E79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein
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There was a lot of big news um obviously past week uh when a leaked draft of the supreme court's rovio wade decision um was published by political. The draft opinion written by justice eliza would turn rovin wade from a federal isa to a state issue. Now this is a bit above of all of our pay grade. So try mah had a really great idea at a tax and people who are actual experts and uh, in the supreme court, uh, trimauille be you could introduce our guests, I will, and kill this for us.

Thank you great. Um so first i'd like to introduced amy how um amy uh until twenty sixteen served as the other and a reporter for scotish blog which is the um the premier blog that covers the supreme court he continues to service as an independent contractor and reporter for scotish blog h 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 two thousand and in four until two thousand and eleven SHE code tot supreme court litigation at stanford law school and from o five to thirteen two thousand thirteen SHE cotai T A similar class at harvard law school and i'd also like to introduce um her partner and scotus and also her partner in life.

Tom goal seen another dear friend of mine over the past fifteen years. Thomas served as one of the lawyers for one of the parties in just under ten percent of all the cases argued before the supreme court. He is argued forty three cases himself and two that I think are probably a little bit near dear to all of our hearts uh in two thousand Thomas second chair for Lawrence strive in David boys on behalf of vice president algar and bush fee gore and most recently he represented google in a fair use copyright infringement case, google versus oracle um about the use of java A P S. Um and so on. Amy, thank you guys for giving us um your precious time.

Welcome to the pot. Thanks for me.

thanks. You are having us just a little nervous about what the inroads was going to be like.

So thank you. So guys, there's a there's a million questions um to start with oh that we can go, but uh maybe just a frame the issue um can you guys just first walk us through the original rovio way decision um how IT was made and the rights that is conferred and then maybe we can go from there and talk about um what has happened as a result of the way was written and and the the the judgment as IT as IT stood .

sure robi wade at back in the early seventies was a decision by justice Harry black men 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 and I get in the right time yeah and then in nineteen ninety two, and the case called planned parenthood d versus casey, that was an earlier effort to overall rovers is weight because abortion opponents started pretty quickly trying to overturn row versus wade.

And so in one thousand nine hundred ninety two, in the case called plan parents versus casey, the supreme court did not overall raw, in fact reaffirmed IT, but switch the test a little bit, the constitutional test, to decide whether other approaching restrictions can stand. And this was a decision by justice is David suda, Anthony Kennedy and saturday, or conner, who were all appointed by republican, and they said, there is a constitutional right to an abortion up until the point at which the feast becomes viable, which these days is somewhere around twenty, the twenty fourth we k pregNancy. But states can regulate abortions as long as they don't impose an undo burden on the woman's right to an abortion.

I was just gonna tack on like what's sitting underneath though, because that ends up being a big deal these days. You know, where did you come from? Seven justices in their own weed say there is this constitutional right to an abortion up to a point, and of course there is no textual reference to a portion of the constitution. Instead, the supreme court drew on earlier decisions involving, but that was called the constitutional right to privacy, essentially a kind of bodily autonomy, right, uh, in individual liberty principle that you're going to control your own destiny and your own body, drawing on cases involving contraction, for example, for both married and unmarried couples. And that really is the doc china, the jerk potential pieces, this thing that conservatives have been after so hard, you have got kind of two branches of conservatives have in play one is look .

uh kind of religious .

um and social conservatism that abortion is evil and then you have a jerk potential 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 fifty year battle overall.

In fact, before we impacted that, maybe you wanted 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 colleague, can you just define those terms so everybody understands what .

what we're talking about? sure. So you know in ordinary politics we do think of conservatives, sm and then kind of more libertinism kind of Peter ity, get the government out of my life.

And conservatives do believe the government has an important role, frequently, conservatives, this an important role in regulating abortion and prohibiting the abortion. Where is the libertarian? Be more likely to say, no, this is my body, my choice, for example. And so that kind of along the political spectrum, in the legal spectrum, you have the sense of people. There are a set of conservatives, in particular, principally, who think that the constitution should be interpreted today, the way that I would have been understood the day that I was an acted, or that an amendment of the constitution was enacted so that the fourteen december of 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? Or as a more progressive constitutional, as somebody more on the left, what they look no, uh, there are lots of things that are not enumerated in the constitution, including you know a right to bodily autonomy at all, the right to contraction tion, uh the right even rights, even conservatives care about the right to educate your child uh in the way that you see fit and uh the constitution of particular has to be able to adapt to modern circumstances and that's why actually our constitution so big, 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, uh, progressive constitutional alist that, look, uh, when the country was founded and they wrote the constitution, they knew the countries going to be around for centuries and they didn't intend to capture every kind of social circumstance that they intend to capture every modern problem which could even be contemplated so yeah, that's the those are the two different kinds of conservatives were talking about um but both originalist say, look, there is no right to abortion in the constitution the founders, the country would have never imagined that we would h 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 .

I don't know you have had a chance to read a leads 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 what why he's saying, what he's saying yes.

IT is a sixty seven page opinion with another thirty pages or so in the appendix. And what he he tackles IT in two ways. The first is kind of from this original 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 concluded that IT is not, that not only was there no right to an abortion, he said, until the late twenty years century went read around the time that the court is IT the decision and raw, but in fact, a version was a crime in many places. And so he starts from that promise, the, there is no deeply rooted tradition of abortion being a right in under the constitution. And that goes to the idea of what do the framers intend.

Does IT fall within this fundamental right that would be protected by the constitution, even if IT is not specifically immersed in the constitution. But then he also has to look at raw and casey, because those laws have been in effect, that those cases have been in effect for fifty years now that the court issued this decision and roll in the early seventies and then reaffirmed IT in casey in nineteen and ninety two. Because the supreme court in courts generally have A P principal e called story decisions 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 overall 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 rose and casey were simply wrong when they were decided for the reasons that the Thomas has just discussed and the leader discusses at great length, there's no deeply rooted tradition of abortion being a right.

The idea that, uh, another thing that courts often look at is whether or not people have relied on the courts is decisions here in raw and casey and he said that even in cases, 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 have look at IT in casey and so in people since, and some of the broader sense that women have made decisions about their lives so credited 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 another court had been using to review restrictions on abortion. Uh, this undo burden standard is what he calls workable and he concludes that is not workable because he says this idea and undue burden test, so are more face that courts have reached all kinds of different decisions on various abortion restrictions and so for those reasons he says the I abortions are profound a moral question, he says, but it's not one that is protected by the constitution. It's a question that we should be decided by the people and their representatives and should go back to the states can .

fall upon that point. So I think a lot of people, when they read a headline like rovio way to return, they think that this stream court is directly legislating on the issue of abortion and that means abortion ban nationwide um I think that may be even the popular uh conception of what of what has happened.

Can you just h explain that a bit more? That what exactly is this in court deciding on this issue, and specifically what the same court is doing here is more deciding who gets to decide rather than issuing policy themselves. Could use explain that for for for yours?

And as you do that, maybe could just highlight the role the supreme court has meant to have in in our system of government. I just as a basic kind of concept, which i'm not sure is like as clearly understood here.

sure. So you there are the three branches of government, the president of the executive branch, the legislative branch, which is congress and the supreme court. And the supreme course job is to, in this case, interpret the constitution. Some of the cases become to the supreme court are technical.

They don't even involve the constitution of what did congress mean to say when IT enacted this law about bankrupcy? But then IT also gets these really moments cases like, and this case is a chAllenge that came, the actual case that came, the super court is a chAllenge to a mississip law that was past with the idea that you could go to the supreme court and chAllenge raw. And casey, but I missed to be a lot of was passed a couple of years ago that would ban virtually all abortions after the fifteen to week of pregNancy.

And so abortion providers in mississippi went to court and said, under the supreme courts, jewish prudent, these decisions in raw and casey, this law, uh, is on constitutional because women, A O S, the law currently stands, have a right two, an abortion up until the point in which the feats becomes viable, which is around twenty four weeks, but is certainly, uh, well after the the fifteen week of pregNancy. So the case made IT way up there as a chAllenge to this mississip law. But the state of mississippi, in defending the law, specifically asked the court to overrule rowing casey.

And so what that means is the support is designing whether not this law is unconstitional tional. If the supreme court, as the draft opinion suggests, holds that the law is is constitutional, that growing cases 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 lahaina. 而 california can decide for itself whether or not they want to allow abortions and if so， on what terms you I think it's a little bit no IT does go back to the states that people can decide. But defenders of row in casey, uh, supporters of abortion, right, say that part of the print good 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 if they're in the constitution and the state shouldn't be allowed to decide that the supreme court job is to .

protect them so if they strike this down, basically all the state legislature 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 if this get stuck 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 legislation within eye towards this decision or some other decision by the supreme court overwhelmed rolling cases. So those states would even have to pass new laws. Those laws were treating abortion would go into effect immediately.

And um can I just ask maybe for sex to like why why isn't there a constitutional amendment if this is a uh an issue that folks feel you know should be kind of in darker rated as an amendment to the constitution, why has that not happened? And um you know why do these cases kind of keepers cycling and the decision making kind of keeping going back to the states and they keep getting litigated? Why why don't conditional moments get past anymore?

It's really difficult to pass the constitutional moment time I go head.

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 in the right to an abortion, they aren't technically saying OK. Now IT will be up to the state legislators.

They're saying IT to legislation. 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, say, state's rights issue where only the states can regulate ted? But there is a big, big, big fight looming in congress on both sides. The only reason that you are not getting a federal statue when you have a democrats control the senate, house and the presidents in the only reason you're not getting A A federal statue protecting the right to .

an abortion is the feel of us are essentially and a so .

the constitution is our the foundational document. It's what creates the congress and gives congress the power to regulator of things. IT creates the presence and IT creates the supreme court. And so it's the most important thing.

You can do something that violates the constitution, then congress can pass laws, and states can 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 preview of the states to deal with. Then you say, okay, well, the constitution sounds about everything else or less.

Why don't we just demand the constitution? And as you see, we're just not in the business of doing that anymore. Uh, there we have very few constitutional amendments and we haven't done in a long time. The constitution imposes all kinds of hurdles are in terms of congressional thorium ation state authorization is why the equal right to moment 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 are kind of foundational rights and that's what's to made the supreme court so important, by the way and that is we have something like the equal protection laws. We have a right to free speech. We have a right to, uh, the free exercise of religion and those are big, capacious races that nobody can objectively tell you what they mean.

They mean what five justices the supreme board say they mean. And that's why there are all these fights over supreme court appointments, uh, because the justices have an enormous power by five, four majorities to fundamental change the course of american life. And IT can be in a conservative direction or more liberal direction. Remember the most famous saying 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 story diseases, this idea of president. My understanding is that when supreme court nominees go through the confirmation process, this is a really important part of what they are asked right through their confirmation process.

What are your views on story diseases? What are your views on row? And there's a lot of discussion right now about whether you know specifically gorsuch and cabinet who signed up to this illegal draft, at least may have liked to congress in the way that they answered their questions. Turn of you guys concerted um talk us through that and and whether you have an opinion on on on that in their actual congressional testimony to get confirmed.

So what they said and I think back actually looked at some who are not all of justice Kevin confirmation hearings today. Actually, you know what they had said at their confirmation hearings was that row and casey were settled law that the row has been in effect for fifty years. And then casey came along and reaffirmed IT. So I think justice cv called the president on top of president.

So that seems like story diseases is just said in different words or no oh no.

no question that all of the nomes that have gone through have acknowledged because it's not just two cases. There are ten abortion cases. You know this is been in front of the supreme court ever in seventy three, over and over and over again.

And casey IT, after this framework, and it's been reaffirmed over and over and over, the court has been moving in a conservative direction, upholding more abortion restrictions. But the foundation, the gore vo, has been there. But the issue is this, when someone says this is a president and a super precedent, they are not saying IT cannot be overall, everything can be overruled. And so that's why a leaders draft is so strong. IT is IT uses a formulation that cabinet is used, which is egregiously wrong from the start, so that if something is just outrageously, totally wrong now, paul, to the fact that a supermajority of supreme court justices have thought that was correct, including a bunch of republican appoint.

is for fifty years.

right? And, you know, including the court that first adapted IT, the but this majority has come up in a kind of jeers potential with a jerk potential vision that sufficiently conservative to say this is essentially the most outrageous thing the supreme importers ever done as well because IT interjected itself without any textual basis into one of the the foundational moral debates of our time, which is what legislation should be handling so now some of the um you know moderate republicans a Susan cosa meos have said they are quite upset about this because they feel misled but I think the defenders of the justices would say, well, I mean, they did say he was present on president but they didn't say he was immune from being overall. And here you .

go just to add in one tiny little detail in the draft opinion by justice oleo, is that one of the things he talks about when he's outlying the principle of story thesis, he says that this principle is actually added weak st in case is like this one involved in in the interpretation of the constitution, because only this press court gets to say what the constitution means.

And at some point you don't want to sort trendle along with the interpretation of the constitution that is, as time suggested, aggregation sly wrong, he said. If you're talking about the 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 with the lawyer.

So i'm not obviously, i'm not defending the allier 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 and explaining why this the despite the what they said of the confirmation hearings yet they voted to overall ground. Casey.

I I like ask a question for which is I think this is really fascinating, like the history events. Amazing for you to really unpack IT for us. I want to ask a human question here and maybe because these judges are humans and there is 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 fifty 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 is 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 president but there is also the reality that um the decay has been uh stacked with this court IT seems quite ratigan ally 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 character zone of what is a majority of the country that is, to varying degrees, pro choice. Now we are a 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 passion of use on both sides uh the women who are directly affected, many of them will feel no debt incredibly impassion is strongly this is an outrage um but there there are activists on on both sides and yes, from the day that row was decided there has been a unflinching commitment among conservatives to undo IT and IT is taking 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 to june of this year where they will likely win five four and they have worked tirelessly to put justices on the supreme court who would be willing to take this step.

They thought the john Roberts would and IT appears that he is very likely willing to cut back on row, but not overruled entirely but that the other conservatives, whether is someone who's been on for a while like just as Thomas or instead much more recent appointments, which is the uh and in shortage uh cabinet and in barrett and just as a leader having been on the court for a while, uh those people, this is the number one agenda item for what they believe, correcting the course of the supreme court's interpretation, 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. They all like gay rights and that sort of thing. But in in a very human sense there there has been an other human commitment are by pro life forces to stop what they regard as the murder of know millions of unborne children and an unbelievable commitment on the among pro choice uh forces to maintain what is uh you know a basic individual liberty.

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 twenty fifteen and then in particular, twenty sixteen election of Donald trump was elected in no small part because he pledged to put justices on the court who would overrule.

Roll in casey, yeah, you had conservatives who work quite sure about him, but felt so I 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 will released before the twenty sixteen election, which is something that nobody had done before, but I think worked out very well for him, you know. And then you sort of compare that with the people are, as tom set on this issue, people who oppose abortion were often single issue voters. In the twenty sixteen election, you had, you know, the the but her emails crowd who weren't necessarily going to go to the polls for Hillary clinton, even though they likely would be a version rights supporters. And you often just like not. I think there was probably an element of disbelief, the idea that this right was so solidly entrained in american constitutional law that that IT would stand despite who might be on the court.

So amy, I want to ask a jump uh question from here. Um then this is an issue that's close to all of us when we read rov e weight we were I think we are all like a little shocked, like, well, this is happening. And then the second wave of news was how this created potential to undo oberg fell rights.

So the gay rights law, or even like intervac marriage, you know, Jason's in an international marriage, I am, you know many of our friends are, or 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 author or or or people that we care about that? Is that something that's possible here?

I mean, I do you think there's a lot of those rights are going to be chAllenged? Justice alito in the draft opinion says, no, those rights are different yet because only abortion rests on the purposeful termination of a human life. But you to go back to what tom talked about earlier, you those rights rest, you are also not in the constitution, rest on the same sort of principal called your sub subsidy process, and rest on the right to privacy. And they were definitely arguments made in the supreme court in the mississip case, not by mississip, but by groups suppressions. I that if you overrule role in casey, you do have to go back and look at these other rights.

You, I mean the reasoning for overruling grow. He is, by and large, the same reason that you would ever rule Alberta found a berger felt is a much less well set of president you know IT IT hasn't been reformed by the supreme court is supposed to know many, many, many times um you can just easily say it's uh an issue for the states and when you see injustice leads, when you see is two things and justice leads opinion.

A bunch of reasoning that would be used to strike down a bunch of all the rights go all the way back to where where do we think we find the right to contraction tion. But where's that in the supreme court, both with the spect of american and married couples said there's a right to contraction tion, but it's not in the text of the constitution and there's a bunch of surface and the text of constitution. And I said the constitution super bak.

So you have a bunch of stuff in the leads opinion that says all of the the reasoning that in those cases essentially is wrong. And then you have a paragraph that, by the way, this is just about abortion. why? Because IT is.

And the difficulty is that in a later case is much, much, much easier to apply all the thinking, then the true ism 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, that is, I think that the justice is decide what they want to do, and then they write. The opinion that gets there is when the court voted to overrule row and five justice is, did that after the whole argument in the stomach case wonder more, the justice said, okay, i'll join in an opinion overruling row.

If IT is absolutely clear that I will not lead to the overruling of these other things. And so just as a little put that in there, he doesn't believe IT for a second that those decisions are rightly that this ruling should necessarily stand uh, but IT appears that they don't have five votes for that view. But look, they didn't have five votes for over rolling row until very, very recently. And you can put another conservative on the court um or you know these five could end up doing IT IT. IT is very much in plan that at the very least you have to acknowledge that a lot of things that people thought we are kind of foundational basis for, uh, how we order our lives because they were protected by the constitution may well not be anymore.

But I mean, I just like, isn't there is like 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 just happens that the majority.

this knowing ask question about this sort of parade of horble. So so I understand you're saying that, that overturning grow would implicate these other cases. On the other hand, and as you mentioned, the leader specifically says prisoned ilea, in this top 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, clean county, red, you know, L G B T Q rights into title seven and that opinion was written by gore sage with Roberts joining him you know I think was that there was a six four or six three majority so the idea that this stream court would overturn you marriage equality versie fell which was just um written by ten in two thousand and fifteen. I mean, I understand that you're saying it's possible, but is that really likely? Well, look.

basic is totally different. It's interpreting a federal statute, a law that congress passed that's there are point the conservatives view is like, okay, congress passes, allow to protect, you know, same sex marriage, fantastic, have added and if IT is past title seven to privit discrimination on the basis of sexual enters, fine, we don't have a problem with that.

But is there our problem is interpreting the constitution to strike down those laws. Do you say, is that likely? You know, the IT IT is a bizarre circumstance because dc trinity, when we think is lawyers, when we think is judges.

IT should be much harder to overturn rovers way because we do have this is a lot of water under a lot of bridges where as the same sex marriage is a pretty new thing that we've recognize them, the constitution. And if you say, look, we're going to talk about the founders of the constitution, we're going talk about original m, i'm going to give you two propositions. You tell me which one is more likely.

And that is in the year eighteen hundred, someone said, given the choice, do we protect a woman's right to have an abortion, saying the essence of rape or incest or something like that, or we're going to say that is there is a constitutional right for two men to marry each other 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 in acting and adopting the constitution thought that they were protecting same sex merit. And if you you want to look at IT from that perspective, in this opinion does, then a burger fell is just an easy .

target to be onest. In order for the this sort of the previously to happen though, there's a two step process, right? The first step is the same court throws IT back to the legislature. Then the legislature has to do something that you think is appalling and ultimately that the marriage equality is now popular as 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 now because how do you get clerk in rural texas as I refuse to sign this marriage certificate? Remember, a lot of these statues haven't formally been withdrawn. They haven't been.

They're sitting on the box. Uh, they're just invalid. So too with you, there are a bunches of statutes on the books that are abortion restrictions that .

everybody knows are .

on constitutional, are in stay exactly and respect me rig, and all other kinds, lots and lots of rather, are there. There were hundreds, maybe thousands of statutes, the discriminated against a couples and gay individuals and the L G B T, Q. community.

And there's bunches of that stuff still on the books. And all that takes is for one conservative to say, look, i'm gna apply those laws. Let's go. I give you an example, the eternity general texas has said, look, i'm now say I heard what's going to do with the row.

I'm now looking at player versus though that's that's the constitutional decision that says states have to uh, educate children no matter whether not they're lawfully in the country or not. Me a whole, this is going to be extremely motivating and extremely animating to conservative legislators, to conservative attorney general in the states. Everything is now in playing.

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. We've already lost on some of these issues. And so it's gonna be a scary quarter century .

IT seems to me, amy, the we grow up i'm of jens, fifty one years old with this profound respect uh, for the supreme court that I felt fair IT felt just IT felt like the one institution that was above politics and now IT feels uh, because of flipping a fifty year old law as if it's and this is sort of, uh you know, the interview process when they were being confirmed and maybe the rug pulling mayor that we can trust IT and then this league happened.

So now IT all feels like this institution is not trustworthy, is biased, is political. So we're 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. This was I just, you know, living under A A false vision of of this institution announcing reality uh or had 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 in the last ten years when justice is David suda and john paul Stevens retired in the justice and Kennedy and twenty eighteen, you now 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.

And justice a suter and and Stevens IT really had become a solid part of the courts of liberal wing by the time they retired. Justice Anthony Kennedy was still a conservative, but he was a conservative here 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, four and so called party lines. I think that has changed. And I think some of the the confirmation hearings, I think particular democrats and progressive ves feel that at least one of the seats, either justice corsage or just the same econic barret was was stolen in effect because just a scalia died in february of twenty sixteen.

Senate senate majority leader miss marconnet refused to have hearings for the president. Obama is none saying the next president had this has to decide. You can agree with that. You can disagree with that. But then just as skinny birdies in september twenty, twenty, and the republicans rushed to put someone just now, just to spare IT on the court before the presidential election. So I think people do just I think there is a general sense that IT IT is more political than I used to be.

What about the league you just wrote about that? Yeah, yeah. Can I just say one other thing was having Jason on that was you were winning. I mean, people think the supreme is political when they don't like what it's doing.

And so when there was a right to an abortion, when the affordable character is being upheld, when a berger filed is being decided in favor same sex marriage, you and me tend to think of that is, oh, that's that's just the way the constitution should be. We've got objective, sensible set of justices and then we start losing and we get the perspective that the other side ideologically has had. They think this courts been super political in, uh row in casey and Albert fell and in the A C A, because they think the constitution means the opposite.

So they think theyve got a bunch that the court has been way to liberal, way too and oriented because there's no objective answer with respective of most constitutional questions. Because the argument so big, we have a question, what's judicial activism? Well, judicial activism m 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. The IT IT are the the perception of any individual about the supreme court, whether it's neutral and objective or instead political and bias tends to be rooted ninety five percent of whether you like what it's doing or not.

So I love to you from, I think, a very fair observation. I mean, even if its fans would admit the warn court was highly activist core. So I think you tend to think of the court is being activist to the extent that you don't like the results. No, although obviously there are um more or less incremental approaches that one could take actually in this decision IT looks like Roberts was england for the incremental st approach here, which was to incremental .

yet means in this context here .

and I think incremental there is i'm not sure I I guess IT you can call IT whatever you want to do. At the oral argument in december, one of the alternative grounds that mississippi had offered was to still uphold their law, but not formally overwhelmed. Win casey and I thought argument Robert seem to be the only person who was interested in that alternative ground. So that would still be a major shift a in abortion rights laws. But I would not formally overall growing casey in that moment.

And please correct me from wrong. The by administration also said they don't want that news one's decision. They wanted roll voted upper down in its entirety.

Is that right? You know, i'm not I pretty sure that that nobody, including that the lawyers like like the 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 striking the reaction would be and will be if overseas way 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. Ah so that is less of a surprise if and went rovers s way is over world five years from now because he doesn't have to go that far today. On the other hand, um you know movement conservative realized look, you know just as we had died, a lot can change. We've got our shot. Let's take uh right now and are at least that 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 and in these leaks is what will happen with cabinet and bear IT and will they go with the chief er and said with the leader stronger?

exactly. So this is what I wanted. Ask both of you, how does this play out from here inside the cord 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 you? Or is this basically a fat a company as as as written right now?

So i'll let tom talk about the the league, and he's got some theories about what might have happened. IT is this is the first draft. You can see that on the copy that political published and IT is from apparently from back in february. The argument was in december, you nobody expected to get the decision in this case on a likelihood until late june. And so you know, I do think that there is a chance that the opinion could change in some way that might not have quite a strong a tone.

Or 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 ethe oral argument in december. Let tom talk about some of the theory that he has one of the things that somebody who actually gets to go to the old arguments right now, yet when you are at the oral arguments in any case, but in particular this case, you, the justices, are talking to the lawyers, asking the lawyer's questions, trying to flesh out what their positions are, you know what the possible resolution of the case maybe. 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 twenty, at a couple of days before the this wall street journal editorial at times gonna talk about and then a couple of weeks before political leaked, there was a discussion in a case involving the Manda. right? You know, you have the right to remain silent on the long order thing.

And the question was whether or not you can bring a lawsuit of federal civil rights claim if your Mandate has been violated. And so not anything to do with abortion, but at the oral argument, justice cagan starts talking to the lawyer who is arguing the case about the Manda decision. There is a Manda decision in two thousand, and which the supreme court, by of seventy two, help that congress cannot overrule.

Maranda and SHE said, you justice to justice way in rank quest. The chief justice at the time wrote the decision and he was someone who made clear that he had not been, uh, he thought that maranda was wrong. But none's voted to uphold IT because he knew what an effect overwhelmed something that everyone believes this 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 he wasn't talking about maranda and SHE. SHE was talking about row versus wade and plant party versus casey in this case because this was something that this is initially that justice calvin had raised at his confirmation hearings talking about rank quest and Manda. 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 he thought I was sentence stone.

yeah. So a couple of weeks ago, somebody leaked to the austro journal editorial board, and this has happened before a couple of times over the past you know decade is that um five justices have voted to overall row but IT was in playing that the chief justice was trying to pull along to a more moderate position just as his Kevin o and barret and IT wasn't styled as a league but we now know that was league including because of australian ourn's, your board said and we think justice eda is writing the opinion out of nowhere like nobody in the world would go on.

The record was you they knew I knew what was going on. And that's a very strong indication that are things are still in play. Then with respective politico, politico was told that five justices had voted to overturn row 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 just as a leader circulated this opinion in february and then he's supposed to get memos back from his majority, say, hey, if you make these five changes, all join your opinion and boom, then you've got a an actual majority for the court but all that you see from february tennis this is sami dos 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, uh, between february now in terms of actually getting to a majority. So the most likely scenario now is that IT is in play. Now what does that mean to be in play? And is that, as I said, an optical illusion? Well, IT is not in play.

Whether this statute is gonna upheld, what's in play is, are they going to admitted over ruling row? And how far are they gonna in upholding, doing something that would, for example, uphold six week ban, like their states, six week week ban. What about that? Are total abortion? Are those now constitutional? So, you know, are we gonna go step by step? And this is gonna a five year process or is IT gonna en on the last day of june of this year that might be in played. But people ought not be misled into thinking like there's a real, real debate about what's going on. An abortion in the supreme court row is is on life support best .

case is there um anything because the person who leave this, we would assume, is hoping to make some change and send this out as a warning sign to the country in the people who want to preserve ra. Would we agree on that?

Some people think that I think that's true h others think that this was an effort to, uh get cabinet on record as having voted over train row and to hold this feet to the fire.

That certainly how I interpret the league to the wall street street al editorial board, I think the release of the opinion, however, the distinct, like this piece of paper, is intended to do what I did, which is motivate professior forces and say, wake up like this is really happening. We're not kidding. You've been hearing that these reports getting more and more conservative.

But i'm telling you, in eight weeks you don't have a right to an abortion anymore. You Better get your act together. So the .

question is, is there any chance that public sentiment could make a change in the thinking of the supreme court? Is that farcical le for us to think? Or are they humans and they see this and say, you know, we got to dial this back or we got a, you know, you know, uh and somehow maybe damp in the blow of this, if we are going to overturn IT could protest, mass protest and sentiment actually change they're thinking, amy.

it's so hard to say. I mean, I really do you think it's problem? You're probably talking about just wonder two justices rather than all of the justices as a whole 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 out step off the path because somebody leads to this document and people aren't to like IT, we're going to stay the course. But you know, I think you're talking about, you know, I likely had one or two justices, whether they will be affected by this. I think it's just it's so hard to known so much depends on what the liquor was trying to accomplish, which we don't know .

institutionally. There have the mind. You know, right now we know that there is this initial vote. Now let's say that the ultimate opinion doesn't overgrow. And just as cabin on joins the chief just to do something less aggressive institutionally, that's that's an unbelievably bad precedent. If IT creates the impression that leaking documents to the public leading to protest, 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 league in a way that the leaker intended a what that invites later generations of court staff to do is is no way. Now.

IT seemed like a leader almost thought I was gonna en, because there is a section in his thing that actually speaks. Amy, you mentioned about being almost a 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, you know, I don't mean to sound more than 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 R B G you know there could be a claim now that if a fruit Peter games burg had actually stepped down or try to hold on, you know, I 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 dealing with that in that wave vers making these lifetime appointments?

I'm personally strongly in favor or of this, but you have to recognize that would require changing the constitution um there are all kinds of attempted work rounds, but i'm telling you that the people who decide the constitutionally of the work round are the justice is themselves and they would have no interest in accepting any limitation on their life ten year.

So you you have to expect that we're talking about something that kind of in the sky because we're not going them in the constitution to do this until we end up with the justice who senile and who can do the job and the supreme court turns into a laughing stock. And at that point, the country will react. But we are just not good as a country at seeing this problem coming.

I mean, fundamentally, what happens is we are now incentives to put people on the supreme court when there in their late teens and just get them on there as soon as you can and keep them there for seventy years. And it's not gotten terrible, no, just as time as was extremely Young, but we've seemed to have settled around fifty years old and there's nothing intrinsically wrong with having somebody on the court for thirty years or forty years at age fifty. We've been super lucky.

Uh when it's come to the fact that ah we've everybody y's spent pretty cupps santas. We've we've gotten we've run good and we could run much worse than we have you. We see this in the senate right now that we have some problems and we could happen with the supreme for justice. But the difficulty .

is even also you referring to maybe they become signal their notes there they could have outside.

The problem is, whatever? yeah. And then what do you do? Because you can't. You know you, you gonna ach them. People like the outcomes are going to. But what, like? Only the justices themselves can decide whether they are going to leave. So the, but the problem is this we're getting we have a huge cent of now to put on somebody who's very Young and the the lead time effect of one president y of the trump presidency, for example, now will spend, you know four decades a and that I don't think the framers intended remember the you know the average life expectancy at the time of the constitution stammers when we said like ten was decade shorter um even for people who like supreme grd justice is back and who had very good health care and so did nobody contemplate ted this when we originally said .

live there is a proposal on this that there were a few members, the house I think including on play and some other folks, but also some conservative supported to for an eighteen year term limit for seeing court justices and I think the way at work is basically, uh, each president that will get a name to justice. So basic, every two years you get someone rolled off and then the new pressing institutes. Pic, and so every person gets too.

And so yeah basically, if you think there's nine justice on the court, so IT takes eighteen years for a full cycle for you all over. I think it's pretty interesting because that would take a lot the heat out of all these sort of sin core nomination battles where, you know, somebody dies and now is a nomination fight and both sides are playing for all the marbles. If you knew that every presentin election, every president met two votes on the stream court. IT was sort Normalized things I don't know I think it's .

a constitution says I know we .

need a contest, remember but I think it's a really .

interesting idea.

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 pass away. But you're right that I would people would be able to plan. We would know when people we're going to be rolling on and rolling off. I do think IT is it's always struck me as kind of ironic that IT is, at least from a constitutional perspective, easier to add justices to the court then to impose term limits for which there seems to be a fair amount of ama support time.

And amy, you have been unbelievable generous with your time and your knowledge. We truly appreciate you coming here and spending to the all in audience, uh, we're all Better for the work that you do and and free you .

sharing with the is amazing. So generous to have thanks .

for happiness. Great to talk you guys right.

H trouth, first of thanks for getting those amazing guests as a quite an education. I think first recognize its four four guys talking about abortion um and. You know we understand this is not exactly our issue ah to discuss .

no pinon no but Jason, to take away from me was that this .

is not just an .

abortion issue course gay marriage, this is interaction marriage.

Let let's go back for a second. So look, I think tom did a nice shop laying out. You know i'm pretty ductus terms what's what's going on here and where he had a point of view he expressed and I think the idea that this leads to, uh, gay marriage being overturned, I I don't see IT, it's just a know that maybe it's not impossible, but I I just don't buy IT.

There's two reasons. So first saw all the boss the case I mentioned this was a case just two years ago, rid by gorham, joined by Roberts and the other. So was a six three decision in which gore sech held that the civil rights acted twenty sixty four, protects gay and transgender employees against discrimination.

Now tom is right that that statutory, not constitutional, but gorses didn't have to find in that statute that sex apply to, uh, gay people on change change people. The court decided on its own to do that to interpret the statute that so you're telling me that a court that just two years ago um decided that you cannot discriminate against gay employees is not 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 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, that is ruled on this two thousand and fifteen, where where basically the issue is now settled in the country.

One of the differences, I think, with abortion is is still a very hot issue. And this is not settled in the way that a marriage equality, gay marriages settled. So I just don't buy this idea that now we're going to be overturning gay marriage that we're going to overturning, like for the example, uh, contraction. I just don't buy IT. why? Because nobody in the country is arguing long count.

Well, I guess the the counter argument of that, David, that people would have is, well, we didn't think they were going to overturn uh, roy wade and they have um and so we feel we got rog poled cavin oca people you know when they were uh being interrogated about their views on these things, they felt like they like 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 thrill with the outcomes. I think that was a very good point in our discussion. Um people didn't think this outcome would happen in robi way. So then it's kind of hard to believe anything the course 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 gonna. And we mentioned, I think, this in the context of this, an affirmative action, as you know, two things that we're gonna get chAllenged and would probably lose.

And unfortunately, IT, turns out, were right on one. And IT looks like a weed. You know, we may be right on the other as well because I think the affirmative action case will get .

get did we think that really going to get a return? Did you think that David.

I am meet. I thought Roberts was gonna get his way on this. So I I am a little bit surprised. I still think that turns like the the the testimony of these nominees. I mean, look, tom, I think nailed the answer to that question, saying that these decisions are set law is just a platter tude. I mean, yes IT settle a lot doesn't mean I can be overturned.

Look, I mean, we all know that in these nomination hearings, the job of every nominee from either party is basically say as little as possible and describing roads at law is doing that. I mean, it's not it's you could still go back in and overturn IT. So at this idea that they lie or whatever, I mean, look, people here what they want to hear in .

and 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 to 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 practice answer to every question. To your point, David is a very well hest confirmation process.

exactly. Is this idea that they lied, or whatever. Look, the only way you think they lied as if you read, if you read something into an answer that was a plata two that .

you wanted to hear. My shoe, my issue with this is the following, which is that I do think that there is a role for compassion. And how are god OK? And I, what I, what I had 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, that's where I just struggle.

And Jason, I think you asked IT like, where's the role of the humanity in doing one's job, right? And why is IT that? There's a belief that one must so frequently in purpose, in a, 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 struggling.

Let me just play play devils advocate. Your point of view is that the humanity in 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 are the 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 with an individual given that IT in fringes on the life of another and um and I think that's really what what this is all about, which is in the 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 in a dedicating role and that is so tough, right?

I hear you but look is my perspective on this is that A R I am fundamentally protos I don't think I have the right to say, okay, what a woman can do with your body that is absolutely not um not my role or 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 fifty years of a president, you know where there is, as tom said, so much water under so many bridges.

This is why I think, well, why couldn't you overturn loving Virginia? right? Why couldn't you overturn gris wald? Why couldn't you overturn oberg fell 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 favour of original textual ism and i'm just not sure that that's a good tradeoff in twenty twenty two america.

It's very interesting. This is such a polarizing issue for us. And IT seems like other societies have found A A resolution in a way to move forward.

I also think, sorry, just to finish drain. I also think like this is where, okay, honesty, 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 no one perspective and implement a framework that represents that. And instead, what I think I see, politicians on both sides, it's just screaming like crazy people at each other and IT just doesn't do anything.

So what are we going to do when we're going to have the same conversation guides about a formative action, right? We're going to have that conversation and we're going to wonder, okay, well, is a formative action, was a reasonable, was a good, was a bad? Well, it's not a right that's a firm in the constitution. And so you know .

it's gonna away I think thinking about intel the the way to uh resolve the issue for the country um or path forward a might be interesting to deal into here. Is there a path? Ford, you see David um because listen, IT IT is one brush we paint with you either in the language is framed as such, pro choice or anti choice, pro life or entire life.

Obviously these are loaded framing to begin with um and people could be not want to see abortions occurring in the world and they could also are still be pro choice, right? This is a very new last issue and then people might have different feelings that they know this is graphic and hark talk about, but people might have different feelings about the second try mester, the third truck mester, and very different feelings about the first try mester. And when an abortion occurs and people who are pro choice might not be for third trimester abortion, they may want to have some basic uh rules uh around uh, abortion. So i'm not putting my own personal place out there and i'm just framing a question, what what are your thoughts in terms of moving for because this is that could possibly be a state issue in july yeah well.

so so this 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, is still possible that Roberts could peel off a vote and then we would get a scenario in which row is upheld while modifying n IT to allow, you know, laws like the missions I law. But this assume that this this decision that appears you were in bioethics of being the law.

What that will mean is that, like tham said, we'll have a vote in congress. The democrats will see if they can basically uphold row by through a law which biden with them sign. I think the issue there is they have to get enough to select the full buster and I enough they're gonna do that.

So this assume that fails, then IT goes the states. So in states like california where we are, there's going to be no change whatsoever. In fact, you know new some dark rates saying they are going.

Enshrine the the current law in the constitution of the state that's really that doesn't do anything with the abortion will remain broadly because in california and in blue states, places like new york coastal states. So right off the bat, let's state in about half the states, twenty five of them or so. I don't think this can be a change in about twelve states.

These restrictions that are already on the books are going to go into effect. And then we're going to have about you know total thirteen in states that become battle grounds purple states basically. And we will have um those states through their legislators and through their elected representative are going have to figure out what their policy is gna 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 you're going to benefit. And maybe that the potentially hopeful scenario here is that IT will force people to compromise when they actually have a crafting legislation, they're going have to work through those compromises.

Until now, the issue that has been so fully prompted by the string court that everybody basically was making these absolute rights argument right, like one side, is saying there's a right to choice. Once I saying there's a right to life, these are rights that are being framed to absolutes that broke no compromise. There is no reason of compromise because there is nothing legislatively to work through or compromise, right? IT would.

These are arguments being made to the stream 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 mester? Okay, no, most people would say no.

Should IT be on the second tremeau. So force to get to work through those questions. By the same token, if the pro live side refuses to make compromises for, say, rape and insist they're going to punished voters in those states, I mean, that is very unpopular.

So both sides here, I think I can have to learn to compromise, and it's going 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 once, are quite religious.

This is not a cultural war issue. And I think you could argue that one of the reasons why it's become a culture war issue is because this stream court prompted IT and stop the democratic process from working fifty years ago. And so the only way for people to express themselves is to make these, again, absolutely rights arguments in from the stream 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 positions are too extreme. I think maybe we'll get to a compromise. I think you're .

saying something really important. You're saying, had black man not a judicature by weight in seventy three, IT would have been up to congress at that time. They would have passed some set of laws and in and over successive generations of those laws you're saying there would be a framework so that a moment like this doesn't happen yeah .

and you know what? That exactly what you just said was written by a stream court justice in a large article in one thousand nine hundred thousand. And let you guess who that justice wasn't a second. But I kind of read you a couple of a statement from IT. This justice said that no measured motion, the road decision left virtually no state with laws fully conforming to the courts.

Liniment of abortion al regulation still permission around that extraordinary decision, a well organized and vocal write life movement raly and succeeded for a considerable time and turning the legally have tied in the off direction meeting. There was already a trend before row towards liberalizing these abortion laws across three states. Even role bragin governor had signed a law liberalizing abortion in california, and that process was halted and stop by the stream court's decision, which in one decision, to validate every single abortion law in america.

And then what this justice said is that roo halts in a political process that was moving in a reform direction, and thereby, I believe, prolonged divisiveness and the fred stable settings of the issue. Do you know who the justice was? He said that ruth beter ginsburg, so SHE obviously was for the ultimate in the holding in in row.

But what he said he would have done was have a much more incrementally narrow decision that would have maybe invalidated just that texas law, but threw IT back to the legislature so they could then work out the issue. And instead, he felt like the stream court making such a sweeping decision. IT created a backlash, and I think for fifty years we've been living with a backlash, and there's been a culture war in this country over IT, while every 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 rise beer gainsbourg argues that the incremental approach would have been Better. I think IT was startling to the politically shooter move, right, not just throw this canada into fifty state legislators, but to gradually move the issue back to the states.

I think there's a lot of wisdom in an incrementally approach, whether it's Roberts or ruth beta against work. They both are basically say, you call the story decides approach you give present, you give weight to present, you know, just overrule, you know, the sixty or presidents. I think there's a lot of wisdom and that approaches 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.

Um and IT will be chaotic um but other countries have dealt with this. Australia has basically by the states in australia have different weak requirements. In europe has a certain weak requirements.

I read in europe are article and and two of you are 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. And that is just going to be an absolute amount of cash for some number of years. Yeah look, if if the .

parties don't compromise on this voters, will you punish them? I mean, I don't think you're going to see glm Young like Victories by the republican party if they broke no compromise on, for example, the issue of raan interest. 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 of the unborn baby, right?

I mean, are you really going to allow abortion? Is the nine month of pregNancy if the life of the mother is in 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 absolute s in both parties refused to do that, I think they are going to lose elections.

Yeah I I is so hard to get the proper statistics here because I think a lot of the I been looking trying to understand what the country actually thinks and people do not ask very new answer questions are, do you believe rov way should be have returned people get asked that question in the majority believe IT shouldn't do you believe that you know like but we don't have all of these nuance issues uh by state IT doesn't seem to be um maybe people haven't even thought IT through right like to most people who are have an opinion on the third trimester on the second tri mester do they do they actually have an idea when they feel and know I be honest. I I have not given this total thought myself as to how I feel about IT. I I learned a lot .

by reading this year. Here's something that was in the opinion that I didn't know. But IT says at the time of enactment of this mississip law, only six countries beside the united states permitted non thai UI c or elective abortions on demand.

After the tweets week of gestation, those other six countries were canada, china, the netherlanders, north korea, singapore and vietnam. That's IT in the whole world. And so you know what to your point, there's there's all these granular details. And I think, as David said, a group of politicians need to decide the 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 fifty years, that something .

so so that's a really .

tragic part about this is such a unequal thing to do.

Unfair, feels profiling unfair to take a right away after fifty years. I think that's the republic of 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 defender, and is now like, oh my god because.

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 that means to be an originalist or a textual st. I understand that right and I respect people's perspectives that the constitution should be interpreted verb to. I understand that and and I and I and I respect people's ability to think that the things though Jason, to your point of like the dog catching the car and offender 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 factory what the moral temperature of the country is in that moment in which something is decided and a .

some contacts like there's a context year of IT being law for fifty years that you cannot disregard.

And that's why OMG fault took until twenty fifteen to really happen, right? Because by that point, IT was IT was there was this beginning of a sea change where you know I think it's like seventy percent I think in a gala pole that I saw support um same sex marriage and I think he was about eighty percent.

It's not one hundred by the way eighty percent support interaction al marriage and ninety two percent this is all in the same galbo ninety two percent support um they don't think. That using contractors contraceptives is immoral, okay, but that still leaves thirty percent, twenty percent and eight 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 is nearly defined so that to your point, David, we don't open the pan doors box on all of these other things that we have decided as a nation are are very reasonable things.

No, I don't think over over berger, fels, onna, get over turn. I just don't see IT. And the reason is because of the way this from court handle that issue.

So again, go back to the early one thousand nine hundred ninety. The way that that this issue first came up is at a hawaii court found that there was a right to to gay marriage and there was a huge uproar. Stream court did not take up the case.

They did not take the. So what what happened then is congress pass da the defense of marriage act, which was huge majorities in both parties. And bill clinton sider remember this, stating that marriage was in one man and one woman.

And so if the spring court had basically taken up the issue then and found the right to gay marriage, we might have a consensual amendment being a gay marriage by now. And we've trying to work away out from under of that and figuring out what how to get rid of that. But instead, the court did not take debate.

They stayed out of IT until two thousand and thirteen when attitudes had changed substantially, and then they invalidated domain two thousand and thirteen. And then oberg fell, came along in two thousand and fifteen. So I think the pattern here is that the court has learned to stay out of these hot bond issues until they become a little bit more settled. And then what they do is, once the public opinion has sort clear, is clear, then they can shine IT.

but isn't IT clear that people want the right to for women to choose well.

But they created this normous backlash, normous .

backlash. The monks, the minority.

Well, you say that, but IT is a, is a very large government people.

but it's the minority. But just said yourself that the majority in the court wants the majority of people to go for get the connect. I.

well, but here's another disconnect. I J, else, if you believe your position on this is so incredible, popular and has such a supermajority, why you worried about IT being returned to the state legislature? They were basically you want well, no.

i'd believe in some places the minority might be the majority in a certain state. And then we'll have women in those states who are unable to get abortion safely. That would be my concern.

I think that the country is deeply divided on this issue. Look at all the food. Depends how you define the labels.

IT is true that most people say their post choice. However, if you frame the question as should there be no restrictions at all, people would say their favor restrictions. Actually my point is the country is still deeply provided over this. And um the issue got preempted by the stream court fifty years ago and we've never made progress. And then and give me me very messy, I think that's fair.

If if you frame the question as do you believe if women should have the right to choose in the first trimester, we would probably have the overwhelm majority. People say, sure, that's no problem. Then we would be arguing .

over second try me mester and the I I just posted the gala data theyve launched track actuals and opinions of abortion one thousand seventy five as of today in twenty twenty one, twenty twenty two. The split between pro choice and pro life is very even is you know forty nine percent is pro choice and forty seven percent is pro life.

But if you ask the more numerous question that David said, forty eight percent consider abortion to be legal only under certain circumstances, thirty two percent say should be legal under any circumstances, and nineteen percent said I should be illegal in all circumstances. And so to your point, the parity of people, half half of amErica basically wants IT IT as a supporter, right, with some boundary conditions. But then there are thirty two percent of people that wanted under all circumstances. So I think the compromise is that there is a seventy plus percent majority of people who can craft the law here.

right? yeah. I mean, and also the question of do you consider yourself pro choice or pro life? That is the personal question.

Not do you think I should be legal illegal? That's what do you believe as a human being on planet earth? Are you pro choice or your pro life?

If you and I guess that would be assumed if you had a baby. You look the illegal, the illegal under twenty percent now. It's been eighteen and twenty percent now.

So well, not to be fair, since in one thousand nine hundred and seventy five.

that line hasn't moved, right? And that would be highly religious people, I would assume, make up the majority of that nineteen percent .

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 you should be legal in all circumstances since role, and that's come from people who thought that should be legal under some circumstances.

Yeah, twenty to thirty two. So fifty cent plus.

This is a fraught issue for the republican party because if they only appeal to their base, the thirty two percent who actually sorry, thirty two percent say IT should always be legal. That's the democratic base. But if they appeal to the nineteen percent who say never, as opposed to the forty eight 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 both parties could just appeal to their base because the issue have been preempted. There were no laws to vote on. Now there, there could be real laws to vote on this going real votes. And people, if they don't move to wear the majority the country are, they're to pay a popular rise for that.

So basically, translated, republicans are going to have to fall into this bucket of legal under certain h and they're gonna not listen to illegal in all because that that means i'll just be so disconnected. The reality of american life in twenty twenty two.

they will not get off as long as we can have some reasonable voter participation. That isn't about the extreme range of both parties. Again, this is again what we've been saying. I think it's like the more centers that show up and vote, the more compassionate and rational we can be.

And getting to denmark is all that is. There's a term getting to denmark, which is A 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 right. This pronounce issue and gun control.

we can always hold out hope that you know there's a more temperature 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 write and that IT starts in.

With raw 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 of an iterative marriage because I just think that I don't put IT past one clerk some place with help. Bent on proving a point to use an originalist framing of what they believe the constitution says to run these cases up the light pole. But I don't think stream .

court can overturn those other cases are to be shocked. I don't even think they will take those chAllenges. Hope you right yeah I .

hope you right. I am just absolutely devastated um by the to take away women's attitude is just insane to me. But we'll see. We don't know exactly what's going to happen here, so hopefully get some resolution.

But I really love you guys, love you guys to.