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“Roe Is Dead. Now What?” (Strict Scrutiny Emergency Episode) · Pod Save America

• 0:00
  Speaker 1: Hey everyone. This morning, the U.S. Supreme Court struck down
• 0:04
  Speaker 1: Roe v. Wade, which means there is no longer a
• 0:07
  Speaker 1: constitutional right to an abortion in this country. In light
• 0:11
  Speaker 1: of this unconscionable decision, we're running a special episode of
• 0:14
  Speaker 1: Crooked's legal podcast, Strict Scrutiny. Leah Littman, Kate Shaw, and
• 0:19
  Speaker 1: Melissa Murray will break down everything you need to know
• 0:21
  Speaker 1: about this decision and how it affects you. If you're
• 0:25
  Speaker 1: crushed and enraged today, you're not alone. The vast majority
• 0:29
  Speaker 1: of Americans oppose criminalizing abortion, and that majority will need
• 0:33
  Speaker 1: to stay in the fight in the weeks and months
• 0:35
  Speaker 1: to come. Because this battle isn't over. The 2022 midterms
• 0:40
  Speaker 1: will decide whether abortion remains legal in states representing millions
• 0:44
  Speaker 1: of Americans. And we'll talk more about how to win
• 0:47
  Speaker 1: that fight on Pod Save America. If you want to
• 0:50
  Speaker 1: take action right now, you can go to votesaveamerica.com slash row,
• 0:55
  Speaker 1: where we have the Fuck Bans Action Plan hub and
• 0:57
  Speaker 1: our Fight Back Fund. With that, I leave you with
• 1:01
  Speaker 1: the voices of a few people who went to the
• 1:03
  Speaker 1: steps of the Supreme Court immediately after this decision was
• 1:06
  Speaker 1: announced to make themselves heard, followed by this very important
• 1:10
  Speaker 1: episode of Strict Scrutiny.
• 1:12
  Speaker 2: It's a decision on demand.
• 1:14
  Speaker 3: I can't stop crying. I can't believe it. My daughters
• 1:17
  Speaker 3: are out here fighting for the same thing my mom
• 1:20
  Speaker 3: fought for. I'm so sad. It's, I don't know, it's
• 1:23
  Speaker 3: just scary.
• 1:24
  Speaker 4: Just like wake up to like a news notification that Like,
• 1:27
  Speaker 4: it just seems so apocalyptic, but it's like not surprising,
• 1:29
  Speaker 4: and that's the saddest part.
• 1:31
  Speaker 3: It's just so hard to watch.
• 1:34
  Speaker 4: People like care so much and then like on the
• 1:36
  Speaker 4: other side just like a bunch of young white boys
• 1:38
  Speaker 4: like running around with pro-life feminist signs like as if
• 1:40
  Speaker 4: they have any idea what they're talking about or like
• 1:42
  Speaker 4: actually care at all.
• 1:44
  Speaker 3: It's just so sick. It's like I hate it. I
• 1:47
  Speaker 3: immigrated to this country from Iran and I feel really
• 1:50
  Speaker 3: helpless and I keep saying to myself is this America?
• 1:55
  Speaker 3: Is this the United States?
• 1:56
  Speaker 5: I am the generation that grew up when abortion was illegal.
• 2:00
  Speaker 5: I have friends that use coat hangers and sat in
• 2:04
  Speaker 5: weird stuff in bathtubs to abort.
• 2:07
  Speaker 3: This is a disgrace.
• 2:09
  Speaker 4: I'm pretty scared, especially like all my friends are going
• 2:12
  Speaker 4: off to college in Kansas, Arkansas, and all those places
• 2:16
  Speaker 4: where I feel like They're not going to be safe
• 2:19
  Speaker 4: if something happens to them and.
• 2:21
  Speaker 3: They need an abortion.
• 2:22
  Speaker 4: So I'm just scared and pissed right now.
• 2:24
  Speaker 6: I knew this was coming, but nothing can prepare you
• 2:26
  Speaker 6: for the feeling of the state telling women that they
• 2:29
  Speaker 6: have no right to their bodies.
• 2:31
  Speaker 7: And it is just the.
• 2:32
  Speaker 3: Beginning if we don't stop it.
• 2:33
  Speaker 7: So I'm furious.
• 2:35
  Speaker 6: I am heart sick, and I am so determined to
• 2:38
  Speaker 6: wake people up across this country to come into these
• 2:40
  Speaker 6: streets and not let this stand. You need to get
• 2:43
  Speaker 6: your ass in the streets now, not for a day
• 2:46
  Speaker 6: to let off steam, but again and again, like the
• 2:48
  Speaker 6: women did in Argentina, in Colombia, in Mexico, where they
• 2:52
  Speaker 6: decriminalized abortion.
• 2:53
  Speaker 7: We need to get out in these streets and.
• 2:54
  Speaker 2: Demand the federal government codify legal abortion across this country now.
• 2:59
  Speaker 2: We leave the women of Mississippi and Alabama and Texas
• 3:03
  Speaker 2: to be forced to have children.
• 3:05
  Speaker 3: Against her will?
• 3:07
  Speaker 2: That is unconscionable. You have to pour into these streets
• 3:10
  Speaker 2: and reverse this decision now.
• 3:13
  Speaker 3: This decision on demand.
• 3:15
  Speaker 7: Mr.
• 3:15
  Speaker 4: Chief Justice, may it please the court.
• 3:20
  Speaker 7: It's an old joke, but when a man argues against
• 3:23
  Speaker 7: two beautiful ladies like this, they're going to have the
• 3:26
  Speaker 7: last word.
• 3:28
  Speaker 3: She spoke, not elegantly, but with unmistakable clarity.
• 3:34
  Speaker 5: She said.
• 3:35
  Speaker 3: I ask no favor for my sex.
• 3:39
  Speaker 2: All I ask of our brethren is that they take
• 3:42
  Speaker 2: their feet off our legs.
• 3:59
  Speaker 7: Welcome back to Strict Scrutiny, your podcast about I don't
• 4:04
  Speaker 7: even know how to describe the Supreme Court. The one
• 4:09
  Speaker 7: that was just yesterday favorably citing Dred Scott versus Sanford,
• 4:15
  Speaker 7: that's Supreme Court. And honestly, I can't even make a
• 4:18
  Speaker 7: joke right now.
• 4:20
  Speaker 3: I can.
• 4:20
  Speaker 7: I invite you to try.
• 4:23
  Speaker 3: They're a 10, but they keep citing Dred Scott.
• 4:26
  Speaker 7: They're a 10, but they just took away my rights.
• 4:29
  Speaker 7: Denied me legal personhood.
• 4:32
  Speaker 8: So we knew this day was coming.
• 4:33
  Speaker 9: But the fact that we knew that it was coming
• 4:35
  Speaker 9: doesn't actually make it any easier.
• 4:37
  Speaker 8: But it's here.
• 4:38
  Speaker 9: And we do need to kind of work through what
• 4:40
  Speaker 9: it means and what comes next. I guess like our
• 4:42
  Speaker 9: self-care is doing that together and also with our listeners.
• 4:45
  Speaker 8: So let's do it.
• 4:47
  Speaker 3: So we're your hosts who now officially possess fewer constitutional
• 4:52
  Speaker 3: rights than we did yesterday. I'm Melissa Murray.
• 4:54
  Speaker 8: I'm Kate Shaw.
• 4:55
  Speaker 7: And I'm Leah Littman. So the it that is here
• 5:00
  Speaker 7: that Kate was describing, of course, is the Supreme Court's
• 5:04
  Speaker 7: opinion in Dobbs versus Jackson Women's Health Organization. Justice Samuel Alito,
• 5:11
  Speaker 7: strict scrutiny favorite, retained his majority to overrule Roe versus
• 5:18
  Speaker 7: Wade and Planned Parenthood versus Casey, the decisions recognizing a
• 5:23
  Speaker 7: constitutional right to decide to have an abortion. maybe we
• 5:27
  Speaker 7: can start out with what Alito's majority refused to acknowledge,
• 5:32
  Speaker 7: namely the consequences this decision will have on women's lives.
• 5:38
  Speaker 7: The joint dissent by Justices Breyer, Kagan, and Sotomayor did
• 5:42
  Speaker 7: manage to center this. It is no consolation that the
• 5:47
  Speaker 7: dissent is well done, but it is worth starting there
• 5:51
  Speaker 7: just in thinking about where we are.
• 5:54
  Speaker 9: And Leah mentioned that the dissent was authored by three justices, Breyer, Kagan,
• 5:58
  Speaker 9: and Sotomayor. So it's jointly authored. It doesn't identify a
• 6:01
  Speaker 9: single author.
• 6:03
  Speaker 8: That is quite rare.
• 6:04
  Speaker 9: And there's kind of a special force when the justices
• 6:08
  Speaker 9: speak with one voice like this, the three in dissent. Now,
• 6:11
  Speaker 9: parts of it, I think, are pretty clearly identifiable as Kagan,
• 6:14
  Speaker 9: as Sotomayor, as Breyer, but they didn't write separately. They
• 6:18
  Speaker 9: joined their voices in this really powerful dissent. And it's
• 6:21
  Speaker 9: actually so powerful, because we have now read the whole thing,
• 6:25
  Speaker 9: that we would just actually read some passages from it. First,
• 6:30
  Speaker 9: just the effect of the decision that Leah was alluding to.
• 6:34
  Speaker 9: The dissent writes, today's decision strips women of agency over
• 6:38
  Speaker 9: what even the majority agrees is a contested and contestable
• 6:41
  Speaker 9: moral issue. It forces her to carry out the state's will,
• 6:46
  Speaker 9: whatever the circumstances and whatever the harm it will wreak
• 6:50
  Speaker 9: on her and her family. It takes away her liberty.
• 6:53
  Speaker 9: After today, young women will come of age with fewer
• 6:56
  Speaker 9: rights than their mothers and grandmothers had.
• 7:00
  Speaker 3: The dissent went further. They noted that whatever the exact
• 7:04
  Speaker 3: scope of the coming laws, one result of today's decision
• 7:08
  Speaker 3: is certain, the curtailment of women's rights and their status
• 7:11
  Speaker 3: as free and equal citizens. And this was obviously a
• 7:14
  Speaker 3: nod to Justice Ginsburg, their departed colleague, who was perhaps
• 7:19
  Speaker 3: the most stalwart defender of abortion rights on the court.
• 7:23
  Speaker 3: They went on to say that a state can thus
• 7:25
  Speaker 3: transform what, when freely undertaken, is a wonder, birth, into what,
• 7:31
  Speaker 3: when forced, may be a nightmare.
• 7:33
  Speaker 7: The joint dissent also highlighted some of the specific consequences
• 7:38
  Speaker 7: of complete and total abortion bans, given that a lot
• 7:43
  Speaker 7: of these bans don't make exceptions for cases of rape
• 7:48
  Speaker 7: or incest or where there isn't really any question that
• 7:56
  Speaker 7: the fetus isn't compatible with life. So the Joint Dissent writes,
• 8:02
  Speaker 7: under those laws, a woman will have to bear her
• 8:05
  Speaker 7: rapist's child or a young girl her father's child, no
• 8:09
  Speaker 7: matter if doing so will destroy her life. So too,
• 8:13
  Speaker 7: after today's ruling, some states may compel women to carry
• 8:17
  Speaker 7: to term a fetus with severe physical anomalies, sure to die.
• 8:24
  Speaker 7: There is also no question that this decision, which allows
• 8:28
  Speaker 7: states to curtail abortion access, will affect access to care
• 8:33
  Speaker 7: for miscarriages, which is the same set of procedures that
• 8:37
  Speaker 7: is used for abortions. In Texas, there are also already
• 8:41
  Speaker 7: problems accessing treatment for ectopic pregnancies, which are not viable pregnancies,
• 8:48
  Speaker 7: and threaten the life and health of the pregnant person.
• 8:54
  Speaker 7: This decision also has immediate consequences for abortion care. For example,
• 9:00
  Speaker 7: Planned Parenthood in Wisconsin had, even before this decision, announced
• 9:04
  Speaker 7: that they had stopped scheduling appointments after today, anticipating this decision.
• 9:10
  Speaker 7: And even as we are recording, now appointments are being
• 9:14
  Speaker 7: canceled in states that have trigger laws, laws set to
• 9:18
  Speaker 7: ban abortion in the event that Roe and Casey were overruled.
• 9:23
  Speaker 9: Okay, so we should probably break down how the majority
• 9:25
  Speaker 9: reached its result by looking at least briefly at the reasoning.
• 9:29
  Speaker 9: The majority's reasoning is really similar to what was in
• 9:33
  Speaker 9: the leaked draft opinion that we broke down at some
• 9:36
  Speaker 9: length when it was first leaked.
• 9:38
  Speaker 8: The opinion retains all of.
• 9:40
  Speaker 9: The really, really objectionable stuff that we highlighted in our
• 9:45
  Speaker 9: emergency episode. It retains the reference to safe haven laws
• 9:50
  Speaker 9: as if those laws and other developments in society have
• 9:54
  Speaker 9: somehow solved sex discrimination and pregnancy discrimination and therefore women
• 9:59
  Speaker 9: no longer need need, if they ever needed at all,
• 10:02
  Speaker 9: control over their reproductive lives.
• 10:05
  Speaker 8: There is the real.
• 10:07
  Speaker 9: Peak Trollito invocation of Justice Ginsburg's criticisms of Roe versus Wade.
• 10:15
  Speaker 9: And there is the elevation of the legal test to
• 10:19
  Speaker 9: determine what rights are fundamental and therefore protected by the Constitution,
• 10:23
  Speaker 9: if they're not explicitly listed in the Constitution, as basically
• 10:26
  Speaker 9: requiring that those rights be deeply rooted in history and tradition.
• 10:31
  Speaker 3: One of the reasons why all of this is concerning,
• 10:33
  Speaker 3: and we have previously noted this, is because you can
• 10:36
  Speaker 3: easily transplant all of that logic to an opinion that
• 10:40
  Speaker 3: overrules a set of other rights of heart and home.
• 10:43
  Speaker 3: So for example, this logic applies with equal force to
• 10:47
  Speaker 3: marriage equality, to the right to contraception, the right of
• 10:50
  Speaker 3: parents to raise their children in the manner of their choosing.
• 10:54
  Speaker 3: And as it's noted, until the latter part of the
• 10:56
  Speaker 3: 20th century, there was no support in American law for
• 10:59
  Speaker 3: a constitutional right to obtain an abortion. Note state constitutional
• 11:03
  Speaker 3: provision had recognized such a right. Yes, and that is
• 11:06
  Speaker 3: true for all of these other things. So if Roe
• 11:09
  Speaker 3: is a constitutional apostasy because It is not deeply rooted
• 11:13
  Speaker 3: in history and tradition. Well, buckle up for same-sex marriage, contraception,
• 11:18
  Speaker 3: and everything else. And Justice Thomas also hit this tune.
• 11:22
  Speaker 3: And so we will get to him eventually. But I
• 11:26
  Speaker 3: just wanted to highlight that. There's no stopping point for this.
• 11:30
  Speaker 7: No. And once again, even though this opinion purported to
• 11:34
  Speaker 7: claim some sort of methodological basis high ground in using
• 11:39
  Speaker 7: a principled test that is based in traditionalism, just like
• 11:44
  Speaker 7: yesterday's opinion in Bruin tried to claim some sort of
• 11:48
  Speaker 7: methodological high ground with originalism. The opinion is just a
• 11:53
  Speaker 7: complete methodological disaster and so revealing about many of the
• 12:00
  Speaker 7: flaws in the court's nods to history, tradition, and originalism.
• 12:06
  Speaker 7: So For example, you know, this opinion, the majority opinion
• 12:11
  Speaker 7: in Dobbs, relies on pre-ratification history before the Constitution was
• 12:18
  Speaker 7: ratified back to English common law. As the Joint Dissent
• 12:24
  Speaker 7: points out, you know, it goes as far back as
• 12:27
  Speaker 7: the 13th, parenthesis, the 13th, exclamation mark, century ago. And
• 12:34
  Speaker 7: then it cites the court's own slip opinion in Bruhn
• 12:38
  Speaker 7: that claimed historical evidence that long predated ratification may not
• 12:44
  Speaker 7: illuminate the scope of a constitutional right. Because Bruhn had
• 12:47
  Speaker 7: taken this Goldilocks approach to history. It can't be too early.
• 12:51
  Speaker 7: It can't be too... Too late. You know, it just
• 12:54
  Speaker 7: has to be the right amount of history and so
• 12:57
  Speaker 7: on and so forth. And then so too in the
• 13:00
  Speaker 7: majority opinion in Dobbs, the court relies on laws enacted
• 13:05
  Speaker 7: after the ratification of the 14th Amendment in the 1800s.
• 13:10
  Speaker 7: you know, and into the 1900s. And yet yesterday in Brune,
• 13:14
  Speaker 7: they claimed post-ratification adoption or acceptance of laws that are
• 13:19
  Speaker 7: inconsistent with the original meaning obviously cannot overcome or alter
• 13:24
  Speaker 7: that text.
• 13:26
  Speaker 9: And I have to say, the dissent's explicit attack on
• 13:30
  Speaker 9: these methodological deficiencies and hypocrisies of the majority is exactly
• 13:35
  Speaker 9: what we were calling for when or lauding Justice Breyer
• 13:39
  Speaker 9: for starting to do in his Bruin dissent, which is
• 13:42
  Speaker 9: not to play footsie with a method of constitutional interpretation, originalism,
• 13:47
  Speaker 9: which the liberals on the court have done from time
• 13:49
  Speaker 9: to time, where that method would bind us to this
• 13:53
  Speaker 9: history in which women, black people, other people of color,
• 13:57
  Speaker 9: LGBTQ people, minority religious adherents, you name it, none of
• 14:02
  Speaker 9: these people had any rights at any of the moments
• 14:04
  Speaker 9: in history where according to the majority, constitutional meaning is forged.
• 14:10
  Speaker 9: And so if that's where constitutional meaning comes from, none
• 14:14
  Speaker 9: of us are ever going to get any benefit from
• 14:16
  Speaker 9: mining this kind of historical record if that's going to
• 14:19
  Speaker 9: bind us today. And the principled objection, both to the
• 14:23
  Speaker 9: method kind of writ large, and then to sort of
• 14:26
  Speaker 9: how idiosyncratic and selective the invocation of history, even on
• 14:32
  Speaker 9: its own terms, is, I think was important part of
• 14:36
  Speaker 9: the dissent, both in highlighting, I think, what is so
• 14:39
  Speaker 9: wrong as a method with what the majority has done,
• 14:41
  Speaker 9: but also hopefully in beginning to educate the public about
• 14:45
  Speaker 9: how wrong it is to sort of suggest that this
• 14:47
  Speaker 9: is how constitutional interpretation must be done.
• 14:50
  Speaker 3: They not only call out the inconsistencies in the application
• 14:54
  Speaker 3: of quote unquote originalism, but they're also really I think clear,
• 14:59
  Speaker 3: although I think they probably could be sharper in doing this,
• 15:01
  Speaker 3: about the inconsistent invocation of federalism by the conservatives on
• 15:06
  Speaker 3: the court. Not necessarily in this opinion, but in a
• 15:08
  Speaker 3: host of other opinions. One of the things that the
• 15:12
  Speaker 3: Kavanaugh concurrence raises is that this is sort of a
• 15:14
  Speaker 3: neutral settlement. We'll get to this in more detail, but
• 15:16
  Speaker 3: this simply returns to the states the authority to decide
• 15:19
  Speaker 3: this for themselves through the process of democratic deliberation. That's
• 15:22
  Speaker 3: sort of classic federalism. I really think that the dissenters
• 15:27
  Speaker 3: here could have made more of the fact that just yesterday,
• 15:30
  Speaker 3: this very same court kind of blew federalism out of
• 15:33
  Speaker 3: the water by allowing the court and the majority to
• 15:37
  Speaker 3: decide for the states how they were going to deal
• 15:40
  Speaker 3: with this similarly vexed and fractious issue of gun control.
• 15:44
  Speaker 3: And so there's a kind of selective and itinerant commitment
• 15:48
  Speaker 3: to these conservative principles. They do it when it suits them.
• 15:51
  Speaker 3: And they abandon them when it doesn't. And, you know,
• 15:54
  Speaker 3: this was pointed out with originalism, but I think they
• 15:56
  Speaker 3: could have gone even further.
• 15:57
  Speaker 7: This is what the dissent had to say about the
• 16:00
  Speaker 7: consequences of the majority's methodology in requiring rights to be
• 16:04
  Speaker 7: deeply rooted in history and tradition. The joint dissent wrote,
• 16:08
  Speaker 7: when the majority says that we must read our foundational
• 16:11
  Speaker 7: charter as viewed at the time of ratification, except that
• 16:16
  Speaker 7: we may also check it against the Dark Ages... it
• 16:19
  Speaker 7: consigns women to second-class citizenship. The majority, again, is trying
• 16:25
  Speaker 7: to assess the scope of women's rights today by looking
• 16:31
  Speaker 7: back to a time when women couldn't vote, when there
• 16:34
  Speaker 7: were still coverture regimes denying women legal personhood, and that
• 16:40
  Speaker 7: is their method.
• 16:42
  Speaker 9: Even if it was a method that made any sense
• 16:44
  Speaker 9: in the context of gun regulation, which I am not
• 16:47
  Speaker 9: prepared to concede that it remotely does, It just seems
• 16:50
  Speaker 9: insane to suggest that there's no dispute that for most
• 16:54
  Speaker 9: of history, women were formally and functionally second-class citizens under
• 16:59
  Speaker 9: our law. So to suggest that those legal regimes then
• 17:03
  Speaker 9: bind us today from the perspective of what the Constitution
• 17:06
  Speaker 9: means and protects just seems so profoundly misguided.
• 17:10
  Speaker 3: So another hallmark of this final opinion that is consistent
• 17:14
  Speaker 3: with the leaked draft opinion is the effort to till
• 17:19
  Speaker 3: the soil of eugenics until it bears some craggy fruit.
• 17:23
  Speaker 3: So footnote 41, which was also in the draft opinion,
• 17:26
  Speaker 3: appears here. And it notes that other amicus briefs present
• 17:31
  Speaker 3: arguments about the motives of proponents of liberal access to abortion.
• 17:35
  Speaker 3: They note that some such supporters have been motivated by
• 17:38
  Speaker 3: a desire to suppress the size of the African-American population.
• 17:42
  Speaker 3: So here we are getting this connection between abortion itself
• 17:48
  Speaker 3: and the fact that there are disproportionate rates of abortion
• 17:50
  Speaker 3: among African-American women. There is no discussion of the reasons
• 17:55
  Speaker 3: why this group might be more inclined to terminate a pregnancy, like,
• 17:59
  Speaker 3: for example, very high rates of maternal mortality and uneven pregnancy.
• 18:03
  Speaker 3: educational and employment prospects, but why let that get in
• 18:07
  Speaker 3: the way of a good narrative? It then goes on
• 18:10
  Speaker 3: to cite my favorite Clarence Thomas concurrence, Box versus Planned
• 18:14
  Speaker 3: Parenthood of Indiana, where Justice Thomas makes that attempt to
• 18:18
  Speaker 3: link the history of abortion to the history of birth
• 18:21
  Speaker 3: control and Margaret Sanger and the eugenics movement, all for
• 18:25
  Speaker 3: the purpose, I think, of making clear that there is
• 18:29
  Speaker 3: a racist and racialized connection between abortion and the prospect
• 18:34
  Speaker 3: of eugenic termination of a pregnancy. And the court ends with,
• 18:39
  Speaker 3: for our part, we do not question the motives of
• 18:42
  Speaker 3: either those who have supported or those who have opposed
• 18:45
  Speaker 3: laws restricting abortions because we're neutral, congenial respecters of alternative viewpoints.
• 18:52
  Speaker 3: But note, this is entirely gratuitous. Like this does not
• 18:56
  Speaker 3: have to be in this opinion. If the logic of
• 18:58
  Speaker 3: this opinion is that Roe and Casey are constitutional apostasies
• 19:02
  Speaker 3: because they are not explicit in the Constitution and are
• 19:06
  Speaker 3: not deeply rooted in tradition. You don't need this. So
• 19:09
  Speaker 3: why is this here? Is this just a nod to
• 19:12
  Speaker 3: Justice Thomas or is this doing other work?
• 19:15
  Speaker 7: So frankly, it's a footnote like this that really just
• 19:19
  Speaker 7: makes me inclined to discount their statements elsewhere in the
• 19:22
  Speaker 7: majority opinion that nothing in the majority opinion should be
• 19:25
  Speaker 7: taken to call into question the court's other fundamental rights decisions,
• 19:31
  Speaker 7: like decisions protecting the right to access contraception, decisions protecting
• 19:35
  Speaker 7: marriage equality, because it's not correct that they're not questioning
• 19:40
  Speaker 7: the motives of people who have supported those who supported
• 19:44
  Speaker 7: access to abortion. I mean, Justice Thomas has questioned their motives, right?
• 19:48
  Speaker 7: They did an oral argument. This is just, you can't
• 19:52
  Speaker 7: take it seriously.
• 19:52
  Speaker 9: The footnote apart from the last sentence questions their motives.
• 19:55
  Speaker 9: It associates itself with questioning those motives. So the whole
• 19:59
  Speaker 9: thing is bad, bad faith.
• 20:00
  Speaker 3: It's not even that it's bad faith in terms of like,
• 20:02
  Speaker 3: we're not questioning motives. We are questioning motives. Like, If
• 20:05
  Speaker 3: the argument that there is some sort of eugenic link
• 20:08
  Speaker 3: between Margaret Sanger and the 1920s campaign to root out
• 20:13
  Speaker 3: certain populations, it's perhaps more forceful in the context of
• 20:17
  Speaker 3: birth control because that is, in fact, what Margaret Sanger
• 20:20
  Speaker 3: was spearheading. She didn't care about abortion. She actually did
• 20:23
  Speaker 3: not like abortion. But she was very much about expanding
• 20:27
  Speaker 3: access to birth control. So, I mean, if you are
• 20:29
  Speaker 3: a proponent of this view that you can overrule past
• 20:33
  Speaker 3: precedents because they're racist, as we saw in Ramos in 2019,
• 20:38
  Speaker 3: I think the argument applies with greater force to contraception
• 20:41
  Speaker 3: than it does to abortion. And maybe that's why this
• 20:43
  Speaker 3: is here.
• 20:44
  Speaker 7: Yeah. Okay.
• 20:44
  Speaker 9: So we're taking through all of the most egregious parts
• 20:47
  Speaker 9: of the majority opinion that it seemed this kind of
• 20:51
  Speaker 9: premature crowdsourcing of some of the contents of the opinion
• 20:54
  Speaker 9: that might have the effect of having Alito sort of
• 20:57
  Speaker 9: roll back in some places does not seem to have
• 21:01
  Speaker 9: happened virtually at all.
• 21:03
  Speaker 8: So other things.
• 21:04
  Speaker 3: Because he's always right, Kate.
• 21:06
  Speaker 7: Right.
• 21:06
  Speaker 3: The crowds can't tell him nothing.
• 21:08
  Speaker 9: Again, it seems so naive that we were like, well,
• 21:10
  Speaker 9: he's going to have the benefit of all of the
• 21:12
  Speaker 9: critical commentary and he can strengthen his opinion accordingly. He
• 21:16
  Speaker 9: somehow thought it was perfect as is and so didn't
• 21:19
  Speaker 9: change very much at all. So among the other things
• 21:22
  Speaker 9: that he didn't change were... the extremely thin two paragraphs
• 21:28
  Speaker 9: on reliance interests, calling them, you know, sort of emotional
• 21:31
  Speaker 9: and intangible as opposed to the most concrete kind of
• 21:35
  Speaker 9: reliance interest, right? People literally make decisions about where to
• 21:37
  Speaker 9: live and what to study and whom and when to marry,
• 21:42
  Speaker 9: you know, against the backdrop of an understanding of an
• 21:44
  Speaker 9: ability to access abortion, but none of that seemed to resonate.
• 21:47
  Speaker 8: At all with Justice Alito.
• 21:49
  Speaker 9: The opinion also retains the claim that Abortion providers and
• 21:54
  Speaker 9: their lawyers basically made the court do this by claiming
• 21:58
  Speaker 9: there was no daylight between overruling Roe and the chief
• 22:01
  Speaker 9: justice's position, which we will get to in a minute,
• 22:04
  Speaker 9: that basically would have upheld the Mississippi law without overruling
• 22:07
  Speaker 9: Roe and Casey outright.
• 22:09
  Speaker 7: The majority also doesn't touch what were extremely thin two
• 22:14
  Speaker 7: paragraphs on reliance interests, the fact that people have structured
• 22:20
  Speaker 7: their lives around the idea that they can control when
• 22:24
  Speaker 7: and whether to have a child. Just on this idea
• 22:28
  Speaker 7: of Sam Alito dismissing all of the criticism of his
• 22:31
  Speaker 7: majority opinion, I'm having this visual in my mind of
• 22:35
  Speaker 7: him staring at himself in the mirror and And saying,
• 22:40
  Speaker 7: you're perfect.
• 22:40
  Speaker 3: You're beautiful.
• 22:41
  Speaker 7: You're Linda Evangelista. You know, like very, very RuPaul's Drag Race.
• 22:46
  Speaker 7: That's not the meme I was thinking of. Oh, okay. Well,
• 22:48
  Speaker 7: I'm sure there are others that are applicable too.
• 22:51
  Speaker 3: Remember that, the one of Shaq where he's like, oh,
• 22:54
  Speaker 3: like just brushing off the criticism. That's, that's Alito. Yeah.
• 22:57
  Speaker 7: Pounding down those energy drinks, being like, this is what
• 23:00
  Speaker 7: I've trained for.
• 23:01
  Speaker 5: Yeah.
• 23:01
  Speaker 7: Any of these work.
• 23:02
  Speaker 3: Red Bull gives you wings.
• 23:04
  Speaker 7: Right.
• 23:05
  Speaker 3: Right.
• 23:06
  Speaker 7: Also makes you delusional. So another thing that he kept
• 23:11
  Speaker 7: in his majority opinion was retaining the legal standard from
• 23:17
  Speaker 7: the leak draft opinion that courts should use when they
• 23:20
  Speaker 7: determine whether abortion restrictions are constitutional. The legal standard is
• 23:25
  Speaker 7: rational basis review. It is the most deferential standard of
• 23:29
  Speaker 7: review under which courts can basically hypothesize you know, possible
• 23:34
  Speaker 7: justifications for a law. States don't need to prove that
• 23:38
  Speaker 7: the law actually advances a legitimate interest. And most importantly,
• 23:44
  Speaker 7: I think the majority retains the claim that a state's
• 23:48
  Speaker 7: legitimate interests include respect for and preservation of prenatal life
• 23:54
  Speaker 7: at all stages of development. And under that logic, complete
• 24:00
  Speaker 7: abortion bans are would be constitutional. And it's not clear
• 24:05
  Speaker 7: whether that standard would require states to adopt meaningful exceptions
• 24:11
  Speaker 7: in cases where abortion might be necessary to save the
• 24:15
  Speaker 7: life or health of the mother. The dissent characterizes the
• 24:20
  Speaker 7: legal standard this way, saying the court's majority says that
• 24:23
  Speaker 7: from the very moment of fertilization, a woman has no
• 24:27
  Speaker 7: rights to speak of The.
• 24:30
  Speaker 3: Final opinion also retains some remarkably bad faith claims about
• 24:35
  Speaker 3: the political process. So it notes that women on both
• 24:38
  Speaker 3: sides of the abortion issue may seek to affect the
• 24:41
  Speaker 3: legislative process by influencing public opinion, lobbying legislatures, voting, and
• 24:46
  Speaker 3: running for office.
• 24:49
  Speaker 7: Run for something, ladies.
• 24:51
  Speaker 3: I'm sorry. I just like the idea of Justice Alito
• 24:54
  Speaker 3: encouraging women to run for office. As he finishes, he notes,
• 24:58
  Speaker 3: women are not without electoral or political power. I don't
• 25:02
  Speaker 3: disagree with that, but I think it's in remarkably bad
• 25:04
  Speaker 3: faith to suggest that a fundamental liberty that you have
• 25:09
  Speaker 3: withdrawn is now something that women need to fight for
• 25:13
  Speaker 3: in the political process. It's the whole idea of having
• 25:16
  Speaker 3: to petition the majority to be understood as a full person.
• 25:20
  Speaker 3: And That's the part. I mean, I do think the
• 25:23
  Speaker 3: only answer here going forward is to work in the
• 25:27
  Speaker 3: political process and to vote and to be very active
• 25:30
  Speaker 3: in organizing on the ground. But this idea that this
• 25:33
  Speaker 3: guy is the one like, hey, ladies, you should just
• 25:36
  Speaker 3: run for school board. I mean, it's also remarkably bad
• 25:39
  Speaker 3: faith given, as you said previously, Melissa, the court has
• 25:43
  Speaker 3: made the political process less accountable to the will of voters.
• 25:48
  Speaker 3: The partisan gerrymandering that allows politicians to stay in power
• 25:55
  Speaker 3: even when a majority of voters vote them out. It
• 25:58
  Speaker 3: has allowed states and is poised to allow them even
• 26:00
  Speaker 3: more to dilute the voting power of racial minorities, the
• 26:04
  Speaker 3: very group that will bear more of.
• 26:07
  Speaker 7: The brunt of this decision. So yes, of course, you
• 26:11
  Speaker 7: can vote and this issue will be resolved in the
• 26:13
  Speaker 7: political process.
• 26:14
  Speaker 3: And you should vote.
• 26:14
  Speaker 9: You should vote.
• 26:15
  Speaker 7: Yes, you should vote. But to say this is all
• 26:19
  Speaker 7: going to be fine because your preferences will just be
• 26:22
  Speaker 7: registered at the ballot box vastly oversimplifies things, again, given
• 26:27
  Speaker 7: what this court has done to our democracy.
• 26:30
  Speaker 9: What this court and Sam Alito personally, right? Brnovich is,
• 26:32
  Speaker 9: of course, an Alito opinion. That's just the most recent
• 26:36
  Speaker 9: of this line of cases.
• 26:37
  Speaker 8: But it's not.
• 26:38
  Speaker 9: Like a well-functioning, responsive political process at the state and
• 26:43
  Speaker 9: local level. And the court is significantly responsible for some
• 26:46
  Speaker 9: of the reasons why. And so just like, don't worry,
• 26:49
  Speaker 9: democracy will sort it out is a facially indefensible claim
• 26:53
  Speaker 9: for him to make.
• 26:54
  Speaker 3: That's why he's making it, Kate.
• 26:57
  Speaker 4: Right.
• 26:58
  Speaker 7: I will say there is some slightly toned down language
• 27:03
  Speaker 7: in the draft opinion. Justice Alito no longer says there
• 27:08
  Speaker 7: is zero and none, you know, regarding the historical basis
• 27:13
  Speaker 7: for abortion. So as we're recognizing personal growth, congratulations, sir.
• 27:20
  Speaker 7: You have shown some.
• 27:21
  Speaker 3: That's the Drake meme. That's the Drake meme. Yeah, there
• 27:24
  Speaker 3: is some historical precedent for this, I guess.
• 27:27
  Speaker 7: But still, no abortion for you. No, responded to that
• 27:31
  Speaker 7: constructive analysis of his historical claims super well. So that
• 27:36
  Speaker 7: being said, he also adds some not great stuff as well.
• 27:41
  Speaker 3: Is that the legal term for it?
• 27:43
  Speaker 7: Not great stuff?
• 27:45
  Speaker 3: Just do it. You know you.
• 27:46
  Speaker 9: Want to do it.
• 27:48
  Speaker 7: I am just trying to keep it clean. for this,
• 28:02
  Speaker 7: which preview listeners is not actually the five justices in
• 28:06
  Speaker 7: the majority.
• 28:07
  Speaker 5: Okay.
• 28:07
  Speaker 3: So this is like your version of the marshmallow. You're
• 28:09
  Speaker 3: deferring gratification. Okay. I'd love to see it. I wish
• 28:13
  Speaker 3: the court could do it. I wish the court could
• 28:14
  Speaker 3: do it.
• 28:15
  Speaker 7: Not capable. Not capable. This is the YOLO court, in
• 28:19
  Speaker 7: an opinion authored by YOLO Lito.
• 28:23
  Speaker 8: Have we said this before? I don't think we've used
• 28:25
  Speaker 8: YOLO Lito before. I love that one. Or just YOLO
• 28:26
  Speaker 8: Lito might be okay. I don't know.
• 28:28
  Speaker 7: YOLO Lito.
• 28:30
  Speaker 3: I love that.
• 28:32
  Speaker 9: There's one good thing to come out of this daily
• 28:33
  Speaker 9: and that is this new coinage.
• 28:35
  Speaker 8: But I don't know if it's YOLO or YOLITO.
• 28:37
  Speaker 3: YOLITO, YOLITO.
• 28:39
  Speaker 7: Squeaking by just barely. This opinion does add things than.
• 28:45
  Speaker 3: What- Of course it does.
• 28:47
  Speaker 7: Things that weren't in the draft leaked opinion, in some
• 28:50
  Speaker 7: ways underscores the idea of fetal personhood and potential life,
• 28:55
  Speaker 7: writing that the most striking feature of the dissent is
• 28:57
  Speaker 7: the absence of any serious discussion of the legitimacy of
• 29:01
  Speaker 7: the state's interest in protecting fetal life. And just by
• 29:04
  Speaker 7: repeatedly underscoring that states in the present day, as well
• 29:08
  Speaker 7: as historically viewed fetuses as human beings and, you know,
• 29:14
  Speaker 7: beings with life is really paving the way for restrictive
• 29:19
  Speaker 7: abortion laws and the possibility of a jurisprudence of fetal personhood.
• 29:23
  Speaker 3: Right.
• 29:23
  Speaker 9: So yeah, having, you know, protectable life interest and then
• 29:27
  Speaker 9: protectable constitutional rights, rights that must be respected, right? It
• 29:30
  Speaker 9: does feel like it's just a couple of steps to
• 29:32
  Speaker 9: getting there, although this opinion certainly doesn't say that explicitly.
• 29:36
  Speaker 8: Okay, so that's.
• 29:38
  Speaker 9: The Alito majority opinion. There are also several concurrences, and
• 29:43
  Speaker 9: they really range. And so maybe we should start with
• 29:48
  Speaker 9: what I think is the most important concurrence, which is
• 29:50
  Speaker 9: the Justice Thomas concurrence, which is Kind of.
• 29:53
  Speaker 8: Unimaginably terrible and deranged.
• 29:57
  Speaker 7: Is it unimaginably terrible and deranged?
• 29:59
  Speaker 3: It's not unimaginable. What are you talking about?
• 30:02
  Speaker 7: I feel like there were two options for this concurrence.
• 30:06
  Speaker 7: There were two options for this concurrence. One was, let's
• 30:09
  Speaker 7: go fetal personhood now. And the second option was the
• 30:12
  Speaker 7: one we got.
• 30:14
  Speaker 9: So the one we got was, remember that stuff the
• 30:17
  Speaker 9: majority opinion just said. about how cases like Griswold, which
• 30:22
  Speaker 9: protects the right to access contraception, and Lawrence, which prohibits
• 30:26
  Speaker 9: states from criminalizing same-sex sexual intimacy, or Obergefell, which says
• 30:31
  Speaker 9: the Constitution protects the right to same-sex marriage. Remember how Alito,
• 30:35
  Speaker 9: a couple pages ago, told you none of that is
• 30:38
  Speaker 9: in jeopardy or at issue in this case?
• 30:40
  Speaker 8: That's crazy. Of course it all is.
• 30:43
  Speaker 9: So Thomas says, in future case, can I just quote him?
• 30:47
  Speaker 3: Let's rule it. He does say, I agree with that. Right?
• 30:53
  Speaker 3: In principle.
• 30:54
  Speaker 7: We are not today overruling Griswold. Like, I'm leaving the marshmallows.
• 31:02
  Speaker 9: We are not today overruling those cases.
• 31:04
  Speaker 8: He does say that.
• 31:05
  Speaker 9: But he goes on to say, in future cases, we
• 31:09
  Speaker 9: should reconsider all of this court's substantive due process precedents.
• 31:13
  Speaker 4: All of it.
• 31:14
  Speaker 8: Including, he lists Griswold, Lawrence, and Obergefell. Although not Loving, interestingly.
• 31:18
  Speaker 3: Does not mention Loving versus Virginia because he has some
• 31:21
  Speaker 3: sense of self-preservation and he has to go home tonight
• 31:24
  Speaker 3: to his mother. I mean, his wife.
• 31:26
  Speaker 7: I'm sure he and Ginny have never discussed the future
• 31:29
  Speaker 7: of loving and bans on interracial marriage, given that their
• 31:32
  Speaker 7: professional lives are completely separate.
• 31:34
  Speaker 8: Completely separate.
• 31:35
  Speaker 3: This was like basically lifted out of the some geniuses,
• 31:39
  Speaker 3: Adam Mortara and Jonathan Mitchell.
• 31:41
  Speaker 7: Burn book brief, right?
• 31:43
  Speaker 9: But can we just say quickly though, because he says
• 31:44
  Speaker 9: like three things. Those cases are not cast into doubt today.
• 31:48
  Speaker 8: They're not overruled. They're not even cast into doubt.
• 31:50
  Speaker 9: But we should reconsider them. And then in like the
• 31:52
  Speaker 9: next sentence, he says, any substantive due process decision is
• 31:57
  Speaker 9: demonstrably erroneous. And therefore we have a duty to correct
• 32:00
  Speaker 9: the error established in those precedents. And then he says,
• 32:04
  Speaker 9: after overruling these demonstrably erroneous decisions. So in like four sentences.
• 32:09
  Speaker 8: It's done.
• 32:09
  Speaker 3: It's like, in my mind, I can see it all.
• 32:12
  Speaker 3: I can see how it all comes together.
• 32:13
  Speaker 9: And then there is this lip service paid to like, well,
• 32:15
  Speaker 9: maybe there are independent constitutional theories that would support results
• 32:20
  Speaker 9: in cases like these, like the Privileges or Immunities Clause,
• 32:22
  Speaker 9: which he has long been really interested in, but none
• 32:24
  Speaker 9: of that matters as far as I can.
• 32:26
  Speaker 3: That's the bone he's throwing to liberals. I mean, he's
• 32:28
  Speaker 3: always claimed that there is no basis for the Due
• 32:32
  Speaker 3: Process Clause being a font of individual rights. It should
• 32:35
  Speaker 3: be the Privileges or Immunities Clause. Slaughterhouse would like to
• 32:38
  Speaker 3: have a word about whether that is indeed the case.
• 32:41
  Speaker 3: Slaughterhouse is the 1873 decision that effectively says that the
• 32:46
  Speaker 3: privileges or immunities clause will not be a font of
• 32:48
  Speaker 3: individual rights.
• 32:49
  Speaker 8: But he has said it should be overruled. But yeah,
• 32:51
  Speaker 8: go on.
• 32:51
  Speaker 7: What's precedent to stand in the way of a good time?
• 32:56
  Speaker 3: But the best part of this is when he's talking about,
• 32:58
  Speaker 3: you know, we have this duty to overrule a decision
• 33:01
  Speaker 3: that is demonstrably erroneous, as though this were a precedent
• 33:05
  Speaker 3: that he's calling upon, the precedent that he's citing is himself.
• 33:09
  Speaker 3: And all I can think about is that song by
• 33:11
  Speaker 3: the Divinals, like, I touch myself. I cite myself. That's,
• 33:19
  Speaker 3: I mean, I know, I'm sorry. Like, I had to
• 33:21
  Speaker 3: find the silver linings today. And one of them is
• 33:24
  Speaker 3: like Justice Thomas citing himself. Like he literally cited himself
• 33:27
  Speaker 3: for all of that. His concurrence in Gamble, all of it. McDonald,
• 33:31
  Speaker 3: all of it.
• 33:32
  Speaker 9: And I remember you noting when he first wrote in
• 33:34
  Speaker 9: the Gamble concurrence, I think that was the first formulation
• 33:37
  Speaker 9: of the demonstrably erroneous standard.
• 33:39
  Speaker 3: Yes, in 2019. In 2019.
• 33:40
  Speaker 9: Just a few short years ago. And you were just
• 33:42
  Speaker 9: like laser focused on This is the language. This is
• 33:46
  Speaker 9: the language that he's going to use to kind of
• 33:47
  Speaker 9: change the way the court approaches stare decisis. And as
• 33:50
  Speaker 9: I think, I know, look, he's just writing for himself
• 33:53
  Speaker 9: right here.
• 33:53
  Speaker 7: And then some very learned men wrote an op-ed saying
• 33:57
  Speaker 7: the liberals case for Brett Kavanaugh.
• 34:02
  Speaker 8: Wait, are we ready to talk about that?
• 34:03
  Speaker 7: Neil Gorsuch. No, I'm not yet ready.
• 34:05
  Speaker 3: Not yet.
• 34:05
  Speaker 8: Another teaser.
• 34:06
  Speaker 3: I just want to say, I really feel like I'm
• 34:08
  Speaker 3: laser focused on Justice Thomas because I think like Our
• 34:10
  Speaker 3: wands share the same dragon string heart. Maybe I am
• 34:16
  Speaker 3: the Harry Potter to his Voldemort.
• 34:19
  Speaker 9: I'm seeing these clashes in the sky of the two
• 34:22
  Speaker 9: of you stuck together through that kind of electrical current
• 34:25
  Speaker 9: and then breaking apart.
• 34:27
  Speaker 7: I think it's right to focus on Justice Thomas because
• 34:31
  Speaker 7: he has been laying these breadcrumbs and seeding the direction
• 34:36
  Speaker 7: of the court's jurisprudence. And that's now where the court
• 34:40
  Speaker 7: is today, where Justice Thomas was two years ago, five
• 34:45
  Speaker 7: years ago, 20 years ago.
• 34:47
  Speaker 3: So he's totally undersold as the sort of architect of
• 34:53
  Speaker 3: the conservative legal movement. Everyone likes to talk about Scalia,
• 34:56
  Speaker 3: and they totally overlook him for, I think, a lot
• 35:00
  Speaker 3: of different reasons. But he has really husbanded these totally
• 35:04
  Speaker 3: off-the-wall theories of And allowed them to flourish among the
• 35:08
  Speaker 3: lower federal courts with his acolytes slash former clerks slash
• 35:12
  Speaker 3: current judges. And, you know, he shifted the Overton window
• 35:15
  Speaker 3: in ways I don't think people give him credit for.
• 35:18
  Speaker 3: But I see where he's going.
• 35:20
  Speaker 7: That Thomas concurrence came after the Alito majority opinion insisted that,
• 35:25
  Speaker 7: you know, they were not questioning Griswold, Lawrence, and Obergefell.
• 35:30
  Speaker 7: So the majority writes, we have stated unequivocally that, quote,
• 35:35
  Speaker 7: nothing in this opinion should be understood to cast doubt
• 35:38
  Speaker 7: on precedents that do not concern abortion. We have also
• 35:42
  Speaker 7: explained why that is so. Rights regarding contraception and same-sex
• 35:46
  Speaker 7: relationships are inherently different from the right to abortion because
• 35:52
  Speaker 7: the latter uniquely involves potential life. Just like a few
• 35:58
  Speaker 7: beats on this, you know, as we noted in our opinion,
• 36:03
  Speaker 7: not our opinion, I wish, as we noted in our
• 36:07
  Speaker 7: episode analyzing the draft leaked opinion, this is like the
• 36:11
  Speaker 7: least satisfying legal analysis or answer you could give because
• 36:16
  Speaker 7: in some ways it just reveals that the majority is
• 36:18
  Speaker 7: doing a freewheeling interest balancing and policymaking. You know, this
• 36:22
  Speaker 7: isn't a textual or historical difference between these different rights.
• 36:26
  Speaker 7: It's just the majority's claim that the normative values differ
• 36:30
  Speaker 7: in these cases. And so the only question is, well,
• 36:34
  Speaker 7: how does this majority view those other rights? And what
• 36:38
  Speaker 7: do they think they can get away with politically? Like,
• 36:41
  Speaker 7: where do they think the conservative legal movement wants to go?
• 36:44
  Speaker 3: And the dissent really picks up on this with like
• 36:46
  Speaker 3: some very strong Dumbledore energy. So they note, And no
• 36:51
  Speaker 3: one should be confident that this majority is done with
• 36:53
  Speaker 3: its work. The right Roe and Casey recognized does not
• 36:56
  Speaker 3: stand alone. Either the mass of the majority's opinion is hypocrisy, yes,
• 37:03
  Speaker 3: or additional constitutional rights are under threat. It is one
• 37:07
  Speaker 3: or the other.
• 37:08
  Speaker 9: The dissent also highlights the Thomas concurrence, in particular the
• 37:11
  Speaker 9: part that we were just talking about, in saying, look,
• 37:15
  Speaker 9: the first problem with the majority's account, that is its
• 37:18
  Speaker 9: insistence that nothing else is in jeopardy, comes from Justice
• 37:21
  Speaker 9: Thomas' concurrence, which makes clear he is not with the program.
• 37:24
  Speaker 9: That's what they say.
• 37:26
  Speaker 7: That's literally what they say.
• 37:28
  Speaker 3: That is a quote in the U.S.
• 37:30
  Speaker 7: Reports that Clarence Thomas is not with the program.
• 37:33
  Speaker 3: Justice Kagan, yes.
• 37:36
  Speaker 7: Absolutely.
• 37:37
  Speaker 9: And this is us guessing because, again, there is no
• 37:39
  Speaker 9: author identified for the different paragraphs.
• 37:42
  Speaker 8: But I would stake anything on this. Kagan's hand having.
• 37:45
  Speaker 3: Written this paragraph.
• 37:46
  Speaker 8: Not with a program. Different program.
• 38:01
  Speaker 9: And then the joint dissent goes on to say, nor
• 38:03
  Speaker 9: does it even help just to take the majority at
• 38:05
  Speaker 9: its word. Assume the majority is sincere in saying for
• 38:08
  Speaker 9: whatever reason that it will go.
• 38:09
  Speaker 3: Assume I disagree. Assume I disagree.
• 38:13
  Speaker 5: Yeah.
• 38:13
  Speaker 9: It is sincere for whatever reason that it will go
• 38:15
  Speaker 9: so far and no further.
• 38:17
  Speaker 8: Scouts honor.
• 38:18
  Speaker 4: Right.
• 38:18
  Speaker 8: Also literally in the opinion.
• 38:20
  Speaker 9: Still, the future significance of today's opinion will be decided
• 38:23
  Speaker 9: in the future. The law often has a way of evolving.
• 38:26
  Speaker 9: So they are not remotely confident in these opinions. assurances
• 38:31
  Speaker 9: from the majority that this case is not going to
• 38:33
  Speaker 9: be extended very quickly to other domains.
• 38:37
  Speaker 7: And this, I think, tees up the question that I
• 38:41
  Speaker 7: wanted to turn to, which is there are people saying
• 38:45
  Speaker 7: different things about the directions this court will go, whether
• 38:48
  Speaker 7: this court will, in fact, allow states to undermine access
• 38:52
  Speaker 7: to contraception or criminalize certain forms of contraception, whether the
• 38:57
  Speaker 7: court will allow states to undermine marriage equality. or rights
• 39:00
  Speaker 7: to same-sex sexual intimacy. And, you know, at any point
• 39:04
  Speaker 7: in your life, there are questions about who you are
• 39:06
  Speaker 7: going to listen to, whose voices you are going to elevate.
• 39:11
  Speaker 7: And I guess I just want to humbly fucking suggest
• 39:15
  Speaker 7: that maybe.
• 39:15
  Speaker 3: Humbly fucking suggest it. Do it.
• 39:19
  Speaker 7: Maybe the people you should be listening to, maybe the
• 39:24
  Speaker 7: people you choose to elevate, shouldn't be the ones who
• 39:28
  Speaker 7: told you... not to worry and, in fact, to support
• 39:33
  Speaker 7: the nominations of three of the justices in the majority.
• 39:38
  Speaker 7: Justice Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Because
• 39:43
  Speaker 7: I am sick and fucking tired of seeing Neil Katyal
• 39:47
  Speaker 7: on every single fucking press outlet after he introduced Neil
• 39:52
  Speaker 7: Gorsuch at his confirmation hearings and wrote in the New
• 39:55
  Speaker 7: York Times the liberals case for Neil Gorsuch or Akhil
• 40:00
  Speaker 7: Amar doing this for Brett Kavanaugh or Noah Feldman doing
• 40:03
  Speaker 7: this for Justice Barrett. I mean, the reason why it
• 40:07
  Speaker 7: drives me mad is because there is this like meme
• 40:10
  Speaker 7: and thinking that you get all of these accolades and
• 40:14
  Speaker 7: like great things when you say these left things. Like
• 40:19
  Speaker 7: when I call this court the YOLO court, or when
• 40:22
  Speaker 7: I say Brett Kavanaugh is going to be a liberal's
• 40:25
  Speaker 7: nightmare on the Supreme Court. And you know, maybe there
• 40:29
  Speaker 7: is some difference in cultural power versus political power that
• 40:32
  Speaker 7: doesn't buy you any institutional credibility or political authority. Instead,
• 40:38
  Speaker 7: we keep giving the platforms and the airtime to the
• 40:43
  Speaker 7: people that led us here. And the people who are
• 40:47
  Speaker 7: warning about this are constantly being minimized as being hysterical
• 40:51
  Speaker 7: and not doing serious analysis when they were right. And
• 40:56
  Speaker 7: I just wish people would like step back and realize
• 41:00
  Speaker 7: like who said this was coming? I'm not saying, you know,
• 41:06
  Speaker 7: these people like need to be canceled or like forever
• 41:09
  Speaker 7: hide their heads in shame. But like at a minimum,
• 41:11
  Speaker 7: I would want to see some public acknowledgement that they
• 41:14
  Speaker 7: feel like they erred, right? An admission that I was wrong.
• 41:18
  Speaker 7: I shouldn't have done that. And yeah, like just that.
• 41:24
  Speaker 3: I actually thought you were going to talk about the
• 41:27
  Speaker 3: Akhil Amar podcast where he basically called out you and
• 41:31
  Speaker 3: Steve for saying that there was more to come from this.
• 41:34
  Speaker 3: And he was very adamant.
• 41:36
  Speaker 7: When he called the piece that I co-wrote with Steve, poop?
• 41:40
  Speaker 3: Yes, that one.
• 41:41
  Speaker 8: That's a quote.
• 41:41
  Speaker 3: Yeah. But the point you make is actually, I think,
• 41:45
  Speaker 3: an important one to make in this moment where we're
• 41:48
  Speaker 3: thinking about a decision that severely restricts the rights that
• 41:51
  Speaker 3: women enjoy. Because A theme that you have not highlighted,
• 41:55
  Speaker 3: although you might intuit it, listener, from what Leah is
• 41:58
  Speaker 3: saying is we listen when certain men talk and we
• 42:02
  Speaker 3: minimize when women object and say other things. We started
• 42:08
  Speaker 3: this podcast because we were fucking tired of hearing so
• 42:11
  Speaker 3: many men tell us about the courts and not tell
• 42:15
  Speaker 3: us about the things that actually matter to us, like
• 42:16
  Speaker 3: the people who are deeply, deeply impacted by the work
• 42:19
  Speaker 3: that the court did, like the sort of neutral, studied,
• 42:23
  Speaker 3: both sides now kind of commentary. We wanted to actually
• 42:26
  Speaker 3: hear what the hell is going to happen on the
• 42:27
  Speaker 3: ground for people. And that's why we started this podcast.
• 42:30
  Speaker 3: But we've been called hysterical. We've been told to shut up.
• 42:34
  Speaker 3: Someone told me I need to go cook my husband
• 42:36
  Speaker 3: dinner instead of being on this podcast.
• 42:38
  Speaker 7: I've been likened to Josh Hammer.
• 42:39
  Speaker 3: I mean, I'm just like, we were right. We were
• 42:42
  Speaker 3: fucking Cassandras. And we said this in 2019. People thought
• 42:46
  Speaker 3: we were batshit crazy. And here we are, 2022. And
• 42:51
  Speaker 3: I take no pleasure in being right about this. I mean,
• 42:54
  Speaker 3: this is devastating. But damn it, can you just listen
• 42:58
  Speaker 3: to us occasionally?
• 43:00
  Speaker 9: So one big takeaway here is if you are in
• 43:02
  Speaker 9: a position of filling television slots or op-ed page slots
• 43:07
  Speaker 9: with analysis of what this opinion means and what it
• 43:09
  Speaker 9: bodes for the future, not just Leah Lippman, but also
• 43:12
  Speaker 9: Leah Lippman, but other women... Largely, not exclusively, but women,
• 43:17
  Speaker 9: but people who from the beginning kind of understood how
• 43:20
  Speaker 9: grave the danger that much of American constitutional jurisprudence and
• 43:25
  Speaker 9: society as we know it was in based on the
• 43:27
  Speaker 9: change composition of the court from very early on. And
• 43:30
  Speaker 9: those are the voices that really need to be elevated
• 43:32
  Speaker 9: right now.
• 43:33
  Speaker 7: Hashtag not all women, though. I don't want to minimize
• 43:37
  Speaker 7: women's voices and how Amy Chua was quick to point
• 43:40
  Speaker 7: out that Brett Kavanaugh is an excellent mentor to women.
• 43:44
  Speaker 7: and that her daughter would be clerking for him.
• 43:45
  Speaker 8: You don't need to book her.
• 43:47
  Speaker 3: Girl boss.
• 43:48
  Speaker 8: All right, well, that was worth waiting for, Leah.
• 43:49
  Speaker 3: Do you feel better?
• 43:51
  Speaker 9: You know, no, that's the thing.
• 43:52
  Speaker 7: Like, I don't feel better. Like, I feel worse, right?
• 43:55
  Speaker 7: Because like now, right? Like, this is not going to
• 43:58
  Speaker 7: be good for me, but I still feel like it
• 43:59
  Speaker 7: has to be said. I feel like I have been
• 44:01
  Speaker 7: in constant kamikaze mode since 2016. And I just like,
• 44:06
  Speaker 7: I kind of wish that like other people would like
• 44:10
  Speaker 7: adjust some things.
• 44:12
  Speaker 3: It's also worth noting for a lot of the time
• 44:14
  Speaker 3: that Leah was saying this, like we were all saying it,
• 44:16
  Speaker 3: but I want to particularly note for a lot of
• 44:18
  Speaker 3: the time that we were saying this, Leah was untenured.
• 44:21
  Speaker 3: So it actually was incredibly brave and possibly not without
• 44:26
  Speaker 3: consequence that she was saying this. So props to you, Leah,
• 44:30
  Speaker 3: for doing that. I'm sorry that, you know, it turned
• 44:32
  Speaker 3: out we were right about everything and that we're going
• 44:35
  Speaker 3: to be right about all of the rest of it. But, um,
• 44:39
  Speaker 3: I hope people understand how much of a risk you
• 44:41
  Speaker 3: took and are grateful for your voice during what was
• 44:44
  Speaker 3: the lead up to the annihilation.
• 44:47
  Speaker 8: And now it's here. Okay.
• 44:49
  Speaker 3: This has been such a positive episode. I feel like
• 44:51
  Speaker 3: we're giving women credit, talking about this opinion. We're finding
• 44:55
  Speaker 3: silver linings everywhere.
• 44:57
  Speaker 7: We're blowing up silver linings.
• 45:00
  Speaker 3: Well, I think the silver lining is- Things can be cathartic.
• 45:02
  Speaker 8: The catharsis might be the silver lining.
• 45:03
  Speaker 3: It can be cathartic. Someone did put in our DMs
• 45:06
  Speaker 3: that the last couple of episodes have been real downers,
• 45:09
  Speaker 3: and we're like, that's not really on us, but sure.
• 45:13
  Speaker 7: Blame Sam.
• 45:15
  Speaker 3: Blame Sam. We just work here. I'm trying to wring
• 45:19
  Speaker 3: some shards of hope out of this. One shard of
• 45:23
  Speaker 3: hope might be highlighting the range of other voices who
• 45:27
  Speaker 3: could speak credibly on this question. And I hope that
• 45:30
  Speaker 3: those who are in charge of booking for news, whatever,
• 45:34
  Speaker 3: really take that seriously. Maybe now's not the time to
• 45:36
  Speaker 3: hear from the men's.
• 45:38
  Speaker 9: So maybe in the spirit of continuing to elevate the
• 45:41
  Speaker 9: right voices, we'll read a little bit more.
• 45:43
  Speaker 8: From the dissent in the case.
• 45:45
  Speaker 9: So one theme that I think we haven't really touched
• 45:48
  Speaker 9: on explicitly that the dissent highlights is just how much
• 45:51
  Speaker 9: this is really about power.
• 45:53
  Speaker 8: And not about law, or much more about power than
• 45:56
  Speaker 8: it is about law.
• 45:57
  Speaker 9: So maybe should we just like read some of these
• 46:00
  Speaker 9: passages from the dissent?
• 46:01
  Speaker 7: What do you guys think?
• 46:02
  Speaker 4: Yeah.
• 46:02
  Speaker 7: So the dissent says, power, not reason, is a new
• 46:06
  Speaker 7: currency of this court's decision making. And they are quoting
• 46:10
  Speaker 7: what was Justice Thurgood Marshall's last dissent on the Supreme Court,
• 46:16
  Speaker 7: a quote that Sherrilyn Ifill had previously flagged.
• 46:19
  Speaker 9: The dissent also describes the change as radical. It says
• 46:23
  Speaker 9: it makes radical change too easy and too fast based
• 46:26
  Speaker 9: on nothing more than the new views of new judges.
• 46:30
  Speaker 9: The majority, again, still quoting the dissent, has overruled Roe
• 46:33
  Speaker 9: and Casey for one and only one reason, because it
• 46:36
  Speaker 9: has always despised them and now it has the votes
• 46:38
  Speaker 9: to discard them. The majority thereby substitutes a rule by
• 46:42
  Speaker 9: judges for the rule of law.
• 46:44
  Speaker 3: And to end on a really strong note, the dissenters say, today,
• 46:47
  Speaker 3: the proclivities of individuals rule. The court departs from its
• 46:51
  Speaker 3: obligation to faithfully and impartially apply the law. We dissent.
• 46:56
  Speaker 3: So not respectfully, just dissenting. This is all vibes, no law.
• 47:01
  Speaker 8: Yeah.
• 47:03
  Speaker 7: So I think the final closing of the joint dissent
• 47:07
  Speaker 7: is also worth highlighting. So the joint dissent quotes at
• 47:12
  Speaker 7: length from the controlling plurality opinion in Planned Parenthood versus Casey,
• 47:18
  Speaker 7: which relied on the doctrine of stare decisis, respect for precedent,
• 47:23
  Speaker 7: to not overrule Roe versus Wade. And after quoting from that,
• 47:30
  Speaker 7: the joint dissent says, the justices who wrote those words, O'Connor, Kennedy,
• 47:36
  Speaker 7: and Souter, they were judges of wisdom. They would not
• 47:40
  Speaker 7: have won any contest for the kind of ideological purity
• 47:45
  Speaker 7: some court watchers want justices to deliver. But if there
• 47:50
  Speaker 7: were awards for justices who left this court better than
• 47:53
  Speaker 7: they found it and who for that reason left this
• 47:55
  Speaker 7: country better and the rule of law stronger, sign those
• 47:59
  Speaker 7: justices up.
• 48:01
  Speaker 3: They knew that the legitimacy of the court is earned
• 48:04
  Speaker 3: over time. They also would have recognized that it can
• 48:07
  Speaker 3: be destroyed much more quickly. They worked hard to avert
• 48:10
  Speaker 3: that outcome in Casey. The American public, they thought, should
• 48:14
  Speaker 3: never conclude that its constitutional protections hung by a thread,
• 48:17
  Speaker 3: that a new majority adhering to a new doctrinal school could,
• 48:21
  Speaker 3: by dint of numbers alone, expunge their rights. It is hard, no,
• 48:25
  Speaker 3: it is impossible to conclude that anything else has happened here.
• 48:29
  Speaker 3: One of us once said that it is not often
• 48:31
  Speaker 3: in the law that so few have so quickly changed
• 48:34
  Speaker 3: so much. For all of us in our time on
• 48:37
  Speaker 3: this court, that has never been more true than today.
• 48:40
  Speaker 3: In overruling Roe and Casey, this court betrays its guiding principles.
• 48:45
  Speaker 9: And we should say that the one of us is
• 48:46
  Speaker 9: Justice Breyer in a piece that he wrote about Brown
• 48:50
  Speaker 9: in 2022. The final paragraph is short and just reads,
• 48:54
  Speaker 9: With sorrow for this court, but more for the many
• 48:57
  Speaker 9: millions of American women who have today lost a fundamental
• 48:59
  Speaker 9: constitutional protection, we dissent.
• 49:04
  Speaker 8: It's a very powerful writing.
• 49:06
  Speaker 9: And there are a couple of other writings that we
• 49:08
  Speaker 9: should at least briefly mention before we wrap. One is
• 49:11
  Speaker 9: that the Chief Justice, we talked at length about the
• 49:13
  Speaker 9: Thomas concurrence. The Chief Justice also concurred. The extent of
• 49:17
  Speaker 9: the dissent's reference to it is literal. one sentence, which
• 49:21
  Speaker 9: I think broadcasts how irrelevant the dissent believes. And I
• 49:24
  Speaker 9: think the dissent is right about this. The Chief Justice's
• 49:27
  Speaker 9: separate writing is. So the dissent writes, we believe that
• 49:30
  Speaker 9: the Chief Justice's opinion is wrong too, but no one
• 49:32
  Speaker 9: should think that there is not a large difference between
• 49:34
  Speaker 9: upholding a 15-week ban on the grounds he does and
• 49:36
  Speaker 9: allowing states to prohibit abortion from the time of conception.
• 49:40
  Speaker 9: So yeah, he's wrong, but no one should think there
• 49:43
  Speaker 9: is not a large difference. Like what this extremely turbocharged
• 49:47
  Speaker 9: majority has done is absolutely radical. Even the chief seems
• 49:51
  Speaker 9: to recognize that, but the chief is wrong too.
• 49:53
  Speaker 3: It's kind of like, it's nice you tried. Thanks. Right.
• 49:56
  Speaker 8: I mean, it's interesting.
• 49:58
  Speaker 9: They could have tried to make much nicer with him
• 50:00
  Speaker 9: and there was clearly no appetite and no interest for
• 50:02
  Speaker 9: doing that. And even though I actually think the dissent
• 50:04
  Speaker 9: is sort of right about the most effective way to
• 50:06
  Speaker 9: kind of broadcast the irrelevance of the separate Roberts writing
• 50:10
  Speaker 9: by just having this one parenthetical mention of it. Alito,
• 50:15
  Speaker 9: just because he cannot help himself, he has to take
• 50:19
  Speaker 9: these swipes at Roberts, whose vote he doesn't need, and who, again,
• 50:23
  Speaker 9: has written something pretty irrelevant, but Alito has to go
• 50:25
  Speaker 9: after him. So he criticizes the Roberts concurrence in a
• 50:28
  Speaker 9: bunch of different places, in one place saying the concurrence's
• 50:31
  Speaker 9: most fundamental defect is its failure to offer any principled
• 50:34
  Speaker 9: basis for its approach, which I have to say that
• 50:36
  Speaker 9: sentence and just the Alito kind of nastiness with respect
• 50:40
  Speaker 9: to the Roberts concurrence did make me wonder, I think
• 50:42
  Speaker 9: we talked about this previously, but did Roberts or Thomas
• 50:45
  Speaker 9: assign this opinion to Alito? Like Roberts was voting to reverse,
• 50:50
  Speaker 9: to uphold the Mississippi law. So I think Roberts did
• 50:53
  Speaker 9: have the power to assign it and made the choice
• 50:56
  Speaker 9: to assign it to Alito. The other possibility is that
• 50:58
  Speaker 9: Thomas did, but I think under ordinary rules, it would
• 51:01
  Speaker 9: have been a Roberts assignment to make and he chose
• 51:03
  Speaker 9: to give it to Alito.
• 51:04
  Speaker 5: Yeah.
• 51:05
  Speaker 3: Or do you think he was not in the majority
• 51:07
  Speaker 3: initially and then he just was like, okay, this is
• 51:11
  Speaker 3: going to happen anyway. Let me just– like I'm not
• 51:12
  Speaker 3: going to hitch my wagon to these losers and.
• 51:15
  Speaker 9: I'll just try and do what I– Or he tried
• 51:16
  Speaker 9: to write– he tried to write what he thought. He said,
• 51:18
  Speaker 9: let me assign to myself the majority. I mean, I
• 51:20
  Speaker 9: guess– maybe they vote– they cast two separate votes, one
• 51:23
  Speaker 9: with respect to the Mississippi law and one with respect
• 51:25
  Speaker 9: to overruling Roe. And if the assignment was made on
• 51:28
  Speaker 9: the basis of both and not just one of those votes,
• 51:31
  Speaker 9: I really don't know.
• 51:32
  Speaker 7: I don't know.
• 51:33
  Speaker 8: It's possible he could have tried.
• 51:33
  Speaker 3: Or is this his penance to the right for June Medical?
• 51:37
  Speaker 9: But why would he write at all if that's what
• 51:39
  Speaker 9: he's worried about? Wouldn't he just then go along with
• 51:41
  Speaker 9: the Alito approach?
• 51:43
  Speaker 3: Well, I think, I mean, this to me reads like
• 51:46
  Speaker 3: the concurrences in Bruin yesterday, the one that the Chief
• 51:51
  Speaker 3: Justice joined that Kavanaugh wrote, where, I mean, they're basically
• 51:53
  Speaker 3: trying to say, like, okay, ladies, don't get too hysterical.
• 51:57
  Speaker 3: It's not a big deal. It's actually very narrow. We
• 52:00
  Speaker 3: could have made it explicitly narrow, but you don't have
• 52:03
  Speaker 3: to worry because it actually is narrow. It's only this.
• 52:06
  Speaker 3: It just returns it to the states. And then I
• 52:08
  Speaker 3: think he's in a fit of pique and he has
• 52:10
  Speaker 3: to include some of this, like there was another way
• 52:12
  Speaker 3: to go. You all didn't want to go there with me.
• 52:13
  Speaker 3: But just to be clear, this decision isn't as maximalist
• 52:17
  Speaker 3: as you would have it.
• 52:18
  Speaker 9: I just don't think Roberts is even saying that. I
• 52:19
  Speaker 9: think he's saying, I'm offering a non-maximalist route. But I
• 52:21
  Speaker 9: think the inference you draw from the alternative that Roberts
• 52:24
  Speaker 9: sketches is that it actually is a really maximalist approach
• 52:27
  Speaker 9: that Alito has taken. And also, like, how could you
• 52:30
  Speaker 9: move any other way?
• 52:30
  Speaker 3: I mean, I just, I think he wanted this said,
• 52:34
  Speaker 3: he wanted people to know that there was another way
• 52:37
  Speaker 3: and that you don't have to read this in the
• 52:41
  Speaker 3: way Thomas and Alito. I mean, like, notably, we don't
• 52:43
  Speaker 3: get anything from Gorsuch or Barrett. So maybe this decision
• 52:46
  Speaker 3: is for them.
• 52:47
  Speaker 9: Yeah, maybe.
• 52:48
  Speaker 8: Yeah, what about the Kavanaugh concurrence? We should talk about that.
• 52:51
  Speaker 7: Yeah, so Justice Kavanaugh also wrote a concurrence. It's like
• 52:55
  Speaker 7: somehow even worse than I thought a Kavanaugh concurrence in
• 52:59
  Speaker 7: this case would be. You know, at one point he suggests, yeah,
• 53:03
  Speaker 7: like I'd probably be cool with like a federal ban
• 53:06
  Speaker 7: on abortion. So he writes, quote, that issue, meaning abortion,
• 53:11
  Speaker 7: will be resolved by the people and their representatives in
• 53:13
  Speaker 7: the democratic process in the states or Congress. And the
• 53:18
  Speaker 7: Joint Dissent says, In fact, already House Republicans are eyeing
• 53:21
  Speaker 7: a 15-week abortion ban after this ruling. And Mike Pence
• 53:23
  Speaker 7: speaking said, Having been given the second chance for life,
• 53:42
  Speaker 7: we must not rest and must not relent until the
• 53:44
  Speaker 7: sanctity of her life is restored to the center of
• 53:46
  Speaker 7: American law in every state in the land.
• 53:50
  Speaker 9: Yeah. So the Kavanaugh concurrence, super concerning. I mean, he
• 53:54
  Speaker 9: does say one thing independent of the, I think, pretty
• 53:58
  Speaker 9: strong suggestion he would be okay with a federal ban,
• 54:00
  Speaker 9: which is what he basically says.
• 54:02
  Speaker 8: I'll quote here.
• 54:03
  Speaker 9: Some of the other abortion-related legal questions raised by today's
• 54:06
  Speaker 9: decision are not especially difficult as a constitutional matter. May
• 54:09
  Speaker 9: a state borrow a resident of that state from traveling
• 54:11
  Speaker 9: to another state? In my view, the answer is no,
• 54:13
  Speaker 9: based on the constitutional right to interstate travel, which is
• 54:16
  Speaker 9: an article, wait, what? Where is that exactly? I mean,
• 54:19
  Speaker 9: they're like, the court has said there are parts of the, no,
• 54:22
  Speaker 9: it's actually not explicitly. No, but it's like, it's about, like,
• 54:26
  Speaker 9: there are a few different parts of the constitution that
• 54:28
  Speaker 9: the court has said, read together, must protect.
• 54:31
  Speaker 3: But this is an implied, it's an implied right.
• 54:32
  Speaker 9: But my point is, it's an implied right, definitely. And
• 54:36
  Speaker 9: yet he says, you know, just kind of breezily suggests that,
• 54:39
  Speaker 9: of course, that right would prohibit a state from preventing
• 54:43
  Speaker 9: women from traveling to other states to obtain abortion care.
• 54:45
  Speaker 9: And yet, even though I think it's less significant in
• 54:48
  Speaker 9: some ways than his language seeming to broadcast a support
• 54:51
  Speaker 9: for a future federal ban, it is definitely important if
• 54:55
  Speaker 9: that's a critical part of his general view of constitutional
• 54:59
  Speaker 9: constraints in this domain, because right now it does look
• 55:02
  Speaker 9: like he is the fifth vote for the Alito opinion.
• 55:05
  Speaker 9: And if he wouldn't be willing to go along with
• 55:07
  Speaker 9: an opinion upholding a state prohibition on interstate travel. That
• 55:10
  Speaker 9: is significant from the perspective of the numbers on the court.
• 55:13
  Speaker 3: Okay. So he's saying this today. I mean, like, do
• 55:16
  Speaker 3: you really expect him to hold firm and fast on
• 55:19
  Speaker 3: this particular position?
• 55:20
  Speaker 9: It's categorical enough that he would have to work pretty
• 55:22
  Speaker 9: hard to walk it back. So I think it would
• 55:25
  Speaker 9: present a real obstacle. But of course, he could walk
• 55:27
  Speaker 9: anything back.
• 55:28
  Speaker 3: It's almost like he could appear before the Senate Judiciary
• 55:30
  Speaker 3: Committee and say that he thought Roe was settled precedent.
• 55:33
  Speaker 3: And then, wait, I'm sorry. No, of course.
• 55:37
  Speaker 9: But then misrepresenting their views.
• 55:40
  Speaker 7: There wasn't briefing on that issue in this case. And,
• 55:44
  Speaker 7: you know, it was like the majority in Broon said
• 55:46
  Speaker 7: they are confined to the historical record as presented by
• 55:49
  Speaker 7: the parties, which gives them substantial wiggle room to basically say,
• 55:52
  Speaker 7: I don't think the briefing was satisfactory on that issue
• 55:55
  Speaker 7: in a prior case. And so I don't have to
• 55:56
  Speaker 7: respect that prior case. And here, right, like that issue
• 56:00
  Speaker 7: hasn't been briefed.
• 56:01
  Speaker 4: Absolutely.
• 56:02
  Speaker 9: But if he wanted to protect himself from, I think,
• 56:05
  Speaker 9: pretty obvious accusations that he is just a hack and unprincipled,
• 56:10
  Speaker 9: I think he should have cabined more.
• 56:12
  Speaker 8: His suggestion that not.
• 56:14
  Speaker 9: Before us, but my instinct, right, to try to broadcast
• 56:16
  Speaker 9: for like some good PR, his receptivity to a right
• 56:20
  Speaker 9: to travel claim, but he says it quite categorically. So
• 56:22
  Speaker 9: I think he's making it much harder, at least for
• 56:24
  Speaker 9: himself to reverse course. Of course, that's possible, but I
• 56:27
  Speaker 9: think it will be difficult.
• 56:29
  Speaker 3: In addition to expressing his unadulterated support for the implied
• 56:33
  Speaker 3: right to travel, Coach Kavanaugh also reiterates his bro philosophy and,
• 56:39
  Speaker 3: you know, does so in a way that will be
• 56:41
  Speaker 3: enshrined forever in the U.S. report. So here's what he
• 56:44
  Speaker 3: has to say. In my judgment on the issue of abortion,
• 56:48
  Speaker 3: the Constitution is neither pro-life nor pro-choice. The Constitution is neutral,
• 56:54
  Speaker 3: and this court likewise must be scrupulously neutral. The court
• 56:58
  Speaker 3: today properly heeds the constitutional principle of judicial neutrality and
• 57:02
  Speaker 3: returns the issue of abortion to the people and their
• 57:05
  Speaker 3: elected representatives in the democratic process. I want that on
• 57:09
  Speaker 3: a sweatshirt. The Constitution is neither pro-choice nor pro-life.
• 57:15
  Speaker 7: We knew it's bro-life.
• 57:18
  Speaker 8: It is bro-life.
• 57:19
  Speaker 7: The Constitution is bro-life.
• 57:21
  Speaker 8: Is it also bro-choice?
• 57:21
  Speaker 3: I like that.
• 57:23
  Speaker 7: Yeah. Also bro choice.
• 57:24
  Speaker 3: Choices for bros, for sure.
• 57:25
  Speaker 9: It's definitely bro.
• 57:27
  Speaker 8: Choice, actually.
• 57:29
  Speaker 4: Yeah.
• 57:29
  Speaker 5: Yeah.
• 57:29
  Speaker 3: I like that.
• 57:30
  Speaker 7: Bro choice, bro life. Yeah. Classic move from Scrotus.
• 57:35
  Speaker 3: Okay.
• 57:36
  Speaker 7: If it wasn't so.
• 57:37
  Speaker 9: Grim, that would be a good episode title.
• 57:38
  Speaker 3: We haven't said that in so long.
• 57:41
  Speaker 7: I know.
• 57:41
  Speaker 3: This is a good day to bring it back. That
• 57:43
  Speaker 3: was from the beginning. We said that in 2019.
• 57:44
  Speaker 5: Scrotus.
• 57:44
  Speaker 9: Scrotus. I assume our crooked overlords would be fine with
• 57:49
  Speaker 9: that term.
• 57:50
  Speaker 8: We haven't rolled it out in a while.
• 57:52
  Speaker 7: Guess we'll see.
• 57:53
  Speaker 3: Who doesn't love it?
• 57:54
  Speaker 7: Guess we'll find out. So we've gotten some reactions. Senator
• 58:01
  Speaker 7: Joe Manchin said, I trusted Justice Gorsuch and Justice Kavanaugh
• 58:06
  Speaker 7: when they testified under oath that they believed Roe versus
• 58:09
  Speaker 7: Wade was settled legal precedent. And I am alarmed they
• 58:13
  Speaker 7: chose to reject the stability of the ruling. has provided
• 58:17
  Speaker 7: for two generations of Americans.
• 58:20
  Speaker 3: I trusted him. He said he loved me.
• 58:22
  Speaker 7: The greatest power that a senator has is to issue
• 58:26
  Speaker 7: statements to the press. This is definitely true.
• 58:30
  Speaker 8: Or they could tweet them. That's a great power as well.
• 58:33
  Speaker 3: I like that. Senator Susan Collins also had some things
• 58:38
  Speaker 3: to say. And if you'll recall, Senator Susan Collins was
• 58:41
  Speaker 3: sort of the Senator of interest during the Kavanaugh nomination.
• 58:45
  Speaker 3: So she had this to say, this decision is inconsistent
• 58:49
  Speaker 3: with what justices Gorsuch and Kavanaugh said in their testimony
• 58:52
  Speaker 3: and their meetings with me, where they both were insistent
• 58:55
  Speaker 3: on the importance of supporting longstanding precedents that the country
• 58:58
  Speaker 3: has relied upon. She too has been taken in and yeah,
• 59:05
  Speaker 3: surprising in a surprising fashion.
• 59:07
  Speaker 9: Troubled by this. Um, The Attorney General, Merrick Garland, for
• 59:12
  Speaker 9: whom this must have been a difficult day because had
• 59:16
  Speaker 9: things gone differently, his vote and not Neil Gorsuch's would
• 59:20
  Speaker 9: have been, well, none of this would have been litigated
• 59:22
  Speaker 9: the way it was at all and many, many things
• 59:24
  Speaker 9: would have been very different. But of course, he's not
• 59:26
  Speaker 9: in the Supreme Court. He is the Attorney General. while
• 59:29
  Speaker 9: noting that overturning Roe means eliminating a fundamental right, also
• 59:32
  Speaker 9: sort of turned the focus to medication abortion and included
• 59:37
  Speaker 9: in his statement, quote, the FDA has approved the use
• 59:40
  Speaker 9: of the medication mifepristone. States may not ban mifepristone based
• 59:44
  Speaker 9: on disagreement with the FDA's expert judgment about its safety
• 59:47
  Speaker 9: and efficacy. So it seems to be broadcasting an aggressive
• 59:51
  Speaker 9: strategy of federal preemption, federal arguments in favor of federal
• 59:55
  Speaker 9: preemption of any state law that seeks to obstruct access
• 59:59
  Speaker 9: to medication abortion approved by the FDA, safe, effective, again,
• 1:00:02
  Speaker 9: only for early abortion. It does not present a real
• 1:00:05
  Speaker 9: option for women who discover they're pregnant later than 10 weeks,
• 1:00:09
  Speaker 9: have detected anomalies that are incompatible with life after 10 weeks.
• 1:00:13
  Speaker 9: But for many, many women who would like to elect abortion,
• 1:00:16
  Speaker 9: access to medication abortion actually really is a development that's
• 1:00:19
  Speaker 9: a hugely significant one in the decades since Roe was decided.
• 1:00:22
  Speaker 9: And I think it will be an important source of
• 1:00:25
  Speaker 9: potential federal response to the decision, which is to facilitate
• 1:00:29
  Speaker 9: access and to guard against state efforts to impede access
• 1:00:32
  Speaker 9: to medication abortion. So I'm glad Garland highlighted.
• 1:00:35
  Speaker 8: That in his statement.
• 1:00:36
  Speaker 3: But it's worth putting a line under this to make
• 1:00:39
  Speaker 3: clear that this is one of those issues where voting
• 1:00:43
  Speaker 3: and maintaining control of the administrative state is really going
• 1:00:47
  Speaker 3: to be important, right? So I mean, if there's a
• 1:00:50
  Speaker 3: change in the administration... the FDA's priorities around Mifepristone is
• 1:00:55
  Speaker 3: not going to be the same as it is now.
• 1:00:57
  Speaker 3: So this is one of those places where if you
• 1:01:01
  Speaker 3: want to preserve this as a safe haven, you really
• 1:01:04
  Speaker 3: do need to exercise some political will here.
• 1:01:07
  Speaker 7: And we have seen that the Senate has been unwilling
• 1:01:11
  Speaker 7: to kind of codify a right to an abortion. Um,
• 1:01:15
  Speaker 7: I wonder if there is like any chance of finding
• 1:01:18
  Speaker 7: a filibuster proof majority to codify a right to contraception, right?
• 1:01:21
  Speaker 7: Like put that bill on the floor and see if
• 1:01:25
  Speaker 7: Republicans are willing to go along with it. And if
• 1:01:27
  Speaker 7: they're not right, that's a pretty big tell about where
• 1:01:30
  Speaker 7: we might be going next. Um, And, you know, just
• 1:01:34
  Speaker 7: thinking about timing, releasing Dobbs the day after you release Bruhn.
• 1:01:40
  Speaker 7: And this is the first full term that this court
• 1:01:44
  Speaker 7: has been together. The first. And it's just quite a
• 1:01:48
  Speaker 7: flex to do this. And we probably should have... taken
• 1:01:54
  Speaker 7: the hint and gotten the clue when a majority of
• 1:01:56
  Speaker 7: the court cited Dred Scott and used its reasoning to
• 1:01:59
  Speaker 7: interpret the Constitution, really working our way back to the
• 1:02:02
  Speaker 7: pre-13th Amendment universe. But it is where we are.
• 1:02:05
  Speaker 3: All right. The joint dissent links all of this to
• 1:02:10
  Speaker 3: Texas SB-8, which I think we ought to highlight. Earlier
• 1:02:13
  Speaker 3: this term, this court signaled that Mississippi's stratagem would succeed
• 1:02:17
  Speaker 3: because Texas was one of the fistful of states to
• 1:02:20
  Speaker 3: have recently banned abortions after six weeks of pregnancy. It
• 1:02:24
  Speaker 3: noted that this flagrantly unconstitutional restriction had in it an
• 1:02:29
  Speaker 3: unprecedented scheme to evade judicial scrutiny. That was Justice Sotomayor
• 1:02:34
  Speaker 3: dissenting in Whole Women's Health v. Jackson. And she noted
• 1:02:38
  Speaker 3: that five justices essentially acceded to that very cynical maneuver,
• 1:02:42
  Speaker 3: allowing Texas to defy the court's constitutional rulings, essentially nullifying
• 1:02:46
  Speaker 3: Roe and Casey ahead of schedule in the nation's second
• 1:02:51
  Speaker 3: largest state. And now... It's worth noting that the other
• 1:02:55
  Speaker 3: shoe has dropped courtesy of that same six-person majority. They
• 1:03:00
  Speaker 3: have essentially done what they telegraphed they would do earlier
• 1:03:04
  Speaker 3: by allowing SB8 to go into effect. And now we're
• 1:03:08
  Speaker 3: going to see what happens throughout much of the country.
• 1:03:11
  Speaker 7: And of course, people are wondering what to do now,
• 1:03:15
  Speaker 7: what can be done. On previous episodes, we have highlighted
• 1:03:19
  Speaker 7: the importance of contributing to abortion funds, as well as,
• 1:03:24
  Speaker 7: you know, getting involved in upcoming elections. And those things
• 1:03:28
  Speaker 7: are necessary, but they're not sufficient. You know, I think
• 1:03:34
  Speaker 7: it's important to understand that this decision is the culmination
• 1:03:38
  Speaker 7: of a decades-long plan, you know, that was pushed along
• 1:03:43
  Speaker 7: with help from, you know, Leonard Leo and Ed Meese,
• 1:03:46
  Speaker 7: who had such a hand in organizing and coordinating the
• 1:03:50
  Speaker 7: federal society. And it is going to take decades, just
• 1:03:54
  Speaker 7: like their work did in order to change the world
• 1:03:58
  Speaker 7: we are now living in. You know, it's not just
• 1:04:00
  Speaker 7: going to the polls that is important, but movement building
• 1:04:04
  Speaker 7: and like organizing now so that there are structures in place,
• 1:04:08
  Speaker 7: you know, with like candidates who can win elections and
• 1:04:12
  Speaker 7: then win elections in the future so that there are
• 1:04:16
  Speaker 7: networks of lawyers to fill state and local governments and
• 1:04:21
  Speaker 7: federal governments and get judicial appointments, and that there are
• 1:04:25
  Speaker 7: think tanks, right, supporting, you know, all of these goals.
• 1:04:31
  Speaker 7: And I also just think it's a fact that like
• 1:04:33
  Speaker 7: the people who got us here by saying, right, we
• 1:04:36
  Speaker 7: didn't have anything to worry about, or we should like
• 1:04:39
  Speaker 7: trust in like these institutions, I'm just kind of skeptical
• 1:04:43
  Speaker 7: that they are going to be the ones to get
• 1:04:45
  Speaker 7: us out of it.
• 1:04:46
  Speaker 9: We're recording just a couple of hours after the opinion
• 1:04:48
  Speaker 9: was issued. So it's Friday and there are rallies happening
• 1:04:52
  Speaker 9: in New York City tonight, I am sure, elsewhere, both
• 1:04:54
  Speaker 9: tonight and throughout the weekend. So if, you know, getting
• 1:04:58
  Speaker 9: near your people and making your voice heard is one
• 1:05:02
  Speaker 9: kind of short-term way to respond, like there will definitely
• 1:05:04
  Speaker 9: be outlets for that.
• 1:05:05
  Speaker 8: And Leah was alluding, of course, to voting.
• 1:05:07
  Speaker 9: You know, as Biden said when he gave a public
• 1:05:11
  Speaker 9: statement a couple of hours ago, you know, he said
• 1:05:13
  Speaker 9: Roe is on the ballot. I think we should just
• 1:05:15
  Speaker 9: say abortion is on the ballot, right? Roe is not
• 1:05:16
  Speaker 9: on the ballot. I'm not sure that's helpful. But it
• 1:05:19
  Speaker 9: is not just on the ballot in the sense of
• 1:05:21
  Speaker 9: the congressional midterm elections. Like it is as important and
• 1:05:25
  Speaker 9: maybe more important to focus on the degree to which
• 1:05:28
  Speaker 9: questions of abortion and other fundamental rights are on the
• 1:05:31
  Speaker 9: ballot in terms of the state races, not just for,
• 1:05:35
  Speaker 9: you know, elected office in, you know, state executive and
• 1:05:38
  Speaker 9: legislative branches, but state courts. There are a number of
• 1:05:41
  Speaker 9: state courts that are in the balance in the next
• 1:05:45
  Speaker 9: year in terms of pivotal seats coming open.
• 1:05:48
  Speaker 8: Kansas, for example, has a.
• 1:05:50
  Speaker 9: Constitutional amendment that would overturn a state Supreme Court decision
• 1:05:54
  Speaker 9: that found that the state Bill of Rights protected a
• 1:05:57
  Speaker 9: right to abortion. So voting, and again, up and down
• 1:06:01
  Speaker 9: the ballot, and not just for office, but on ballot questions,
• 1:06:04
  Speaker 9: is absolutely critical. November in a lot of places, but
• 1:06:07
  Speaker 9: there are elections this summer and in the early fall.
• 1:06:10
  Speaker 9: So all of them are really critical right now.
• 1:06:12
  Speaker 3: I want to underscore that. I think earlier, I guess
• 1:06:16
  Speaker 3: in the last week or so, I think I said
• 1:06:18
  Speaker 3: something to the press about, you know, when this decision
• 1:06:20
  Speaker 3: finally drops, you can either cry or you can vote.
• 1:06:23
  Speaker 3: And I got some blowback from I assume people who,
• 1:06:28
  Speaker 3: you know, are engaged, but who, you know, doubt whether
• 1:06:31
  Speaker 3: voting is going to be consequential here. And I'm just like,
• 1:06:34
  Speaker 3: I don't know that we have any other choice. I mean,
• 1:06:37
  Speaker 3: we kind of have to build a movement in much
• 1:06:40
  Speaker 3: the same way the conservative legal movement orchestrated this and
• 1:06:43
  Speaker 3: assiduously husbanded it over a number of years. But we
• 1:06:46
  Speaker 3: have to vote in the meantime. And I know it
• 1:06:48
  Speaker 3: sounds incredibly passe, but you have to get out there,
• 1:06:53
  Speaker 3: like get out the vote. People who don't typically vote
• 1:06:55
  Speaker 3: need to get out, especially for the midterm elections that
• 1:06:58
  Speaker 3: see sort of a dip in voter participation. And it's
• 1:07:01
  Speaker 3: not just the state elections, but also the local elections.
• 1:07:05
  Speaker 3: Who is the prosecutor in your jurisdiction is going to
• 1:07:09
  Speaker 3: be enormously important because that individual will have wide discretion
• 1:07:13
  Speaker 3: to determine, based on how some of these laws are written,
• 1:07:16
  Speaker 3: whether or not they're going to prosecute and who they're
• 1:07:17
  Speaker 3: going to prosecute and for what. So again, state AGs,
• 1:07:21
  Speaker 3: state secretary of states, because of the whole question of
• 1:07:25
  Speaker 3: the independent state legislature doctrine. And then all of these questions,
• 1:07:29
  Speaker 3: like They're all inextricably linked. Leah has said this before,
• 1:07:32
  Speaker 3: and I know it sounds like the oldest trick in
• 1:07:35
  Speaker 3: the book, but we do have to actually vote.
• 1:07:38
  Speaker 8: I mean, we can sleep it off for a day
• 1:07:39
  Speaker 8: or two.
• 1:07:40
  Speaker 7: Yes.
• 1:07:41
  Speaker 8: Once we pull ourselves out of bed, off the floor.
• 1:07:43
  Speaker 7: Self-care is important.
• 1:07:45
  Speaker 3: I'm ready to go. I mean, Black women have been
• 1:07:47
  Speaker 3: ready for this for a long time. We've been saying
• 1:07:49
  Speaker 3: this for a long time, and we've been saying that
• 1:07:51
  Speaker 3: these issues can't be siloed. Like, the impositions on the
• 1:07:54
  Speaker 3: right to vote have ripple effects, and this is one
• 1:07:57
  Speaker 3: of those effects. Yeah. I'm here and I'm ready and
• 1:08:01
  Speaker 3: let's go fuck shit up.
• 1:08:05
  Speaker 9: Strict Scrutiny is a Crooked Media production hosted and executive
• 1:08:08
  Speaker 9: produced by Leah Lippman, Melissa Murray, and me, Kate Shaw.
• 1:08:11
  Speaker 9: Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin.
• 1:08:15
  Speaker 8: Music by Eddie Cooper.
• 1:08:16
  Speaker 9: Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz.
• 1:08:19
  Speaker 9: Digital support from Amelia Montooth. And summer intern support from
• 1:08:23
  Speaker 9: Anushka Chander.