WEBVTT - Abortion Rights in Jeopardy at Supreme Court 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.600 --> 0:00:12.920 Abortion is one of the most divisive issues in our country, 0:00:13.160 --> 0:00:16.720 and now, with its new strength and conservative majority, the 0:00:16.800 --> 0:00:19.280 Supreme Court has agreed to hear a case that could 0:00:19.360 --> 0:00:23.599 mean overturning the landmark Roe v. Wade decision, which legalized 0:00:23.640 --> 0:00:29.240 abortion nationwide. Here's Planned Parenthood President Alexis McGill Johnson. It 0:00:29.400 --> 0:00:32.200 is absolutely a challenge that goes straight to the heart 0:00:32.200 --> 0:00:36.440 of Row and in doing so, threatens to overturn fifty 0:00:36.520 --> 0:00:40.519 years of precedent. The Mississippi Lawn issue banns abortion in 0:00:40.600 --> 0:00:44.960 almost all cases after fifteen weeks of pregnancy. Joining me 0:00:45.040 --> 0:00:48.360 is Stephen Vladdock, a constitutional law professor at the University 0:00:48.360 --> 0:00:51.880 of Texas Law School. Steve, what does the court taking 0:00:51.920 --> 0:00:54.440 this case suggest to you? I mean, I think it 0:00:54.520 --> 0:00:58.520 suggests that the new conservative majority is ready to dramatically 0:00:58.640 --> 0:01:02.120 narrow the scope of the constitutional rights to obtain an 0:01:02.120 --> 0:01:05.399 abortion that the Court of course recognized and roversus way 0:01:05.480 --> 0:01:08.280 then preserved in Planned parenthod versus Casey. This is going 0:01:08.319 --> 0:01:11.399 to be, I think the most important abortion decision the 0:01:11.400 --> 0:01:15.440 Supreme Courts handed down at least since Casey. Tell us 0:01:15.480 --> 0:01:19.080 about Mississippi's law. Ye, so the law at issue here 0:01:19.640 --> 0:01:23.160 um is effectively a ban on any and all abortions 0:01:23.200 --> 0:01:26.880 starting in the fifteenth the week of pregnancy, no matter 0:01:26.959 --> 0:01:30.560 the reason, no matter the justification. Basically, doctors may not 0:01:30.640 --> 0:01:34.040 perform abortions. Women may not receive abortion if the pregnancy 0:01:34.120 --> 0:01:37.080 is at least fifteen weeks along. And of course that's 0:01:37.120 --> 0:01:41.040 a pretty significant departure from Rowan Casey, which had set 0:01:41.080 --> 0:01:43.640 the line at viability at the point at which a 0:01:43.720 --> 0:01:47.360 fetus is theoretically capable of surviving outside the womb. That's 0:01:47.400 --> 0:01:50.040 usually closer to twenty maybe even twenty two weeks. So 0:01:50.440 --> 0:01:53.360 you know, the law is basically moving up the window 0:01:53.640 --> 0:01:57.960 where abortions are legal, compressing it dramatically, and basically Darren 0:01:58.040 --> 0:02:01.000 the Supreme Court to either reaffir Casey or hold that 0:02:01.080 --> 0:02:03.920 states are allowed to do this. So the lower courts 0:02:04.600 --> 0:02:08.160 ruled that the law was unconstitutional, and federal Judge Carlin 0:02:08.240 --> 0:02:10.959 Reeves wrote, the state chose to pass a law it 0:02:11.080 --> 0:02:15.440 knew was unconstitutional to endorse a decades long campaign fueled 0:02:15.440 --> 0:02:18.400 by national interest groups to ask the Supreme Court to 0:02:18.520 --> 0:02:22.280 overturn Roe v. Wade. Do you agree that that was 0:02:22.320 --> 0:02:26.000 the reason why Mississippi enacted the law. Absolutely. I mean, 0:02:26.040 --> 0:02:28.239 it's not a coincidence that the law was enacted shortly 0:02:28.280 --> 0:02:31.200 after Justice Kennedy announced that he was retiring from the 0:02:31.240 --> 0:02:33.560 Supreme Court. But June look at the appeal and the 0:02:33.560 --> 0:02:37.280 Fifth Circuit. Mississippi didn't even request oral argument when it 0:02:37.320 --> 0:02:40.280 appealed Judge Reaves's decision to the Fifth Circuit because it 0:02:40.360 --> 0:02:42.960 knew that based on the Supreme Court precedents as they 0:02:43.000 --> 0:02:47.040 currently stand, this law is clearly unconstitutional. And that's because 0:02:47.240 --> 0:02:52.720 under Casey, the state may not categorically ban pre viability abortions. 0:02:52.919 --> 0:02:55.919 It's exactly what the Mississippi law does for abortions carried 0:02:55.919 --> 0:02:59.840 out between the fifteenth week of pregnancy and viability. This 0:03:00.080 --> 0:03:02.200 was all along in effort to get this case in 0:03:02.240 --> 0:03:05.080 the Supreme Court June. The big difference is that although 0:03:05.120 --> 0:03:08.639 the law was initially motivated by the retirement of Justice Kennedy, 0:03:08.760 --> 0:03:11.400 we of course now also have the replacement of Justice 0:03:11.400 --> 0:03:15.720 Ginsburg by Justice Sammy Coney Barrett. The Fifth Circuit affirmed 0:03:15.720 --> 0:03:18.400 the judge of decision, and the Fifth Circuit is considered 0:03:18.440 --> 0:03:21.560 perhaps the most conservative circuit in the country. Oh I 0:03:21.760 --> 0:03:25.000 don't even think that's in question. But the sister could recognized, 0:03:25.040 --> 0:03:27.680 as I think everybody else does, that there's no way 0:03:27.720 --> 0:03:32.120 to reconcile Mississippi's law with the existing Supreme Court precedence 0:03:32.120 --> 0:03:34.560 with rowan casey. I think, June, that's why so many 0:03:34.560 --> 0:03:37.160 people were waiting to see what the Supreme Court did 0:03:37.160 --> 0:03:38.640 with this case. They would have been well within their 0:03:38.720 --> 0:03:41.080 rights to just deny certain there's no split in the 0:03:41.120 --> 0:03:43.400 lower courts. This is an issue that the Fifth Circut 0:03:43.400 --> 0:03:46.880 thought was compelled by existing Supreme Court precedent. And that's 0:03:46.880 --> 0:03:48.840 why the grant is such a big story, because the 0:03:48.880 --> 0:03:51.560 grant is the Supreme Court saying we didn't have to 0:03:51.600 --> 0:03:54.400 take this case. We know you only brought this case 0:03:54.440 --> 0:03:57.360 to ask us to either overrule or dramatically narrow Row, 0:03:57.760 --> 0:04:00.800 and we're going to do that. So the were deferred 0:04:00.920 --> 0:04:04.320 acting on this case since late September. What do you 0:04:04.360 --> 0:04:06.800 read into that? You know, it's a great question, June. 0:04:06.840 --> 0:04:09.440 This case was relisted is the technical term? I think 0:04:09.480 --> 0:04:11.960 over a dozen times from the dust of this conference. 0:04:12.120 --> 0:04:13.680 I don't know what the answer is. I mean, I 0:04:13.720 --> 0:04:16.760 think it's unusual to see a case relisted like that. 0:04:16.920 --> 0:04:19.760 So many times and then granted. Usually that's a sign 0:04:19.800 --> 0:04:21.920 that someone is the senting from a denial of sert. 0:04:22.120 --> 0:04:26.359 So there's no good, obvious explanation for why this case 0:04:26.520 --> 0:04:29.320 was held for so long, other than perhaps that the 0:04:29.360 --> 0:04:31.719 Court just wanted to hold it for next term. But 0:04:31.760 --> 0:04:34.000 even then, the Court could have granted it as early 0:04:34.080 --> 0:04:36.880 as April, even March, and it still would have been 0:04:36.880 --> 0:04:39.120 on pace for next term. So I'm sure there's an 0:04:39.120 --> 0:04:41.240 inside story for this June, but it's not one that, 0:04:41.279 --> 0:04:43.760 at least at the moment, will trivy too. In its appeal, 0:04:43.800 --> 0:04:48.000 Mississippi argued that viability is not an appropriate standard for 0:04:48.040 --> 0:04:51.960 assessing the constitutionality of a law regulating abortion, and is 0:04:52.000 --> 0:04:56.279 that what the justices agreed to consider? The viability So 0:04:56.440 --> 0:04:58.479 there are three questions presented in the petition, and the 0:04:58.480 --> 0:05:02.719 only one the court granted was whether pre viability bands 0:05:02.760 --> 0:05:05.880 like the one Mississippi has put out there are per 0:05:05.920 --> 0:05:09.599 se unconstitutional under a row in Casey. That's why the 0:05:09.600 --> 0:05:13.200 Court could seeoretically rule from Mississippi without over ruling Row. 0:05:13.360 --> 0:05:16.440 They could say, you know, no, they're not per state unconstitutional, 0:05:16.440 --> 0:05:18.920 but they're also not per state constitutional, and that would 0:05:19.000 --> 0:05:21.600 leave at least something left to Row, but it's worth 0:05:21.680 --> 0:05:25.440 stressing justice. Blackman's opinion in Row, which is often maligned 0:05:25.440 --> 0:05:29.239 but seldom read, spends a lot of time explaining why 0:05:29.600 --> 0:05:33.360 viability is irrelevant inflection point. And Blackman's argument is that 0:05:33.520 --> 0:05:36.680 viability is the point at which a fetus is capable 0:05:36.720 --> 0:05:39.479 of surviving outside the womb. Therefore, it's the point which 0:05:39.960 --> 0:05:43.760 the state's interest in protecting the life of the fetus 0:05:43.839 --> 0:05:46.320 can be, you know, sort of separated from the state's 0:05:46.360 --> 0:05:48.480 interest is protecting the health of the pregnant woman, because 0:05:48.520 --> 0:05:51.400 up to that point, the fetis depends upon the present 0:05:51.480 --> 0:05:54.800 woman for everything necessary to the life. And so that 0:05:54.920 --> 0:05:58.280 was the animating premise of Row. The court could theoretically 0:05:58.360 --> 0:06:02.960 limit that without Row, but any incursion at this point 0:06:02.960 --> 0:06:04.960 it's going to be a dramatic restriction of a woman's 0:06:05.000 --> 0:06:07.719 right to choose. And yet the confirmation hearings of the 0:06:07.800 --> 0:06:11.120 last three gentice is appointed by President Trump, they all 0:06:11.160 --> 0:06:15.520 said that Roe v. Wade was established precedent. Well, I 0:06:15.560 --> 0:06:18.000 think we know exactly how far you can take those statements. 0:06:18.040 --> 0:06:21.120 There's a reason June is why abortion rights groups is 0:06:21.160 --> 0:06:23.640 as an ominous sign and why anti abortion groups to 0:06:23.760 --> 0:06:26.040 this as a huge victory already just from the grant. 0:06:26.200 --> 0:06:28.400 This is not a case where the grant is at 0:06:28.480 --> 0:06:31.080 all equivocal as to what the Court's going to do. 0:06:31.120 --> 0:06:34.200 There's no circuit split to resolve. There's no messy question 0:06:34.400 --> 0:06:36.919 that the lower courts clearly got wrong. This is a 0:06:36.920 --> 0:06:39.159 case that has been designed from the moment the law 0:06:39.279 --> 0:06:42.800 is passed to prompt to the new conservative court to 0:06:42.920 --> 0:06:45.560 read it at row, and along the way the court 0:06:45.640 --> 0:06:49.600 got even more conservative. So Amy Coney Barrett isn't even 0:06:49.640 --> 0:06:52.960 on the bench for a year yet, and we've often 0:06:53.000 --> 0:06:56.120 talked before about Chief Justice John Roberts liking to do 0:06:56.279 --> 0:07:00.719 things incrementally. Are you surprised that the Conservatives are moving 0:07:00.800 --> 0:07:04.320 so fast and taking this case. No, because Chief as 0:07:04.480 --> 0:07:06.800 Roberts isn't an important vote anymore. And I think the 0:07:06.880 --> 0:07:09.359 marginalization of the Chief Justice is something we're seeing a 0:07:09.440 --> 0:07:11.640 lot towards the end of this term. That FA's that 0:07:11.720 --> 0:07:14.000 the Court took this massive, that an amendment case a 0:07:14.040 --> 0:07:15.840 couple of weeks ago for next term. But FA's that 0:07:15.880 --> 0:07:17.440 the Court is taking this case some of the other 0:07:17.480 --> 0:07:19.239 things the Court is doing. I mean, I think June, 0:07:19.240 --> 0:07:22.800 this is much much less the Roberts Court than the 0:07:22.840 --> 0:07:24.840 court we saw as recently as a year ago. And 0:07:24.880 --> 0:07:28.600 I think insofar as the median vote now is Brett 0:07:28.680 --> 0:07:32.120 Kavanaugh or Neil Gorstish or maybe even Emmy Coney Barrett, 0:07:32.200 --> 0:07:33.400 that's the court that's going to be I think, a 0:07:33.440 --> 0:07:36.200 lot more aggressive and a lot more willing to sort 0:07:36.240 --> 0:07:40.720 of brush aside concerns about eroding their institutional legitimacy by 0:07:40.880 --> 0:07:45.200 moving against precedent thus quickly just in taking this case. 0:07:45.440 --> 0:07:49.000 And if they rule in favor of Mississippi's law, will 0:07:49.000 --> 0:07:52.320 that give new fuel to those who want to pack 0:07:52.400 --> 0:07:55.400 the court. It certainly will be invoked as yet another 0:07:55.440 --> 0:07:58.760 reason why, you know the Supreme Court should be extended. 0:07:58.800 --> 0:08:01.160 If you see my six to three or even a 0:08:01.200 --> 0:08:04.520 five to four decision that dramatically limits Row. Yeah, I'm 0:08:04.520 --> 0:08:07.600 sure that will be yet a further reason. But you know, June, 0:08:07.640 --> 0:08:09.840 we were already heading this way. I think even before 0:08:10.040 --> 0:08:12.160 Jessice Ginsburg died. I mean, I think, you know, this 0:08:12.200 --> 0:08:15.640 case is a good example of how conservatives understood from 0:08:15.680 --> 0:08:18.920 the get go that Justice Kavanaugh replaced him Justice Kennedy 0:08:19.040 --> 0:08:21.840 was going to be a huge opportunity to remake a 0:08:21.880 --> 0:08:24.800 series of doctrines. We saw another one actually in another 0:08:24.800 --> 0:08:28.080 decision the Court issue today about the retroactivity of a 0:08:28.200 --> 0:08:31.560 new interpretation of the sixth Amendment. So you know, I think, yes, 0:08:31.640 --> 0:08:34.880 it will be fodder for the court packing advocates, but 0:08:35.160 --> 0:08:37.560 you know, in many respects, the real fadder is not 0:08:37.679 --> 0:08:41.400 any individual decision June, but the overall pattern. If the 0:08:41.400 --> 0:08:45.319 Court does reverse Row, could we reach a point where 0:08:45.559 --> 0:08:50.680 laws and states that protect abortion could be found unconstitutional? 0:08:51.240 --> 0:08:53.000 I don't think so, because that's the flip side of 0:08:53.000 --> 0:08:55.360 the coin, and I think what we're heading for is 0:08:55.600 --> 0:08:57.880 very much the world that we saw before Row, where 0:08:57.920 --> 0:09:01.640 there's just a wild divergence in states laws, and where 0:09:02.080 --> 0:09:05.880 mostly blue states are going to have pretty strong protections 0:09:05.960 --> 0:09:08.760 for abortions, perhaps all the way up to viability, maybe 0:09:08.800 --> 0:09:11.240 even in some cases pass viability, and that red states 0:09:11.240 --> 0:09:13.080 are going to go as far as they possibly can 0:09:13.520 --> 0:09:15.440 to cut off access to abortions. And so it's just 0:09:15.440 --> 0:09:18.760 gonna be a tale of two legal regimes where women 0:09:18.840 --> 0:09:21.559 in blue states will have access to abortions and women 0:09:21.559 --> 0:09:25.800 in red states principally won't. Mississippi was arguing about at 0:09:25.840 --> 0:09:28.720 what point the fetus can feel do you expect to 0:09:28.760 --> 0:09:32.200 hear those kinds of arguments at the Supreme Court, the 0:09:32.240 --> 0:09:35.520 sort of clinical approach. I'm sure we will. I mean, 0:09:35.559 --> 0:09:38.760 because I think, you know, the anti abortion groups understand 0:09:38.760 --> 0:09:40.640 the states here, and they understand that they finally have 0:09:40.720 --> 0:09:43.200 the court. They want um something that they've been you know, 0:09:43.240 --> 0:09:45.440 I mean, June, we're looking, you know, we're almost fifty 0:09:45.520 --> 0:09:47.719 years right into the fight to get rid of Row. 0:09:48.240 --> 0:09:51.000 And from their perspective, I think you know, this is 0:09:51.040 --> 0:09:55.040 all hands on deck. Every possible argument about why you know, 0:09:55.080 --> 0:09:58.719 abortion in general is problematic, about why states should be 0:09:58.720 --> 0:10:02.880 allowed flexibility in deciding where the deadline isn't ought to 0:10:02.920 --> 0:10:05.880 be for obtaining a legal abortion. I mean, I think 0:10:06.280 --> 0:10:08.360 you know, if there's an argument out there, it's going 0:10:08.400 --> 0:10:11.400 to be made. And you know, this is already we're 0:10:11.400 --> 0:10:13.800 already looking at the term next term that chasing up 0:10:13.800 --> 0:10:15.959 to be a pretty blockbuster term. This is going to 0:10:16.000 --> 0:10:17.800 be one of the big picture cases, no matter what 0:10:17.840 --> 0:10:20.480 else is added. Tell us about some of the blockbuster 0:10:20.559 --> 0:10:23.600 cases next term. I mean, there's the Second Amendment case 0:10:23.800 --> 0:10:25.240 that there's a good that we're going to have some 0:10:25.240 --> 0:10:28.520 pretty important affirmative action cases before the Court next term. 0:10:28.559 --> 0:10:30.600 You know, if there are challenges to any of the 0:10:30.600 --> 0:10:33.840 Biden administration's major policies, and you'll see those giving the 0:10:33.800 --> 0:10:36.240 Sucreme Court next term. So it's gonna be quite quite 0:10:36.280 --> 0:10:40.319 a year. The three very conservative justice is appointed by 0:10:40.400 --> 0:10:43.720 President Trump will really make the difference in this case 0:10:43.920 --> 0:10:46.839 and so many other cases. It is often said of 0:10:46.920 --> 0:10:51.160 John Adams, who also served one term as President UM, 0:10:51.200 --> 0:10:53.400 that his most important legacy was who we put on 0:10:53.440 --> 0:10:56.640 the Supreme Court. And for all of the sort of 0:10:56.720 --> 0:10:59.840 short term damage Trump did to our system, I think 0:11:00.040 --> 0:11:03.000 is no question that his long term legacy, at least constitutionally, 0:11:03.080 --> 0:11:05.079 is going to be, you know, the three justices he 0:11:05.120 --> 0:11:08.000 put on the Court. Thanks for being the Bloomberg Law Show, Steve. 0:11:08.360 --> 0:11:11.760 That's Professor Stephen Vladdock at the University of Texas Law School. 0:11:13.320 --> 0:11:17.320 Last month, Justice Stephen Bryer rejected the characterization of the 0:11:17.360 --> 0:11:20.800 Supreme Court as conservative. I hope and expect that the 0:11:20.840 --> 0:11:25.160 Court will retain its authority, but that authority, like the 0:11:25.240 --> 0:11:30.160 rule of law, depends on trust, a trust that the 0:11:30.200 --> 0:11:35.880 Court is guided by legal principle, not politics. But by 0:11:35.920 --> 0:11:39.360 adding major abortion and gun rights cases to its docket, 0:11:39.600 --> 0:11:42.320 the Supreme Court is offering hints of the kind of 0:11:42.360 --> 0:11:46.600 paradigm shift that conservatives have long been hoping for. Joining 0:11:46.600 --> 0:11:50.120 me as Bloomberg, new Supreme Court reporter Greg store Greig, 0:11:50.200 --> 0:11:52.680 this term has been a little low key. Will next 0:11:52.760 --> 0:11:55.679 term be any different? It will be very different. June. 0:11:55.720 --> 0:11:57.760 We all already have two of the biggest hot button 0:11:57.800 --> 0:12:01.120 issues the country faces on the docket for next term. 0:12:01.200 --> 0:12:04.120 That's gun rights and abortion, and we could well get 0:12:04.120 --> 0:12:07.720 an affirmative action cases. Well. Next term really looks to 0:12:07.720 --> 0:12:10.040 be the one where we find out just how conservative 0:12:10.120 --> 0:12:13.319 the Supreme Court is. You spoke to Professor Leo Littman 0:12:13.360 --> 0:12:15.800 of the University of Michigan, and she said, there are 0:12:15.840 --> 0:12:17.839 certain things you get a point to do, and for 0:12:18.000 --> 0:12:22.400 movement conservative lawyers, that's limit or overrule Row, expand the 0:12:22.440 --> 0:12:27.000 Second Amendment, and invalidate affirmative action. So is this what 0:12:27.080 --> 0:12:30.400 conservatives have been waiting for from the Supreme Court? It 0:12:30.520 --> 0:12:33.600 absolutely is. And you know, Roge Wade is kind of 0:12:33.640 --> 0:12:36.640 the holy grail for the conservative legal movement. It's the 0:12:36.720 --> 0:12:39.840 decision that so many of them think was horribly wrong 0:12:40.000 --> 0:12:43.200 and they'd like to see overturned. And up until very recently, 0:12:43.240 --> 0:12:45.560 that didn't seem like anything more than a pipe dream, 0:12:45.600 --> 0:12:48.600 but now with the six three conservative court, it's at 0:12:48.640 --> 0:12:52.360 least a real possibility to be discussing. Now the Court 0:12:52.360 --> 0:12:54.720 will still have to overcome this big hurl up. Starry 0:12:54.760 --> 0:12:57.960 decises this idea that the Court that's like to disturb 0:12:58.000 --> 0:13:00.120 its precedence, and a couple of the key justice is 0:13:00.200 --> 0:13:02.240 John Roberts and Brett Kavanaugh. I have talked a lot 0:13:02.280 --> 0:13:05.040 about story disizes, but at least that's back in the 0:13:05.040 --> 0:13:07.880 mix now. As you know, it takes four votes in 0:13:08.040 --> 0:13:11.120 order for the Justice to take a case. Any Coney 0:13:11.200 --> 0:13:14.240 Barrett has only been on the court for seven months 0:13:14.400 --> 0:13:17.800 and we're now seeing the court taking these cases. Is 0:13:17.840 --> 0:13:20.720 she likely the fourth vote? It sure seems like she 0:13:20.840 --> 0:13:23.160 has made a difference. Now. Of course, the Court doesn't 0:13:23.200 --> 0:13:26.120 tell us who voted to take up a case, and 0:13:26.440 --> 0:13:30.000 there's certainly a dynamic there that there are times when 0:13:30.160 --> 0:13:33.079 even though four justices might want to take up an issue, 0:13:33.080 --> 0:13:35.400 if they're not sure about getting the stiff justice on 0:13:35.440 --> 0:13:38.400 their side, they might not be willing to grant review 0:13:38.480 --> 0:13:41.120 to a case. Here now the conservative wing of the 0:13:41.160 --> 0:13:45.040 Court is much stronger, and regardless exactly which four of 0:13:45.040 --> 0:13:47.800 them voted to grant certain the idea that a mean 0:13:47.840 --> 0:13:50.959 Coney Barrett there certainly have to be giving the anti 0:13:51.000 --> 0:13:54.720 abortion side a lot more confident that they will ultimately 0:13:54.760 --> 0:13:57.800 prevail when the Supreme Court rules in this case. And 0:13:57.880 --> 0:14:00.920 tell us how she seemed to make a difference when 0:14:00.960 --> 0:14:05.760 the Court was considering emergency appeals from churches fighting the 0:14:05.760 --> 0:14:10.240 pandemic restrictions. That's the area where we have so far 0:14:10.400 --> 0:14:13.880 seen the most concrete movement on this court in all 0:14:13.920 --> 0:14:18.080 these emergency cases where churches were saying, hey, these restrictions 0:14:18.080 --> 0:14:20.640 were being subject to in terms of capacity limits and 0:14:20.680 --> 0:14:23.920 things like that are stricter than say, the retail store 0:14:23.960 --> 0:14:26.720 down the street, and the Supreme Court has been very, 0:14:26.840 --> 0:14:29.560 very receptive to those. And we've seen the difference because 0:14:29.720 --> 0:14:32.080 some of those came up before Amy Coney Barrett joined 0:14:32.080 --> 0:14:35.840 the Court, and John Roberts, the Chief Justice, was at 0:14:35.960 --> 0:14:38.640 times siding with the liberal wing and saying we need 0:14:38.680 --> 0:14:41.880 to give a lot of deference to officials when they're 0:14:42.080 --> 0:14:45.080 setting out these health rules. And after she joined the 0:14:45.080 --> 0:14:48.560 court that changed, so in that area religious rights, she 0:14:48.640 --> 0:14:52.240 seems to have made a very big difference. Just as stress, 0:14:52.400 --> 0:14:55.000 no one can say how the Court will rule in 0:14:55.040 --> 0:15:00.120 these cases, but explain how just taking them indicates and 0:15:00.240 --> 0:15:03.640 intent to change the law. If there was a solid 0:15:03.720 --> 0:15:06.600 majority on the Court to say we do not want 0:15:06.640 --> 0:15:09.560 to disturb, say the abortion rights precedents, it would have 0:15:09.600 --> 0:15:11.680 been very easy for the Court just to say, no, 0:15:11.800 --> 0:15:14.080 we're not going to take this appeal. And they didn't 0:15:14.120 --> 0:15:16.600 do that, and it would be really strange if they 0:15:16.760 --> 0:15:19.840 decided to take it up but don't have a majority 0:15:19.880 --> 0:15:22.760 of the Court that is at least very seriously considering 0:15:23.080 --> 0:15:27.880 watering down or even overturning those key abortion precedents. So 0:15:27.920 --> 0:15:32.920 now the Second Amendment case, my Justice Brett Kavanaugh replacing 0:15:33.080 --> 0:15:36.800 Justice Anthony Kennedy, have anything to do with the Court 0:15:36.880 --> 0:15:41.120 taking that case, or are there now so many Second 0:15:41.160 --> 0:15:44.640 Amendment rights advocates sort of on the Court that we 0:15:44.720 --> 0:15:48.160 don't know well, we know that Justice Kavanaugh has said 0:15:48.200 --> 0:15:50.320 in a couple of cases last term that the Court 0:15:50.360 --> 0:15:53.160 didn't take up. He has said, I think the Court 0:15:53.240 --> 0:15:55.520 needs to take up more of these cases. I am 0:15:55.600 --> 0:15:58.520 concerned that lower courts are not applying our gun rights 0:15:58.520 --> 0:16:02.960 precedents strongly. And and that's not the kind of outward 0:16:03.000 --> 0:16:06.800 sign that Justice Kennedy ever showed. That said, until very 0:16:06.800 --> 0:16:10.080 recently the Court was still reluctant to take up these cases, 0:16:10.120 --> 0:16:13.560 even though lower courts had been divided on issues like 0:16:13.800 --> 0:16:16.640 is there a Second Amendment right to carry a handgun 0:16:17.040 --> 0:16:19.520 outside the home? That's the case the Court is going 0:16:19.560 --> 0:16:22.600 to be taking up next term. It wasn't until you 0:16:22.600 --> 0:16:25.640 had Amy Coney Barrett on the court and a really 0:16:25.680 --> 0:16:28.760 solid conservative majority that the right wing of the Court 0:16:28.920 --> 0:16:31.240 was to point a phrase ready to pull the trigger 0:16:31.280 --> 0:16:33.760 on taking up one of those cases. As far as 0:16:33.760 --> 0:16:37.320 the Second Amendment, there is division in the lower courts. 0:16:37.880 --> 0:16:41.400 There is division on that question of whether restrictions on 0:16:41.600 --> 0:16:46.040 carrying weapons outside the home handguns. There are a number 0:16:46.080 --> 0:16:49.680 of states, mostly liberal states, that require you to show 0:16:49.720 --> 0:16:51.560 some sort of special need in order to get a 0:16:51.600 --> 0:16:55.200 license to carry either a confield or openly carry a handgun, 0:16:55.760 --> 0:16:58.200 and gun rights groups have been trying to challenge these 0:16:58.240 --> 0:17:01.200 laws for years. There are a few lower courts that 0:17:01.240 --> 0:17:03.960 have said they are unconstitutional, a few lower courts have 0:17:04.080 --> 0:17:08.119 said they are constitutional. And finally the Supreme Court is 0:17:08.119 --> 0:17:10.560 going to take up that issue. And you have to 0:17:10.560 --> 0:17:12.720 think that the gun right side hasn't edged in the case. 0:17:13.040 --> 0:17:14.840 So in that case, there was a split in the 0:17:14.920 --> 0:17:17.960 circuits so that's a reason for the Supreme Court to 0:17:18.000 --> 0:17:21.639 take a case. But in the abortion rights case, in 0:17:21.680 --> 0:17:24.920 the Mississippi case, there was no split in the circuits. 0:17:25.040 --> 0:17:27.119 Was there that they didn't have to take that case. 0:17:27.480 --> 0:17:29.800 That's exactly right, June. They did not have to take it, 0:17:29.840 --> 0:17:31.639 and that's part of what was so striking about the 0:17:31.680 --> 0:17:34.880 fact that they did. No lower court had said that 0:17:35.200 --> 0:17:37.600 this sort of ban on abortion, this is a ban 0:17:37.760 --> 0:17:41.120 on most abortions after fifty weeks of pregnancy. No lower court, 0:17:41.480 --> 0:17:44.120 no federal pale court had said that sort of ban 0:17:44.720 --> 0:17:48.280 is constitutional. And the reason is the Supreme Court's precedents, 0:17:48.280 --> 0:17:52.919 in particular Casey decision, have said that up until the 0:17:52.960 --> 0:17:56.000 point where a fetus becomes viable, that is capable of 0:17:56.000 --> 0:18:00.000 living outside the womb, and that's something like three weeks. Uh. 0:18:00.119 --> 0:18:02.919 Up until that point states in the in the federal 0:18:02.920 --> 0:18:05.879 government can't put significant restrictions on the ability of a 0:18:05.920 --> 0:18:09.119 woman to get an abortion. So it's really hard to 0:18:09.160 --> 0:18:11.160 square with the Casey decision. And one of her real 0:18:11.240 --> 0:18:13.720 questions for the Court is, uh, if they are going 0:18:13.760 --> 0:18:17.160 to uphold this Mississippi law, how can they possibly do 0:18:17.200 --> 0:18:21.120 that without overturning at least in part the planned parenthood 0:18:21.240 --> 0:18:24.639 versus Casey decision. The conservatives seem to be moving fast 0:18:24.880 --> 0:18:27.760 to me, but in your story you said that it 0:18:27.840 --> 0:18:32.360 wasn't fast enough for some conservatives. Is there outside pressure 0:18:32.400 --> 0:18:37.760 from conservatives for the new conservative justice to take these cases? Yeah, 0:18:37.800 --> 0:18:41.359 it was probably unrealistic. There have been a number of 0:18:41.760 --> 0:18:45.520 much less significant cases where we have seen Amy Coney 0:18:45.560 --> 0:18:49.119 Barrett in particular, not go as far as some of 0:18:49.119 --> 0:18:53.359 her more conservative colleagues. For example, one of those COVID 0:18:53.440 --> 0:18:59.679 cases involved ban on singing or chanting at worship services, 0:19:00.040 --> 0:19:03.720 and she wasn't ready to say that that band should 0:19:03.800 --> 0:19:07.840 should be blocked. That's just one example of cases where 0:19:07.880 --> 0:19:11.719 she's been a somewhat careful jurist, and that has frustrated 0:19:11.760 --> 0:19:16.240 some conservatives that the court hasn't moved more quickly. That said, 0:19:16.280 --> 0:19:19.159 it's still her first term, and the fact that she 0:19:19.760 --> 0:19:22.320 is perhaps being a little bit cautious, and maybe even 0:19:22.560 --> 0:19:24.320 some of the other justices are being a little bit 0:19:24.320 --> 0:19:27.000 cautious in her first term is by no means a 0:19:27.080 --> 0:19:29.840 sign that she won't be basically the kind of judge 0:19:29.880 --> 0:19:33.280 that conservatives were hoping for when she was nominated and confirmed. 0:19:33.720 --> 0:19:36.359 Just to stress no one can say how the Court 0:19:36.400 --> 0:19:40.680 will rule in these cases, but explain how just taking 0:19:40.720 --> 0:19:46.840 them indicates an intent to change the lawn. If there 0:19:46.880 --> 0:19:50.360 were there was a solid majority on the Court to say, 0:19:50.520 --> 0:19:54.040 we do not want to disturb, say the abortion rights precedents, 0:19:54.040 --> 0:19:57.560 we do not want to call into question the Casey decision, 0:19:57.800 --> 0:19:59.720 it would have been very easy for the Court just 0:19:59.800 --> 0:20:01.920 a they know, we're not going to take this appeal, 0:20:02.320 --> 0:20:05.120 and they didn't do that. They actually sat on it 0:20:05.200 --> 0:20:08.919 for quite a long time, more than seven months before 0:20:08.960 --> 0:20:12.040 deciding what to do, but ultimately they decided to take 0:20:12.040 --> 0:20:15.160 it up. And it would be really strange if they 0:20:15.320 --> 0:20:18.840 decided to take it up but don't have a majority 0:20:18.840 --> 0:20:21.760 of the Court that is at least very seriously considering 0:20:22.280 --> 0:20:27.240 watering down or even overturning those key abortion precedents. Now 0:20:27.280 --> 0:20:30.679 there's also an affirmative action appeal before the Court, and 0:20:30.760 --> 0:20:34.960 a conservative group, Students for Fair Admissions, has been mapping 0:20:35.080 --> 0:20:38.360 how to get that issue before the court again by 0:20:38.359 --> 0:20:42.359 bringing cases in courts across the country. Is that something 0:20:42.400 --> 0:20:45.359 that the Court might take up as well. Absolutely, And 0:20:45.400 --> 0:20:48.639 this is an area where we've seen John Roberts be 0:20:48.960 --> 0:20:53.080 highly skeptical of using race as an admissions factor. It's 0:20:53.200 --> 0:20:56.399 entirely possible in this case that he is a justice 0:20:56.400 --> 0:20:58.560 who is eager to take up a case. The key 0:20:58.600 --> 0:21:03.200 precedent or one of the key precedents that this group 0:21:03.280 --> 0:21:05.720 is asking the Court to court to overturn is this 0:21:05.840 --> 0:21:09.480 two thousand and three case called Grouder versus University of 0:21:09.520 --> 0:21:12.840 Michigan that upheld the use of race based admissions as 0:21:12.880 --> 0:21:15.119 long as it's part of a wholistic review of an 0:21:15.160 --> 0:21:20.520 applicants file. And unlike in the abortion context, where Mississippi 0:21:20.560 --> 0:21:23.080 is not directly asking the Court to overturn a precedent, 0:21:23.400 --> 0:21:26.320 in this case, the group that's suing Harvard College over 0:21:26.359 --> 0:21:29.800 its admissions practices is directly asking the Supreme Court to 0:21:29.840 --> 0:21:34.320 overturn the Grouder decision. It's possible it will be more 0:21:34.359 --> 0:21:36.240 than the Court wants to buy it off in a 0:21:36.280 --> 0:21:39.679 single term to have guns and abortion and affirmative action. 0:21:40.080 --> 0:21:42.360 On the other hand, given the way this has been 0:21:42.960 --> 0:21:46.880