WEBVTT - Chemerinsky on Roe V. Wade (Audio) 0:00:00.080 --> 0:00:03.760 Thanks Michael. President elect Donald Trump was asked by Leslie 0:00:03.760 --> 0:00:06.840 Stall in an interview on Sixty Minutes Last Night whether 0:00:06.880 --> 0:00:10.240 he wanted to appoint Supreme Court justices who would overturn 0:00:10.480 --> 0:00:13.360 Roe v. Wade. He answered that he was pro life 0:00:13.520 --> 0:00:18.079 and the justices would be pro life. Having to do 0:00:18.200 --> 0:00:21.680 with abortion, what if it ever were overturned, it would 0:00:21.720 --> 0:00:24.040 go back to the states, So I would go back 0:00:24.079 --> 0:00:26.400 to the women won't be able to get at abort, 0:00:26.480 --> 0:00:30.280 So it'll go back to the state by state. Perhaps 0:00:30.280 --> 0:00:31.680 you have to go to I have to go to 0:00:31.720 --> 0:00:35.080 another state. However, when asked about the issue of marriage 0:00:35.080 --> 0:00:38.440 equality in the US, Trump said that issue had been 0:00:38.440 --> 0:00:41.920 settled by the Supreme Court. It's law. I was settled 0:00:41.920 --> 0:00:44.800 to the Supreme Court. I mean it's done. So even 0:00:44.840 --> 0:00:47.280 if you appointed judge that it's done it you have 0:00:48.400 --> 0:00:51.199 these cases have gone to the Supreme Court, They've been settled, 0:00:52.120 --> 0:00:56.160 and I think I'm fine with it. So why does 0:00:56.200 --> 0:00:59.920 Trump think that last year's landmark decision validating same set 0:01:00.200 --> 0:01:03.600 marriages is settled law? But the landmark decision of Roe v. 0:01:03.760 --> 0:01:07.600 Wade recognizing abortion rights is not here to help us 0:01:07.640 --> 0:01:10.679 answer that question? Is Erwin Schamerinsky the dean of the 0:01:10.760 --> 0:01:15.480 u c. Irvine Law School and prominent constitutional scholar Irwin. 0:01:15.840 --> 0:01:18.360 Roe v. Wade was decided by the Supreme Court in 0:01:18.440 --> 0:01:24.640 ninety three, Overfell. The Hodges was decided last year. Is 0:01:24.640 --> 0:01:28.240 there any difference in what Trump is calling settled law? 0:01:29.440 --> 0:01:32.360 A Supreme Court precedent is settled only so long as 0:01:32.400 --> 0:01:35.400 the justices wanted to be settled. If there's five votes 0:01:35.480 --> 0:01:38.640 to overrule Roe v. Wade, Roe v. Wade will be overruled. 0:01:38.800 --> 0:01:43.600 If there's five votes to overrule, then Overdges will be overruled. 0:01:44.120 --> 0:01:47.800 One is no more settled than the other, Erwin. Is 0:01:47.800 --> 0:01:49.680 there an argument that Roe v. Wade is actually more 0:01:49.680 --> 0:01:52.880 settled than than Abergia Fell, given given how old it is, 0:01:52.920 --> 0:01:57.440 given that the Court has has reaffirmed it UH a 0:01:57.480 --> 0:02:01.320 couple of times. Of course, the Supreme Court is much 0:02:01.360 --> 0:02:05.960 more reluctant overrule longstanding precedence. Ro v. Wade was decided 0:02:05.960 --> 0:02:10.920 in January ninety three, Oberfelt was June of two thou fifteen. Also, 0:02:11.000 --> 0:02:14.680 the Supreme Court says that it's reluctant overrule decisions when 0:02:14.720 --> 0:02:17.720 there's been reliance upon them. Obviously, there's been a great 0:02:17.720 --> 0:02:21.640 deal of reliance upon ro versus way. But the reality is, 0:02:21.880 --> 0:02:24.600 I said, if there are five justices who want to 0:02:24.680 --> 0:02:27.520 overrule Roe v. Wade, it's going to be overruled. If 0:02:27.520 --> 0:02:31.600 there's five justice want to overrule OVERTHELT, it will be overruled. Now, 0:02:31.639 --> 0:02:36.080 I think that Roe v. Wade is probably more controversial 0:02:36.560 --> 0:02:39.040 and will be more controversial in the years ahead than 0:02:39.160 --> 0:02:44.000 over Society seems to a relatively quickly accepted mirroage equality. 0:02:44.360 --> 0:02:48.760 There's a group society who vehemently opposes ro versus Wade. 0:02:49.040 --> 0:02:51.959 But keep in mind in that regard that Chief Justice 0:02:52.080 --> 0:02:57.600 Roberts and Justices Thomas and Alito vehement the sense and OVERTHELT. 0:02:58.240 --> 0:03:01.640 If two justices who are like minded join the Court, 0:03:01.960 --> 0:03:05.000 there will be five votes to overrule Overthall, just like 0:03:05.040 --> 0:03:08.040 five votes to overrule Row. And I could easily imagine, 0:03:08.080 --> 0:03:10.480 given the strong passions involved, that they would want to 0:03:10.480 --> 0:03:14.760 do so. Erwin Trump said, it's got a long way 0:03:14.760 --> 0:03:19.200 to go to Leslie Stall about overturning Roe v. Wade. 0:03:19.400 --> 0:03:23.799 So let's just talk about timeline. Appointing a pro life 0:03:23.880 --> 0:03:28.720 justice to fill Justice antonin Scaliah's seat will not do it, 0:03:28.840 --> 0:03:33.800 will it? No? Because the Supreme Court on June in 0:03:34.000 --> 0:03:37.880 Cowan's help tell us that struck down the Texas abortion law, 0:03:38.320 --> 0:03:40.800 five justices were in the majority there, and they all 0:03:40.840 --> 0:03:45.640 remain on the court, Briar wrote, joined by Justice Kennedy Ginsburg, 0:03:46.280 --> 0:03:50.840 they are in Kagan, and so replacing Justice Scalia restores 0:03:50.920 --> 0:03:53.840 the ideological balance on abortion to what it was before 0:03:53.840 --> 0:03:56.360 he passed away in February thirteen. The key with the 0:03:56.440 --> 0:04:01.720 Garden overruling Row is whether the Skins Burke, or Justice 0:04:01.800 --> 0:04:05.720 Kennedy or Justice Brier leaves the court. If any one 0:04:05.760 --> 0:04:08.400 of those three leaves the Court is replaced by an 0:04:08.400 --> 0:04:13.200 anti abortion justice, then that justice, together with replacement Justice Leah, 0:04:13.320 --> 0:04:17.520 could join with Roberts, Thomas and Alito to overrule Row Irwin. 0:04:17.680 --> 0:04:21.240 One place that there was a one could say, relatively 0:04:21.400 --> 0:04:24.880 quick overruling of a previous decision. We're in the sodomy cases, 0:04:24.880 --> 0:04:27.960 where the Supreme Court overruled itself, not really that long 0:04:28.000 --> 0:04:31.960 after it had said, um, it was constitutional to band sodomy, 0:04:31.960 --> 0:04:34.400 and then it said it was not homosexual sodomy, that is, 0:04:34.440 --> 0:04:37.040 and then it said it was not um. Is there 0:04:37.080 --> 0:04:40.920 any lesson in that experience that we can take from 0:04:40.960 --> 0:04:44.360 how the Court will approach questions of whether overrule cases 0:04:44.400 --> 0:04:48.880 like Rowan oberg Felt No. Bowers versus Hardwick was decided 0:04:48.920 --> 0:04:54.359 in Lawrence versus Texas overruled in two thousand three. I 0:04:54.400 --> 0:04:57.760 can certainly identify instances with the Supreme Court much more 0:04:57.839 --> 0:05:02.480 quickly overruled precedent. Take Citizens United versus Federal Election Commission. 0:05:02.800 --> 0:05:06.159 It overruled a case it was just seven years old, 0:05:06.520 --> 0:05:10.160 McConnell versus Federal Election Commission. I can point to an 0:05:10.160 --> 0:05:15.200 instance involving whether jurors can be informed of the impact 0:05:15.400 --> 0:05:18.000 of the victim's death on the community, and the Supreme 0:05:18.040 --> 0:05:21.000 Court overruled itself just two years after the decision, when 0:05:21.120 --> 0:05:25.560 Justice Thomas replaced Justice Marshall um so or just to 0:05:25.640 --> 0:05:29.239 a relation, Justice Brennan. It just is entirely a matter 0:05:29.320 --> 0:05:31.680 of when are the five justices who are willing to 0:05:31.680 --> 0:05:36.120 overrule a precedent or enduring Senate questioning of a potential 0:05:36.160 --> 0:05:39.680 Supreme Court justice a nominee, how would a pro life 0:05:39.800 --> 0:05:44.440 justice or a potential justice answer a question about respecting 0:05:44.480 --> 0:05:47.800 Supreme Court precedent and Roe v. Wade that might come 0:05:47.839 --> 0:05:52.360 from Democrats, I think that any Republican nominee will say 0:05:52.560 --> 0:05:56.000 that here she, of course respects President, but here she 0:05:56.200 --> 0:05:59.559 cannot talk about any issue that might come before the Court. 0:06:00.160 --> 0:06:04.200 And with a Republican Senate majority, I think that's going 0:06:04.240 --> 0:06:07.320 to be a sufficient answer, and the Democrats can ask 0:06:07.440 --> 0:06:09.760 all they want for something more specific, but there's no 0:06:09.800 --> 0:06:12.840 way they can force it. Erwin. Back on the subject 0:06:12.920 --> 0:06:16.919 of of counting justices, one who has always intrigued me 0:06:17.040 --> 0:06:21.680 is the Chief Justice. Um he voted against the abortion 0:06:21.800 --> 0:06:24.520 right side in the most recent case. But based on 0:06:24.640 --> 0:06:27.599 what you know of him now, if push came to 0:06:27.640 --> 0:06:29.680 shove and there were a case that asked the Court 0:06:29.720 --> 0:06:33.480 to overturn Roe v. Wade, how confident are you about 0:06:33.560 --> 0:06:37.560 which way he would vote. I believe since John Roberts 0:06:37.560 --> 0:06:39.720 was nominated in two thousand five, that he would be 0:06:39.760 --> 0:06:41.960 a vote to overrule Roe versus Wade if there was 0:06:41.960 --> 0:06:45.000 a majority to do that. I can't point any case 0:06:45.000 --> 0:06:48.240 where he's ever urged the overruling roversus Wade. However, since 0:06:48.320 --> 0:06:50.600 coming on the Court in two thousand five, he has 0:06:50.720 --> 0:06:55.039 voted to uphold every restriction on abortion. I think his 0:06:55.200 --> 0:06:58.960 descent in the game marriage case overs Hodges shows that 0:06:59.000 --> 0:07:03.560 there's some more issues where he has very deep convictions, 0:07:03.640 --> 0:07:06.760 and I think abortion is one of them. Irwin, the 0:07:06.839 --> 0:07:09.279 president elect died put out a list of judges who 0:07:09.320 --> 0:07:11.520 he might appoint um and he says that he's going 0:07:11.560 --> 0:07:14.520 to pick one of them when when he gets inaugurated. 0:07:16.200 --> 0:07:19.360 Is that list entirely people who we know for sure 0:07:19.440 --> 0:07:22.880 would vote to overrule Row? I can't say that because 0:07:22.920 --> 0:07:26.480 I know some of them. I don't know others of them. 0:07:26.640 --> 0:07:28.600 There are some on that list that I think would 0:07:28.600 --> 0:07:32.080 be sure votes. There's others on that list I just 0:07:32.120 --> 0:07:34.240 don't know very much about. And my guess is they've 0:07:34.240 --> 0:07:36.360 never told us anything with regard to their views on 0:07:36.480 --> 0:07:40.440 Row versus Wade and Irwin. He said that there was 0:07:40.480 --> 0:07:43.120 a list, but he never said he would specifically pick 0:07:43.240 --> 0:07:46.480 from that list, did he Well, he first put out 0:07:46.480 --> 0:07:49.520 a list of ten names, and then he put out 0:07:49.520 --> 0:07:53.440 a list of another eleven names. I think the expectation 0:07:53.600 --> 0:07:56.920 has been that he would pick one from those twenty 0:07:57.040 --> 0:08:00.960 one individuals, but he's not obligated to do so. He 0:08:01.040 --> 0:08:06.360 can nominate anybody he wants for the Supreme Court. And Irwin, 0:08:07.720 --> 0:08:10.560 what is your expectation? How long do you think this 0:08:10.640 --> 0:08:15.000 process will be? Will it be a very short confirmation process? 0:08:15.040 --> 0:08:18.320 Since you have Republican majority, or will it be longer 0:08:18.440 --> 0:08:20.520 since the Democrats might try to drag it out in 0:08:20.560 --> 0:08:23.520 about thirty seconds, I think it will be a relatively 0:08:23.600 --> 0:08:26.480 fast process. I'll be interesting to see whether he announces 0:08:26.560 --> 0:08:30.560 before January he announces just after January. I think the 0:08:30.640 --> 0:08:33.480 Senate Judiciary Committee will mobilize for hearings as soon as 0:08:33.480 --> 0:08:36.320 they can. I think the only question is conceivable to 0:08:36.320 --> 0:08:39.120 get somebody on the court before the end of this term. 0:08:39.200 --> 0:08:42.080 Thank you, Erwin Chemerinsky. He is the dean of the 0:08:42.160 --> 0:08:45.480 u C. Irvine Law School, a prominent constitutional scholar.