Speaker 1: Thanks Michael. President elect Donald Trump was asked by Leslie
Speaker 1: Stall in an interview on Sixty Minutes Last Night whether
Speaker 1: he wanted to appoint Supreme Court justices who would overturn
Speaker 1: Roe v. Wade. He answered that he was pro life
Speaker 1: and the justices would be pro life. Having to do
Speaker 1: with abortion, what if it ever were overturned, it would
Speaker 1: go back to the states, So I would go back
Speaker 1: to the women won't be able to get at abort,
Speaker 1: So it'll go back to the state by state. Perhaps
Speaker 1: you have to go to I have to go to
Speaker 1: another state. However, when asked about the issue of marriage
Speaker 1: equality in the US, Trump said that issue had been
Speaker 1: settled by the Supreme Court. It's law. I was settled
Speaker 1: to the Supreme Court. I mean it's done. So even
Speaker 1: if you appointed judge that it's done it you have
Speaker 1: these cases have gone to the Supreme Court, They've been settled,
Speaker 1: and I think I'm fine with it. So why does
Speaker 1: Trump think that last year's landmark decision validating same set
Speaker 1: marriages is settled law? But the landmark decision of Roe v.
Speaker 1: Wade recognizing abortion rights is not here to help us
Speaker 1: answer that question? Is Erwin Schamerinsky the dean of the
Speaker 1: u c. Irvine Law School and prominent constitutional scholar Irwin.
Speaker 1: Roe v. Wade was decided by the Supreme Court in
Speaker 1: ninety three, Overfell. The Hodges was decided last year. Is
Speaker 1: there any difference in what Trump is calling settled law?
Speaker 1: A Supreme Court precedent is settled only so long as
Speaker 1: the justices wanted to be settled. If there's five votes
Speaker 1: to overrule Roe v. Wade, Roe v. Wade will be overruled.
Speaker 1: If there's five votes to overrule, then Overdges will be overruled.
Speaker 1: One is no more settled than the other, Erwin. Is
Speaker 1: there an argument that Roe v. Wade is actually more
Speaker 1: settled than than Abergia Fell, given given how old it is,
Speaker 1: given that the Court has has reaffirmed it UH a
Speaker 1: couple of times. Of course, the Supreme Court is much
Speaker 1: more reluctant overrule longstanding precedence. Ro v. Wade was decided
Speaker 1: in January ninety three, Oberfelt was June of two thou fifteen. Also,
Speaker 1: the Supreme Court says that it's reluctant overrule decisions when
Speaker 1: there's been reliance upon them. Obviously, there's been a great
Speaker 1: deal of reliance upon ro versus way. But the reality is,
Speaker 1: I said, if there are five justices who want to
Speaker 1: overrule Roe v. Wade, it's going to be overruled. If
Speaker 1: there's five justice want to overrule OVERTHELT, it will be overruled. Now,
Speaker 1: I think that Roe v. Wade is probably more controversial
Speaker 1: and will be more controversial in the years ahead than
Speaker 1: over Society seems to a relatively quickly accepted mirroage equality.
Speaker 1: There's a group society who vehemently opposes ro versus Wade.
Speaker 1: But keep in mind in that regard that Chief Justice
Speaker 1: Roberts and Justices Thomas and Alito vehement the sense and OVERTHELT.
Speaker 1: If two justices who are like minded join the Court,
Speaker 1: there will be five votes to overrule Overthall, just like
Speaker 1: five votes to overrule Row. And I could easily imagine,
Speaker 1: given the strong passions involved, that they would want to
Speaker 1: do so. Erwin Trump said, it's got a long way
Speaker 1: to go to Leslie Stall about overturning Roe v. Wade.
Speaker 1: So let's just talk about timeline. Appointing a pro life
Speaker 1: justice to fill Justice antonin Scaliah's seat will not do it,
Speaker 1: will it? No? Because the Supreme Court on June in
Speaker 1: Cowan's help tell us that struck down the Texas abortion law,
Speaker 1: five justices were in the majority there, and they all
Speaker 1: remain on the court, Briar wrote, joined by Justice Kennedy Ginsburg,
Speaker 1: they are in Kagan, and so replacing Justice Scalia restores
Speaker 1: the ideological balance on abortion to what it was before
Speaker 1: he passed away in February thirteen. The key with the
Speaker 1: Garden overruling Row is whether the Skins Burke, or Justice
Speaker 1: Kennedy or Justice Brier leaves the court. If any one
Speaker 1: of those three leaves the Court is replaced by an
Speaker 1: anti abortion justice, then that justice, together with replacement Justice Leah,
Speaker 1: could join with Roberts, Thomas and Alito to overrule Row Irwin.
Speaker 1: One place that there was a one could say, relatively
Speaker 1: quick overruling of a previous decision. We're in the sodomy cases,
Speaker 1: where the Supreme Court overruled itself, not really that long
Speaker 1: after it had said, um, it was constitutional to band sodomy,
Speaker 1: and then it said it was not homosexual sodomy, that is,
Speaker 1: and then it said it was not um. Is there
Speaker 1: any lesson in that experience that we can take from
Speaker 1: how the Court will approach questions of whether overrule cases
Speaker 1: like Rowan oberg Felt No. Bowers versus Hardwick was decided
Speaker 1: in Lawrence versus Texas overruled in two thousand three. I
Speaker 1: can certainly identify instances with the Supreme Court much more
Speaker 1: quickly overruled precedent. Take Citizens United versus Federal Election Commission.
Speaker 1: It overruled a case it was just seven years old,
Speaker 1: McConnell versus Federal Election Commission. I can point to an
Speaker 1: instance involving whether jurors can be informed of the impact
Speaker 1: of the victim's death on the community, and the Supreme
Speaker 1: Court overruled itself just two years after the decision, when
Speaker 1: Justice Thomas replaced Justice Marshall um so or just to
Speaker 1: a relation, Justice Brennan. It just is entirely a matter
Speaker 1: of when are the five justices who are willing to
Speaker 1: overrule a precedent or enduring Senate questioning of a potential
Speaker 1: Supreme Court justice a nominee, how would a pro life
Speaker 1: justice or a potential justice answer a question about respecting
Speaker 1: Supreme Court precedent and Roe v. Wade that might come
Speaker 1: from Democrats, I think that any Republican nominee will say
Speaker 1: that here she, of course respects President, but here she
Speaker 1: cannot talk about any issue that might come before the Court.
Speaker 1: And with a Republican Senate majority, I think that's going
Speaker 1: to be a sufficient answer, and the Democrats can ask
Speaker 1: all they want for something more specific, but there's no
Speaker 1: way they can force it. Erwin. Back on the subject
Speaker 1: of of counting justices, one who has always intrigued me
Speaker 1: is the Chief Justice. Um he voted against the abortion
Speaker 1: right side in the most recent case. But based on
Speaker 1: what you know of him now, if push came to
Speaker 1: shove and there were a case that asked the Court
Speaker 1: to overturn Roe v. Wade, how confident are you about
Speaker 1: which way he would vote. I believe since John Roberts
Speaker 1: was nominated in two thousand five, that he would be
Speaker 1: a vote to overrule Roe versus Wade if there was
Speaker 1: a majority to do that. I can't point any case
Speaker 1: where he's ever urged the overruling roversus Wade. However, since
Speaker 1: coming on the Court in two thousand five, he has
Speaker 1: voted to uphold every restriction on abortion. I think his
Speaker 1: descent in the game marriage case overs Hodges shows that
Speaker 1: there's some more issues where he has very deep convictions,
Speaker 1: and I think abortion is one of them. Irwin, the
Speaker 1: president elect died put out a list of judges who
Speaker 1: he might appoint um and he says that he's going
Speaker 1: to pick one of them when when he gets inaugurated.
Speaker 1: Is that list entirely people who we know for sure
Speaker 1: would vote to overrule Row? I can't say that because
Speaker 1: I know some of them. I don't know others of them.
Speaker 1: There are some on that list that I think would
Speaker 1: be sure votes. There's others on that list I just
Speaker 1: don't know very much about. And my guess is they've
Speaker 1: never told us anything with regard to their views on
Speaker 1: Row versus Wade and Irwin. He said that there was
Speaker 1: a list, but he never said he would specifically pick
Speaker 1: from that list, did he Well, he first put out
Speaker 1: a list of ten names, and then he put out
Speaker 1: a list of another eleven names. I think the expectation
Speaker 1: has been that he would pick one from those twenty
Speaker 1: one individuals, but he's not obligated to do so. He
Speaker 1: can nominate anybody he wants for the Supreme Court. And Irwin,
Speaker 1: what is your expectation? How long do you think this
Speaker 1: process will be? Will it be a very short confirmation process?
Speaker 1: Since you have Republican majority, or will it be longer
Speaker 1: since the Democrats might try to drag it out in
Speaker 1: about thirty seconds, I think it will be a relatively
Speaker 1: fast process. I'll be interesting to see whether he announces
Speaker 1: before January he announces just after January. I think the
Speaker 1: Senate Judiciary Committee will mobilize for hearings as soon as
Speaker 1: they can. I think the only question is conceivable to
Speaker 1: get somebody on the court before the end of this term.
Speaker 1: Thank you, Erwin Chemerinsky. He is the dean of the
Speaker 1: u C. Irvine Law School, a prominent constitutional scholar.