There was a lot of big news, obviously this past week, when a leaked draft of the Supreme
Court’s Roe v. Wade decision was published by Politico. The draft opinion written by Justice
Alito would turn Roe v. Wade from a federal issue to a state issue. Now, this is a bit above all of
our pay grades, so Chamath had a really great idea to tap some people who are actual experts
in the Supreme Court. Chamath, maybe you could introduce our guests.
And queue this up for us. Thank you.
Great. So first, I’d like to introduce Amy Howe. Amy, until 2016, served as the editor
and a reporter for SCOTUSblog, which is the premier blog that covers the Supreme Court.
She continues to serve as an independent contractor and reporter for SCOTUSblog.
She also writes for her blog called Howe on the Court. And before turning to full-time blogging,
she was a counsel 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
2005 to 2013, she co-taught a similar class at Harvard Law School. And I’d also like to introduce
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. In 2000,
Tom served as second chair for Lawrence Tribe and David Bowies on behalf of Vice President Al Gore
and Bush v. Gore. And most recently, he represented Google in a fair use copyright infringement case,
Google v. Oracle, about the use of Java APIs. And so Tom and Amy, thank you guys for giving us
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 going to be like,
so thank you.
So guys, there’s a million questions to start with or that we can go, but 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 what has happened as a result of the way it was written and the judgment as it stood.
Sure. Roe v. Wade, back in the early 1970s, was a decision by Justice Harry Blackmun,
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 v. Casey,
that was an earlier effort to overrule Roe v. Wade because abortion opponents started
pretty quickly trying to overturn Roe v. Wade. And so in 1992, in a case called Planned Parenthood
v. Casey, the Supreme Court did not overrule Roe. 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 Souter, 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 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 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 Roe v. Wade say
there is this constitutional right to an abortion up to a point. 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, kind of religious 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 Roe.
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, 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 abortion, whereas a libertarian
would 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, 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, 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 is 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 that intend to capture every modern problem, which couldn’t even be
contemplated. So yeah, that’s the those are the two different kinds of conservatism we’re talking
about. 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 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 what 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
Roe. 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, that the court issued this decision in Roe
in the early 70s, and then reaffirmed it in Casey in 1992. Because the Supreme Court and courts
generally have a principle called stare 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 Tom has just
discussed and that Alita discusses at great length, that there’s no deeply rooted tradition
of abortion being a right. Another thing that courts often look at is whether or not people
have relied on the court’s decisions here in Roe and Casey. And he said that even in Casey,
there wasn’t this idea that people arrange 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 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, this undue burden
standard, is 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, abortion is a
profound immoral question, he says, but it’s not one that is protected by the Constitution.
It’s a question that should be decided by the people and their representatives,
and should go back to the states.
Brenton Burchell Can I just follow up on that point? So I think
a lot of people when they read a headline like Roe v. Wade overturned, they think that the Supreme
Court is directly legislating on the issue of abortion, and it means abortion ban nationwide.
I think that may be even the popular conception of what just happened. Can you just explain that
a little bit more that, you know, what exactly is the Supreme 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 explain that for viewers?
Dr. Nicholas Breyfogle And as you do that, maybe you could just
highlight the role the Supreme Court is meant to have in our system of government,
just as a basic kind of concept, which I’m not sure is like, as clearly understood here.
Brenton Burchell 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. 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, 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 Roe 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, is the way that most people think of it. And 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, 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 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 Roe and Casey. So those states wouldn’t even have to
pass new laws, those laws restricting abortion would go into effect immediately. And can I just
ask, maybe for sex to 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, 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. I’m sorry, go ahead.
Oh, no, I was gonna 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 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
a Democrats in control of the Senate, the House and the presidency, the only reason you’re not
getting a federal statute protecting your right to an abortion is the filibuster, essentially.
Sorry, just 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 all this, why don’t we just amend
the Constitution? And as you suggest, we’re just not in the business of doing that anymore.
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. It’s just incredibly
hard to get the kind of supermajority in the country that you need to amend the Constitution
and 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 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.
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 stare decisis, 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 stare
decisis? 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 talk us through that, 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, you know, what they 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 stare decisis. It just said in different words, or no. Oh, yeah. And 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 core of Roe has been there.
But the issue is this, when someone says, this is a precedent and a super precedent,
they’re not saying it cannot be overruled. Everything can be overruled. And so that’s
why Alito’s draft is so strong. 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, but this majority 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 Roe,
because it interjected itself without any textual basis into one of the foundational moral debates
of our time, which is what legislature should be handling. So now some of the, you know,
moderate Republicans, Susan Collins, Senator Murkowski, 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 or unprecedented, 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 stare 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 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,
obviously, I’m not defending the Alito opinion, that’s not my job as a reporter, but
that is, I think, one of the points that someone would make in explaining why
this, despite what they said at their confirmation hearings, if they voted to overrule Rowan Casey.
I have a, I’d like to ask a question first, 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 maybe because these judges are humans, and there’s like a sentiment
here, where the majority of the country 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 the deck has been stacked with this court,
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. The women who are directly affected,
many of them will feel no doubt incredibly impassioned strongly that this is an outrage.
But there are activists on both sides. And yes, from the day that Roe was decided,
there has been an 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
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 in Gorsuch, Kavanaugh, and in Barrett, and Justice
Alito having been on the court for a while. 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
has been an utter human commitment by pro-life forces to stop what they regard as the murder of
millions of unborn children, and an unbelievable commitment among pro-choice forces to maintain
what is 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 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 question from here. 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 precedentially? And does it create risk that all
those rights could be taken away from us or our people that we care about? Like, is that something
that’s possible here?
I mean, I do think there’s 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 reasoning for overruling Roe is by and large, the same reason that you would
overrule Obergefell. Obergefell is a much less well settled precedent. You know, it hasn’t been
reaffirmed by the Supreme Court as opposed to Roe many, many, many times. You can just as easily say
it’s 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 do we think we find the right to contraception?
But 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 is super vague. So, you have a bunch of stuff in Alito’s opinion that says
all of the reasoning that’s in those cases, essentially, is wrong. And then you have a
paragraph that says, but, but, but, 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 oral argument in
this Dobbs case, one or more of the justices said, okay, I’ll join an opinion overruling Roe,
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 overruling Roe until very, very
recently. And you can put another conservative on the court, 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,
because they were protected by the Constitution, 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 they’re a majority.
Let me ask a question. Let me ask a question about this sort of parade of horrible. So,
Tom, I understand what you’re saying that, that overturning Roe 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 Supreme Court just two years ago in Boston
v. Clayton County, read, you know, LGBTQ rights into Title VII. And that opinion was written by
Gorsuch, with Roberts joining him, you know, and I think it was, that was a 6-3 majority.
So, the idea that this Supreme Court would overturn, you know, marriage equality, you know,
which was just written by Kennedy in 2015. I mean,
I understand that you’re saying it’s possible, but is it really likely?
Well, look, BOSIC 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 passed Title VII to prohibit discrimination on the basis of sexual orientation,
fine. 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? You know, 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 v. 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 going to say that 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 Obergefell is just an easy target,
to be honest.
In order for 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, you know, marriage equality is now popular as a position in both parties,
right? So, the idea that 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 has to happen is that a court clerk in rural Texas says,
I refuse to sign this marriage certificate. Remember, a lot of these statutes haven’t
formally been withdrawn. They haven’t been, they’re sitting on the books. 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 enforced.
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, there were hundreds, maybe thousands of statutes
that discriminated against gay couples and gay individuals and the LGBTQ community. And there’s
bunches of that stuff still on the books. And all it takes is for one conservative to say,
look, I’m going to apply those laws. Let’s go. I’ll give you an example. The attorney general
of Texas has said, look, I’m now, see, I heard what’s going to happen with Roe. I’m now looking
at Plyler versus Doe. That’s the constitutional decision that says states have to educate
children no matter whether or not they’re lawfully in the country or not. I mean,
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. 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, because of flipping a 50 year old law, as if it’s,
and these, you know, sort of, 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? 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 Souter and John Paul Stevens retired,
and then Justice Anthony Kennedy in 2018, you know, 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, Justices Souter
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 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 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 stolen, in effect, because Justice Scalia died in February of 2016.
Senate Majority Leader Mitch McConnell refused to have hearings for President Obama’s nominee,
saying the next president has to decide, you know, you can agree with that, you can disagree
with that. But then Justice Ginsburg dies in September 2020, and the Republicans rush to put
someone, now Justice Barrett, on the court before the presidential election. And 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 happening, Jason, and 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 Obergefell is being decided in favor of same-sex marriage, you and me tend to think of
that as, oh, that’s just the way the Constitution should be. We’ve got an objective, sensible set
of justices. And then we start losing, and we get the perspective that the other side
ideologically has had. They think the Supreme Court’s been super political in 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 losing. Because if you win, then obviously, it’s what the Constitution was
meant to be from the beginning. And so we do have this, the perception of any individual about the
Supreme Court, and whether it’s neutral and objective, or instead, political and biased,
tends to be rooted 95% on whether you like what it’s doing or not. So, I’d love to hear from-
I think it’s a very fair observation. I mean, even 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. Although, obviously, there are 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 to-
Explain what incrementalist 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 overrule Roe v. 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 overrule
Roe v. 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 Roe voted up or down in its entirety. Is that right?
You know, I’m not, I’m pretty sure that nobody, including the lawyers,
liked 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 how strident the reaction would
be and will be if Roe v. 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 v. Wade is overruled five years from now, because he doesn’t have to go that far today.
On the other hand, you know, movement conservatives realize, look, you know, Justice Scalia died,
a lot can change. We’ve got our shot. Let’s take it right now. And at least at 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, you know, what will happen with Kavanaugh and Barrett? And
will they go with the chief or instead with Alito’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 fait accompli as as as written right now?
So I’ll let Tom talk about the leak. 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 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, and 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, 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, you know, I’ll let Tom talk about some of the theories that he has,
you know, 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 20, a couple of days before 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 law, the law and order thing. 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,
and which the Supreme Court by vote of 72, held that Congress cannot overrule Miranda.
And she said, you know, 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 an 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 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 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.
Paul 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 five justices had voted to overrule
Roe, 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 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 knew what was going on, and that’s a very strong
indication that things are still in play. Then with respect to Politico, 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, if you make these five changes, I’ll join your opinion, and boom, then you’ve got 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 the Conference of the Justices.
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. What’s in play is, are they going to admit to overruling Roe? And how far
are they going to go in doing something that would, for example, uphold a six-week ban?
Like there’s states with six-week bans. What about statutes that are total abortion bans?
Are those now constitutional? So, 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 misled into thinking there’s a real, real debate
about what’s going on in abortion in the Supreme Court. Roe is, on life support, best case.
Is there anything, 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 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 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, 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.
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 got to dial this back? Or we got to, you know, you know, in somehow,
maybe dampen the blow of this if we are going to overturn it? Could protests,
mass protests and sentiment actually change their thinking, Amy?
It’s so hard to say. I mean, I really do think it’s probably 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 gonna
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 Roe 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 justices to be in, to be perceived as reacting
to the leak in a way that the leaker intended. What that invites later generations of court staff
to do is, is no bueno.
It seemed like Alito almost thought it was going to 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 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, some of these issues, right? So RBG, you know, there could be a claim now that 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 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 would 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 have to expect that we’re talking about something that’s
kind of pie in the sky, because we’re not going to amend the Constitution to do this until we end up
with a 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, and just get them on there as soon as you
can, and keep them there for 70 years. And it’s not gotten terrible, and 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 when it’s come to the fact that everybody’s been pretty copus mentis. We’ve run good,
and we could run much worse than we have. We see this in the Senate right now,
that we have some problems, and it could happen with a Supreme Court justice. But the difficulty
is even – Are you referring to maybe they become senile, they’re not all there,
they could have Alzheimer’s, Parkinson’s, whatever?
Yeah, and then what do you do? Because you can’t, you know, you’re going to impeach them.
People who like the outcomes are going to – but only the justices themselves can decide whether
they’re going to leave. But the problem is this, we’re getting – we have a huge incentive now to
put on somebody who’s very young, and the lead time effect of one presidency, of the Trump
presidency, for example, now will span four decades. And that I don’t think the framers
intended. Remember, the average life expectancy at the time of the Constitution’s framing,
when we said life tenure, was decades shorter, even for people who like Supreme Court justices
back then who had very good healthcare. And so, nobody contemplated this when we
originally said life tenure.
There is a proposal on this, that there were a few members of the House, I think,
including Ro Khanna and Rashid Tlaib and some other folks, but also some conservatives supported
too, for an 18-year term limit for Supreme Court justices. And I think the way it would work is,
basically, each president would get to name two justices. So, basically, every two years,
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 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 these sort of Supreme Court nomination battles where 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 think it’s actually…
It’s just not what the Constitution says.
I know we need a constitutional amendment, but I think it’s a really interesting idea.
Yeah, 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 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. We’re all better for the work that you do and for you sharing them.
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, Chamath, first off, thanks for getting those amazing guests. It was quite
an education. I think first, you know, we’ll recognize it’s four guys talking about abortion,
and, you know, we understand this is not exactly our issue to discuss and opine on.
No, but Jason, the takeaway for me was that this is not just an abortion issue.
Oh, of course. The downstream ones are severe, yeah.
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, you know, in pretty neutral terms what’s going on here and where he had a
point of view. He, you know, expressed it. I think the idea that this leads to gay marriage being
overturned, I don’t see it. It’s just, you know, maybe it’s not impossible, but I just don’t buy
it. There’s two reasons. So, first of all, the Bostick case I mentioned, this was a case just
two years ago, written by Gorsuch, joined by Roberts, and the other, so it was a 6-3 decision
in which Gorsuch held that the Civil Rights Act of 1964 protects gay and transgender employees
against 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 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 marriage
equality or gay marriage is settled. So, I just don’t buy this idea that now we’re going to be
overturning gay marriage, that we’re going to be overturning, like, for example, contraception.
I just don’t buy it. Why? Because nobody in the country is arguing for outlawing contraception.
Well, I guess the counterargument to that, David, that people would have is,
well, we didn’t think they were going to overturn Roe v. Wade, and they have. And so,
we feel we got rug pulled, Kavanaugh, et cetera. People, when they were being 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
the Supreme Court right now. And again, of course, 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 people didn’t think this outcome would happen with Roe v. Wade. So,
it’s kind of hard to believe anything the court says.
We did talk about this earlier. I think 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 two things that were going to get
challenged and would probably lose. And unfortunately, it turns out we’re right on
one. And it looks like we may be right on the other as well, because I think the affirmative
action case will get –
Did we think that Roe was going to get overturned? Did you think that, David?
I admit I thought Roberts was going to get his way on this. So, I am a little bit surprised.
I still think that, in terms of 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 Roe as settled law
is doing that. I mean, it’s not – you could still go back and overturn it. So, this idea that
they lied or whatever, I mean, look, people hear what they want to hear in these –
The Republicans and the Democrats have a perfectly rehearsed answer
when somebody in the Senate confirmation hearing says, will you overturn it? And they say,
I could never adjudicate a case without knowing the facts, and I have to 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 think they
lied is if you read something into an answer that was a platitude that you wanted to hear.
My issue with this is the following, which is that I do think that there is a role for
compassion in how we’re governed, okay? And 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 that’s where I just struggle,
and Jason, I think you asked it, where is the role of humanity in doing one’s job, right?
And why is it that there’s a belief that one must so fervently interpret in a very black and
white binary way a document that is, 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 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 making these
decisions is driven by what you consider to be your moral standing here, which is
one of pro-choice. And there are other folks in the United States who have the moral standing
of pro-life, which is to say, I don’t believe that that choice should sit with an individual,
given that it infringes on the life of another. 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, my perspective
on this is that, yeah, I am fundamentally pro-choice. I don’t think I have the right to say
what a woman can do with her body. That’s just absolutely not my role 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, 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 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,
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 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 resolve the issue for the country,
or path forward, might be interesting to delve into here. Is there a path forward, you see, David?
Because listen, we, it is one brush we paint with your 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.
And people could be not want to see abortions occurring in the world. And they could also still
be pro choice, right? This is a very nuanced issue. And then people might have different
feelings that I know this is graphic and hard to talk about. But people might have different
feelings about the second trimester, the third trimester and very different feelings about the
first trimester and when an abortion occurs. And people who are pro choice might not be for third
trimester abortions, they may want to have some basic rules around abortion. So I’m not putting
my own personal beliefs out there. And I’m just framing a question. But what are your thoughts in
terms of moving forward? Because this is a could possibly be a state issue in July.
Yeah. Well, so let’s assume that this is the decision. And it’s I guess it’ll officially
come down 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 decision that appears to be written by Alito 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 by 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,
Newsom Democrats are saying they’re going to enshrine 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 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 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 in absolutes that Brooke 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 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 gonna have to learn
to compromise. And it’s gonna 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. 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 culture
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,
absolutist 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 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 Blackmun 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 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 a
Supreme Court justice in a Law Review article in 1992. I’m gonna let you guess who that justice
was in a second, but I kind of just read you a couple of statements from it. This justice said
that, no measured motion, the Roe 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 in 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, a 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 ultimately the holding in Roe, 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. 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 story
decisive approach, you give weight to precedent, you don’t just overrule these 50-year precedents.
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 certain weak requirements. I read a New York Times article and
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, on request versus a certain number of
weeks. And that is just going to be an absolute amount of chaos for some number of years.
Yeah, look, if the parties don’t compromise on this, voters will eventually punish them. I mean,
I don’t think you’re going to see Glenn Young can like victories by the Republican Party if they
broke no compromise on, for example, the issue of 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 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 at stake?
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 and both parties refuse to do that,
I think they’re going to lose elections.
Yeah, 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. 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, we don’t have all of these nuanced issues by state, it doesn’t seem to be…
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 actually
have an idea of when they feel 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 fun. That’s the really tragic part about this.
It’s like, it’s such an unequal thing to do.
Unfair. It feels profoundly unfair to take a right away after 50 years. I think that’s
the Republican Party is going to just pay such a massive price for this.
Broadly, I mean, is this a case where like, the dog catches the car bites defender,
and it’s 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 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 I and I respect people’s
ability to think that the thing though, Jason, to your point of like the dog catching the car
in the fender or whatever, is okay. Do you do that at the sake of a lack of compassion 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
have some context, like, there’s a context here of it being law for 50 years that you cannot
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, same sex marriage, and I think it was about 80%. It’s not
100, by the way, 80% support interracial marriage, and 92%. This is all in the same Gallup poll 92%
support, they don’t think that using contraceptives, contraceptives is immoral.
Okay, but that still leaves 30%, 20%, and 8% 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 tragic as this
ruling is, 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 very reasonable things. You know,
I don’t think over 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 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 DOMA 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…
Is clear, then they enshrine it.
But isn’t it clear that people want the right for women to choose?
Well, but it created this enormous backlash that the…
What enormous backlash? You mean amongst the minority?
Well, you say that, but it’s a very large group of people.
But it’s the minority. You just said yourself that the majority in the court
wants the majority of people to go for gay marriage. That’s the disconnect I have.
Well, but here’s another disconnect, right, Jake? If you believe your position on this
is so incredibly popular and has such a supermajority, why are you worried about
it being returned to the state legislatures? They will basically pass 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, it all 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 they’re in favor of restrictions.
Yeah, that’s a totally different frame.
Exactly. So my point is, the country is still deeply divided over this.
And the issue got preempted by the Supreme Court 50 years ago, and we’ve never made
progress since then. And I think it’s going to be very messy.
I think that’s fair. If you frame the question as, do you believe women should have the right
to choose in the first trimester, we would probably have the overwhelming majority of
people say, sure, that’s no problem. And then we would be arguing over second trimester and
I just posted the Gallup data. They’ve longitudinally tracked attitudes and
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 abortion to be legal
only under certain circumstances, 32% 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 of America, basically wants it as a supported right
with some boundary conditions, but then there’s 32% 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?
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 illegal? That’s what do you believe as a
human being on planet Earth? Are you pro-choice or you’re pro-life? And I guess that would be assumed
if you had a baby. But then when you look at the illegal, the illegal is under 20% now. It’s been
18, 19% 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, make up the majority of that 19%
that we’re talking about.
Like what’s really moved is, you know, we’ve doubled the number of people 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, 20 to 32. So 50% plus.
This is a fraught issue for the Republican Party, because if they only appeal to their base,
the 32% who should… Actually, no, sorry. It’s 32% 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% 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 parties could just appeal to their base because
the issue had been preempted. There were no laws to vote on. Now there are going to be real laws
to vote on. There’s going to be real votes. And people, if they don’t move to where the majority
of the country are, they’re going to pay a political price for that.
So basically, translated, Republicans are going to have to
fall into this bucket of legal under certain. And they’re going to not listen to illegal in
all because 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 riches 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 called?
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 Roe and that 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 hellbent 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.
I hope you’re right.
I hope you’re right.
I’m just absolutely devastated by this. It’s just, to take away women’s right to choose is just
insane to me. But we’ll see. We don’t know exactly what’s going to happen here. So,
hopefully, we’ll get some resolution.
I really love you guys.
Love you guys too.