[Music] and they've just gone crazy with them there was a lot of big news um obviously this past week uh when a leaked draft of the supreme court's roe v wade decision uh was published uh by politico the draft opinion written by justice toledo uh would turn roe v wade from a federal issue to a state issue now this
is a bit above uh all of our pay grades so chamoth had a really great idea to tap some people who are actual experts and uh in the supreme court uh chamoc maybe you could introduce our guests i will queue this up for us thank you great um so first i'd like to introduce amy howe um amy uh until 2016 served as the editor and a reporter for scotus
blog which is the um the premier blog that covers the supreme court she continues to serve as an independent contractor and reporter for scotus blog she also writes for her blog called how on the court and before turning to full-time blogging she was a council in over two dozen merits cases at the supreme court and argued two cases there from 2004 until
2011 she co-taught supreme court litigation at stanford law school and from 05 to 13 2013 she co-taught a similar class at harvard law school and i'd also like to introduce um her partner in scotus and also her partner in life tom goldstein another dear friend of mine over the past 15 years tom has served as one of the lawyers for
one of the parties in just under 10 of all the cases argued before the supreme court he has argued 43 cases himself and two that i think are probably a little bit near and dear to all of our hearts uh in 2000 tom served a second chair for lawrence tribe and david bowie's on behalf of vice president al gore and bush figore
and most recently he represented google in a fair use copyright infringement case google versus oracle um about the use of java apis um and so tom and amy thank you guys for giving us um your precious time welcome to the pod thanks for having us thanks for having us i was a little nervous about what the introduction was gonna be
like so thank you so guys there's a there's a million questions um to start with or that we can go but uh maybe just to frame the issue can you guys just first walk us through the original roe v wade decision how it was made and the rights that it conferred and then maybe we can go from there and talk about um what has
happened as a result of the way it was written and the and the the judgment as it as it stood sure roe v wade back in the early 1970s was a decision by justice harry blackman in which the court held for the first time that there is a constitutional right to an abortion and at that point the court ruled that it was regulated by time up through the
trimesters am i getting this right tom yeah and then in 1992 in a case called planned parenthood versus casey that was an earlier effort to overrule roe versus wade because abortion opponents started pretty quickly trying to overturn roe versus wade and so in 1992 in a case called planned parenthood versus casey the supreme court did not over
row in fact reaffirmed it but switched the test a little bit the constitutional test to decide whether other abortion restrictions can stand and this was a decision by justices david suter anthony kennedy and sandra day o'connor who were all appointed by republican presidents and they said there's a constitutional right
to an abortion up until the point at which the fetus becomes viable which these days is somewhere around 24 the 24th week of pregnancy but states can regulate abortions as long as they don't impose an undue burden on the woman's right to an abortion i was just going to tack on like what's sitting underneath roe because that ends
up being a big deal these days you know where did it come from seven justices in rowan wade say there is this constitutional right to an abortion up to an appoint and of course there's no textual reference to abortion in the constitution instead the supreme court drew on earlier decisions involving what was called the constitutional right to
privacy essentially a kind of bodily autonomy right an individual liberty principle that you're going to control your own destiny and your own body drawing on cases involving contraception for example for both married and unmarried couples and that really is the doctrinal the jurisprudential piece of this thing that conservatives have been
after so hard you've got kind of two branches of conservatism in play one is look uh kind of religious uh and social conservatism that abortion is evil and then you have a jurisprudential lawyers kind of thing like you made this up it's not in the constitution and those two threads have come together and have
been at the root of this 50-year battle over row in fact before we unpack that maybe you want to just define for people as i understood as i've been learning about this this week there's this one sort of moral spectrum between liberalism and conservatism but then there's this orthogonal form of like originalism i guess is what
folks call it can you just define those terms so everybody understands what we're talking about sure so you know in ordinary politics we do think of conservatism and then kind of more libertarianism a kind of peter thiel uh get the government out of my life and conservatives do believe that the government has an important role
frequently conservatives believe this an important role in regulating abortion and prohibiting an abortion whereas a libertarian be more likely to say no this is my body my choice for example and so that's kind of along the political spectrum in the legal spectrum you have this sense of people there are a set of conservatives in particular are
principally who think that the constitution should be interpreted today the way that it would have been understood the day that it was enacted or that an amendment to the constitution was enacted so that the 14th amendment to the constitution for example prohibits depriving someone of liberty or property without due process of law
and they would say well what was due process of law at that time what was liberty at that time whereas a more progressive constitutionalist somebody more on the left would say look no there are lots of things that aren't enumerated in the constitution including you know a right to bodily autonomy at all the right to
contraception uh the right even rights even conservatives care about the right to educate your child in the way that you see fit and the constitution in particular has to be able to adapt to modern circumstances and that's why actually our constitution's so vague there are lots of more modern constitutions take the south african constitution that have
lots and lots and lots and lots of detailed provisions tackling all kinds of problems including modern problems but the view of progressive constitutionalists is that look when the country was founded and they wrote the constitution they knew the country was going to be around for centuries and they didn't intend to capture every
kind of social circumstance they didn't intend to capture every modern problem which couldn't even be contemplated so yeah that's the those are the two different kinds of conservatives and we're talking about um but both originalists say look there's no right to abortion in the constitution the founders of the country
would have never imagined that we would uh strike down bans on abortion and then social conservatives are like well this is a really really important role of government we're protecting unborn life amy i don't know if you've had a chance to read alito's draft opinion but can you sort of walk us through his legal framework for
coming to his conclusion that that this thing needs to be struck down and why he's saying what he's saying yes it is a 67-page opinion with another 30 pages or so in the appendix and what he tackles it in two ways the first is kind of from this originalist perspective he looks at the idea of whether or not the right to an abortion
is something that is deeply rooted in our country's history and he concludes that it is not that not only was there no right to an abortion he said until the late 20th century when right around the time that the court issued his decision in row but in fact abortion was a crime in many places and so he starts from that premise that
there's no deeply rooted tradition of abortion being a right in under the constitution and that goes to the idea of what did the framers intend does it fall within this fundamental right that would be protected by the constitution even if it is not specifically enumerated in the constitution but then he also has to
look at roe and casey because those laws have been in effect that those cases have been in effect for 50 years now the court issued this decision in row in the early 70s and then reaffirmed it in casey in 1992 because the supreme court and courts generally have a principle called star a decisis that says that courts should not overturn their
decisions just because they think the earlier decisions are wrong that there needs to be a good reason to do that and the court has never said specifically exactly what you need to do to overrule a decision but over the years they have outlined some factors that you can look at to decide whether or not you should do so and so
he walks through those factors the idea that roe and casey were simply wrong when they were decided for the reasons that the toms has just discussed and that elita discusses at great length that there's no deeply rooted tradition of abortion being a right the idea that another thing that courts often look at
is whether or not people have relied on the court's decisions here in rowe and casey and he said that even in casey there wasn't this idea that people arranged their personal lives you know in the short term around the idea that they have a right to an abortion they've looked at it in casey and sort of in people since then in sort of the broader
sense that women have made decisions about about their lives so with the idea that they will have reproductive freedom and he says that's really not the right way to look at the issue of reliance he looks at whether or not the test that the supreme court has and other courts have been using to review restrictions on abortion
uh this undue burden standard is what's what he calls workable and he concludes that it's not workable because he says this idea of an undue burden test is so amorphous that courts have reached all kinds of different decisions on various abortion restrictions and so for those reasons he says the i abortion is a profound moral
question he says but it's not one that is protected by the constitution it's a question that be should be decided by the people and their representatives and should go back to the states can i just follow up on that point so i think a lot of people when they read a headline like roe v wade overturn they think that the supreme court is
directly legislating on the issue of abortion and it means abortion ban nationwide um i think that maybe even the popular conception of what of what just happened can you just explain that a little bit more that you know what exactly is this from court deciding on this issue and specifically what the supreme
court is doing here is more deciding who gets to decide rather than issuing policy themselves could you just explain that for for viewers and as you do that maybe you could just highlight the role the supreme court is meant to have in in our system of government just as a basic kind of concept which i'm not sure is like
as clearly understood here sure so you know there are the three branches of government the president the executive branch the legislative branch which is congress and the supreme court and the supreme court's job is to in this case interpret the constitution now some of the cases that come to the supreme court are technical they don't even involve
the constitution what did congress mean to say when it enacted this law about bankruptcy but then it also gets these really momentous cases like abortion and this case is a challenge it can't the actual case that came to the supreme court is a challenge to a mississippi law that was passed with the idea that it could go to the
supreme court and challenge roe and casey but a mississippi law that was passed a couple of years ago that would ban virtually all abortions after the 15th week of pregnancy and so abortion providers in mississippi went to court and said under the supreme court's jurisprudence these decisions in row and casey this law is unconstitutional because women you
know as the law currently stands have a right to an abortion up until the point at which the fetus becomes viable which is around 24 weeks but is certainly well after the 15th week of pregnancy so the case made its way up there as a challenge to this mississippi law but the state of mississippi in defending the law specifically asked
the court to overrule roe and casey and so what that means is the supreme court is deciding whether or not this law is unconstitutional if the supreme court as the draft opinion suggests holds that the law is constitutional that roe and casey should be overruled then the issue does go back to the states uh is the way that most
people think of it in each state whether it's mississippi or texas or oklahoma or california can decide for itself whether or not they want to allow abortions and if so on what terms you know i think it's a little bit you know it does go back to the states the people can decide but defenders of roe and casey supporters of abortion rights say that
part of the supreme court's job is to say what the constitution means and that there are some rights like freedom of speech you know the second amendment the right to bear arms that are that are if they're in the constitution then the states shouldn't be allowed to decide that the supreme court's job is to protect them so if
they strike this down basically all the state legislatures will start to pass their own laws that govern what happens in that state and the federal government will not have a role or a say ultimately in state abortion laws is is that is that fair is that what's going to happen next if this gets struck down
yes i mean there are already you know at least a dozen if not more states that have what's called trigger laws that have already been passed by the state legislature with an eye towards this decision or some other decision by the supreme court over ruling row and casey so those states wouldn't even have to pass new laws those laws restricting
abortion would go into effect immediately and um can i just ask maybe for sex too like why why isn't there a constitutional amendment if this is a an issue that folks feel you know should be kind of indoctrinated as an amendment to the constitution why has that not happened and um you know why do these cases kind of keep recycling and the
decision-making kind of keeps going back to the states and they keep getting litigated why don't constitutional amendments get passed anymore it's really difficult to pass a constitutional amendment tommy i'm sorry go ahead oh no i was going to say yeah let me just step back first on this question of states versus the federal
government so when the supreme court says the constitution doesn't give you a right to an abortion they aren't technically saying okay now it'll be up to the state legislatures they're saying it'll be up to legislatures so you have to pause on the fact that it is at this point possible that you could have a federal
uh protection for abortion or a federal ban on abortion then the question would be is that constitutional or is this a states rights issue where only the states can regulate it but there is a big big big fight looming in congress on both sides the only reason that you're not getting a federal statute when you have democrats in
control the senate the house and the presidency the only reason you're not getting a federal statute per uh protecting a right to an abortion is the filibuster essentially right um and the sorry just just just to sorry to interrupt but a statute is a law not a constitutional amendment right can you just distinguish that's right so
the constitution is our founding foundational doctrine document it's what creates the congress and gives congress the power to regulate certain things it creates the presidency and it creates the supreme court and so it's the most important thing you can't do something that violates the constitution then congress can pass laws and states can't
do anything that is contrary to either the federal constitution or a federal statute unless the constitution says oh only the states can handle this question so there would be a big fight over whether abortion is strictly the regime and strictly the purview of the states to deal with then you say okay well the
constitution stands above everything else uber alice why don't we just amend the constitution and as you suggest we're just not in the business of doing that anymore uh there we have very few constitutional amendments and we haven't done it in a long time the constitution imposes all kinds of hurdles in terms of congressional authorization state
authorization it's why the equal rights amendment was never passed uh it's just incredibly hard to get the kind of super majority in the country that you need to amend the constitution and the our kind of foundational rights and that's what's made the supreme court so important by the way and that is we have something
like the equal protection clause we have a right to free speech we have a right to uh the free exercise of religion and those are big capacious phrases that nobody can objectively tell you what they mean they mean what five justices of the supreme court say they mean and that's why there are all these fights over supreme court appointments uh
because the justices have enormous power by five four majorities to fundamentally change the course of american life and it can be in a conservative direction or a more liberal direction remember the most famous thing the supreme court has done recently before this decision is recognizing a right to gay marriage i
want to go there but just before i go there i want to go back to something that amy mentioned which is starry diseases this idea of precedent my understanding is that when supreme court nominees go through the confirmation process this is a really important part of what they're asked right through their confirmation process
what are your views on starry diseases what are your views on roe and there's a lot of discussion right now about whether you know specifically gorsuch and kavanaugh who signed up to this alito draft at least may have lied to congress in the way that they answered their questions i don't know if you guys can sort of um
talk us through that and and whether you have an opinion on on on that and their actual congressional testimony to get confirmed so what they said and i went back actually and looked at some although not all of justice kavanaugh's confirmation hearings today actually uh you know what they had said at their confirmation hearings was that roe and
casey were settled law that roe has been in effect for 50 years and then casey came along and reaffirmed it so i think justice kavanaugh called it precedent on top of precedent so that seems like starry diseases it just said in different words or no oh yeah there's no question that that all of the nominees that have gone
through have acknowledged because it's not just two cases there are 10 abortion cases you know this has been in front of the supreme court ever since 73 over and over and over again and casey adopted this framework and it's been reaffirmed over and over and over and the court has been moving in a conservative direction
upholding more abortion restrictions but the foundation the corvo has been there but the issue is this when someone says this is a precedent and a super precedent they are not saying it cannot be overruled everything can be overruled and so that's why alito's draft is so strong it is it uses a formulation that kavanaugh has used which is egregiously
wrong from the start so that if something is just outrageously totally wrong now pause to the fact that a super majority of supreme court justices have thought it was correct including a bunch of republican appointees for 50 years right and you know including the court that first adopted it the but this majority uh has come up in a
kind of jurisprudential with a jurisprudential vision that's sufficiently conservative to say this is essentially the most outrageous thing the supreme court has ever done is row because it interjected itself without any textual basis into one of the fun foundational moral debates of our time which is what legislature should be handling so now
some of the you know moderate republicans susan collins uh senator mikowski have said they're quite upset about this because they feel misled but i think the defenders of the justices would say well i mean they did say it was precedent on precedent but they didn't say it was immune from being overruled and here you
go just to add in one tiny little detail in the draft opinion by justice alito is that one of the things he talks about when he's outlining the principle of starry decisis he says that this principle is actually at its weakest in cases like this one involving the interpretation of the constitution because only the supreme court gets to
say what the constitution means and at some point you don't want to sort of trundle along with an interpretation of the constitution that is as tom suggested egregiously wrong he said you know if you're talking about a supreme court decision interpreting a law that was passed by congress if the congress doesn't like that decision they can
get together and pass a new law but only the supreme court can say what the law is so i'm not you know obviously i'm not defending the a leader opinion that's not my job as a reporter but that is i think one of the one of the points that someone would make in explaining why this that despite the what they said at
their confirmation hearings if they voted to overwhelm rowan casey i have a call i'd like to ask a question first from up which is i think this is really fascinating like the history of it it's amazing for you to really unpack it for us i want to ask a human question here and and maybe because these judges are humans and there's like a sentiment
here um where the majority of the country uh does not want to do this it's been the law for generations of women have had this protection it's been 50 years so i think the question a lot of us have watching all this is why is this happening right now and is this some you know strategy that's been played out to overturn this because it feels
profoundly unfair to take a right away from these generations of women and there's this anger that's built up of how on earth could this happen so maybe you could tell us about the humans who are in these positions of power and why they made this decision because we can look at all these laws and the precedent
but there is also the reality that um the deck has been uh stacked with this court uh it seems quite strategically and this feels like a rug pull to a lot of the people who voted these people on and now you have a large group of the country who feels like this is exactly the opposite of what the majority of us want so can you explain
that to us what's going on here with these humans who have these positions of power and authority yeah i think that's a fair characterization of what is a majority of the country that is to varying degrees pro-choice now we ought to pause and recognize that there is another significant part of the country for whom this is
you know an incredibly important positive moment the country is divided on this question there are passionate views on both sides uh the women who are directly affected many of them will feel no doubt incredibly impassionedly strongly that this is an outrage um but there there are activists on on both sides and yes
from the day that roe was decided there has been a unflinching commitment among conservatives to undo it and it has taken them five decades to do it but they have marched forward from that position where they were losing seven to two in the supreme court till june of this year where they will likely win a five to four and they have worked tirelessly
to put justices on the supreme court who would be willing to take this step they thought that john roberts would and it appears that he's very likely willing to cut back on roe but not overrule it entirely but that the other conservatives whether it's someone who's been on for a while like justice thomas
or instead much more recent appointments which is the uh and in gorsuch uh kavanaugh and in barrett and justice alito having been on the court for a while uh those people this is the number one agenda item for what they believe is correcting the course of the supreme court's interpretation of the constitution that this was the one that
was most out of bounds because it was the most made up in their mind now we should talk a little bit about what it's going to mean for other areas of the law like gay rights and that sort of thing but in a very human sense there there has been an utter human commitment uh by pro-life forces to stop what they regard as the murder of you know millions of
unborn children and an unbelievable commitment on the among pro-choice uh forces to maintain what is uh you know a basic individual liberty yeah i just wanted to add i mean i think i agree with everything that tom said and i think in particular you have to look at you know go back to 2015 and then in particular the 2016 election
donald trump was elected you know in no small part because he pledged to put justices on the court who would overrule roe and casey you know you had conservatives who weren't quite sure about him but felt so feels felt so strongly about this issue that they were willing to go to the ballot box and vote for him because they trusted
him based on including like a list of supreme court potential nominees that he released before the 2016 election which is something that nobody had done before but i think worked out very well for him you know and then you know sort of compare that with people as tom said on this issue people who opposed abortion were often
single issue voters you know in the 2016 elections you had you know the the butter emails crowd who weren't necessarily going to go to the polls for hillary clinton even though they likely would be abortion rights supporters and you know often just like not i think there was probably an element of disbelief the idea that this right was
so solidly enshrined in american constitutional law that that it would stand despite who might be on the court so amy i want to ask a jump a question from here um then this is an issue that's close to all of us when we read roe v wade we were i think we were all like a little shocked like wow this is happening and then
the second wave of news was how this created potential to undo obergefell right so the gay rights law or even like interracial marriage you know jason's in an interracial marriage i am you know many of our friends are are gay and married how are we supposed to think about what this does presidentially and does it create risk that all those
rights could be taken away from us or or our or people that we care about like is that something that's possible here i mean i do think those a lot of those rights are going to be challenged justice alito in this draft opinion says no those rights are different you know because only abortion rests on the purposeful
termination of a human life but you know to go back to what tom talked about earlier you know those rights rest you know are also not in the constitution rest on this same sort of principle called you know substantive substantive due process you know rest on a right to privacy and there were definitely arguments made in
the supreme court in the mississippi case not by mississippi but by groups supporting mississippi that if you overrule roe and casey you do have to go back and look at these other rights yeah i mean the the for over ruling row is by and large the same reason that you would over rule a burger found oberfeld is a much less well settled
precedent you know it it hasn't been reaffirmed by the supreme court as opposed to roe many many many times um it you can just as easily say it's uh an issue for the states and when you see in justice alito's what you see is two things in justice alito's opinion a bunch of reasoning that would be used to strike down a bunch of other
rights go all the way back to where does where do we think we find the right to contraception right where is that and the supreme court both with respect to married and unmarried couples said there's a right to contraception but it's not in the text of the constitution and there's a bunch of stuff that's not in the text of
the constitution as i said the constitution's super vague so you have a bunch of stuff in alito's opinion that says uh all of the the reasoning that's in those cases essentially is wrong and then you have a paragraph that says but but by the way this is just about abortion why because it is and the difficulty is that in a later
case it's much much much easier to apply all the thinking than the truism that this is just about abortion because this case just is about abortion but i think what's very likely is you know i'm a legal realist and that is i think that the justices decide what they want to do and then they write the opinion that gets theirs when the court
voted to overrule roe when five justices did that after the world argument in this dobbs case one or more of the justices said okay i'll join an opinion over ruling row if it is absolutely clear that it will not lead to the overruling of these other things and so justice alito put that in there he doesn't believe it for a second
that those decisions are rightly that those rulings should necessarily stand but it appears that they don't have five votes for that view but look they didn't have five votes for over ruling row until very very recently and you could put another conservative on the court um or you know these five could end up doing it
it is very much in play that at the very least you have to acknowledge that a lot of things that people thought were kind of foundational bases for how we order our lives uh because they were protected by the constitution uh may well not be anymore i mean i just like isn't there like an element of compassion that has to be a
part of how they're supposed to do their job i mean i know five people who disagree with you it just so happens that there are a majority of the support let me ask a question about this sort of uh parade of horrible so so tom i understand what you're saying that that overturning row would implicate these other cases
on the other hand and as you mentioned alito specifically says well presumably it's alito in this dobbs decision those cases are not affected so he does carve out this case specifically but this but separate from that this stream court just two years ago in boston uh clayton county read you know lgbtq rights into title vii and that opinion was written by
gorsuch with roberts joining him you know i think was that that was a six four or six three majority so the idea that this supreme court would overturn you know marriage equality you know obergefell which was just um written by kennedy in 2015. i mean i understand that you're saying it's possible but is it really likely well
look bosek is totally different it's interpreting a federal statute a law that congress passed that's their point the conservative's view is like okay congress passes a law to protect you know same-sex marriage fantastic have at it and if it is past title seven to prohibit discrimination on the basis of sexual orientation fine uh we don't have
a problem with that but it's our problem is interpreting the constitution to strike down those laws do you say is it likely uh you know the it is a it is a bizarre circumstance because doctrinally when we think as lawyers when we think as judges it should be much harder to overturn roe versus wade because we do
have this is a lot of water under a lot of bridges whereas with same-sex marriage it's a pretty new thing that we've recognized in the constitution and if you say look we're going to talk about the founders of the constitution we're going to talk about originalism i'm going to give you two propositions you tell me which one is more likely and
that is in the year 1800 someone said given the choice do we protect a woman's right to have an abortion say in the instance of rape or incest or something like that or we're gonna say that is there's a constitutional right for two men to marry each other this is not close it is just not close now i believe in both of those rights
but nobody seriously would say that the founders of the country in enacting and adopting the constitution thought that they were protecting same-sex marriage and if you want to look at it from that perspective and this opinion does then a burgerfell is just an easy target to be honest in order for the the sort of the
parade of horribles to happen though there's a two-step process right the first step is the supreme court throws it back to the legislature then the legislature has to do something that you think is appalling and ultimately the you know marriage equality is not popular as a position in both parties right so the idea that um
even if that decision was overturned that all of a sudden you would have a change in that law seems unlikely right no no because all that is that a court clerk in rural texas says i refuse to uh sign this marriage certificate remember a lot of these statutes haven't formally been withdrawn they haven't been they're they're sitting on the
books uh they're just invalid so too with roe there are a bunch of statutes on the books that are abortion restrictions that everybody knows are unconstitutional they're not in force those are in states you're saying yeah exactly and so too with respect to gay marriage and all other kinds lots and lots of other uh uh there were there
were hundreds maybe thousands of statutes that discriminated against gay couples and gay individuals uh in the lgbtq community uh and there's bunches of that stuff still on the books and all it takes is for one conservative to say look i'm gonna apply those laws let's go i'll give you an example the attorney general of texas has said look i'm now
let's see i heard what's going to happen with roe i'm now looking at plyler versus doe that's the st that's the constitutional decision that says states have to uh educate children no matter whether or not they're lawfully in the country or not i mean a whole this is going to be extremely motivating and extremely
animating to conservative legislatures to conservative attorneys general in the states everything's now in play it's let's go uh let's give it a shot let's take it up to the supreme court it can get worse from the conservative perspective they've already lost on some of these issues and so it's going to be a scary quarter century it seems to me
amy the we grew up i'm of gen x 51 years old with this profound respect for the supreme court that it felt fair it felt just it felt like the one institution that was above politics and now it feels uh because of flipping a 50 year old law as if it's and these you know sort of um uh you know the interview process when
they were being confirmed and maybe the rug pulling there that we can't trust it and then this leak happens so now it all feels like this institution is not trustworthy is biased is political so were we living under a mirage that it wasn't or has something fundamentally changed when we look at the supreme court and how they're
behaving now that's one of the things i'm struggling with is was i just you know living under a false vision of this institution and now i'm seeing reality uh or has something actually changed with the court and should we as a country be looking at the court differently i mean i think at least one thing that has changed is that right up
until the point you know in the last 10 years when justices david suter and john paul stevens retired and then justice anthony kennedy in 2018 you know nom people who are sitting on the supreme court you didn't always you know people did not always have the sense that they were voting in the same way as the party that put
them on the court you know justice's suitor and stevens it really had become a solid part of the court's liberal wing by the time they retired justice anthony kennedy was still a conservative but he was a conservative you know who provided the key votes on things like same-sex marriage and whether or not there is a right to
be intimate with somebody of the same the same gender and so you just didn't i think people looked at the court and didn't think those decisions are political you know they're not always dividing five to four on sort of so-called party lines i think that has changed and i think some of the the confirmation
hearings i think in particular democrats and progressives feel that at least one of the seats either justice gorsuch or justice amy coney barrett was was stolen in effect because justice scalia died in february of 2016 senator senate majority leader mitch mcconnell refused to have hearings for the president obama's nominee saying the
next president had just has to decide you know you can agree with that you could disagree with that but then justice ginsburg dies in september 2020 and the republicans rush to put someone just now justice barrett on the court before the presidential election so i think people do just i think there is a general sense that it is more political
than it used to be what about the leak tom you just wrote about that yeah yeah well can i just say one other thing was having jason that was you were winning i mean people think the supreme court is political when they don't like what it's doing and so when there was a right to an abortion when the affordable care act
is being upheld when obergerfeld is being decided in favor of same-sex marriage you and me tend to think of that as oh that's that's just the way the constitution should be we've got an objective sensible set of justices and then we start losing uh and we get the perspective that the other side ideologically has had they think the
supreme court's been super political in uh roe in casey and obergefell and in the aca because they think the constitution means the opposite and so they think they've got a bunch of that the court has been way too liberal and way too ends oriented because there's no objective answer with respect to most constitutional questions because the
document's so vague we have this notion of what's judicial activism well judicial activism is is losing because if you win then obviously it's what the constitution was meant to to be from the beginning and so we do have this it it our the the perception of any individual about the supreme court whether it's neutral and objective or
instead political and biased tends to be rooted 95 percent of whether you like what it's doing or not so i'd love to hear from you i think it's a very fair observation i mean even it's its fans would admit the warren court was a highly activist court so i think you tend to think of the court as being activist to the extent
that you don't like the results yeah although obviously there are um more or less incremental approaches that one could take actually in this decision it looks like roberts was angling for the incrementalist approach here which was too incremental yeah it means in this context yeah and i think incremental there was i'm not sure
i guess it just you can call it whatever you want so at the oral argument in december one of the alternative grounds that mississippi had offered was to still uphold their law but not formally overwhelm roe and casey and at the oral argument roberts seemed to be the only person who was interested in that alternative ground
so that would still be a major shift in abortion rights laws but it would not formally overwhelm rowan casey in that moment and please correct me if i'm wrong the biden administration also said they don't want that nuanced decision they wanted rowe voted up or down in its entirety is that right you know i'm not i'm pretty sure that
nobody including the the lawyers liked like the alternative ground i think that is right because it's an optical illusion the chief is a sophisticated guy who is very aware of all these issues related to public opinion and the court he knows what how strident the reaction would be and will be if roe versus wade is overruled and so he'd
rather take this step by step and kind of like turn up the temperature of the water to a slower boil so that it's less of a surprise if and when roe versus wade is overruled five years from now because he doesn't have to go that far today on the other hand uh you know movement conservatives realize look you know justice scalia died a lot can
change we've got our shot let's take it uh right now and our at least at the the initial vote we're willing to be super aggressive and that apparent that seems to be the debate that's playing out now in these leaks is you know what will happen with kavanaugh and barrett and will they go with the chiefer instead with the leader's
stronger opinion exactly so this is what i wanted to ask both of you how does this play out from here inside the court itself and is there a chance that this draft isn't the ultimate decision is there a way that there can be a middle ground path like what happens from here or is this basically a fata complete as as as written right now
so i'll let tom talk about the the leak and he's got some theories about what might have happened it is this was the first draft you can see that on the copy that politico published and it is from apparently from back in february the argument was in december nobody expected to get the decision in this case in all likelihood until late
june and so you know i do think that there is a chance that the opinion could change in some way it might not have quite as strong a tone or it you know it's possible that what's going on behind the scenes and we just don't know it is some sort of effort to move justices away from this opinion to this alternative ground that the chief
was advocating for at the oral argument in december i you know i'll let tom talk about some of the theories that he has one of the things that somebody who actually gets to go to the oral arguments right now when you are at the oral arguments in any case but in particular this case you know the justices are talking to the
lawyers asking the lawyers questions trying to flesh out what their positions are you know what the possible resolution of the case may be the justices are also talking to each other and so one thing that was not a leak but was really interesting at an oral argument on april 20th a couple of days before
the this wall street journal editorial that tom is going to talk about and then a couple of weeks before politico leaked there was a discussion in a case involving the miranda right you know you have the right to remain silent the law and order thing um and the question was whether or not you can bring a lawsuit a federal civil rights claim
if your miranda right has been violated and so not anything to do with abortion but at the oral argument justice kagan starts talking to the lawyer who's arguing the case about the miranda decision there was a miranda decision in 2000 at which the supreme court by a vote of 72 held that congress could not overrule miranda
and she said you know justice chief justice william rehnquist the chief justice at the time wrote the decision and he was someone who made clear that he had not been he thought that miranda was wrong but nonetheless voted to uphold it because he knew what in effect overruling something that everyone believes is part of our constitutional landscape so to
speak would have on the court's legitimacy and you really had the sense at that point that she wasn't talking about miranda that she she was talking about roe versus wade and planned parenthood versus casey in this case because this was something that this is an issue that justice kavanaugh had raised at his confirmation hearings talking about
rehnquist and miranda and so you have the sense that that maybe things still are in play behind the scenes at the supreme court as recently as you know a couple of weeks ago she wouldn't have been necessarily trying to make this point if she thought it was set in stone yeah so a couple of weeks ago somebody leaked to
the wall street journal editorial board and this has happened before a couple of times over the past you know decade-ish that um five justices have voted over a row but it was in play and that the chief justice was trying to pull along to a more moderate position justices kavanaugh and barrett and uh it wasn't styled as a leak but we
now know it was a leak including because the wall street journal editorial board said and we think justice alito is writing the opinion out of nowhere like nobody in the world would go on the record saying that was true unless they knew it so they they knew what was going on and that that's a very strong indication that uh things
are still in play then with respect to politico uh politico was told that five justices had voted to overturn roe and that was the current vote but did not say that five justices were signed on to this opinion and that's what happened so justice alito circulated this opinion in february and then he's supposed to get
memos back from his majority saying hey sam uh if you make these five changes i'll join your opinion and boom then you've got a an actual majority for the court but all that you see from february 10 is this is sam alito's view and it is the outcome that five people voted for at at the conference of the justices uh and so there's a bunch missing
between february and now in terms of actually getting to a majority so the most likely scenario right now is that it is in play now what does it mean to be in play and is it as i said an optical illusion well it is not in play whether this statute's going to be upheld it's in it's in what's in play is are they going to
admit to over ruling row and how far are they going to go in upholding doing something that would for example uphold a six-week ban like their states with six week bans what about statutes that are total abortion bans are those now constitutional so you know are we going to go step by step and is this going to be a five-year process or is it going to
happen on the last day of june of this year that might be in play but people ought not be uh misled into thinking like there's a real real debate uh about what's going on in abortion in the supreme court row is is on life support best case is there um anything uh because the person who leaked this we would assume
is hoping to make some change and send this out as a warning sign to the country and the people who want to preserve roe would we agree on that some people think that's i think that's true others think that uh this was an effort to get kavanaugh on record as having voted to overturn roe and to hold his feet to the fire that's certainly how i
interpret the leak to the wall street at royal street journal editorial board i think the release of the opinion however the distinct like this piece of paper is intended to do what it did which is to motivate progressive forces and say wake up like this is really happening we're not kidding you've been hearing that the
supreme court's getting more and more conservative but i'm telling you in eight weeks you don't have a right to an abortion anymore uh you better get your act together so the second question is is there any chance that public sentiment could make a change in the thinking of the supreme court is that farcical for us to think or are they
humans and they see this and say you know we gotta dial this back or we gotta you know you know uh and somehow maybe dampen the blow of this if we are gonna overturn it could protest mass protests and sentiment actually change their thinking amy it's so hard to say i mean i really do think it's probable you're probably talking about
just one or two justices rather than all of the justices as a whole you know because i do think that there is probably a sense among some of the more conservative justices who would have signed on to this opinion that we are not going to be we're not going to you know step off the path because somebody leaked this document and people
aren't going to like it we're going to stay the course but you know i think you're talking about you know in all likelihood one or two justices whether they will be affected by this i think it's just it's so hard to know and so much depends on what the leaker was trying to accomplish which we don't know institutionally
they're in a hell of a bind you know right now we know that there was this initial vote now let's say that the ultimate opinion doesn't overrule row and justice kavanaugh joins the chief justice to do something less aggressive institutionally that sets an unbelievably bad precedent if it creates the impression that leaking documents to
the public leading to protests causes the supreme court to change its mind so that's a horrible place for the the justices to be in to be perceived as reacting to the leak in a way that the leaker intended uh what that invites later generations of court staff to do is is no bueno it seemed like alito almost thought it
was gonna happen because there's a section in his thing that actually speaks amy you mentioned it about being almost oblivious maybe is the right word to what happens on the outside that they needed to do what's right almost in in a way almost forecasting this i have a question for both of you which is more general in nature which is
should we have age limits for supreme court justices so one of the things and i don't mean to you know i don't mean to sound morbid when i say this but you know these folks literally are in the chair until they die and this is what i think creates some of this um some of these issues right so rbg you know there could be a claim now that
if if ruth bader ginsburg had actually stepped down or tried to hold on you know it would could have been a different outcome there could have been a different person what do you guys think about this age limit concept for supreme court justices and and and dealing with that in that way versus making these lifetime
appointments i'm personally strongly in favor of this but you have to recognize that it would require changing the constitution there are all kinds of attempted workarounds but i'm telling you that the people who decide the constitutionality of the workarounds are the justices themselves and they would have no
interest in accepting any limitation on their life tenure so you you have to expect that we're talking about something that's kind of high in the sky because we're not going to amend the constitution to do this until we end up with the justice who's senile and who can't do the job and the supreme court turns into a laughing stock and at
that point the country will react but we're just not good as a country at seeing this problem coming i mean fundamentally what happens is we're now incentivized to put people on the supreme court when they're in their late teens just get them on there as soon as you can and keep them there for 70 years and it's not gotten terrible and you
know justice thomas was extremely young but we seem to have settled around 50 years old and there's nothing intrinsically wrong with having somebody on the court for 30 years or 40 years at age 50. we've been super lucky uh when it's come to the fact that we've everybody's been pretty coppis menses we've we've gotten we've run good
and we could run much worse than we have we you know we see this in the senate right now uh that we have some problems and it could happen with the supreme court justice but the difficulty is even are you referring to maybe they become senile they're not there or they could have alzheimer's and the problem is
since whatever yeah and then what do you do because you can't you know you're gonna impeach them uh people who like the outcomes are gonna but what like the only the justices themselves can decide whether they're gonna leave so the the but the problem is this we're we're getting we have a huge incentive now to put on somebody who's very young and the
the lead time effect of one presidency of the trump presidency for example now will span you know four decades uh and that i don't think the framers intended remember the you know the average life expectancy at the time of the constitution's framing when we said life tenure was decades shorter uh even for people who like supreme
court justices back then who had very good health care and so nobody contemplated this when we originally said lifestyle there is a proposal on this that there were a few members of the house i think including ro khanna and uh rasheed labe and some other folks but also some conservatives support it too for an 18-year term limit
for supreme court justices and i think the way it would work is basically uh each president would get to name two justices so basically every two years you get someone rolls off and then the new president gets to choose a pick and so every president gets two and so yeah basically if you think there's there's nine justices on the
court so it takes 18 years for a full cycle for it to roll over i think it's pretty interesting because it would take a lot of the heat out of our these sort of supreme court nomination battles where you know somebody dies and now it's a nomination fight and both sides are playing for all the marbles if you knew that every
presidential election every president met two votes on the supreme court it would sort of normalize things i don't know i mean i it's just that's what the constitution says right no i know i know we need a constitutional amendment but i think it's a really interesting idea i'm all for it yeah i mean i think obviously there
would still occasionally be openings that would be created if someone had to step down or would have passed away but you're right that it would people would be able to plan we would know when people were going to be rolling on and rolling off i do think it is you know it's always struck me it's kind of ironic that it is at least from a constitutional
perspective easier to add justices to the court than to impose term limits for which there seems to be a fair amount of amount of support tom and amy you have been unbelievably generous with your time and your knowledge we truly appreciate you coming here and explaining it to the all-in audience uh we're all better for the
work that you do and for you sharing with us the podcast is amazing it's so generous of you to have us thanks for having us great to talk to you guys all right uh chamoth first off thanks for getting those amazing guests it was a quite an education i i think first you know we'll recognize it's for four guys talking about abortion um and
you know we understand this is not exactly our issue uh to discuss an opinion no but jason the takeaway from me was that this is not just an abortion issue oh of course the downstream this is gay marriage this is interracial marriage so on the gay marriage point let's just go back to that for a second
so look i think tom did a nice job laying out um you know in pretty neutral terms what's what's going on here and where he had a point of view he you know expressed it i i think the idea that this leads to uh gay marriage being overturned i i don't see it it's just uh you know it maybe it's not impossible but i i just don't buy it
there's two reasons so first of all the bosti case i mentioned this was a case just two years ago written by gorsuch joined by roberts and the other so it was a 63 decision in which gorsuch held that the civil rights act of 2064 protects uh gay and transgender employees against distribute discrimination now tom is right that that's statutory
not constitutional but gorsuch didn't have to find in that statute that sex applied to gay people and transgender people the court decided on its own to do that to interpret the statute that way so you're telling me that a court that just two years ago decided that you cannot discriminate against gay employees is now going to
allow discrimination against gay marriage i just don't buy it and the second issue the second reason is that marriage equality is broadly popular now in the united states people's minds have really changed on that issue and i don't think the court would want to go back on an issue where again they just ruled on this in 2015
where the where basically the issue is now settled in the country one of the differences i think with abortion is it's still a very hot issue and it's not settled in the way that uh marriage equality or gay marriage is settled so i just don't buy this idea that now we're gonna be overturning gay marriage that we're gonna be overturning
like for example example uh contraception i just don't buy it why because nobody in the country is arguing for outlaw and contraception well i guess the the counter argument to that david that people would have is well we didn't think they were gonna overturn ra uh roe v wade and they have um and so we feel we got rug pulled
kavanaugh et cetera people you know when they were uh being integrity interrogated about their views on these things they felt like they lied so i guess what would the response be there because there seems to be a trust issue here that people are not trusting uh the supreme court right now and again of course you know depending on which
side you are you might be thrilled or not thrilled with the outcomes i think that was a very good point in our discussion but um people didn't think this outcome would happen with roe v wade so yeah it's kind of hard to believe anything the court says we did talk about this earlier i think we we mentioned this when we talked about
abortion some episodes ago that this case was going to go and we mentioned i think this in the context of this and affirmative action as you know two things that we're going to get challenged and would probably lose and unfortunately it turns out we're right on one and it looks like we you know we may be right on the other as well
because i think the affirmative action case will get we'll get it did we think that we're gonna get overturned did you think that david i admit i thought roberts was gonna get his way on this so i i am a little bit surprised i still think that in terms of like the the um the the testimony of these nominees i mean look tom
i think nailed the answer to that question saying that these decisions are settled law is just a platitude i mean yes it's settled law it doesn't mean it can't be overturned look i mean we all know that in these nomination hearings the job of every nominee from either party is to basically say as little as possible and describing row a set of law is doing
that i mean it's not it's you could still go back and and overturn it so i this idea that they lied or whatever i mean look people hear what they want to hear in these in these they all the republicans and the democrats have a perfectly rehearsed answer when somebody in the senate confirmation hearing says will you overturn it and
they and they say i could never adjudicate the case without knowing the facts and i have to you know look at every case as a clean slate it's like a very well practiced answer to every question to your point david it's a very rehearsed confirmation process right exactly so this idea that they lied or whatever look the only way you you think
they lied is if you read if you read something into an answer that was a platitude that you wanted to hear my issue my issue with this is the following which is that i do think that there is a role for compassion and how we're governed okay and i what i what i have an issue with is that at the sake of this originalism
to go and just be so textual about the constitution are you willing to abandon all compassion and an understanding and you know i i that's where i just struggle and jason i think you asked it like where is the role of like humanity in doing one's job right and why is it that there's a belief that one must so fervently interpret
in an in a very black and white binary way a document that is you know for all intents and purposes still quite old right and everything has the potential for improvement and so this belief that we got it right the first time and that there there isn't any room for any dynamic improvement to me i really struggle with let me just
play devil's advocate your point of view is that the humanity in in making these decisions is driven by what you consider to be your moral standing here which is um one of pro-choice and folks um there are other folks in the united states who who have the moral standing of pro-life which is to say i i don't believe that that choice should
sit with with an individual given that it infringes on the life of another and um and i think that's really what this is all about which is in these circumstances where there are different points of view on what morality is what ethics should be in this case that's where the law and the courts have to play an adjudicating role and that's
what makes it so tough right i hear you but look here's my my perspective on this is that yeah i am fundamentally pro-choice i don't think i have the right to say okay what a woman can do with her body that's just absolutely not um not my role uh or a right that i should have i understand however and this may sound
that i'm talking on both sides i understand when people say this should be a past law okay i think that that's a very reasonable thing to say you know people should be able to vote that law and people should be able to enact that law i just think that when you have 50 years of a precedent you know where there is as tom said so
much water under so many bridges um this is why i think well why couldn't you overturn loving virginia right why couldn't you overturn griswold why couldn't you overturn obergefell and and this is where i just think like are we not just taking a big step back in society and saying you know we're going to throw out compassion
in favor of original textualism and i'm just not sure that that's a good trade-off in 2022 america it's very interesting this is such a polarizing issue for us and it seems like other societies have found a resolution in a way to move forward i also think sorry just to finish jason i also think like this is where okay honestly politicians step up
and do your job one way or the other you have a responsibility to reflect the will of the people and you have a responsibility to collect that nuanced perspective and implement a framework that represents that and instead what i think i see politicians on both sides is just you know screaming like crazy people at each other
and it just doesn't do anything so what are we going to do and we're going to have the same conversation guys about affirmative action right we're going to have that conversation and we're going to wonder okay well is affirmative action was it reasonable was it good was it bad well it's not a right that's affirmed in the constitution and
so you know it's going to go away i think thinking about intellectually the the way to uh resolve the issue for the country um or path forward uh might be interesting to delve into here is there a path forward you see david uh because listen we it is one brush we play with you're either and the language is framed as such pro-choice or
anti-choice pro-life or anti-life obviously these are loaded framings to begin with um and people could be not want to see abortions occurring in the world and they could also uh still be pro-choice right this is a very nuanced issue and then people might have different feelings and i know this is graphic and hard to talk about but
people might have different feelings about the second trimester that they're tremendous and very different feelings about the first trimester and when an abortion occurs and and people who are pro-choice might not be for third trimester abortions they may want to have some basic uh rules uh around uh abortion so i'm not putting my
own personal beliefs out there right now i'm just framing a question what are your thoughts in terms of moving forward because this is a could possibly be a state issue in july yeah well so so let's assume that this is the decision and it it's i guess it'll officially come down in in june or end of june so let's assume that this is the
decision by the way it's still possible that roberts could peel off a vote and then we would get a scenario in which roe is upheld while modifying it to allow you know laws like the mississippi law but let's assume that this this decision that appears to be written by elito ends up being the law what that will mean is
that like tom said we'll have a vote in congress the democrats will see if they can basically uphold roe buy through a law which biden would then sign i think the issue there is they have to get enough votes to break the filibuster and i don't know if they're willing to do that so let's assume that fails then it goes to the states
so in states like california where we are there's going to be no change whatsoever in fact you know news from the democrats are saying they're going to enshrine the the current law in the constitution of the state that's really that doesn't do anything abortion will remain broadly legal in california and in blue states places
like new york coastal states so right off the bat let's say in about half the states 25 of them or so i don't think there's gonna be a change in about 12 states these um restrictions that are already on the books are going to go into effect and then we're going to have about you know 12 or 13 states that become battlegrounds purple states basically
and we will have those states through their legislatures and through their elected representatives are going to have to figure out what their policy is going to be and that is going to be a huge issue in those states and i think where this will go is i think politicians who figure out where the center is and figure out where most
of the people in their state are are the ones who are going to benefit and maybe the the potentially hopeful scenario here is that it will force people to compromise when they actually have to craft legislation they're gonna have to work through those compromises until now the issue has been so fully preempted by the supreme court
that everybody basically was making these absolutist rights argument right like one side is saying there's a right to choice one side saying there's a right to life these are rights that are being framed into absolutes that broke no compromise there was no reason to compromise because there was nothing legislatively
to work through or compromise right these were arguments being made to the supreme court so no one's had to compromise and i think when they actually start working on legislation they start getting working through these questions jason of what you're saying which is should abortion be allowed in the third trimester okay no most people would say
no should it be allowed in the second trimester and so forth so you have to work through those questions by the same token if the pro-life side refuses to make compromises for say rape and incest they're gonna be punished by voters in those states i mean that is very unpopular so both sides here i think are
going to have to learn to compromise and it's going to be a messy process but the hope would be that at the end of this we do eventually arrive at some sort of resolution to the issue like we have in every other western country you know in every other western country even ones that are quite religious this
is not a culture war issue and i think you could argue that one of the reasons why it's become a cultural war issue is because the supreme court preempted it and stopped the democratic process from working 50 years ago and so the only way for people to express themselves is to make these again absolute rights arguments in front of
the supreme court i think that when it comes to the messy issue of democracy when people actually have to work through these things through their elected representatives who will lose elections they will lose elections if they take ex positions that are too extreme i think maybe we will get to a compromise i think you're saying something really
important you're saying had blackman not adjudicated roe v wade in 73 it would have been up to congress at that time they would have passed some set of laws and and over successive iterations of those laws you're saying there would be a framework so that a moment like this didn't happen yeah and you know what
that exactly what you just said was written by um a supreme court justice um in a larvae article in 1992 i'm going to let you guess who that justice was in a second but i kind of read you a couple of statements from it this justice said that uh no measured motion the road decision left virtually no state with laws fully
conforming to the court's delineation of abortion regulation still permissible around that extraordinary decision a well-organized and vocal right to life movement rallied and succeeded for a considerable time and turning the legislative tide in the opposite direction meaning there was already a trend before roe towards liberalizing
these abortion laws across various states even ronald reagan had governor had signed a law liberalizing abortion in california and that process was halted and stopped by the supreme court's decision which in one decision invalidated every single abortion law in america and then what this justice said is that roe halted a political process
that was moving in a reformed direction and thereby i believe prolonged divisiveness and deferred stable settlement of the issue do you know who the justice was who said that ruth bader ginsburg so she obviously was for the ultimately the holding in in row but what she said she would have done was have a much more incrementalist
narrow decision that would have maybe invalidated just that texas law but threw it back to the legislature so that they could then work out the issue and instead she felt like the supreme court making such a sweeping decision it created a backlash and i think for 50 years we've been living with that backlash and there's been a culture war
in this country over it while every other western nation has gone through the democratic process of working out the messy compromise now i think what roberts was trying to do is create an incremental approach to putting it back in the hands of the legislature and i think you could argue for the same reason that
ruth bader ginsburg argues that the incrementalist approach would have been better um i think it was certainly the politically shrewder move right not just throw this grenade into 50 state legislatures but to gradually move the issue back to the states i think there's a lot of wisdom in an incrementalist approach whether it's roberts or ruth
bader ginsburg they both are basically saying or you call it the starry decisis approach you give precedent you give weight to president you don't just overrule you know these 50-year precedence i think there's a lot of wisdom in that approach as well but i think the hope here would be that by letting the legislative process work
through this issue we can hopefully eventually get to a stable sustainable consensus and it will be chaotic but other countries have dealt with this australia has basically by the states in australia they have different weak requirements and europe has a certain weak requirements i've read a new york times article and chamathi
you pointed me to some of these resources so a possible outcome is states starting to build their own framework in terms of rape incest on-demand you know on request versus a certain number of weeks uh and that is just going to be an absolute amount of chaos for some number of years yeah look if if the parties don't
compromise on this voters will eventually punish them i mean i don't think you're going to see you know glenn younkin like victories by the republican party if they broke no compromise on for example the issue of you know rape and incest by the same token i think democrats will have to in a lot in purple states they will have
to concede that there is a competing rights interest at some point on the part of this you know of the unborn baby right i mean are you really going to allow abortion into the nine month of pregnancy if the life of the mother is a mistake so both sides have never had to acknowledge that the other side had anything useful to say
and i think now they will and if the absolutists in both parties refuse to do that i think they're going to lose elections yeah i i it's so hard to get the proper statistics here because i think a lot of the i've been looking trying to understand what the country actually thinks and people do not ask very nuanced questions are do you
believe roe v wade should be overturned people get asked that question the majority believe it shouldn't be do you believe that you know like but we don't have all of these nuance issues uh bi-state it doesn't seem to be um maybe people haven't even thought it through right like do most people who are pro-choice have an opinion on the third trimester
on the second trimester do they do they actually have an idea of when they feel and and you know i'll be honest i have not given this total thought myself as to how i feel about it i learned a lot by reading this here's here's something that was in the opinion that i didn't know but it says at the time of enactment of this mississippi law
only six countries beside the united states permitted non-therapeutic or elective abortions on demand after the 20th week of gestation those other six countries were canada china the netherlands north korea singapore and vietnam that's it in the whole world and so you know to your point there's there's all these granular details and i
think as david said a group of politicians need to sit in a room and really think through these things and kind of try to try to get to some kind of basis that doesn't take back something that's been in the books for 50 years that's something so funny that's the really tragic part about this it's like it's such an unequal
think to do unfair it feels profoundly unfair to take her right away after 50 years i think that's the republican party is going to just pay such a massive price for this um broadly i mean is this a case where like the dog catches the car bites the fender and it's now like oh my god cause well this is why i'm asking what is the
what is the true prioritization of things as we know how the world works today meaning i understand what it means to be an originalist or a textualist i understand that right and i respect people's perspectives that the constitution should be interpreted verbatim i understand that and and i and i and i respect
people's ability to think that the thing though jason to your point of like the dog catching the car and the fender or whatever is okay um do you do that at the sake of a lack of compassion or or lack of empathy for how the world works today and should we not have a point of view that says irrespective of how we decide we should factor in
what the moral temperature of the country is in that moment in which something is decided and i in some context like there's a context here of it being law for 50 years that you cannot disregard and that's why obergefell took until 2015 to really happen right because by that point it was a it was there was this beginning of a sea change where you
know i think it's like 70 i think in a gallup poll that i saw support um same-sex marriage and i think it was about eighty percent it's not a hundred by the way eighty percent support interracial marriage and ninety-two percent this is all in the same galapagos 92 percent support um they don't think that using
contraceptives contraceptives is immoral okay but that still leaves 30 20 and 8 percent that still think something that's very different but it's such a clear majority of america so my my hope is that you know as as tragic as this ruling is if if this is what comes to pass that it's narrowly defined so that to your point david we
don't open the pandora's box on all of these other things that we have decided as a nation are are very reasonable things you know i don't think obergefell is going to get overturned i just don't see it and the reason is because of the way the supreme court handled that issue so you know again go back to the early 1990s the way that that um this issue
first came up is that a hawaii court found that there was a right to gay marriage and there was a huge uproar supreme court did not take up the case they did not take the bait so what happened then is congress passed doma the defense of marriage act which was huge majorities in both parties and bill clinton signed it remember this stating
that marriage was you know one man and one woman and so if the supreme court had basically taken up the issue then and found a right to gay marriage we might have had a constitutional amendment banning gay marriage by now and we'd be trying to work our way out from under that and figuring out how to get rid of
that but instead the court did not take the bait they stayed out of it until 2013 when attitudes had changed substantially and then they invalidated dome in 2013 and then obergefell came along in 2015. so i think the pattern here is that the court has learned to stay out of these hot button issues until they become a little bit more
settled and then what they do is once the public's opinion has sort of clear is clear then they enshrine it but isn't it clear that people want the right to for women to choose well but it created this enormous backlash the the the the enormous backlash that you mean amongst the minority well you say that but it is a it's a
very large group of people but it's the minority but then you said yourself that the majority in the court wants the majority of people to go for gay marriage that's what that's that's the disconnect i have well but here's another disconnect right jake ellis if you believe your position on this is so incredibly popular and has such a super
majority why are you worried about it being returned to the state legislatures they will basically have the laws that you want well no i believe in some places the minority might be the majority in a certain state and then we'll have women in those states who aren't able to get an abortion safely that would be my concern
i think that the country is deeply divided on this issue look at all defense uh depends on how you define the labels it is true that most people say they're pro-choice however if you frame the question as should there be no restrictions at all most people would say their favorite restrictions yeah that's a totally
different phrase exactly so my point is the country is still deeply divided over this and um the issue got preempted by the supreme court 50 years ago and we've never made progress since then yeah and i think it's gonna be i think it's gonna be very messy i think that's fair and if we if you frame the question as do you believe people women should have
the right to choose in the first trimester we would probably have the overwhelming majority people say sure that's no problem then we would be arguing over second trimester and third i just i just posted the gallup data they've longitudinally tracked attitudes and uh opinions of abortion since 1975. as of today in 2021 2022
you know the split between pro-choice and pro-life is very even it's you know 49 is pro-choice and 47 is pro-life but if you ask the more nuanced question that david said 48 consider uh abortion to be legal only under certain circumstances 32 percent say it should be legal under any circumstance and 19 said it should be illegal in all
circumstances and so to your point the plurality of people half the half of america basically wants it it as a supported right with some boundary conditions but then there's 32 percent of people that want it under all circumstances so i think the compromise is that there is a 70 plus percent majority of people who
can craft a law here right yeah i mean right and also the question of do you consider yourself pro-choice or pro-life that is the personal question not do you think it should be legal or legal that's what do you believe as a human being on planet earth are you pro-choice or you're pro-life if you and i guess that would be assume if you had a baby
but then when you look at the illegal the illegals under 20 now it's been 18 19 percent now so well to be fair since in 1975 that line hasn't moved right and that would be highly religious people i would assume uh make up the majority of that 19 that we're talking about like what's what's really moved is you know we've doubled the
number of people that that say it should be legal in all circumstances since roe and that's come from people who thought it should be legal under some circumstances yeah to 32 so 50 this is a fraught issue for the republican party because if they only appeal to their base the 32 percent who should actually you know sorry 32 percent say it should
always be legal that's the democratic base but if they appeal to the 19 who say never as opposed to the 48 percent who say reasonable restrictions they could lose some elections here look i think until now the issue has been a little bit performative because both sides both parties could just appeal to their base because
the issue had been preempted there were no laws to vote on now they're gonna be real laws to vote on there's gonna be real votes and people if they don't move to where the majority of the country are they're gonna pay a political price for that so basically translated republicans are going to have to fall into this bucket of legal under
certain uh and they're going to not listen to illegal at all because that that means they'll just be so disconnected from the reality of american life in 2022 they will not get office as long as we can have some reasonable voter participation that isn't about the extreme bridges of both parties again this is again what we've been
saying i think it's like the more centrists that show up and vote the more compassionate and rational we can be and getting to denmark is what they call it right what is it there's a term getting to denmark which is a term for where the politicians and the people who represent you are in sync with the beliefs of the
majority of the country and if you get to denmark you know the distance between what politicians are doing and what the people want is very short you have this consensus or this alignment and we don't have that alignment right now and this is probably the most pronounced issue and gun control we don't we can always hold out hope that
you know there's a more temperate moderate form of a ruling that's not what this is but in the case that this is what it is i hope david that you're right and that it starts and ends with row and that it it gets the states to be activated to do something and it doesn't spill over to other things like gay marriage or even
interracial marriage because i just think that i don't put it past one law clerk someplace who's hell-bent on proving a point to use an originalist framing of what they believe the constitution says to run these cases up the flagpole right but i don't think the supreme court is going to overturn those other cases i'd
just be shocked i don't even think they will take those challenges um right yeah i hope you're right i am just absolutely devastated by this it's just to take away women's right to choose is just insane to me but uh we'll see we don't know exactly what's gonna happen here so hopefully we'll get some resolution but i really love you guys love you guys too