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What the SCOTUS leak could mean for abortion (Strict Scrutiny Emergency Episode) · Pod Save America

• 0:00
  Speaker 1: Hey, everyone.
• 0:01
  Speaker 2: In light of the leaked Supreme Court decision to overturn
• 0:04
  Speaker 2: Roe v. Wade, we thought it was important to share
• 0:06
  Speaker 2: a special episode of Cricket's legal podcast, Strict Scrutiny, here
• 0:10
  Speaker 2: in the Pod Save America feed. In a few minutes,
• 0:13
  Speaker 2: you'll hear the show's hosts and legal experts, Kate Shaw,
• 0:16
  Speaker 2: Leah Littman, and Melissa Murray, discuss the draft Supreme Court
• 0:19
  Speaker 2: opinion where a majority is prepared to overrule the decisions
• 0:23
  Speaker 2: that protect and reaffirm the constitutional right to an abortion.
• 0:27
  Speaker 2: You should also know that Vote Save America will be
• 0:29
  Speaker 2: rolling out a virtual hub in the coming days where
• 0:31
  Speaker 2: you can find ways to take action. And in the meantime,
• 0:34
  Speaker 2: subscribe to Strict Scrutiny to get regular updates on Supreme
• 0:37
  Speaker 2: Court decisions and visit votesaveamerica.com slash row where you can
• 0:41
  Speaker 2: easily donate to over 80 abortion funds across the U.S.
• 0:50
  Speaker 1: Welcome to this emergency episode of Strict Scrutiny. On Monday night,
• 0:54
  Speaker 1: Politico published a draft Supreme Court opinion that would gut
• 0:58
  Speaker 1: the constitutional right to an abortion. Chief Justice Roberts confirmed
• 1:02
  Speaker 1: this morning, Tuesday, that the leaked document is real, but
• 1:05
  Speaker 1: that it does not represent a decision by the court
• 1:08
  Speaker 1: or the final position of any member on the issues
• 1:11
  Speaker 1: in the case. The court is poised to issue the
• 1:13
  Speaker 1: full and real decision in a few weeks, but the
• 1:17
  Speaker 1: publication of the leaked document has already set off a
• 1:19
  Speaker 1: fresh political conversation about whether Congress can codify the protections
• 1:24
  Speaker 1: for pregnant people into law before what could be a
• 1:27
  Speaker 1: devastating opinion coming early this summer. In this episode, we'll
• 1:31
  Speaker 1: break down what this leaked document tells us and what
• 1:33
  Speaker 1: it means for abortion rights and the court. Mr.
• 1:36
  Speaker 3: Chief Justice, may it please the court. It's an old joke,
• 1:41
  Speaker 3: but when a man argues against two beautiful ladies like this,
• 1:45
  Speaker 3: they're going to have the last word.
• 1:48
  Speaker 4: She spoke not elegantly, but with unmistakable clarity. She said,
• 1:54
  Speaker 4: I ask no favor for my sex. All I ask
• 1:59
  Speaker 4: of our brethren is that they take their feet off
• 2:04
  Speaker 4: our necks.
• 2:18
  Speaker 3: Well, fuck.
• 2:19
  Speaker 5: Hello, and welcome back to Strict Scrutiny, your podcast about
• 2:23
  Speaker 5: the Supreme Court and the legal culture that surrounds it.
• 2:26
  Speaker 5: We're your hosts who possess fewer and fewer constitutional rights
• 2:29
  Speaker 5: with each passing moment. I'm Leah Littman.
• 2:32
  Speaker 1: And I'm Melissa Murray. And we are going to try
• 2:35
  Speaker 1: and patch in Kate Shaw. She is traveling on a
• 2:38
  Speaker 1: bus in between states to just get a sense of
• 2:41
  Speaker 1: what the landscape is going to be like in a
• 2:43
  Speaker 1: few months. So We'll try and get her in on
• 2:46
  Speaker 1: that patchy bus Wi-Fi if we can. But as you
• 2:49
  Speaker 1: likely know, listeners, on Monday night, we got some major
• 2:54
  Speaker 1: SCOTUS news. Politico reported that they had received a draft
• 2:58
  Speaker 1: majority opinion in Dobbs v. Jackson Women's Health Organization, and
• 3:02
  Speaker 1: this draft majority opinion, which they posted on their website,
• 3:08
  Speaker 1: overruled Roe v. Wade and Planned Parenthood v. Casey, and
• 3:12
  Speaker 1: Can I tell you, when this announcement dropped, it was
• 3:15
  Speaker 1: like a fucking bomb went off. Folks were not shook,
• 3:21
  Speaker 1: but shooketh, right? I don't even know what else to say.
• 3:24
  Speaker 1: Phones were blowing up. I got so many messages. It
• 3:29
  Speaker 1: was absolutely outrageous. So yeah, a seismic, seismic Supreme Court
• 3:35
  Speaker 1: event on Monday night.
• 3:38
  Speaker 5: I basically haven't slept and I have allowed myself some
• 3:41
  Speaker 5: caffeine this morning.
• 3:42
  Speaker 1: Um, so you look radiant. You look radiant.
• 3:45
  Speaker 5: It's a lot. Well, thank you.
• 3:46
  Speaker 1: Um, it's going to be great when, when you're, when
• 3:49
  Speaker 1: your commander takes ownership of you, like it's.
• 3:52
  Speaker 5: It's going to be fantastic when I am just forced
• 3:54
  Speaker 5: to give birth, you know, by the state. I'm really
• 3:57
  Speaker 5: looking forward to that. So I decided to do a
• 3:59
  Speaker 5: little glow up in advance of that.
• 4:00
  Speaker 1: Um, it's working. It's Kate is here. So Kate is
• 4:04
  Speaker 1: on a bus going between states. Um, She's on her
• 4:07
  Speaker 1: way out of New York City and on to Northern Climbs,
• 4:11
  Speaker 1: but she's stopped to give us a sense of what
• 4:14
  Speaker 1: it's like on the road to be a lady without rights. So, Kate,
• 4:18
  Speaker 1: what's going on? Hi, Melissa.
• 4:19
  Speaker 6: Hi, Leah.
• 4:20
  Speaker 3: Well, we're not disclosing my route or specific mission, but
• 4:23
  Speaker 3: I'm just like, yeah, I'm testing out sort of the
• 4:25
  Speaker 3: interstate travel future that we are all looking at.
• 4:27
  Speaker 6: And guys, welcome to Dystopia. It's bleak out here.
• 4:32
  Speaker 1: How's the Wi-Fi, Kate?
• 4:34
  Speaker 6: Not great.
• 4:36
  Speaker 1: Rights are bad.
• 4:37
  Speaker 6: Wi-Fi.
• 4:38
  Speaker 1: Rights and Wi-Fi are commensurate and both are poor in
• 4:41
  Speaker 1: this landscape.
• 4:42
  Speaker 5: Well, they're about to take our Wi-Fi away too. So,
• 4:45
  Speaker 5: you know, it's just wonderful. Kate, Alito really gave you
• 4:49
  Speaker 5: quite the birthday gift. I hope you enjoy it because obviously,
• 4:55
  Speaker 5: dear listeners, this event required some emergency podcasting. So here
• 4:59
  Speaker 5: we are. This is going to be a quick and
• 5:00
  Speaker 5: dirty episode, but let's roadmap it.
• 5:03
  Speaker 1: So first, we're going to go over some highlights of
• 5:06
  Speaker 1: this draft opinion, which was apparently written by Strixutiny superfan
• 5:11
  Speaker 1: and skincare maven Samuel A. Alito Jr. And I guess
• 5:15
  Speaker 1: he has taken some time out from his exfoliation to
• 5:18
  Speaker 1: exfoliate all of our rights right out of our lives.
• 5:21
  Speaker 1: So he had time, listeners. He really did. And after
• 5:26
  Speaker 1: we do that, we're going to engage in some rank
• 5:28
  Speaker 1: speculation about who leaked this bombshell from And when that's done,
• 5:33
  Speaker 1: we're going to get together and measure ourselves for handmaid's robes.
• 5:36
  Speaker 1: So stick around if you would like your own. We
• 5:39
  Speaker 1: have wool and a poly blend and possibly even some
• 5:43
  Speaker 1: organic fabrics to choose from.
• 5:45
  Speaker 6: All right. So should we dive into the opinion?
• 5:49
  Speaker 4: Sure.
• 5:50
  Speaker 6: So this is an absolute shitshow, right? I think that's
• 5:52
  Speaker 6: the bottom line. There is no compromising with this opinion whatsoever.
• 5:55
  Speaker 4: None.
• 5:56
  Speaker 3: No pleasantries, no niceties, some lip service to people of
• 6:00
  Speaker 3: good conscience being on all sides of the debate, but
• 6:03
  Speaker 3: actually obvious vilification of those who would protect the right
• 6:06
  Speaker 3: to abortion. There's a lot of gaslighting and doublespeak in
• 6:09
  Speaker 3: this opinion. We're not actually calling anything else into question.
• 6:11
  Speaker 3: While calling everything else into question, we'll get there. We're
• 6:14
  Speaker 3: not actually casting aspersions on those who favor Roe, while
• 6:17
  Speaker 3: casting aspersions on those who favor the constitutional protection for abortion.
• 6:22
  Speaker 6: So, yeah, I think that's kind of like the bottom line.
• 6:24
  Speaker 1: So, Kate, Is it an absolute shitshow or an absolutist
• 6:28
  Speaker 1: shitshow or both?
• 6:31
  Speaker 6: It's both, Melissa.
• 6:32
  Speaker 1: He never disappoints. No, he doesn't.
• 6:36
  Speaker 5: Yeah, I mean, he starts out with the opinion by
• 6:38
  Speaker 5: quoting the lawyers who represented the clinics as saying there are, quote,
• 6:43
  Speaker 5: no half measures available and that the court must either
• 6:47
  Speaker 5: reaffirm or overrule Roe. basically saying, Libs, you made me
• 6:51
  Speaker 5: do this by suggesting there isn't a compromise here.
• 6:56
  Speaker 1: Taylor Swift, look what you made me do. Exactly.
• 6:59
  Speaker 5: And then he says, we hold that Roe and Casey
• 7:03
  Speaker 5: must be overruled because really he's compelled to do this.
• 7:06
  Speaker 5: And then, you know, begins with just piling on Roe,
• 7:11
  Speaker 5: calling it egregiously wrong from the start, exceptionally weak, having
• 7:15
  Speaker 5: had damaging consequences. I mean... you call it absolute and absolutist,
• 7:20
  Speaker 5: the YOLO wing of the court has won. You know,
• 7:23
  Speaker 5: we were talking about after the oral argument in Dobbs,
• 7:26
  Speaker 5: there were strong, let's just do it and be legends vibes.
• 7:29
  Speaker 5: And it appears they are inclined to do it. And
• 7:34
  Speaker 5: can we also pause and say, what a flex and
• 7:38
  Speaker 5: a move it is for Justice Samuel Alito to have
• 7:43
  Speaker 5: the opinion overruling Roe and Casey. Like, that's who Clarence
• 7:48
  Speaker 5: Thomas assigned it to? Was that Ginny's idea? I don't know.
• 7:52
  Speaker 5: But I mean, they gave it to the angriest angry
• 7:55
  Speaker 5: white man on the Supreme Court and quite possibly in
• 7:58
  Speaker 5: the country as well.
• 7:59
  Speaker 1: So here's my question. This surprised me because I have
• 8:03
  Speaker 1: been saying all along that it's going to be Amy
• 8:06
  Speaker 1: Coney Barrett. Like, People have been talking about they need
• 8:10
  Speaker 1: a woman in the conservative block to be able to
• 8:12
  Speaker 1: do this. And, you know, she was sort of tailor-made,
• 8:14
  Speaker 1: genetically modified for this role. And it wasn't her. Were
• 8:18
  Speaker 1: you surprised?
• 8:19
  Speaker 3: Leah, Kate. You know, we speculated, I had speculated that
• 8:23
  Speaker 3: she might be offered the opinion and be able to
• 8:25
  Speaker 3: decide whether she wanted to write or to kind of,
• 8:28
  Speaker 3: you know, let the cup pass her over.
• 8:31
  Speaker 6: And I don't know.
• 8:31
  Speaker 3: It's not typically how it's done, but I can well
• 8:33
  Speaker 3: imagine Thomas basically saying, Amy, this is yours if you
• 8:36
  Speaker 3: want it. And her saying, I think I'm obviously going
• 8:40
  Speaker 3: to cast the vote for it, but I'm not sure
• 8:42
  Speaker 3: I'm ready for the public response.
• 8:44
  Speaker 6: And so I don't know. I feel like there's a
• 8:46
  Speaker 6: backstory here because it is.
• 8:48
  Speaker 3: It's Thomas' call, who he assigns it to ultimately, but
• 8:50
  Speaker 3: he could well have done it in consultation with the others.
• 8:52
  Speaker 3: Or Alito just was like, pick me, pick me, pick me,
• 8:54
  Speaker 3: and made it kind.
• 8:55
  Speaker 6: Of impossible for Thomas not to do it.
• 8:58
  Speaker 1: Well, do you think that Thomas passed over himself because
• 9:00
  Speaker 1: of all of the fakakta stuff with Ginny and the
• 9:02
  Speaker 1: text messages and the Ginny textualism and recusals?
• 9:06
  Speaker 5: Well, I mean, this opinion was assigned back in December. Oh,
• 9:09
  Speaker 5: that's right.
• 9:09
  Speaker 3: Never mind.
• 9:09
  Speaker 5: So I don't know that that really explains it. Given
• 9:12
  Speaker 5: that the opinion was assigned to Samuel Alito... He decided
• 9:17
  Speaker 5: to show up in full force because why not? Trollito
• 9:22
  Speaker 5: was in rare form here.
• 9:24
  Speaker 1: So the first Trollito move was to invoke their recently
• 9:29
  Speaker 1: departed colleague, Ruth Bader Ginsburg, ad nauseum. You would think
• 9:33
  Speaker 1: Ruth Bader Ginsburg was like a little justice angel sitting
• 9:36
  Speaker 1: on his shoulder helping him write this opinion. He cited
• 9:40
  Speaker 1: her so many times. Like, listen, I'm all for cite
• 9:43
  Speaker 1: more women, cite Black women, cite all the women. But
• 9:46
  Speaker 1: my dude, not like this.
• 9:49
  Speaker 5: I mean, he's giving the impression that, well, of course,
• 9:53
  Speaker 5: Justice Ruth Bader Ginsburg would have been with us in
• 9:56
  Speaker 5: overruling Roe. It's so specious.
• 10:00
  Speaker 1: I didn't take it that way. I didn't take it
• 10:01
  Speaker 1: this way. I took this as like a total F you.
• 10:04
  Speaker 1: Like F you, Libs. Here's your queen. And guess what?
• 10:08
  Speaker 1: Her name's going to be all over this. And almost
• 10:11
  Speaker 1: like sort of rubbing it in, like, We got this
• 10:13
  Speaker 1: because she stayed too long.
• 10:15
  Speaker 3: Yeah.
• 10:15
  Speaker 5: No, honestly, now that you say that, that seems to
• 10:18
  Speaker 5: resonate more with me than my rationale. Because in addition
• 10:23
  Speaker 5: to citing Justice Ginsburg, the opinion also cites John Hart Ely,
• 10:27
  Speaker 5: the former law clerk to Chief Justice Earl Warren. Ely
• 10:30
  Speaker 5: criticized Roe. The opinion also cites Larry Tribe, liberal law
• 10:35
  Speaker 5: professor at Harvard, as having criticized Roe. The next footnote
• 10:39
  Speaker 5: is to a Justice Ginsburg article. Those were literally the
• 10:42
  Speaker 5: first five footnotes in the opinion. Again, just rubbing our
• 10:47
  Speaker 5: faces in it.
• 10:48
  Speaker 1: You are the architects of your own misery. Enjoy.
• 10:52
  Speaker 3: And we should say for people who aren't familiar with
• 10:54
  Speaker 3: this sort of backstory, that the citation to Justice Ginsburg
• 10:57
  Speaker 3: is to a famous speech and article in which she
• 10:59
  Speaker 3: expressed some doubts about whether Roe might have short-circuited the
• 11:02
  Speaker 3: political process that was on its way to a more.
• 11:04
  Speaker 1: Durable settlement, although later she largely.
• 11:06
  Speaker 6: Repudiated that position.
• 11:07
  Speaker 3: But that's the citation to RBG that the opinion offers.
• 11:11
  Speaker 5: But that's not everyone who Justice Alito invoked. There's also
• 11:14
  Speaker 5: a mention of his nemesis, his arch-nemesis, Harvard Law Professor
• 11:19
  Speaker 5: Mark Tushnet, who Justice Alito also cites, as having criticized Roe.
• 11:24
  Speaker 5: Justice Alito, somewhat famously or infamously, as we've talked about
• 11:28
  Speaker 5: on the podcast, invoked a blog post that Tushnet wrote.
• 11:32
  Speaker 5: Justice Alito mentioned this in a speech he gave to
• 11:34
  Speaker 5: the Federalist Society. It's like he's obsessed with Mark Tushnet,
• 11:39
  Speaker 5: like big Mariah Carey, why are you so obsessed with
• 11:42
  Speaker 5: me energy.
• 11:44
  Speaker 1: I'm having a really hard time imagining Mark Tushnet as
• 11:48
  Speaker 1: Mariah Carey and Justice Alito as Eminem. This might be
• 11:52
  Speaker 1: the silver lining on this entire episode.
• 11:54
  Speaker 5: Honestly, can't you imagine Justice Alito just like turning up
• 11:59
  Speaker 5: Lose Yourself and then cranking out this 98-page banger like,
• 12:04
  Speaker 5: I've been training for this my entire life. I mean, right?
• 12:09
  Speaker 5: You can see it?
• 12:10
  Speaker 1: In the moment, never let it go. You only get
• 12:13
  Speaker 1: one chance. Do not miss your chance to blow. This
• 12:15
  Speaker 1: opportunity comes once in a lifetime. Yo!
• 12:18
  Speaker 6: Exactly, right?
• 12:19
  Speaker 5: Those were the lyrics in his mind. And, you know,
• 12:23
  Speaker 5: if there was ever any doubt whether this draft opinion
• 12:28
  Speaker 5: was the real one, you know, the caustic tone and trolling...
• 12:31
  Speaker 5: feel like made clear that this definitely came from Justice
• 12:34
  Speaker 5: Alito's pen. It's written with big, and what are you
• 12:37
  Speaker 5: going to do about it, Libs energy.
• 12:39
  Speaker 1: This was no faux Lito. This was real Lito. This
• 12:43
  Speaker 1: was all of it.
• 12:44
  Speaker 5: Oh, yeah.
• 12:45
  Speaker 1: Veras Alito. In addition to the real, unfiltered Justice Alito,
• 12:52
  Speaker 1: we also got some nods to colleagueship and collegiality. So
• 12:56
  Speaker 1: Even though Justice Thomas had to assign this opinion to
• 13:00
  Speaker 1: Justice Alito and missed the chance to be a true legend,
• 13:03
  Speaker 1: he did get a really, really legendary footnote. So in
• 13:08
  Speaker 1: footnote 41 of this draft opinion, Justice Alito gives Justice
• 13:13
  Speaker 1: Thomas' fakukta box concurrence eugenics theory a really, really meaty treatment.
• 13:20
  Speaker 1: So here... Justice Alito calls on Justice Thomas and notes
• 13:25
  Speaker 1: that other amicus briefs present arguments about the motives of
• 13:28
  Speaker 1: proponents of liberal access to abortion. They note that some
• 13:31
  Speaker 1: such supporters have been motivated by a desire to suppress
• 13:35
  Speaker 1: the size of the African-American population. And it is beyond
• 13:39
  Speaker 1: dispute that Roe has had that demographic effect. See sites
• 13:43
  Speaker 1: to Justice Thomas's box concurrence here. And then it goes on.
• 13:46
  Speaker 1: A highly disproportionate percentage of aborted fetuses are black. For
• 13:51
  Speaker 1: our part, we do not question the motives of either
• 13:54
  Speaker 1: those who have supported and those who have opposed laws
• 13:56
  Speaker 1: restricting abortions. But see everything I just wrote.
• 14:00
  Speaker 5: I love the, you know, yeah, you're maybe eugenicists and Nazis, but.
• 14:04
  Speaker 1: We're not questioning your motives. I'm not judging you.
• 14:09
  Speaker 5: This is the real gaslito energy that Kate was referring
• 14:13
  Speaker 5: to earlier.
• 14:15
  Speaker 1: My friend Jessis Thomas thinks this is totally eugenics. I'm
• 14:17
  Speaker 1: not going to judge, though. It could be Nazism, but
• 14:22
  Speaker 1: I'm not judging.
• 14:23
  Speaker 5: Right. I am studiously committed to neutral principles, and that's
• 14:30
  Speaker 5: all I'm doing here. I'm just acknowledging the difficult arguments
• 14:33
  Speaker 5: on both sides. Like, maybe you're Nazis, maybe you're not.
• 14:37
  Speaker 5: You know, the idea that abortion is a form of
• 14:39
  Speaker 5: modern-day eugenics also got a mention as Justice Alito was
• 14:43
  Speaker 5: rattling off the many legitimate interests that states have to
• 14:46
  Speaker 5: restrict abortion, noting that they may do so in order
• 14:50
  Speaker 5: to prevent discrimination on the basis of race.
• 14:55
  Speaker 1: And sex and disability.
• 14:58
  Speaker 5: Oh, yeah.
• 14:58
  Speaker 3: Yeah.
• 14:59
  Speaker 1: All the isms.
• 15:00
  Speaker 5: Because we're the real feminists, Libs.
• 15:03
  Speaker 1: This is an anti-discrimination opinion. You heard it here first.
• 15:09
  Speaker 1: Justice Alito, civil rights hero.
• 15:11
  Speaker 3: Well, later, I mean, maybe we'll get to this, but
• 15:13
  Speaker 3: when he says, you know what, and you know who
• 15:15
  Speaker 3: most of the voters in Mississippi who enacted.
• 15:16
  Speaker 6: This law are?
• 15:17
  Speaker 1: Women.
• 15:18
  Speaker 6: The majority of registered voters in Mississippi are women. Believe
• 15:21
  Speaker 6: black women.
• 15:22
  Speaker 3: Believe black women.
• 15:26
  Speaker 1: Believe black women. Okay, wait, wait. Can I come back
• 15:29
  Speaker 1: to this as a black woman? Justice Alito speaks for me.
• 15:35
  Speaker 5: He is the advocate.
• 15:38
  Speaker 1: He's the strongest Black woman on this court. I hope
• 15:43
  Speaker 1: KBJ knows.
• 15:45
  Speaker 6: Right. George W.
• 15:49
  Speaker 5: Bush actually appointed the first Black woman to the Supreme Court.
• 15:53
  Speaker 5: And it's Samuel Alito.
• 15:56
  Speaker 1: Suck it, libs.
• 15:59
  Speaker 6: Though, like, it is just Alito himself. doing the most.
• 16:04
  Speaker 3: And, you know, he's sort of also along the way
• 16:06
  Speaker 3: doing the fullest version of himself and also like handing
• 16:09
  Speaker 3: out little trinkets to each of his friends, his fellow travelers, right?
• 16:12
  Speaker 3: So he's got, you know, not just Clarence Abortion is
• 16:15
  Speaker 3: Eugenics Thomas, who gets like a shout out and his
• 16:18
  Speaker 3: pet issue recognized. Lady Safe Haven also has a passage
• 16:21
  Speaker 3: devoted to her preferred theory of the issue, so let
• 16:25
  Speaker 3: me maybe quote that, which is, Americans who believe that
• 16:27
  Speaker 3: abortion should be restricted press countervailing arguments about modern developments.
• 16:31
  Speaker 3: They note that attitudes about the pregnancy of unmarried women
• 16:33
  Speaker 3: have changed drastically. that federal and state laws ban discrimination
• 16:37
  Speaker 3: on the basis of pregnancy, and that leave for pregnancy
• 16:39
  Speaker 3: and childbirth are now guaranteed by law in many cases,
• 16:41
  Speaker 3: that the cost of medical care.
• 16:42
  Speaker 6: We've solved feminism!
• 16:44
  Speaker 5: We've solved sex discrimination, right? This is fourth dimension feminism.
• 16:49
  Speaker 6: Okay, wait, but then he gets to the lady safe havens.
• 16:51
  Speaker 3: The states have increasingly adopted safe haven laws, which generally
• 16:55
  Speaker 3: allow women to drop off babies anonymously. And that a
• 16:57
  Speaker 3: woman who puts her newborn up for adoption today has
• 16:59
  Speaker 3: little reason to fear that the baby will.
• 17:01
  Speaker 6: Not find a suitable home, right? It's solved. The opinion
• 17:04
  Speaker 6: could end there. Boom.
• 17:04
  Speaker 2: Lawyer.
• 17:06
  Speaker 1: Just use a firehouse.
• 17:08
  Speaker 5: Just use a firehouse, ladies.
• 17:10
  Speaker 1: It'll be fine. So can we just come back to, like,
• 17:13
  Speaker 1: the cheek it takes to write this passage when you
• 17:18
  Speaker 1: have actually been in the dissent for most of the
• 17:21
  Speaker 1: decisions that tried to secure these protections over the years?
• 17:24
  Speaker 1: I mean— Where's that guy from SEIU who's like, take
• 17:28
  Speaker 1: us out of your mouths? You remember that guy?
• 17:30
  Speaker 4: Kyle?
• 17:31
  Speaker 1: What was his name?
• 17:31
  Speaker 6: Kyle?
• 17:33
  Speaker 1: Bragg? Is that right?
• 17:34
  Speaker 6: Yeah, Kyle Bragg.
• 17:35
  Speaker 1: Yes.
• 17:35
  Speaker 4: Good.
• 17:35
  Speaker 1: We put it together eventually. Where is Kyle Bragg right now?
• 17:38
  Speaker 1: Because this is like, this is Trollito right here.
• 17:41
  Speaker 5: Yes, exactly. Like, get mothers, get working women's names out
• 17:47
  Speaker 5: of your fucking mouth. And in case you didn't guess,
• 17:51
  Speaker 5: the standard of review that Justice Alito announces for courts
• 17:55
  Speaker 5: to use when determining whether abortion restrictions are legal is
• 18:00
  Speaker 5: whatever the fuck.
• 18:00
  Speaker 1: You want, states. Or, you know, yes, Oklahoma. Yes, Texas.
• 18:06
  Speaker 5: There is a Santa Claus.
• 18:08
  Speaker 1: And it's me, Samuel Alito.
• 18:11
  Speaker 5: Santa is real. More formally, the opinion says... The applicable
• 18:18
  Speaker 5: legal standard that courts should use is rational basis review,
• 18:23
  Speaker 5: the most deferential standard.
• 18:26
  Speaker 1: The standard whereby if the state doesn't tell you why
• 18:29
  Speaker 1: it's doing it, you can just make it up if
• 18:31
  Speaker 1: you're a court. Yep.
• 18:34
  Speaker 5: And Justice Alito says courts cannot substitute their social and
• 18:38
  Speaker 5: economic beliefs for the judgment of legislative bodies. The implication
• 18:42
  Speaker 5: being that states can ban abortion at all points in
• 18:46
  Speaker 5: pregnancy and without exceptions, for rape or incest. And honestly,
• 18:50
  Speaker 5: it's unclear if an exception for where an abortion might
• 18:56
  Speaker 5: be necessary to save the life or health of the
• 18:58
  Speaker 5: mother would even be required under this rational basis standard
• 19:02
  Speaker 5: at all points during a pregnancy.
• 19:04
  Speaker 1: I don't see a woman. I see a vessel. Anyway,
• 19:12
  Speaker 1: in addition to completely eviscerating any legal standard by which
• 19:17
  Speaker 1: to review abortion restrictions, the opinion is also like has
• 19:21
  Speaker 1: a lot of Hansel and Gretel energy, which is to
• 19:24
  Speaker 1: say that it is laying breadcrumbs to eviscerate a lot
• 19:28
  Speaker 1: of other rights. And to be very clear. Justice Alito
• 19:32
  Speaker 1: goes to great pains to sort of paint this as,
• 19:34
  Speaker 1: it's just abortion. Abortion is unique. Abortion is exceptional. And
• 19:38
  Speaker 1: this doesn't go any further than abortion. Abortion by itself
• 19:40
  Speaker 1: is a limiting principle. But then he actually makes some nods. Like,
• 19:44
  Speaker 1: he laces this opinion with a lot of references to Obergefell,
• 19:48
  Speaker 1: which is the 2010 decision that legalized same-sex marriage. He
• 19:52
  Speaker 1: references Lawrence versus Texas, which is a 2003 decision that
• 19:57
  Speaker 1: decriminalized same-sex sodomy and paved the way for broader recognition
• 20:01
  Speaker 1: of same-sex sexuality and same-sex relationships. And he also talks
• 20:05
  Speaker 1: about contraception, so Griswold versus Connecticut, Loving versus Virginia, interracial marriage.
• 20:10
  Speaker 1: It's all in there. But the real sort of meat
• 20:14
  Speaker 1: of this kind of comes toward the end of the opinion.
• 20:18
  Speaker 1: So he notes, these attempts to justify abortion through appeals
• 20:21
  Speaker 1: to a broader right to autonomy and to define one's, quote,
• 20:25
  Speaker 1: concept of existence, end quote, prove too much. Those criteria,
• 20:29
  Speaker 1: at a high level of generality— could license fundamental rights
• 20:33
  Speaker 1: to elicit drug use, prostitution, and the like. None of
• 20:37
  Speaker 1: these rights has any claim to being deeply rooted in history.
• 20:41
  Speaker 1: You know what else could be undergirded by those concepts
• 20:45
  Speaker 1: of defining one's own existence? Liberty more generally, marriage, same-sex marriage,
• 20:52
  Speaker 1: interracial marriage, the right to use contraception, the right to procreate,
• 20:55
  Speaker 1: the right to raise your children in the manner of
• 20:57
  Speaker 1: your choosing, the right of extended family members to live
• 20:59
  Speaker 1: amongst themselves. So All of these are sort of being
• 21:04
  Speaker 1: stacked up, ready to go, just the next set of
• 21:07
  Speaker 1: dominoes for this Trollito opinion to take on. And again,
• 21:12
  Speaker 1: he makes some really not so subtle implications, even if
• 21:16
  Speaker 1: he doesn't call out same-sex marriage, interracial marriage, same-sex sex
• 21:20
  Speaker 1: by name. So again, toward the end of the opinion,
• 21:24
  Speaker 1: he notes that rational basis reviews the appropriate standard. And
• 21:27
  Speaker 1: then he goes on to say, It follows that states
• 21:30
  Speaker 1: may regulate abortion for legitimate reasons, and when such regulations
• 21:33
  Speaker 1: are challenged under the Constitution, courts cannot substitute their social
• 21:38
  Speaker 1: and economic beliefs for the judgment of legislative bodies. That
• 21:42
  Speaker 1: respect for a legislature's judgment applies even when the laws
• 21:46
  Speaker 1: at issue concern matters of great social significance and moral substance.
• 21:53
  Speaker 1: What could be of greater social significance and moral substance
• 21:56
  Speaker 1: than laws extending marriage to same-sex couples or interracial couples
• 22:00
  Speaker 1: or the rights of parents to raise their children. He's
• 22:02
  Speaker 1: putting it all out there. He doesn't say it explicitly
• 22:05
  Speaker 1: because he can't. This is the quiet part.
• 22:09
  Speaker 5: And it's not even that quiet because the draft attempts
• 22:13
  Speaker 5: to distinguish the abortion right from, quote, the rights recognized
• 22:17
  Speaker 5: in the cases on which Roe and Casey rely. But
• 22:20
  Speaker 5: Roe and Casey don't rely on Lawrence or Obergefell as
• 22:23
  Speaker 5: those cases are. post-date, Roe and Casey, with the implication
• 22:27
  Speaker 5: being that the court is standing ready to maybe overrule
• 22:31
  Speaker 5: Lawrence and Obergefell as well.
• 22:34
  Speaker 3: And we should say that we will get to the
• 22:36
  Speaker 3: kind of question of how this draft emerged and what
• 22:39
  Speaker 3: it could mean in terms of its relationship to whatever
• 22:42
  Speaker 3: the final product the court releases looks like. But I
• 22:45
  Speaker 3: have to say, I gotta believe that, or at least
• 22:47
  Speaker 3: it seems to me there's a real chance, that this
• 22:50
  Speaker 3: is maybe Alito's first draft, and it is as maximalist
• 22:53
  Speaker 3: as you would imagine a first Alito draft to be,
• 22:56
  Speaker 3: and that there could be some qualms on the part
• 22:59
  Speaker 3: of like a Kavanaugh, at least potentially, with so obviously
• 23:03
  Speaker 3: calling into question cases like Obergefell, Lawrence, maybe Loving. And
• 23:08
  Speaker 3: so I'm not sure that all of that language and
• 23:11
  Speaker 3: logic survives to the final opinion.
• 23:14
  Speaker 5: And one of the Additionally, stunning things to me about
• 23:17
  Speaker 5: this draft was that Justice Alito's efforts to limit the
• 23:20
  Speaker 5: reasoning in the opinion just to abortion seemed to gesture
• 23:24
  Speaker 5: toward the possibility of the court recognizing some constitutional protection
• 23:29
  Speaker 5: for fetal life, which would require states to criminalize abortion. So,
• 23:33
  Speaker 5: for example, Justice Alito's draft opinion states that Roe and
• 23:37
  Speaker 5: Casey acknowledged that abortion was destroys fetal life and what
• 23:42
  Speaker 5: the Mississippi statute describes as an unborn human being. And
• 23:46
  Speaker 5: then at one point, the draft opinion kind of protests that,
• 23:52
  Speaker 5: but of course, we're not basing this on any view
• 23:55
  Speaker 5: about when a state should regard prenatal life as having
• 23:58
  Speaker 5: rights or legally cognizable interests. But the court approvingly cites
• 24:03
  Speaker 5: an amicus brief that was filed by John Finnis. And
• 24:06
  Speaker 5: Finnis has argued that that there is constitutional protection for
• 24:10
  Speaker 5: fetal personhood. And Justice Alito, at the oral argument in Dobbs,
• 24:14
  Speaker 5: had said, you know, the fetus has an interest in
• 24:17
  Speaker 5: having a life, and that doesn't change from before viability
• 24:20
  Speaker 5: to after. And so there, it also seems like a
• 24:26
  Speaker 5: potential breadcrumb. Absolutely.
• 24:28
  Speaker 3: And another thing is that the court saying, well, look,
• 24:30
  Speaker 3: abortion involves potential life also doesn't distinguish contraception because Hobby Lobby,
• 24:37
  Speaker 3: in Hobby Lobby, Alito himself said employers could view contraception
• 24:43
  Speaker 3: as aborto-facians. And if you're going to credit that position,
• 24:46
  Speaker 3: then the logic here would seem absolutely to imperil protection
• 24:50
  Speaker 3: for contraception.
• 24:51
  Speaker 6: No question.
• 24:53
  Speaker 1: That's not it, though. So Samuel Alito, who obviously has
• 24:57
  Speaker 1: the beating heart of a black woman, wants us to
• 25:00
  Speaker 1: recall that Jim Crow sucked. It sucked a lot. And
• 25:04
  Speaker 1: you know what else sucks like Jim Crow? Reproductive rights.
• 25:07
  Speaker 1: That's what sucks. And so he suggests that we should
• 25:10
  Speaker 1: overrule them because black lives matter. So he has to say,
• 25:14
  Speaker 1: some of our most important constitutional decisions have overruled prior precedents.
• 25:19
  Speaker 1: We mentioned three, goes on, there are a bunch, but
• 25:21
  Speaker 1: the one that he really puts first is Brown versus
• 25:24
  Speaker 1: Board of Education, where the court repudiated the separate but
• 25:27
  Speaker 1: equal doctrine, which had allowed states to maintain racially segregated
• 25:30
  Speaker 1: schools and other facilities. This from a dude who is
• 25:34
  Speaker 1: part of concerned alumni of Princeton, which wanted to keep
• 25:38
  Speaker 1: that college all male. Right. So but let's continue with
• 25:44
  Speaker 1: this black woman energy. In so doing, the court overruled
• 25:47
  Speaker 1: the infamous decision in Plessy versus Ferguson, along with six
• 25:50
  Speaker 1: other Supreme Court precedents that had applied the separate but
• 25:53
  Speaker 1: equal rule. He goes on to say an erroneous interpretation
• 25:57
  Speaker 1: of the Constitution is always important, but some are more
• 25:59
  Speaker 1: damaging than others. The infamous decision in Plessy v. Ferguson
• 26:03
  Speaker 1: was one such decision. It betrayed our commitment to equality
• 26:06
  Speaker 1: under law. It was egregiously wrong on the day it
• 26:09
  Speaker 1: was decided. And as the Solicitor General agreed at oral argument,
• 26:13
  Speaker 1: it should have been overruled at the earliest opportunity. Roe
• 26:16
  Speaker 1: was also egregiously wrong and deeply damaging, for reasons already explained.
• 26:21
  Speaker 1: Roe's constitutional analysis was far outside the bounds of any
• 26:24
  Speaker 1: reasonable interpretation of the various constitutional provisions to which it
• 26:28
  Speaker 1: vaguely pointed. Black Lives Matter, y'all.
• 26:34
  Speaker 5: The opinion is also perhaps the best encapsulation of the
• 26:39
  Speaker 5: stare decisis is for suckers energy that we have flagged
• 26:43
  Speaker 5: for over the last two years on the Roberts court.
• 26:46
  Speaker 5: You know, the court does gesture in the direction of
• 26:51
  Speaker 5: stare decisis and the idea that the court should consider
• 26:54
  Speaker 5: some factors when deciding whether to overrule cases, um, But,
• 27:00
  Speaker 5: you know, it chooses to spend like a breezy paragraph
• 27:03
  Speaker 5: or so on reliance interests, even though, of course, like women,
• 27:07
  Speaker 5: society at large, many people have structured their lives around
• 27:11
  Speaker 5: the access and availability of reproductive health care and the
• 27:15
  Speaker 5: ability to decide when and whether to have children. But
• 27:19
  Speaker 5: the opinion says, you know, well, the Casey plurality acknowledged
• 27:23
  Speaker 5: that there aren't conventional concrete reliance interests there. And The
• 27:30
  Speaker 5: opinion also took, if you listened to our episode recapping
• 27:34
  Speaker 5: the oral argument in Dobbs, it took Justice Kavanaugh's question
• 27:38
  Speaker 5: slash comment from the oral argument about, well, hasn't this
• 27:41
  Speaker 5: court overruled cases all the time, and turned it into
• 27:44
  Speaker 5: like a three-page long footnote that says, well, on many
• 27:48
  Speaker 5: other occasions, this court has overruled important constitutional decisions. And
• 27:52
  Speaker 5: then in a footnote that spans three pages, lists a
• 27:54
  Speaker 5: bunch of them. Again, as we've said, None of those
• 27:58
  Speaker 5: examples involve overruling a case that recognize a constitutional right
• 28:02
  Speaker 5: that is so fundamental and integral to people's ability to
• 28:05
  Speaker 5: participate equally in society.
• 28:08
  Speaker 3: But no matter.
• 28:09
  Speaker 1: Ladies, you're good on voting, right? You can participate in
• 28:12
  Speaker 1: the electoral process. You have no problem running for president
• 28:16
  Speaker 1: and being elected into office. You're well represented. So this
• 28:20
  Speaker 1: is of no moment. You don't need this for equality.
• 28:23
  Speaker 1: This is all good.
• 28:25
  Speaker 4: Yep.
• 28:26
  Speaker 5: The opinion... proudly announced that women are not without electoral
• 28:30
  Speaker 5: or political power.
• 28:31
  Speaker 1: So feminism solved. Check. Check. In addition to the big
• 28:39
  Speaker 1: abortion exceptionalism energy, this also had some interesting American exceptionalism energy.
• 28:45
  Speaker 1: So at one point, Justice Alito seemed to be suggesting
• 28:48
  Speaker 1: that abortion is what North Koreans do, not what Americans do.
• 28:52
  Speaker 1: So He notes that to support this act, the legislature
• 28:56
  Speaker 1: made a series of factual findings. It began by noting
• 28:59
  Speaker 1: that at the time of enactment, only six countries besides
• 29:02
  Speaker 1: the United States permitted non-therapeutic or elective abortion on demand
• 29:06
  Speaker 1: after the 20th week of gestation. And according to the footnote,
• 29:10
  Speaker 1: those other six countries were Canada, noted autocracy, China, the Netherlands, again,
• 29:15
  Speaker 1: another autocracy, North Korea, Singapore, and Vietnam.
• 29:19
  Speaker 3: Yeah.
• 29:20
  Speaker 5: This is might have been aimed at persuading the chief justice,
• 29:24
  Speaker 5: who also suggested at oral argument the United States was
• 29:27
  Speaker 5: unique in allowing abortion access. Although since this Politico story broke,
• 29:36
  Speaker 5: CNN has reported that this doesn't really seem to have
• 29:40
  Speaker 5: persuaded the chief justice yet. So CNN reported that the
• 29:45
  Speaker 5: chief justice does not want to completely overrule Roe and
• 29:49
  Speaker 5: might be dissenting from Justice Alito's draft opinion.
• 29:52
  Speaker 1: He just wants a little overturning.
• 29:54
  Speaker 4: Subtle.
• 29:54
  Speaker 1: Right.
• 29:55
  Speaker 5: This opinion has a subtlety of like a drunk large
• 29:58
  Speaker 5: bull in a try shop.
• 30:00
  Speaker 1: The chief justice wants a black dress. Justice Alito is like,
• 30:03
  Speaker 1: now bitches, we're wearing sequins. We're doing a whole ball gown.
• 30:07
  Speaker 5: Justice Alito's opinion is like the J-Lo 2000 Grammys Versace dress.
• 30:12
  Speaker 5: Like all the way to all the boobies hanging out.
• 30:17
  Speaker 1: That is this opinion. Like ironically enough, like a dress
• 30:20
  Speaker 1: cut all the way to someone's pubic area is very ironic. Um,
• 30:26
  Speaker 1: Trolling again.
• 30:29
  Speaker 5: Speaking of subtlety, Justice Alito's draft heavily references English legal precedent,
• 30:34
  Speaker 5: including that of famed jurist Sir Matthew Hale, who it
• 30:38
  Speaker 5: should be noted, sentenced at least to death. women to
• 30:41
  Speaker 5: death for witchcraft, and also wrote a treatise supporting marital rape.
• 30:47
  Speaker 5: This citation is in many ways emblematic of the opinion's
• 30:50
  Speaker 5: utter lack of concern for women. You know, the conceit
• 30:52
  Speaker 5: that regulating abortion was for the safety and health of
• 30:54
  Speaker 5: the mother. That's gone.
• 30:56
  Speaker 1: Just wait. Witchcraft is going to be in there any day.
• 30:59
  Speaker 1: We can restrict abortion because they're witches.
• 31:02
  Speaker 5: Yep. Because Sir Matthew Hale. Boom, lawyered.
• 31:07
  Speaker 1: So there are also some really interesting language choices. Usually this,
• 31:11
  Speaker 1: I think, comes across most strongly in Justice Thomas's opinions. He,
• 31:15
  Speaker 1: rather than referring to abortion providers as providers or physicians,
• 31:18
  Speaker 1: will refer to them as abortionists. But Justice Alito, because
• 31:22
  Speaker 1: he's writing for multitudes, adopted this same kind of language here.
• 31:27
  Speaker 1: So again, the use of abortionists throughout the opinion was
• 31:31
  Speaker 1: rather striking and a little jarring.
• 31:34
  Speaker 3: It's killing me, but I'm going to hop off here
• 31:36
  Speaker 3: because my connection is so unstable.
• 31:39
  Speaker 6: But you guys are going to get.
• 31:40
  Speaker 3: To the bottom of this, right?
• 31:41
  Speaker 1: We are going to get to the bottom of this.
• 31:43
  Speaker 6: And I'm going to send you my road measurements just
• 31:45
  Speaker 6: like offline.
• 31:47
  Speaker 1: Call us when you reach Canada.
• 31:50
  Speaker 6: Or wherever I'm headed.
• 31:52
  Speaker 4: Or wherever.
• 31:52
  Speaker 6: Okay. Bye, Kate.
• 31:54
  Speaker 4: All right.
• 31:55
  Speaker 6: Stay strong, everyone.
• 31:56
  Speaker 1: Follow the North Star, Kate.
• 31:59
  Speaker 3: All right.
• 31:59
  Speaker 1: Is it time for rank rumor-wrongering and speculation?
• 32:02
  Speaker 6: Is it that time?
• 32:03
  Speaker 4: Oh, yeah.
• 32:03
  Speaker 5: It's time. Okay.
• 32:04
  Speaker 1: It's time. The million dollar question. Who leaked this?
• 32:09
  Speaker 5: I mean, what's interesting is I feel like when this
• 32:11
  Speaker 5: initially broke, there were questions about, is this real? And
• 32:16
  Speaker 5: my intuition immediately was yes. Like the circulation stamp on it, right,
• 32:20
  Speaker 5: was very real. The political reporters were very confident about this.
• 32:23
  Speaker 5: The content of the opinion was what it would be.
• 32:25
  Speaker 5: And now it's basically been confirmed since the Supreme Court
• 32:29
  Speaker 5: and the Chief Justice have issued a statement that a
• 32:33
  Speaker 5: news organization published a copy of a draft opinion in
• 32:35
  Speaker 5: a pending case. And this betrayal of the confidences of
• 32:39
  Speaker 5: the court is what the statement says. So that seems
• 32:42
  Speaker 5: to acknowledge that this is real. And it says he
• 32:45
  Speaker 5: has directed the marshal of the court to launch an
• 32:47
  Speaker 5: investigation into the.
• 32:48
  Speaker 1: Source of the leak. So it's real. This is a
• 32:52
  Speaker 1: singular and egregious breach of that trust that is an
• 32:55
  Speaker 1: affront to the court and the community of public servants
• 32:57
  Speaker 1: who work here. This is real institutionalist energy.
• 33:02
  Speaker 5: Yeah, which is utterly absent in the draft opinion that
• 33:07
  Speaker 5: we saw.
• 33:09
  Speaker 1: We're getting ahead of ourselves. First of all, the court
• 33:11
  Speaker 1: is not a place where people talk out of turn
• 33:13
  Speaker 1: about deliberations. No.
• 33:16
  Speaker 5: I mean, there has never been a leak of a
• 33:19
  Speaker 5: draft opinion by the Supreme Court, to my knowledge, in
• 33:23
  Speaker 5: a case. I mean, almost all the time, reporters and
• 33:26
  Speaker 5: commentators are forced to look for breadcrumbs and.
• 33:30
  Speaker 1: Read tea leaves. That's what we do. That's what we've been.
• 33:33
  Speaker 5: Doing about what might be happening in these cases. The
• 33:35
  Speaker 5: idea that an actual draft opinion leaked is unheard of
• 33:40
  Speaker 5: and unprecedented. You know, the court operates under this veil
• 33:43
  Speaker 5: of secrecy and confidentiality in which its deliberations are not
• 33:46
  Speaker 5: supposed to leak. Now, sometimes there have been leaks. In fact,
• 33:49
  Speaker 5: there have been leaks surrounding the court's abortion cases after Casey,
• 33:54
  Speaker 5: you know, reports emerged that the initial vote at conference
• 33:58
  Speaker 5: was to overrule Roe versus Wade. And it later came
• 34:01
  Speaker 5: out that Justice Kennedy had changed his vote in that case.
• 34:05
  Speaker 5: But that's different than it coming out before the final opinion.
• 34:10
  Speaker 1: And to be clear, even when there are those sort
• 34:12
  Speaker 1: of post-mortem leaks, they are dealt with and sanctioned and
• 34:17
  Speaker 1: not in a formal way, but like usually informal shunning.
• 34:19
  Speaker 1: So remember when Eddie Lazarus wrote that book, Closed Chambers,
• 34:22
  Speaker 1: that sort of detailed the kind of sturm und drang
• 34:25
  Speaker 1: of the court's deliberation over capital punishment. Lazarus was a
• 34:29
  Speaker 1: Blackmun clerk at the time. He published this book after
• 34:33
  Speaker 1: his clerkship, and I think he's been ostracized from Supreme
• 34:37
  Speaker 1: Court circles. So I mean, even if there's no sort
• 34:40
  Speaker 1: of formal action, there is informal shunning. Like the norms
• 34:43
  Speaker 1: around this sort of omerta are really, really strong. So
• 34:47
  Speaker 1: when this happened, like when I say people were shooketh,
• 34:50
  Speaker 1: they were shooketh because this is not supposed to happen.
• 34:53
  Speaker 5: This never happens. But again, going back to examples, this
• 34:57
  Speaker 5: actually happened in the lead up to Roe, where the
• 35:00
  Speaker 5: Washington Post was able to break a story about how
• 35:04
  Speaker 5: when the court was initially deciding to hear challenges to
• 35:08
  Speaker 5: restrictive abortion laws, then Chief Justice Berger, who was in
• 35:12
  Speaker 5: the minority, exercised the power to assign the opinion, which
• 35:15
  Speaker 5: isn't typically done when you're in the minority rather than
• 35:19
  Speaker 5: the majority, and that that ended up delaying, you know,
• 35:21
  Speaker 5: the resolution of the case until the next term. That
• 35:25
  Speaker 5: was itself a huge deal. But again, there was never
• 35:28
  Speaker 5: an opinion. Exactly. Never a draft opinion that has leaked.
• 35:33
  Speaker 5: And so the question is, is like, who would do this?
• 35:36
  Speaker 1: Who would risk it all? Risk it all. Yes. Who would?
• 35:40
  Speaker 6: Okay.
• 35:40
  Speaker 1: So let's go through the suspects.
• 35:44
  Speaker 3: All right.
• 35:44
  Speaker 1: So let's go backwards. Like, from least likely in our
• 35:48
  Speaker 1: view to most likely, right?
• 35:50
  Speaker 5: Okay.
• 35:50
  Speaker 1: So there was a lot of chatter on conservative Twitter
• 35:54
  Speaker 1: that this was obviously the work of liberal firebrand Sonia Sotomayor,
• 35:58
  Speaker 1: like she did this. And I have to say, I'm
• 36:01
  Speaker 1: not really understanding the strategy because releasing this now, I think,
• 36:06
  Speaker 1: possibly could galvanize public opinion around the abortion question. But
• 36:11
  Speaker 1: If the public was not bestirred to go petition the
• 36:14
  Speaker 1: court and protest in front of the court around SB8,
• 36:17
  Speaker 1: I don't know how this changes anything. And more importantly,
• 36:20
  Speaker 1: it's so far away from the midterm elections that I
• 36:23
  Speaker 1: don't know that you get the kind of political payoff
• 36:26
  Speaker 1: that you were hoping for. It's better for the dissenters
• 36:29
  Speaker 1: for this to get released in the normal fashion in
• 36:31
  Speaker 1: June with the other opinions and have it be a
• 36:33
  Speaker 1: huge bombshell in June. Yeah, and also the dissenters, are
• 36:38
  Speaker 1: constantly forced to be in this position where they're like
• 36:41
  Speaker 1: begging the conservatives for like a footnote suggesting that this
• 36:45
  Speaker 1: opinion will not be the end of the world. They
• 36:47
  Speaker 1: don't have the ability and wouldn't risk it all to
• 36:52
  Speaker 1: do this given, again, the extent of compromise that they
• 36:56
  Speaker 1: have to engage in. And I also just think it's
• 37:00
  Speaker 1: unlikely that they would have leaked it now. Like if
• 37:02
  Speaker 1: they thought the country needed to know that the court
• 37:04
  Speaker 1: was going to overrule Roe, Why would they have leaked
• 37:06
  Speaker 1: it at the end of February when the opinion was circulated?
• 37:08
  Speaker 1: I don't think that possibility makes a ton of sense.
• 37:11
  Speaker 2: Right.
• 37:11
  Speaker 1: So that's off the table.
• 37:15
  Speaker 5: Rejected.
• 37:15
  Speaker 6: Rejected.
• 37:16
  Speaker 1: So then I think this is a more intriguing possibility.
• 37:20
  Speaker 1: The chief justice was the one who leaked it. He
• 37:22
  Speaker 1: was the one at oral argument who seemed most intent
• 37:24
  Speaker 1: on brokering this third way compromise. That's really not a
• 37:27
  Speaker 1: compromise at all. It's just saying the quiet part quietly.
• 37:31
  Speaker 1: He would have preferred to uphold the Mississippi law while
• 37:34
  Speaker 1: stopping short of overruling Roe and Casey. And perhaps he
• 37:39
  Speaker 1: floated this as a trial balloon to gauge public opinion
• 37:42
  Speaker 1: to persuade another justice to join him and the liberals
• 37:46
  Speaker 1: to form a sort of hasty majority or alternatively to
• 37:49
  Speaker 1: persuade the majority to temper this absolutist fakakta opinion a
• 37:54
  Speaker 1: little bit. That's a little more plausible, but again, the
• 37:58
  Speaker 1: guy who released this statement talking about the good people
• 38:02
  Speaker 1: of the court's ecosystem is not the one who's going
• 38:04
  Speaker 1: to breach this longstanding norm of institutional omerta.
• 38:08
  Speaker 5: No way, especially when he has been the one to
• 38:11
  Speaker 5: allow institutional considerations to affect some of his ultimate decisions.
• 38:17
  Speaker 5: And I don't think he would view a compromise of
• 38:19
  Speaker 5: that institutional norm as an appropriate thing to do, even
• 38:22
  Speaker 5: if he thought it might achieve some you know, good
• 38:27
  Speaker 5: purpose down the road.
• 38:28
  Speaker 1: So, okay. So let's just, before we get to who
• 38:30
  Speaker 1: it could be, there were so many tweets like attributing
• 38:34
  Speaker 1: this to the radical left, like Leader McConnell said that
• 38:37
  Speaker 1: this was yet another escalation in the radical left's ongoing
• 38:40
  Speaker 1: campaign to bully and intimidate federal judges and substitute mob
• 38:43
  Speaker 1: rule for the rule of law. This is the point
• 38:46
  Speaker 1: in Twitter where I hope someone posted a picture of
• 38:48
  Speaker 1: the January 6th insurrection and was like, this you?
• 38:51
  Speaker 6: This your mob?
• 38:52
  Speaker 5: Yeah.
• 38:53
  Speaker 1: Anyway, and then the Federalists not to be outdone. Meghan
• 38:56
  Speaker 1: McCain's husband chimed in with, the SCOTUS abortion decision leak
• 39:00
  Speaker 1: is what actual treasonous insurrection looks like. I don't think so,
• 39:03
  Speaker 1: my guy. I think actual treasonous insurrection looks like actual
• 39:07
  Speaker 1: treasonous insurrection. And then SCOTUS blog underscored that this was
• 39:11
  Speaker 1: a grave, almost unforgivable sin. Perhaps a bit hyperbolic, but yeah.
• 39:17
  Speaker 6: Yeah.
• 39:19
  Speaker 5: Focusing on how like the leak is a destruction of
• 39:23
  Speaker 5: the court and the problem, you know, is a take
• 39:26
  Speaker 5: when this opinion is about to have like depth. effects
• 39:31
  Speaker 5: on people's access to health care and their lives given
• 39:33
  Speaker 5: shockingly high maternal mortality rates, especially among, you know, women
• 39:37
  Speaker 5: of color.
• 39:38
  Speaker 1: I mean, this is a take. CBS said that the
• 39:41
  Speaker 1: Chief Justice was going to launch a full investigation, which
• 39:43
  Speaker 1: totally reminded me of that time when the British royal
• 39:46
  Speaker 1: family wanted to launch a full investigation of whether someone
• 39:49
  Speaker 1: in the family had questioned the complexion of Harry and
• 39:51
  Speaker 1: Meghan's son, Archie. And then nothing happened.
• 39:54
  Speaker 6: It's like the.
• 39:55
  Speaker 5: Guy in the hot dog suit saying, we're all trying
• 39:58
  Speaker 5: to find the guy who did this.
• 40:00
  Speaker 1: But we're not.
• 40:02
  Speaker 4: No.
• 40:03
  Speaker 5: But that brings us around to, like, another possibility, which
• 40:06
  Speaker 5: is someone in the majority.
• 40:08
  Speaker 1: Okay, so this, I think, Leah— this would be some tea.
• 40:12
  Speaker 5: This would be some tea. And why might that have happened? Well,
• 40:16
  Speaker 5: think about the tweets that you just read, Melissa. I mean,
• 40:20
  Speaker 5: doing it now, right, is partially deflecting people's attention from
• 40:25
  Speaker 5: the horror and the institutional impropriety of overruling Roe and
• 40:31
  Speaker 5: having them focus on the leak And also minimizing the
• 40:36
  Speaker 5: anger and surprise when this actually happens at the end
• 40:40
  Speaker 5: of June.
• 40:41
  Speaker 1: Like a few months before the midterm elections where it
• 40:44
  Speaker 1: could actually.
• 40:45
  Speaker 5: Be really damaging. So that we're like numbed by the
• 40:48
  Speaker 5: point it actually happens.
• 40:49
  Speaker 1: So there's that. So I like that energy. It's also
• 40:53
  Speaker 1: worth noting that I think last week, and we talked
• 40:55
  Speaker 1: about this in our most recent episode, there was some
• 40:57
  Speaker 1: Wall Street Journal reporting that one of the justices, one
• 41:00
  Speaker 1: of the conservatives was sort of wobbly and perhaps was
• 41:03
  Speaker 1: thinking about joining the chief justice. So, you know, that
• 41:07
  Speaker 1: timing I don't think is coincidental.
• 41:09
  Speaker 5: No. It could be basically a shot across the bow
• 41:13
  Speaker 5: and a warning to a possible defector that like, you
• 41:16
  Speaker 5: better hold the line or everyone is going to know
• 41:18
  Speaker 5: that you're the one who jumped ship.
• 41:21
  Speaker 1: And that I think is really important because like, you
• 41:23
  Speaker 1: need to hold this hard line. The conservative legal movement
• 41:26
  Speaker 1: has basically been hunting this white whale for 30 years,
• 41:29
  Speaker 1: and you're not going to be the one to mess
• 41:33
  Speaker 1: it up for us. Like, you better get on side
• 41:36
  Speaker 1: or you're going to get the chief justice in the
• 41:39
  Speaker 1: Obamacare case treatment, which is to say, we are going
• 41:42
  Speaker 1: to pillory you.
• 41:44
  Speaker 3: Yeah.
• 41:44
  Speaker 5: And also just step back and ask yourself, who has
• 41:46
  Speaker 5: played more constitutional hardball about the Supreme Court? Has it
• 41:49
  Speaker 5: been the left? Justice Breyer? Justice Sotomayor? Justice Kagan? Methinks not, right?
• 41:58
  Speaker 5: Or has it been The legal right.
• 42:01
  Speaker 1: I mean, I think this was a clear threat to
• 42:04
  Speaker 1: whoever this wobbly justice is. This justice who may be
• 42:06
  Speaker 1: thinking of defecting that you defect and you sleep with
• 42:09
  Speaker 1: the squishes.
• 42:11
  Speaker 5: Yeah.
• 42:12
  Speaker 6: No.
• 42:12
  Speaker 5: I mean, the justice who's saying, well, you know, maybe, Sam,
• 42:15
  Speaker 5: we shouldn't suggest that people who favor abortion rights are Nazis.
• 42:19
  Speaker 5: Could you take that footnote out?
• 42:20
  Speaker 1: I will not.
• 42:21
  Speaker 5: And Sam is like, why are you going soft? And that's... Yeah,
• 42:26
  Speaker 5: a possibility.
• 42:26
  Speaker 1: So can we also entertain some wildly conspiratorial theories? Oh, yeah. Oh, yeah.
• 42:32
  Speaker 1: What if Justice Breyer accidentally left this on the Metro
• 42:35
  Speaker 1: by mistake?
• 42:37
  Speaker 5: You know, that is a possibility. He's got senioritis.
• 42:42
  Speaker 1: You never know. He's counting down the days.
• 42:46
  Speaker 5: It fell out of his backpack. Hard to say.
• 42:49
  Speaker 1: His fjallraven. He's a VSCO girl.
• 42:50
  Speaker 3: Right.
• 42:52
  Speaker 5: Honestly, if it hasn't happened during the first 28 years...
• 42:54
  Speaker 5: That's true.
• 42:55
  Speaker 1: That's true. He's keeping it together. So it's not... I
• 42:57
  Speaker 1: don't think it's... Right. Okay, another wildly conspiratorial possibility. What
• 43:03
  Speaker 1: if it was Ginny Thomas? Because this whole story has
• 43:08
  Speaker 1: completely eclipsed any rumblings about Ginny Thomas' quote-unquote textualism with
• 43:14
  Speaker 1: Mark Meadows. It's completely eviscerated any discussion of recusals, any
• 43:20
  Speaker 1: kind of interest in reforming the court's ethics rules. And
• 43:26
  Speaker 1: it has the double achievement of actually getting what the
• 43:30
  Speaker 1: conservative legal movement has wanted for 30 years. So it's
• 43:33
  Speaker 1: a win for her, it's a win for her husband,
• 43:35
  Speaker 1: and it's a win for her and her husband and
• 43:37
  Speaker 1: the whole conservative legal movement. Am I wrong?
• 43:41
  Speaker 5: I mean, you're not wrong.
• 43:42
  Speaker 1: I'm just speculating. Like, let me just be clear. I
• 43:45
  Speaker 1: don't know.
• 43:46
  Speaker 5: It is. The counter evidence or the competing consideration for
• 43:49
  Speaker 5: me is Would Ginny Thomas be able to engage with
• 43:54
  Speaker 5: a lamestream media reporter and actually hand them a copy
• 43:58
  Speaker 5: of the opinion?
• 43:59
  Speaker 1: What if it was like Lady Whistledown and she dressed
• 44:02
  Speaker 1: like she sent Penelope Featherington in a maid's costume to
• 44:06
  Speaker 1: do this?
• 44:07
  Speaker 5: Okay. So that is a possibility that I hadn't thought of.
• 44:11
  Speaker 1: Again, we have no idea. But I mean, the possibilities
• 44:14
  Speaker 1: are kind of amazing. They are.
• 44:19
  Speaker 5: But I think it provokes, you know, the question that
• 44:24
  Speaker 5: I'm sure everyone has been feeling some version of or
• 44:28
  Speaker 5: having some version of since 8.30-ish last night, which is, like,
• 44:33
  Speaker 5: now what? Like, what does this leak mean for the
• 44:36
  Speaker 5: ultimate decision? What does it mean for the institution of
• 44:38
  Speaker 5: the court? Like, what does it mean for people who
• 44:40
  Speaker 5: care about reproductive rights and justice?
• 44:44
  Speaker 1: Well, can we come.
• 44:45
  Speaker 6: Back to that?
• 44:45
  Speaker 1: Like, Why now for that? I have been operating in
• 44:48
  Speaker 1: a post-Roe landscape for probably two years. Where have y'all been?
• 44:53
  Speaker 1: Roe is a nullity for most people. It's certainly been
• 44:57
  Speaker 1: a nullity in Texas. I get it, but this wasn't
• 45:01
  Speaker 1: the wake-up call. The wake-up call was two years ago.
• 45:05
  Speaker 5: I think that that's right, but I also think it
• 45:08
  Speaker 5: is going to be a dramatic shift to when these
• 45:13
  Speaker 5: criminal abortion bans are suddenly on the books. And there's
• 45:17
  Speaker 5: real uncertainty in some states about whether they're going to
• 45:20
  Speaker 5: be enforced and so on. So I agree that, of course,
• 45:24
  Speaker 5: the court has been whittling the right to abortion down.
• 45:27
  Speaker 5: I also agree that this was eminently foreseeable after the
• 45:32
  Speaker 5: 2016 election and especially after Justice Ginsburg was replaced by
• 45:36
  Speaker 5: Justice Barrett. It's intellectually unsurprising, but it's still really... upsetting
• 45:47
  Speaker 5: because even though, you know, I predicted this would happen,
• 45:51
  Speaker 5: it doesn't change the fact that I still feel like
• 45:57
  Speaker 5: so much rage at it actually happening and how we
• 46:01
  Speaker 5: got here.
• 46:03
  Speaker 1: So I don't know. Yeah, I mean, I don't feel rage, surprisingly.
• 46:09
  Speaker 1: And I was talking to some other Black women in
• 46:12
  Speaker 1: like a chat and like one of them said this
• 46:13
  Speaker 1: and I thought it was incredibly She's like, I've been
• 46:18
  Speaker 1: ready because I didn't want to have to get ready.
• 46:21
  Speaker 1: And I think that's right. I think that there are
• 46:23
  Speaker 1: those for whom this has been a reality for a
• 46:26
  Speaker 1: really long time and they've wrapped their minds around it.
• 46:29
  Speaker 1: And so this is just sort of a final capstone,
• 46:33
  Speaker 1: like a true final fuck you from the court. But
• 46:37
  Speaker 1: I get it. I get that there are people who
• 46:39
  Speaker 1: are holding out hope. I mean, I don't even want
• 46:41
  Speaker 1: to know what our poor little optimist is doing on
• 46:43
  Speaker 1: the bus on her way to Canada. I know.
• 46:44
  Speaker 5: I know. I know.
• 46:47
  Speaker 1: Wish we could wrap her in a strict scrutiny sweatshirt,
• 46:50
  Speaker 1: give her a hug. Yeah, I know.
• 46:54
  Speaker 5: Maybe we need swaddling onesies as our merch.
• 46:57
  Speaker 1: Swaddle cloths, like our new merch for your newborn or
• 47:01
  Speaker 1: for you.
• 47:01
  Speaker 5: Yeah, for your new newborn that you will be forced
• 47:04
  Speaker 5: to have or for you as you live in a
• 47:06
  Speaker 5: world without constitutional rights. But again, now what?
• 47:12
  Speaker 1: We got to organize. Yes. So what does that look like?
• 47:15
  Speaker 1: What does it look like to organize?
• 47:17
  Speaker 5: I mean, it's important to underscore that this capstone achievement
• 47:20
  Speaker 5: of the conservative legal movement, overruling Roe, was a product
• 47:24
  Speaker 5: of a decades-long fight that focused a lot on obtaining
• 47:28
  Speaker 5: state political power, that focused a lot on using all
• 47:32
  Speaker 5: of the levers of political power to the maximum extent,
• 47:36
  Speaker 5: playing hardball. And focusing on the courts. Like, those are
• 47:40
  Speaker 5: all things that.
• 47:41
  Speaker 1: Also focusing on keeping people out of the ballot box.
• 47:44
  Speaker 1: I mean, you don't get laws like HB 1510 or
• 47:48
  Speaker 1: SB 8 unless you've gerrymandered the political process to get
• 47:52
  Speaker 1: a totally red legislature. And you insulate yourself from any
• 47:57
  Speaker 1: objections because people can't get to the ballot box to
• 48:00
  Speaker 1: express their outrage. So... Yeah. I said something like this
• 48:04
  Speaker 1: last night, and there were a whole bunch of, like,
• 48:06
  Speaker 1: you know... people way on the left, what the F
• 48:10
  Speaker 1: has voting rights done for us so far? Congress hasn't
• 48:14
  Speaker 1: passed anything to protect the vote. And it's understandable. I
• 48:17
  Speaker 1: get that. But we haven't had a full supermajority in
• 48:21
  Speaker 1: the Senate to be able to do any of these things.
• 48:24
  Speaker 1: I get it. I'm cynical too. But what else is
• 48:29
  Speaker 1: there besides trying to secure the right to vote and
• 48:32
  Speaker 1: actually getting out there voting, treating the midterms not like
• 48:35
  Speaker 1: it's already lost and a fait accompli, but like something
• 48:38
  Speaker 1: that we can actually get behind and move.
• 48:41
  Speaker 5: No, I think that that's right. I think everyone should
• 48:44
  Speaker 5: remember like how they felt at 8.38 or so p.m.
• 48:48
  Speaker 5: Monday night and apply that through November afterwards, sustain it
• 48:56
  Speaker 5: as long as you can, figure out what you need
• 48:58
  Speaker 5: to do to keep that energy going, you know, for
• 49:01
  Speaker 5: the decades that it is going to take to unwind
• 49:03
  Speaker 5: the damage that is going to be done to our country.
• 49:06
  Speaker 5: And I think you're absolutely right that a big part
• 49:08
  Speaker 5: of this is going to be securing voting rights if
• 49:11
  Speaker 5: these laws aren't possible in a world in which politicians
• 49:15
  Speaker 5: are actually accountable to the people.
• 49:18
  Speaker 1: Niko Bowie had a great tweet last night about the
• 49:20
  Speaker 1: Women's Health Protection Act, which is pending in Congress. It's
• 49:23
  Speaker 1: been passed by the House. It's probably unlikely to get
• 49:26
  Speaker 1: passed by the Senate, but it would codify Roe and
• 49:29
  Speaker 1: Casey's protections. I'm unclear what that means in a world
• 49:33
  Speaker 1: where Roe doesn't exist, but you've got a good five weeks.
• 49:39
  Speaker 5: But of course, it's still worth doing something, not giving up.
• 49:48
  Speaker 5: There are going to be state court cases and state
• 49:50
  Speaker 5: laws that can be changed.
• 49:53
  Speaker 1: You can donate to abortion funds. People are going to
• 49:55
  Speaker 1: have to be traveling out of state for abortion care.
• 49:58
  Speaker 1: You can be alert, because if you don't think that
• 50:01
  Speaker 1: a broader national campaign to nationalize this decision isn't coming,
• 50:08
  Speaker 1: you're delusional. That's definitely coming. Fetal personhood is coming. So
• 50:14
  Speaker 1: like Mad-Eye Moody, constant vigilance.
• 50:18
  Speaker 6: Exactly.
• 50:21
  Speaker 1: So this is sort of better than I thought it
• 50:24
  Speaker 1: would be. Like I'd been gearing up for this. Not
• 50:27
  Speaker 1: quite like this. I didn't expect it to be leaked
• 50:29
  Speaker 1: as a draft, but I knew we'd be doing this.
• 50:32
  Speaker 1: I'm glad we did this together.
• 50:33
  Speaker 5: Yes.
• 50:35
  Speaker 1: I wish Kate hadn't been on a bus. It felt
• 50:38
  Speaker 1: a little too on the nose for her to be
• 50:40
  Speaker 1: going to Canada.
• 50:41
  Speaker 3: Yes.
• 50:42
  Speaker 5: But, you know, on the other hand, we'll be doing
• 50:44
  Speaker 5: this again at the end of June or the beginning
• 50:46
  Speaker 5: of July. So there will be another opportunity.
• 50:49
  Speaker 1: This is just a draft. Exactly. This is just a draft.
• 50:52
  Speaker 1: An absolutist draft episode.
• 50:54
  Speaker 5: I'm sure it will be softened around the edges. That's
• 50:57
  Speaker 5: probably all we have time for.
• 50:59
  Speaker 1: Like, we have to have a call to arms, Leah. Like,
• 51:02
  Speaker 1: I mean– let's fucking go. Let's do this. We don't
• 51:06
  Speaker 1: have to go gently into this good night.
• 51:08
  Speaker 5: No, we don't. And I think it is worth thinking about, one,
• 51:12
  Speaker 5: what can you do? And two, what can you do
• 51:15
  Speaker 5: to sustain yourself so you can keep doing that and
• 51:17
  Speaker 5: many other things for the foreseeable future? I personally consumed
• 51:23
  Speaker 5: a lot of chocolate this morning and throughout the day,
• 51:26
  Speaker 5: so I could keep going today. And I will be
• 51:29
  Speaker 5: figuring out how I can help support, you know, our
• 51:34
  Speaker 5: state attorney general campaign. So Dana Nessel stays in office
• 51:38
  Speaker 5: rather than the prosecutor who has pledged to enforce, you know,
• 51:41
  Speaker 5: Michigan's criminal abortion ban. And there are many other things
• 51:46
  Speaker 5: you can do. And again, like they seem like they're
• 51:48
  Speaker 5: maybe not going to make a difference, but It's so
• 51:52
  Speaker 5: important to keep in mind like all of the little
• 51:54
  Speaker 5: things that the conservative legal movement had to do focusing
• 51:56
  Speaker 5: on state elections, local power.
• 51:58
  Speaker 1: School boards. School boards.
• 52:00
  Speaker 5: Yeah. In order to build up the capital and the
• 52:04
  Speaker 5: power and the infrastructure and using all of the levers
• 52:08
  Speaker 5: of political power to get what they want. And this
• 52:11
  Speaker 5: is not over.
• 52:12
  Speaker 1: We'll be back.
• 52:15
  Speaker 5: Strict Scrutiny is a Crooked Media production hosted and executive
• 52:19
  Speaker 5: produced by Melissa Murray, Kate Shaw, and me, Leah Littman,
• 52:24
  Speaker 5: produced and edited by Melody Rowell, with audio engineering by
• 52:27
  Speaker 5: Kyle Seglin, music by Eddie Cooper, production support from Michael Martinez,
• 52:31
  Speaker 5: Sandy Gerard, Elijah Cohn, and Ari Schwartz, and digital support
• 52:35
  Speaker 5: from Amelia Montooth. And thanks to Andrew Chadwick for stepping
• 52:38
  Speaker 5: in to emergency produce this episode since The opinion leaked
• 52:42
  Speaker 5: while Melody is out of town.
• 52:43
  Speaker 1: Thanks, Sam. Yeah, seriously, what a dick.
• 52:48
  Speaker 5: If you're looking to do something right now, you can
• 52:50
  Speaker 5: go to votesaveamerica.com slash row to donate to more than
• 52:55
  Speaker 5: 80 local abortion funds and keep an eye out for
• 52:57
  Speaker 5: more actions to take from Vote Save America.