overrule Row. And I could easily imagine, 52 00:03:08,080 --> 00:03:10,480 Speaker 1: given the strong passions involved, that they would want to 53 00:03:10,480 --> 00:03:14,760 Speaker 1: do so. Erwin Trump said, it's got a long way 54 00:03:14,760 --> 00:03:19,200 Speaker 1: to go to Leslie Stall about overturning Roe v. Wade. 55 00:03:19,400 --> 00:03:23,799 Speaker 1: So let's just talk about timeline. Appointing a pro life 56 00:03:23,880 --> 00:03:28,720 Speaker 1: justice to fill Justice antonin Scaliah's seat will not do it, 57 00:03:28,840 --> 00:03:33,800 Speaker 1: will it? No? Because the Supreme Court on June in 58 00:03:34,000 --> 00:03:37,880 Speaker 1: Cowan's help tell us that struck down the Texas abortion law, 59 00:03:38,320 --> 00:03:40,800 Speaker 1: five justices were in the majority there, and they all 60 00:03:40,840 --> 00:03:45,640 Speaker 1: remain on the court, Briar wrote, joined by Justice Kennedy Ginsburg, 61 00:03:46,280 --> 00:03:50,840 Speaker 1: they are in Kagan, and so replacing Justice Scalia restores 62 00:03:50,920 --> 00:03:53,840 Speaker 1: the ideological balance on abortion to what it was before 63 00:03:53,840 --> 00:03:56,360 Speaker 1: he passed away in February thirteen. The key with the 64 00:03:56,440 --> 00:04:01,720 Speaker 1: Garden overruling Row is whether the Skins Burke, or Justice 65 00:04:01,800 --> 00:04:05,720 Speaker 1: Kennedy or Justice Brier leaves the court. If any one 66 00:04:05,760 --> 00:04:08,400 Speaker 1: of those three leaves the Court is replaced by an 67 00:04:08,400 --> 00:04:13,200 Speaker 1: anti abortion justice, then that justice, together with replacement Justice Leah, 68 00:04:13,320 --> 00:04:17,520 Speaker 1: could join with Roberts, Thomas and Alito to overrule Row Irwin. 69 00:04:17,680 --> 00:04:21,240 Speaker 1: One place that there was a one could say, relatively 70 00:04:21,400 --> 00:04:24,880 Speaker 1: quick overruling of a previous decision. We're in the sodomy cases, 71 00:04:24,880 --> 00:04:27,960 Speaker 1: where the Supreme Court overruled itself, not really that long 72 00:04:28,000 --> 00:04:31,960 Speaker 1: after it had said, um, it was constitutional to band sodomy, 73 00:04:31,960 --> 00:04:34,400 Speaker 1: and then it said it was not homosexual sodomy, that is, 74 00:04:34,440 --> 00:04:37,040 Speaker 1: and then it said it was not um. Is there 75 00:04:37,080 --> 00:04:40,920 Speaker 1: any lesson in that experience that we can take from 76 00:04:40,960 --> 00:04:44,360 Speaker 1: how the Court will approach questions of whether overrule cases 77 00:04:44,400 --> 00:04:48,880 Speaker 1: like Rowan oberg Felt No. Bowers versus Hardwick was decided 78 00:04:48,920 --> 00:04:54,359 Speaker 1: in Lawrence versus Texas overruled in two thousand three. I 79 00:04:54,400 --> 00:04:57,760 Speaker 1: can certainly identify instances with the Supreme Court much more 80 00:04:57,839 --> 00:05:02,480 Speaker 1: quickly overruled precedent. Take Citizens United versus Federal Election Commission. 81 00:05:02,800 --> 00:05:06,159 Speaker 1: It overruled a case it was just seven years old, 82 00:05:06,520 --> 00:05:10,160 Speaker 1: McConnell versus Federal Election Commission. I can point to an 83 00:05:10,160 --> 00:05:15,200 Speaker 1: instance involving whether jurors can be informed of the impact 84 00:05:15,400 --> 00:05:18,000 Speaker 1: of the victim's death on the community, and the Supreme 85 00:05:18,040 --> 00:05:21,000 Speaker 1: Court overruled itself just two years after the decision, when 86 00:05:21,120 --> 00:05:25,560 Speaker 1: Justice Thomas replaced Justice Marshall um so or just to 87 00:05:25,640 --> 00:05:29,239 Speaker 1: a relation, Justice Brennan. It just is entirely a matter 88 00:05:29,320 --> 00:05:31,680 Speaker 1: of when are the five justices who are willing to 89 00:05:31,680 --> 00:05:36,120 Speaker 1: overrule a precedent or enduring Senate questioning of a potential 90 00:05:36,160 --> 00:05:39,680 Speaker 1: Supreme Court justice a nominee, how would a pro life 91 00:05:39,800 --> 00:05:44,440 Speaker 1: justice or a potential justice answer a question about respecting 92 00:05:44,480 --> 00:05:47,800 Speaker 1: Supreme Court precedent and Roe v. Wade that might come 93 00:05:47,839 --> 00:05:52,360 Speaker 1: from Democrats, I think that any Republican nominee will say 94 00:05:52,560 --> 00:05:56,000 Speaker 1: that here she, of course respects President, but here she 95 00:05:56,200 --> 00:05:59,559 Speaker 1: cannot talk about any issue that might come before the Court. 96 00:06:00,160 --> 00:06:04,200 Speaker 1: And with a Republican Senate majority, I think that's going 97 00:06:04,240 --> 00:06:07,320 Speaker 1: to be a sufficient answer, and the Democrats can ask 98 00:06:07,440 --> 00:06:09,760 Speaker 1: all they want for something more specific, but there's no 99 00:06:09,800 --> 00:06:12,840 Speaker 1: way they can force it. Erwin. Back on the subject 100 00:06:12,920 --> 00:06:16,919 Speaker 1: of of counting justices, one who has always intrigued me 101 00:06:17,040 --> 00:06:21,680 Speaker 1: is the Chief Justice. Um he voted against the abortion 102 00:06:21,800 --> 00:06:24,520 Speaker 1: right side in the most recent case. But based on 103 00:06:24,640 --> 00:06:27,599 Speaker 1: what you know of him now, if push came to 104 00:06:27,640 --> 00:06:29,680 Speaker 1: shove and there were a case that asked the Court 105 00:06:29,720 --> 00:06:33,480 Speaker 1: to overturn Roe v. Wade, how confident are you about 106 00:06:33,560 --> 00:06:37,560 Speaker 1: which way he would vote. I believe since John Roberts 107 00:06:37,560 --> 00:06:39,720 Speaker 1: was nominated in two thousand five, that he would be 108 00:06:39,760 --> 00:06:41,960 Speaker 1: a vote to overrule Roe versus Wade if there was 109 00:06:41,960 --> 00:06:45,000 Speaker 1: a majority to do that. I can't point any case 110 00:06:45,000 --> 00:06:48,240 Speaker 1: where he's ever urged the overruling roversus Wade. However, since 111 00:06:48,320 --> 00:06:50,600 Speaker 1: coming on the Court in two thousand five, he has 112 00:06:50,720 --> 00:06:55,039 Speaker 1: voted to uphold every restriction on abortion. I think his 113 00:06:55,200 --> 00:06:58,960 Speaker 1: descent in the game marriage case overs Hodges shows that 114 00:06:59,000 --> 00:07:03,560 Speaker 1: there's some more issues where he has very deep convictions, 115 00:07:03,640 --> 00:07:06,760 Speaker 1: and I think abortion is one of them. Irwin, the 116 00:07:06,839 --> 00:07:09,279 Speaker 1: president elect died put out a list of judges who 117 00:07:09,320 --> 00:07:11,520 Speaker 1: he might appoint um and he says that he's going 118 00:07:11,560 --> 00:07:14,520 Speaker 1: to pick one of them when when he gets inaugurated. 119 00:07:16,200 --> 00:07:19,360 Speaker 1: Is that list entirely people who we know for sure 120 00:07:19,440 --> 00:07:22,880 Speaker 1: would vote to overrule Row? I can't say that because 121 00:07:22,920 --> 00:07:26,480 Speaker 1: I know some of them. I don't know others of them. 122 00:07:26,640 --> 00:07:28,600 Speaker 1: There are some on that list that I think would 123 00:07:28,600 --> 00:07:32,080 Speaker 1: be sure votes. There's others on that list I just 124 00:07:32,120 --> 00:07:34,240 Speaker 1: don't know very much about. And my guess is they've 125 00:07:34,240 --> 00:07:36,360 Speaker 1: never told us anything with regard to their views on 126 00:07:36,480 --> 00:07:40,440 Speaker 1: Row versus Wade and Irwin. He said that there was 127 00:07:40,480 --> 00:07:43,120 Speaker 1: a list, but he never said he would specifically pick 128 00:07:43,240 --> 00:07:46,480 Speaker 1: from that list, did he Well, he first put out 129 00:07:46,480 --> 00:07:49,520 Speaker 1: a list of ten names, and then he put out 130 00:07:49,520 --> 00:07:53,440 Speaker 1: a list of another eleven names. I think the expectation 131 00:07:53,600 --> 00:07:56,920 Speaker 1: has been that he would pick one from those twenty 132 00:07:57,040 --> 00:08:00,960 Speaker 1: one individuals, but he's not obligated to do so. He 133 00:08:01,040 --> 00:08:06,360 Speaker 1: can nominate anybody he wants for the Supreme Court. And Irwin, 134 00:08:07,720 --> 00:08:10,560 Speaker 1: what is your expectation? How long do you think this 135 00:08:10,640 --> 00:08:15,000 Speaker 1: process will be? Will it be a very short confirmation process? 136 00:08:15,040 --> 00:08:18,320 Speaker 1: Since you have Republican majority, or will it be longer 137 00:08:18,440 --> 00:08:20,520 Speaker 1: since the Democrats might try to drag it out in 138 00:08:20,560 --> 00:08:23,520 Speaker 1: about thirty seconds, I think it will be a relatively 139 00:08:23,600 --> 00:08:26,480 Speaker 1: fast process. I'll be interesting to see whether he announces 140 00:08:26,560 --> 00:08:30,560 Speaker 1: before January he announces just after January. I think the 141 00:08:30,640 --> 00:08:33,480 Speaker 1: Senate Judiciary Committee will mobilize for hearings as soon as 142 00:08:33,480 --> 00:08:36,320 Speaker 1: they can. I think the only question is conceivable to 143 00:08:36,320 --> 00:08:39,120 Speaker 1: get somebody on the court before the end of this term. 144 00:08:39,200 --> 00:08:42,080 Speaker 1: Thank you, Erwin Chemerinsky. He is the dean of the 145 00:08:42,160 --> 00:08:45,480 Speaker 1: u C. Irvine Law School, a prominent constitutional scholar.