As we were preparing for this interview, a disturbing development out of the United States Supreme Court, a leak unlike any we have ever seen before. It could not have come at a better time either. In just moments, I will be joined by former Attorney General William Barr.
00:00:33.340As we were preparing for this interview, a disturbing development out of the United States Supreme Court, a leak unlike any we have ever seen before.
00:00:42.920Late yesterday, the website Politico, revealing that the court has voted to overturn Roe v. Wade, that's the 1973 decision on abortion,
00:00:52.500why we have this news before we have the court opinion, is because someone did something very unethical and deeply upsetting,
00:01:00.660no matter where your position is on the actual case law that they're deciding.
00:01:05.860The news comes just months after the justices heard arguments on a Mississippi law that makes most abortions illegal after 15 weeks of pregnancy.
00:01:14.140Somehow, Politico got its hands on an early draft of the decision, it's dated February, written by Justice Samuel Alito, one of the court's conservatives,
00:01:23.480calling Roe, quote, egregiously wrong from the start and saying, quote,
00:01:27.340it is time to heed the Constitution and return the issue of abortion to the people's elected representatives.
00:01:34.140Moments ago, Chief Justice John Roberts acknowledged that the document is authentic, but stressed that it does not represent the final position of the court.
00:01:43.440Indeed, the justices go back and forth on their positions until the opinions are actually issued.
00:01:49.080This one was expected to come out in June.
00:01:51.500In addition, it's important to note that this does not make abortion illegal in America.
00:01:56.540If this winds up being the final decision, it would likely lead to stricter limits on abortion access in some 22 to 26 states, however.
00:02:06.020But putting all of that aside, perhaps the even bigger story, at least for today and this week, is the leak itself,
00:02:12.780the magnitude of which cannot be overstated.
00:02:15.140Historians and court watchers cannot recall another instance of someone leaking a draft opinion from the nation's highest court.
00:02:35.340And he has directed an investigation by the court marshal into the source of the leak.
00:02:39.860We're already seeing protests erupt and the political wolves are out for revenge, demanding lawmakers codify federal abortion rights immediately.
00:02:48.680There's talk about ending the filibuster so that the Democrats can push it through right away before we have midterm elections.
00:02:55.680A few minutes ago, President Biden also responded at Joint Base Andrews while on his way to Alabama.
00:03:01.660Listen, all the decisions related to your private life, who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion, a range of other decisions, whether or not how you raise your child.
00:03:14.520What does this do and does this mean that in Florida they can decide they're going to pass a law saying that same-sex marriage is not condiscible?
00:04:02.920With all the, you know, our institutions have become increasingly politicized, but I never imagined this could happen to the Supreme Court, which has always protected its confidentiality.
00:04:14.980And for someone to let this out in order to influence the final decision is really beyond the pale.
00:04:24.960Either we had a situation where there were five votes for that position, and they're trying to intimidate someone to back off the opinion, because as you say, things were in flux until the time it's issued.
00:04:36.920Or they were trying to determine whether they could muster five votes, and they're trying to—that's how I read the situation.
00:04:44.520The report by Politico suggests the conservatives have a majority and that Roberts, Chief Justice Roberts, may not be in it.
00:04:52.120He may—it doesn't sound like right now, or at least at the time that they did the report, I mean, last night, he was a dissenter, but that he might be preparing some sort of a concurrence on other grounds.
00:05:01.320But that they had the five conservatives ready to vote to strike down Roe versus Wade, that we don't know, but that was their reporting.
00:05:10.120So six conservatives seeming to favor some sort of overturning of Roe, or in Roberts' case, something more limited, and the liberals objecting, wanting to uphold Roe.
00:05:19.560So the details—I mean, this—it had to be a law clerk.
00:05:31.180And so the sort of table bingo last night was, well, would it have been one from one of the conservative justices trying to shore up a wobbly moderate, you know, keep the pressure on to stay on the majority?
00:05:42.480Or would it have been, in your opinion—and I realize this is speculation—a liberal jurist's law clerk trying to generate enough public backlash that the wobbler would go over to the lefty side?
00:05:55.980The second scenario is the only thing that makes sense to me.
00:06:10.940So better to keep it quiet, shore the person up internally, and then let the chips fall where they may when it's too late to reverse it, your position.
00:06:20.780So what about this Marshall investigation?
00:06:23.080I mean, having covered the high court for a few years, I can say the Supreme Court Marshall investigating you isn't the sentence that strikes fear in the hearts of men and women.
00:06:32.400Now, the FBI, because CBS is reporting that there may be an FBI investigation into who leaked this, that's a different story.
00:06:44.020Well, you know, I think that the chief would have had the option, and perhaps he still will, to appoint a counsel, a special counsel, not in the classical criminal sense.
00:06:57.160But the court can appoint a counsel, and he could bring in a former U.S. attorney or someone with a criminal law background.
00:07:04.060And I'm sure he would get the support he needed from the FBI or any other law enforcement agency.
00:07:11.980What's your confidence that they can get to the bottom of who leaked it?
00:07:16.280I think they may need a grand jury to do that, which would mean a criminal case.
00:10:52.460This is somebody who clearly leaked a confidential document that they took an oath not to leak through their attorney bar certification.
00:11:02.180And when you go to work at the Supreme Court, you get the lecture from the chief justice.
00:11:05.720And they did it for political reasons.
00:11:07.560So I don't like the public interest in disclosing this now in advance is not the same as with something like the Pentagon Papers.
00:11:17.660Well, I think it seems to, I mean, we're all speculating, but I think the most likely scenario is they leaked it for the purpose of politicizing the decision-making process, of bringing extraneous pressure to bear on a justice or some justices.
00:11:35.660I mean, I was saying, we've never seen, I'm sure, let's say it was a liberal jurist, or not jurist, but law clerk.
00:11:43.020You don't think somebody might have considered trying to turn the tide some way on Lawrence v. Texas, on Griswold v. Connecticut, on Obergefell, the gay marriage case, all these cases that sort of are in line with privacy rights and so on deriving from Roe.
00:11:57.060So, sure, they would have. I mean, on Roe itself, you know, who knows how the law clerks working for the other justices felt. Probably not so happy.
00:12:06.760But they never did this. This is a breach beyond. It's about somebody making it about themselves and their own views.
00:12:11.940Absolutely. You know, one of the points I've made about January 6th is that whether or not the president incited it or was aware there'd be violence, the thing I objected to was sicking a political demonstration, including some rowdy people who looked like they were ready for some violence, and putting them outside the Capitol to put pressure on the Senate and the president of the Senate, the vice president, to reach a certain decision.
00:12:40.560And while people are free to do that, for one branch of government to try to influence another by using that extraneous method was wrong.
00:12:50.500No violence is involved here, but they're doing violence to the process, and they are trying to rally political forces to put pressure on the court. And for the same basic reason, it's wrong.
00:13:01.980Does the Supreme Court need to come out with its decision ASAP now?
00:13:05.200I think they should just go ahead with their normal process and not let this derail them.
00:13:11.420Do you worry at all about a threat to them now?
00:13:22.640Yet another thing the leaker likely didn't take into account, that he or she was endangering the lives of the nine justices, the conservatives and the liberals, in being so reckless.
00:13:31.600They would have prepared for this had they known, you know, it was coming out in June, they would bulk up.
00:14:00.460I have to say, I couldn't believe, like, people who have worked for 50 years to read these words, you know, the joy they must feel at having read them.
00:14:10.620And people who have worked for 50 years to stop these words from appearing in a U.S. Supreme Court opinion, same.
00:14:16.200He writes, this is, again, written by Alito as for the majority.
00:14:21.020We do not pretend to know how our political system or society will respond to today's decision overruling Roe and Casey.
00:14:27.780And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.
00:14:34.040We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, meaning respect for precedent, and decide this case accordingly.
00:14:42.800We therefore hold that the Constitution does not confer a right to abortion.
00:14:47.000Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.
00:15:12.640I was asked about it, and I said I thought the case was wrong, Roe v. Wade was wrongly decided, but I would enforce it until it was overruled.
00:15:22.200And then, of course, every year we went back up to the Supreme Court trying to get it overruled.
00:15:27.060So I'm one of those that has been looking forward to the overruling of Roe v. Wade.
00:15:32.000The thing is, the court points out in this opinion, this draft opinion, that even abortion supporters have found it difficult to defend Roe's reasoning.
00:15:41.460It was an abomination of a legal decision.
00:15:45.100Even if you are pro-choice, pro-abortion rights, it's very hard to defend this piece as a piece of legal jurisprudence.
00:15:54.280They point out one prominent constitutional scholar who supports abortion rights wrote that Roe was not constitutional law at all and gave almost no sense of an obligation to try to be.
00:16:06.900That's the thing that people don't know.
00:16:08.240They just think Roe v. Wade had been almost 50 years.
00:16:19.800Right, and that's why it's created so many problems and led to such political turmoil in our country because it was a strong-arm opinion whereby a court was legislating.
00:16:31.060And, you know, the whole trimester system and so forth had no basis.
00:16:36.500And I felt for a long time that one of the problems we have in our country is that we've done away with the glory of the federal system and its function as a safety valve, a release to let pressure out of the system.
00:16:53.060If we make these decisions in the states where people have maximum influence over their own state, where states have different approaches, different cultures, different communities, then I think we're going to see less turmoil over time.
00:17:10.300But when we have one size fits all, Armageddon fights, one decision binding on every state, every person, and there's going to be a big fight in Washington, that's what's creating a lot of the rancor in our system today.
00:17:24.820This is what the court said in agreement with your point.
00:17:27.900Roe represented the exercise of raw judicial power and sparked a national controversy that has embittered our political culture for a half century.
00:17:37.180Twenty-six states asked the court to overrule Roe and Casey and let states regulate the matter.
00:17:43.920And they pointed out that for the first 185 years after the adoption of the Constitution, each state was permitted to address this issue in accordance with the views of its populace.
00:17:52.180And then in 1973, the court suddenly said there's a constitutional right to abortion, even though the Constitution makes no mention of abortion.
00:18:02.040So it came at a left field as a legal matter.
00:18:08.980I think that now people are going to be afraid because if you turn on mainstream media today, they're telling you that abortion is soon going to be illegal in all 50 states.
00:19:05.300And if people don't like the rules in Idaho, they don't necessarily have to move, but they might have to go to California to get an abortion.
00:19:14.520That's the price we pay for federalism, and it's well worth the price.
00:19:18.180The alternative, which is to say the law has to be exactly the same throughout the country, as I say, that creates a pressure cooker, and that's one of the problems we have today.
00:19:31.300Well, that's why you're having talk of let's get rid of the filibuster so that we have no minority rights in the Senate at all.
00:19:39.620It's already gone when it comes to justices and judges in the federal courts.
00:19:43.680And now they're saying let's get rid of it, the Democrats, all together so that we can ram through a national federal law that protects abortion in all 50 states.
00:20:41.760It's about letting the people make the decision.
00:20:45.260As you know, the Constitution envisions narrow powers for the federal government.
00:20:49.640And otherwise, it's left to the people and to the states.
00:20:52.740And this idea that, you know, we should take it away from the people and have one size fits all rule from Washington is, in my mind, anti-democratic.
00:21:06.020It's not what the founders envisioned.
00:25:21.020The Constitution, in my view, left it up to the states.
00:25:25.120And so I'm not trying to get my personal beliefs, you know, reflected in the Constitution.
00:25:34.280I'm willing to live with the Constitution.
00:25:35.940Yeah, you don't want Roe to go the other way, a bad decision that affirms your worldview by writing stuff in the Constitution.
00:25:42.060I'm not going to impose my worldview on the Constitution.
00:25:45.500And I think the idea that anything goes abortion, you know, without any restriction is them imposing an extreme, their own extreme views on the Constitution.
00:26:10.660We'll squeeze in a break and then we'll talk about you.
00:26:13.940Many out there, forgive me for saying Jeffrey Toobin to you, many out there like Toobin saying this is the beginning of the end for, you know, the right to so-called right to privacy and any jurisprudence that's connected to it.
00:26:28.780Um, from the right to contraception to the right to gay marriage, uh, which had due process concerns as well and so on.
00:26:36.480And there are a lot of people on the left saying that.
00:26:38.960Now, this is what the court actually said.
00:26:40.740And I'm quoting here again in a draft opinion that could still change.
00:26:45.000We emphasize that our decision concerns the right to abortion and no other right.
00:26:50.240Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
00:26:56.560But I've seen even some on the right say, this is our window, our window to get rid of something like a Bergefell, the gay marriage opinion, or some of these other cases that have the original root in this so-called right to privacy of Roe and so on.
00:27:36.820No, there, there isn't because, you know, abortion is something that, uh, when you, when you get married, you have property things that last for a long time and you have a relationship that lasts for a long time and you have children and so forth and so on indefinitely into the future.
00:27:59.300That's what the court found, you're, that's exactly what the court found, what you're saying, that it's, it's temporary, uh, if you will, pregnancy, it's a temporary condition.
00:28:06.680It's a temporary condition that will, you know, uh, be resolved or not.
00:28:11.980And, and so there's no reliance, uh, on, on, uh, Roe v. Wade in the same sense that there's reliance on, um, you know, the gay marriage case.
00:28:22.760None that couldn't be adjusted based on state legislation and so on.
00:28:26.160That's what seems to be what the court is saying.
00:28:27.520Right. So I don't, I don't see, I don't see that happening because of the reliance of people.
00:28:37.420All right. So I was almost disappointed that, uh, Bill Barr was coming in today and that this news broke because there's so much that I want to talk to him about.
00:28:46.420Uh, we're going to dig into his book next one damn thing after another.
00:28:51.580Well said, we'll be right back with more, the former attorney general.
00:28:57.520Welcome back to the Megan Kelly show, but just chatting here with the former attorney general, Bill Barr, author of the new book, one damn thing after another, which is a great description of what it's like to be attorney general.
00:29:10.940And, uh, that's explained early in the book. It's a great, great explanation. It's kind of how the news business is too.
00:29:17.560We were just chatting about how it's really, it says something about the ethical code of this person, whoever leaked this, because you were a law clerk back in the day.
00:29:24.020You're obviously a lawyer. It does, right? It's your own personal moral code.
00:29:28.480Right. Well, it's that, uh, the ends justify the means. Anything you do is okay because you want to take the country to a better, your view of, of a better future. So.
00:29:40.520Well, that's as good a segue as I could ask for into the whole Trump election stuff. So let's get that out of the way.
00:29:45.840I think the reason most Republicans, the polls show most Republicans think that the election was stolen from him. Now, what does that mean? Because I know you've said, you know, rigged, unfair, we can go there, but like actual stealing of votes. No.
00:30:02.420And I, that's where I fall too. Um, because I didn't see any proof of it. I was open-minded like, Hey, let's see, you know? But the reason I think most Republicans believe it was stolen is what we're talking about. That the Democrats clearly believe ends justify the means. He's too big a threat. This had to be stopped. He had to be stopped. And that the stakes were just too big to play by the old rules.
00:30:25.560Right. So people are confusing three different things. One are, uh, the rules that are put into effect at the last minute before the election, which are not in themselves illegal. Uh, COVID stuff, mail-in ballots. Right. Longer voting times. Right. Yeah. Uh, you have to live with that or you challenge it in court and get it thrown out. If, if you feel that the state didn't have the power to do that.
00:30:49.040The second thing are process, uh, violations. That is the violation of rules that are meant to prevent fraud. The big one there is harvesting. And as I said in my book, I think they were cutting corners on harvesting.
00:31:03.780And that's where I go around and I pick up all the old ladies ballots for them. I'll take it in and I'll deliver it. Don't you worry, sweetheart. Right. And then God knows what I do with it before I actually drop it off.
00:31:14.380Right. Harvesting can, can be the whole gamut from actually taking a sealed ballot and saying, I'll deliver it for you and going around to standing at someone's door and say, you fill out your ballot. You know, you got to vote, fill out your ballot, help them fill out the ballot, take it. And then there can be more fraud involved where you put it on yourself.
00:31:32.640But if it's just a process violate, I don't mean to minimize it because I think that's a violation of law and people should be prosecuted for that.
00:31:40.060But what, what a lot of people don't understand is that you're not going to be able to turn around an election based on that because you don't know once the ballots are opened and counted and mixed all together, you can't go back and reconstruct, you know, which of these was harvested by Joe Blow and which involved undue, undue pressure and so forth.
00:32:04.900And furthermore, as, as I think you would see, most courts are not going to throw out a valid vote because it was harvested.
00:32:13.440The question will be, was this a qualified voter and should we really ignore their vote just because somebody collected and delivered it?
00:32:23.260So, and then the third category is where unqualified votes are counted or qualified votes are suppressed. That's fraud.
00:32:32.960Yeah, that's the bad. That's where the counts, the counts are affected. And, you know, when they came out of the box on election night, the president did saying there's massive, you know, major fraud underway.
00:32:44.840And all the stuff that Giuliani and the others were talking about in the first few weeks was, was fraud, actual fraud, like the machines or truckloads of illicit ballots or ballots taken from under tables.
00:33:00.840All of that was nonsense. And, and, and, and all these figures that were thrown out about how, you know, Philadelphia, uh, had more votes than registered voters, which the president said just last January, this past January, nonsense, nonsense, you know, the turnout in, in, in, in Philadelphia was actually lower than the state average turnout.
00:33:22.380So Detroit was another one where he did better against Biden than he did against Hillary.
00:33:29.100Yeah. So the big picture in the election was the cities pretty much did what they always do. There was no big change in the cities. There wasn't been, you know, some big influx of, of votes, uh, that was beyond what's happened in the past.
00:33:42.340And in fact, Trump ran a little bit better in many of the cities, the rural areas increase their vote for Trump, but the thing that changed were the suburbs and there Trump lost ground, either significant ground in, in, in, in, in suburbs that usually went Democrat, but still had significant Republicans.
00:34:03.420But even in some suburbs and experts that he won in the past, his margin went down. And this is what he was told for the whole of 2020.
00:34:12.880Yes. Like after the first presidential debate, you write about this in the book saying you were very displeased because you really felt the base is there. We don't need to shore up the base. We need to get the suburban voters who are turned off by your affect, some of your personality characteristics. So let's try to be a little bit more presidential and shore them up.
00:34:33.000And I went in, in April. So it's before the debates. I went in, in April and I told them that I had a one-on-one with them. And I said, look, I think you're going to lose the election and it's not COVID COVID. COVID, you know, you can survive COVID, but, uh, everybody sees this, which is we've lost ground in the suburbs and we got to get that back. And when you look at the vote, that's where he lost it.
00:34:57.080So all these people are out there talking about, you know, uh, fraud and how the justice department could have turned it around and so forth. First, it's not true. Uh, we could not have turned it around based on the evidence at that point. Uh, but they should go and look at where the votes actually came from.
00:35:15.420One thing I like pointing out is like in, in, um, in Arizona, he ran 75,000 votes behind the Republican ticket. That is the, the Congress people who were running the state assembly people. Same in Wisconsin, roughly the same in Pennsylvania. Let's take Pennsylvania where he ran 60,000 votes behind the Republican ticket. Compare that to what Reagan did.
00:35:39.000And when he was running for reelection in 84, he ran 470,000 votes ahead of the Republican ticket in Pennsylvania, half a million ahead. Those were Democrats. Those were the Reagan Democrats. You, you can't win a close election like this as the Republican candidate. If you're running behind the average Republican ticket.
00:36:02.000In a way, it's such a shame to, for Trump because you, you point this out in the book. He was, he was, what's the word? They were, they were kneecapping him from day one in a way that we had never seen before. He really was never given the chance to, to just govern, you know, to just govern.
00:36:23.300It was an outrage what happened to him and, and, and, you know, that watching it and being very suspicious of this Russiagate thing. That's one of the reasons I felt he wasn't getting his due as president. And I was willing to come in and, and, and do my best to, you know, to have him get what he deserved as president. And so he was sinned against, but, uh, he also, as I think most people believe, including his supporters, is his own worst enemy.
00:36:50.580Yeah. He's sinned against himself. Yeah. But, you know, you look at the cast of characters around him and I used to be a Comey fan, a believer. I know you had a personal friendship with Robert Mueller. That's changed. And I, and you're very frank in the book about what you make of those guys. Comey, um, my word was sanctimonious. You had a different word for him. What was it? I don't remember.
00:37:12.440Megalomaniac. Yes. So how did that happen? Did he grow into that or was he just like that from the beginning?
00:37:17.560Well, uh, you know, you always, lawyers, as you know, tend to think highly of themselves and he always had a, you know, a healthy, uh, uh, amount of that. But I think he became more arrogant as time went by.
00:37:31.580You could tell, like when you went to a room with him, had a conversation. Why? What was he like?
00:37:35.560Well, his holier than now attitude, you know, I think what he did in the Bush administration with the hospitalization of Gonzalez and acting like there was some, you know, big conspiracy afoot.
00:37:47.280That opened a lot of people's eyes to him.
00:37:50.100And what about Bob Mueller? He was your friend. He kind of stabbed you in the back. He wrote this long meandering report. You condensed it down to two pages, which the left freaked out about saying you misrepresented it. You said, I didn't, I wasn't going to let him get away with this obstruction of justice stuff, which was not the right focus. And I boiled it down for you, which is there was no collusion. That was the headline. That's what he was told to do.
00:38:10.500He got mad. He issued a little statement of his own about how you didn't get it right. So I know you said to NBC, you're not sure if you guys are still friends, but what, how do you see Bob Mueller now? Because I think a lot of people were surprised by how off he seemed when he testified and whether he's the guy we thought he was.
00:38:27.400Well, you know, I think I'd leave it at that, which is, you know, I don't think he was, you know, what you saw was not the Bob Mueller that I was used to working with. And, and I don't know how much of it was that change versus ideological or what have you.
00:38:49.800Not particularly, although I do think that he had disdain for Trump.
00:38:55.540But I think the fact, you know, I think the fact that he allowed, well, look, Rod, it was terribly unfair to Rod Rosenstein. Rod Rosenstein picked Mueller to assure the country that this was going to be done without any partisanship. And then Mueller turns around and brings in very partisan Democrats, a whole crew of them.
00:39:16.940Well, no, I mean, I commented on it at the time, but I wasn't in charge.
00:39:21.860Yeah, right, right. But you were saying, I want to reevaluate.
00:39:24.560So one of the things that Trump was upset about was the Durham investigation, which you got started, which is good. We need to know why they invented this fake claim of Russia gang collusion, all that. And Durham, sure enough, seems to be a straight shooter getting to the bottom of it. But he was mad it didn't go faster.
00:39:39.580And I think there's something where he was mad that after that first presidential debate where it came up about Hunter, maybe you can refresh my memory that you didn't go back to him and say, you are right. There is an investigate.
00:39:51.240You knew that there was a there was an investigation into Hunter at that time in the U.S. attorney's office in Delaware, but you couldn't reveal it.
00:39:57.640Yeah. So I think, you know, one of the reasons our relationship sort of soured during 2020 was he and he did, by the way, you know, didn't come in and tell me what to do in these cases.
00:40:09.760He was good in that respect. He sort of asked me generally, you know, are things going OK? And I'd say yes. And then he'd, you know, try to figure out what was going on. But he would never ask or he'd never tell me to do anything. But his public comments made it clear that he wanted scalps and he wanted them before the election.
00:40:28.960I don't blame him. I don't blame him for that desire. But the but the attorney general has to run a criminal justice system that doesn't take account of politics.
00:40:37.620That's what H.W. told you. Right. He had a different approach. Right. And if you don't have the evidence at that point, you don't indict someone simply because it's politically beneficial.
00:40:48.200But I am annoyed when I hear a lot of my side, the Republican side, you know, sort of say, you know, why isn't Durham, you know, doing more?
00:40:57.620And I said, OK, let me explain the time frame to you. He got up and running in the summer of 2019.
00:41:08.720But we didn't have the information about the FBI's activity from the IG until December of 2000.
00:59:07.420These judges making stuff up about viability.
00:59:10.300They decided to play God and just make up fake lines, which is why it was struck down in large part in Casey, except for its core, which was the fundamental right.
00:59:19.140How do you distinguish that from gay marriage and gay rights?
00:59:22.840The framers of our Constitution never would have permitted gay marriage or gay rights.
00:59:26.620The framers of the 14th Amendment never would have permitted it.
00:59:29.180Both of the right of privacy and personal choice and bodily integrity and all of that.
00:59:36.580And I don't think very many people today, I hope, don't want to overrule the right of gay people to live their lives free of governmental constraints.
00:59:47.520The thing that concerns me is conservatives are supposed to want to keep the government out of the bathroom, out of the bedroom, out of the bed, out of the hospital.
00:59:57.120And yet more and more conservatives want the government to intrude into private decisions like abortion and all in marriage and all of that.
01:00:08.700And and and so, you know, there's hypocrisy on all sides.
01:00:12.300I think there's a big push on the GOP side to get rid of gay marriage.
01:00:15.400I do think there's a big push on abortion because that's seen as a fundamental issue of death and life.
01:00:20.480I mean, I don't know how to explain it to you.
01:01:00.620And the one thing Alito did get right, and he was right about this, and that is unlike Brown versus Board, this decision in Roe didn't stop the politics and didn't persuade people.
01:01:11.800It didn't have an impact on public opinion.
01:01:14.660The public opinion is as divided today.
01:01:19.100Let me can you just explain to the viewers and listeners who haven't read the opinion, because he does spend a fair amount of time talking about what in particular Casey, which affirmed Roe 20 years later, said about like, let this be the final decision.
01:01:32.940Now, go on your merry way, that the court had these aspirations of this being the last word on it, which he's pointing out in his draft opinion, was just not the case at all.
01:01:44.620Well, but why didn't he say that when he was being confirmed?
01:01:47.140Why did he say when he was being confirmed and when when several of the others, Gorsuch and Kavanaugh, both of whom I admire, why weren't they more honest than in their confirmation hearings?
01:01:59.560And why didn't they say these aren't super precedents and Roe and Casey?
01:02:03.820They're up for grabs. And if we have enough votes, we'll overrule it.
01:02:08.260Not only. And Barrett did say she wouldn't comment on that.
01:02:11.860So her credit. But the three of them, the other three in their confirmation hearings basically said, look, it's precedent.
01:02:18.440It's the law. It's 30 years old, 40 years old, 50 years old.
01:02:24.360They all lie when it comes to their actual feelings about cases like that, because they know it's a deal breaker.
01:02:28.400I mean, let's not forget that our most recently confirmed Supreme Court justice to be just tried to say she didn't understand what a woman was.
01:02:37.940I understand what a woman is for purposes of athletic competition, for purposes of using bathrooms, for purposes of being admitted to an all women's college.
01:02:48.080It's all contextual. I agree with her. I think she it isn't.
01:04:38.180The rule of law operates in the Supreme Court.
01:04:40.340And I agree with the chief justice who said this is singular and outrageous and should be prosecuted to the extent of the law, not criminally.
01:04:48.560But disbarment, firing of court is right.
01:04:52.440You know what's going to happen to this person if they're ever caught.
01:04:55.460They'll be disbarred, but they'll become a hero to people on some sides of the political spectrum.
01:05:01.520And you know what they'll end up doing?
01:05:03.260They'll end up having podcasts like you and me, and they'll end up being journalists and end up maybe being law professors.
01:05:11.260But they're not members of the bar who can practice because what they did was in violation of the rules of their employment.
01:05:19.360That's the thing is like when you become a lawyer, you take an ethical oath.
01:05:24.240It's not like, you know, I've worked retail, I've taught aerobics, I've done different kinds of jobs.
01:05:29.300They don't make you take an oath, upholding, pledging to uphold certain ethics like they do to become a lawyer.
01:05:35.240OK, let me ask you a couple of things.
01:05:36.320So this is what your old pal Lauren Strive says.
01:05:38.420Predictable next steps after the Alito opinion, which, again, I want to underscore, is a draft.
01:05:44.180We do not know that this is the final opinion.
01:05:46.320What a turnaround it would be if next month they release something going the opposite way, though that's not expected.
01:05:51.400He says predictable next steps after this.
01:05:53.500A nationwide abortion ban followed by a push to roll back rights to contraception, same-sex marriage, sexual privacy, and the full array of textually unenumerated rights long taken for granted.
01:06:07.760Do you agree that the next step will likely be a nationwide abortion ban?
01:06:30.300Let's remember that Tribe is responsible in part for this.
01:06:33.900Tribe is the person who got Bork defeated for the nomination in the Supreme Court, and that led to the politicization of the Supreme Court.
01:06:42.620So he bears some responsibility for this back when he went to the mat on Bork, who was perfectly well qualified to be in the Supreme Court, but just had opinions that disagreed with tribes.
01:06:55.240He goes on to say something that I just read that matches up with, again, forgive me, what Jeffrey Toobin is saying on CNN, which is that same-sex marriage is now in jeopardy, that all of these other cases are now in jeopardy where they used either privacy rights or, you know, gay marriage.
01:07:12.980They used the due process clause, but they expanded sort of these social rights, for lack of a better term.
01:07:18.940And these guys, who are left-wing commentators, are saying they're all in jeopardy.
01:07:23.880Now, you're a liberal, but you've always been a straight shooter.
01:07:28.380Are these actually, do you actually believe that these are in jeopardy next?
01:07:31.300There will be efforts by some religious conservatives to bring lawsuits challenging a gay marriage.
01:07:38.780I don't think they would go as far as to try to overrule Griswold versus Connecticut, which, in which Connecticut tried, Connecticut, a liberal state, banned birth control clinics.
01:07:49.640Forget about abortion, birth control clinics, and that had to be reversed by the Supreme Court.
01:07:55.500I don't think we're going to go much further to support gay rights or gay marriage, but I think that's pretty solid.
01:08:04.660I think birth control is pretty solid.
01:08:08.560Try to undo them, but I don't think they'll succeed.
01:08:10.880Abortion is different because, remember, gay rights, whose business is it if a gay man or a gay woman has sex or marries somebody of their own sex?
01:08:54.280And honestly, I mean, it must be noted that Jeffrey Toobin himself has been in the news, you know, over the past whatever.
01:08:59.340We all know why he was in the news over the past couple of years because he was caught masturbating on a Zoom call for The New Yorker.
01:09:04.040But this is a guy who openly pressured his young lover he was having an affair with his wife to have an abortion and then denied paternity when she refused.
01:09:12.900I mean, like, it's just very uncomfortable to see him commenting on this on CNN, given his history and how we know that that issue has played out in his own life.
01:09:22.860I'm not saying you're all disqualified from if you had an abortion, you can never comment on it or if you didn't have one.
01:09:28.280It's just we know his situation is very public, so everyone should take it with a grain of salt.
01:09:33.460I do I do wonder, though, because I don't think this is a cowboy Supreme Court.
01:09:49.320Probably the biggest we've had in decades.
01:09:51.560And I can't see them coming anywhere near these other issues now.
01:09:55.900I feel like those issues are less likely to be touched now than they were a year ago, because this is like the big one, the big enchilada.
01:10:04.540And if the Supreme Court keeps taking cases like these and then they got a gun rights case, they got some other cases of religious rights case, this term that should be decided soon.
01:10:12.000But like they're not going to go back over this stuff, Alan, they they'd lose their moral authority.
01:10:17.300And at the end of the day, isn't that all they have to really make us comply with their orders?
01:10:40.080There are nine individuals, and I think each of them will consider this issue differently.
01:10:45.160I do not think there will be a majority to go back and reverse years and years and years of precedents involving civil liberties and privacy.
01:10:53.860I do not think that will happen by a majority.
01:10:56.340But there may be one or two justices who see this as a green light.
01:11:07.200Do you think there is any chance that that somebody who's in that majority opinion might flip?
01:11:15.100I mean, what do you think the odds are that this will come out with anything other than a five person majority to strike down Roe versus Casey within the next six weeks?
01:11:25.320I think it's possible because it won't require a big flip.
01:11:29.280All it would require is judicial restraint.
01:11:32.300Uphold the statute in Mississippi and say we don't have to reach the issue of the Roberts way.
01:11:38.080That's what we're hearing Roberts is likely to do.
01:12:15.200Well, that's the that's led to some interesting speculation online about could even and I don't believe this for one second, but could even the chief justice have leaked this?
01:12:23.420Could it have been somebody like the chief justice trying to get, you know, pressure on those two guys or gals to come over to his side?
01:14:09.180Alan Dershowitz, anything but a hack, a principled man who takes the barbs better than anybody because he sticks to his principles and he doesn't really care whether you like him.
01:14:19.020And that's why he has fights with Larry David.
01:14:49.160We are continuing to follow all the reaction coming in regarding the bombshell Supreme Court leak.
01:14:54.560Just a short time ago, Senator Elizabeth Warren went to the Supreme Court steps in order to call conservative justices, quote, extremists and let everyone know just how angry she is.
01:15:08.440I am angry because an extremist United States Supreme Court thinks that they can impose their extremist views on all of the women of this country and they are wrong.
01:15:34.540Meantime, Democratic Congresswoman Ilhan Omar tweeted, expand the court.
01:15:39.720That's what Eli Mistal over at MSNBC said as well.
01:15:44.300Senator Bernie Sanders is calling for Congress to pass legislation codifying Roe versus Wade as the law of the land, saying we must end the filibuster to pass it with 50 votes.
01:15:55.580You heard Bill Barr, former attorney general of the United States, say that they don't have the power to do that.
01:16:01.340And Vice President Kamala Harris just weighing in, saying the rights of all Americans are at risk.
01:16:07.960She just has a way of simplifying everything, doesn't she?
01:16:12.500Joining me now, Ali Beth Stuckey, host of the podcast Relatable.
01:16:15.580So, Ali Beth, you were one of the first people I thought of when I saw this decision.
01:16:20.100And I know we spent a lot of time in the leak and we'll spend more in this segment talking about it, too, because actually there's new information coming in on who it might be.
01:16:26.260But can we just spend a moment on how huge this is or is going to be if it comes down as we now expect it to be?
01:16:50.280The problems that we face, we are not used to having to wait many years or even a generation for the problems that we are facing to be solved or we don't want to wait that long.
01:17:01.580We expect our politicians to be able to do something immediately as soon as they are pressured to do something that is when we want it.
01:17:07.920We are very much microwave generations.
01:17:10.540We are used to that immediate gratification and satisfaction of getting what we want easily.
01:17:15.880However, when you look at pro-life activism, this has been 50 years of torch passing.
01:17:21.280This has been 50 years of advocacy, 50 years of people arguing, hey, this is unconstitutional.
01:18:06.420I mean, I have so many friends who are on the other side of this, and I know that they're scared and they're hurting and they've fought equally hard on the other side.
01:18:14.740And so this is not to take away from their legitimate concerns, though it really is going to depend on what state you're in.
01:18:21.360You know, it is going to depend on what and if this is a huge concern for you, you're probably going to live in a blue state.
01:18:25.780But I will say you've got to tip the hat to to Mississippi and the lawmakers there who specifically crafted this law in an effort to create a Supreme Court challenge case that would go up and that it would actually make it hard for to go the Chief Justice Roberts way.
01:18:43.600And forgive me, because I'm just assuming that the political report about the way he's going is true.
01:18:49.660But they Mississippi understood that there were people like Roberts on the court who would try to sort of, you know, have it both ways and find a middle ground.
01:18:58.960And they tried to craft a statute that would make them take a look and say, no, there's no way through this other than to decide whether Roe and Casey stand or have to be overturned.
01:19:11.100And they went in there and made the case.
01:19:13.600I mentioned one of the things with Attorney General Barr, only six countries outside of the United States permit elective abortion after 20 weeks.
01:19:21.400We are in the tiny minority and our permissiveness on this subject versus the rest of the free world.
01:19:27.740And the other countries are like third world countries.
01:19:30.920And then the court recounts some of the evidence put in front of it by Mississippi.
01:19:46.960By 10 weeks, vital organs begin to function and hair, fingernails, et cetera, begin to form.
01:19:51.040By 11 weeks, and keep in mind that abortion pill, you can get that from a doctor that will end the pregnancy up to 10 weeks, up to 10 weeks.
01:19:59.900Vital organs begin to function and hair, fingernails, et cetera, begin to form.
01:20:50.940And for the first time in 50 years, they appear to be listening.
01:20:56.760You know, it's so important for us to talk about what we are actually discussing because you will notice that the pro-choice, pro-abortion side, there are people who are unashamedly pro-abortion.
01:21:09.900There are organizations called Shout Your Abortion who really do believe that abortion is a moral good.
01:21:15.200So when I say pro-abortion, I really mean that.
01:21:17.420There are people on that side who are pro-abortion.
01:21:20.180And it's so important to talk about what we mean when we say abortion because you'll notice that that side uses euphemisms.
01:21:26.920They'll say things like reproductive rights or bodily autonomy or my body, my choice or reproductive justice or even the word abortion.
01:21:33.240That's kind of a euphemism rather than talking about what is actually happening.
01:21:37.980Or you'll notice on the Planned Parenthood site, they'll say pregnancy tissue is removed or the termination of a pregnancy.
01:21:43.980They will do everything they can to avoid talking about what an abortion is and who an abortion kills.
01:21:49.980And I think that's a really good indication that you are on the wrong side of something.
01:21:53.500If the truth hurts your case, if the truth actually hinders your ability to persuade something, if you need lies and euphemisms to make your side more palatable and persuasive, that's a good indication that you're on the wrong side.
01:22:07.700The pro-life side, even though it's taken as long as it has and it will continue to take a very long time to change hearts and minds, which is a main goal, we have the truth on our side.
01:22:17.060All we have to do is say, this is what an abortion is, which you partly just described.
01:22:28.080Whether you think that human beings should have personhood rights, maybe that's a constitutional, legal, philosophical argument that we could have.
01:22:34.260There's no scientific argument that this is a human being or not.
01:22:38.160I simply believe that it is wrong in all cases to kill an innocent human being.
01:22:42.020The people who are pro-choice don't believe that.
01:22:44.220You believe that sometimes it's okay to kill an innocent human being.
01:22:47.260And they should be forced, they should be pushed to be able to coherently and logically defend that.
01:24:04.360And this also kind of goes back to what you and Mr. Dershowitz were talking about in democratic norms, how democratic norms have been totally upended, at least in this case.
01:24:15.140And it reminds me of when Democrats say that they care about democratic institutions and institutional integrity.
01:24:22.660Really, they just mean protecting the things that they like.
01:24:26.400When democratic processes don't go their way, then they will take authoritarian measures or at least suggest authoritarian measures, like trying to pack the court or trying to get rid of the filibuster to push through their will and to upend the democratic processes that we have and to try to throw off those checks and balances.
01:24:46.540But when they do something like that, which I would consider authoritarian, they call that preserving democracy.
01:24:54.640And it reminds me of what is also happening with the word autonomy.
01:24:58.140What they mean by autonomy is them getting to do the things that they want to do, even if that hurts the rights of another individual, which in the case of abortion, it does hurt another individual's rights.
01:25:12.540You can decide if you want to reproduce.
01:25:15.180And I know that there are cases of sexual assault and rape, but that accounts for, according to the Guttmacher Institute, which is a pro-choice research institute, less than 1% of all cases of abortion.
01:25:26.020And if you talk to a pro-choicer, they're not interested in limiting abortion to those cases.
01:25:30.520So it's just kind of like something they throw out there to try to manipulate you emotionally.
01:25:34.880They're not interested in restricting abortion in that case.
01:25:37.160But in the vast majority of cases of abortion, these are women who have chosen to engage in something that leads to pregnancy, that can lead to pregnancy.
01:25:50.260But that starts before you create another human being.
01:25:53.020After you've created another human being, then we have a responsibility to care for that person because they are a distinct human, just like you and me, with distinct DNA and therefore distinct worth.
01:26:03.400Hmm. I'm thinking about the Supreme Court battle over Justice Kavanaugh and, you know, he was replacing another conservative, Anthony Kennedy, though, you know, Kennedy was unpredictable and could definitely side with the liberals on social issues and did.
01:26:21.300Um, but he was replacing a conservative and all, every weapon they had was deployed against him to try to stop him.
01:26:30.020And I'm sure he is feeling some pressure, right, to, to not be somebody who joins the majority because this is, this is really why they were so worried about him.
01:26:39.460This is why the left really hated him.
01:26:41.100I don't think the left really believed Blasey Ford or all these women who came forward.
01:27:05.080And I hope their spines are stiffened by this, that they, that their anger that this happened actually kind of motivates them to stand strong in whatever decision they've made,
01:27:18.240I think that they now feel like maybe they have an even bigger burden right now of responsibility to try to protect the integrity of the, of the court.
01:27:27.360They would be compromising, further compromising the integrity and the trustworthiness of the Supreme Court if they cave to public pressure.
01:27:34.180I mean, that would just look really bad all around.
01:27:37.700And so I'm hoping that they stay courageous.
01:27:53.520She seems to have made a difference in this draft opinion, because if you read the opinion that they, Alito, writing for the majority, makes the point about how the burden that's on a woman who finds herself pregnant against her wishes in today's day and age is not the same as it used to be.
01:28:10.680And they talk about, like, safe harbor laws where you're allowed to drop your baby off at a firehouse and you won't face charges and all of the Catholic charities and so on, all different ways of supporting women.
01:28:22.600I realize that the pro-choice side is like, I don't want to be forced to give birth to a baby that I don't want.
01:28:27.120And I don't want to live this life knowing that a child of mine is.
01:28:35.440I know that's, like, brutal to say, but you're still giving birth.
01:28:39.400If you are giving birth to a living baby or a dead baby, the baby has to come out.
01:28:43.220And so either way you go through, you go through birth.
01:28:48.100And so people think, I know that you don't think that in pro-choice people don't necessarily think this, but it's almost like they believe that abortion is just like you wave a wand and the pregnancy goes away and nothing happens.
01:29:00.220But either way you give birth to a baby, you either give birth to a dead baby or a living baby and women suffer trauma.
01:29:06.680I know the pro-choice side doesn't want to talk about this, but there is trauma related to abortion, too.
01:29:11.360I believe that women and children and society as a whole deserve so much better than abortion.
01:29:18.200Yeah, I just don't find that to be a compelling argument at all.
01:29:21.000You still have to go through something very traumatic.
01:29:23.880I mean, I have found in my own experience that the women who I have known who are the most ardently pro-choice have had abortions.
01:29:33.400And, you know, I just don't know if there's a piece of, like, wanting to feel validated, you know, and wanting to make sure that, like, what they've done isn't so atrocious that it gets ruled illegal.
01:29:52.880You know, clearly somebody's looking for some sort of validation.
01:29:56.220Even the Clintons said safe, legal, and rare and didn't want people shouting their abortion Gloria Steinem style on a T-shirt.
01:30:03.900But anyway, so I think Amy Coney Barrett has had an influence on this decision because some of her logic and some of her reasoning is in that we heard her asking about at the oral argument has wound up in the piece.
01:30:19.440And you remember how mad the liberals were at RBG, their hero, for dying and not retiring before Trump, you know, because she thought Hillary was going to win.
01:30:31.200So, like, all these news stories that we've covered for a long time about the Supreme Court battles, I can see them all baked into this decision.
01:31:05.740And I think what we're going to see is a lot of intimidation, a lot of intimidation, not just of the justices, but of the public.
01:31:12.440And I've already I already saw that I tweeted last night that I think the person who leaked this knew that the lives of the justices and their families would be threatened by people who were angry about this potential decision.
01:31:23.720And I got blue checkmark journalists quote tweeting me, replying and saying, good, good.
01:31:29.100They're glad that they're going to be intimidated.
01:31:30.620They're glad that Amy Coney Barrett and Kavanaugh's young children, that their lives are going to be threatened.
01:31:35.640You're telling me that you think that you're on the right side because you think it's justified for someone to murder someone else because that person doesn't think there's a constitutional right to murdering children.
01:32:29.160So for the lunatics, they're going to need to guess again.
01:32:33.360OK, but you raise the question of the leaker.
01:32:35.720And I'm not going to say this person's name and I'm not going to I have no idea who leaked this and no one does.
01:32:41.260But there's an interesting discussion happening about.
01:32:45.020I mean, I think virtually everybody agrees it would have to be a law clerk.
01:32:47.960The only people who have access to the decisions, as far as I'm told, and I was never a Supreme Court clerk, are the law clerks and the justices themselves.
01:32:56.960And now does that mean a secretary doesn't see it on the printer?
01:33:09.900So there are rumblings about Sotomayor, who has a new clerk whose name we're not going to say.
01:33:18.780But that clerk has been previously quoted in an article by the guy who broke this story, Josh Gerstein.
01:33:25.660And to correct something I said earlier, Josh Gerstein is apparently the justice, the senior legal reporter for Politico.
01:33:32.760The other byline on the case, there were two reporters, is the national security reporter.
01:33:36.860So they did have at least one of their legal reporters on it.
01:33:40.680OK, and apparently this clerk also led the efforts against Justice Kavanaugh while at this person's undergraduate institution or at their law school.
01:33:51.220So we don't have any idea whether this is the person.
01:33:53.720But can I tell you something, Ali Beth?
01:33:57.080Quoted in an article by Josh Gerstein before is the best evidence I've heard so far.
01:34:02.120If I could tell you the number of times I've figured out who somebody sources by looking back at other articles that person's written and seeing who they go to on this particular story or the storyline.
01:34:13.940And sometimes reporters are so stupid.
01:35:08.920Ali Beth, listen, I'm happy for you, your side, all the advocates who have worked so tirelessly on this.
01:35:14.420And I'm just thinking about the country and how we heal, how we get through this and how we keep things factual and stop the hysterical hyperbole about what this means.
01:35:26.900Some of my old conservative leaning legal pals have been writing me emails this morning saying they think the decision is stellar.
01:35:35.260They're very, very happy with its reasoning, with how it was written, with the points being made, with its, you know, how solid it is in terms of, you know, realistically getting attacked and torn down.
01:35:47.800Of course, the left is going to say what they're going to say.
01:35:49.320But it's interesting just to get that reaction from people I know and trust and have for a long time.
01:35:55.200Thank you for trusting us in a day like this.
01:35:57.080Really appreciate it and want to tell you that we're going to have much, much more tomorrow, including Senator Josh Hawley.
01:36:02.100He clerked for the U.S. Supreme Court.
01:36:03.480He's got some strong feelings on a leaker, and we'll have thoughts on the decision as well.
01:36:07.900And we'll bring you that and much, much more when we join you tomorrow.
01:36:10.680In the meantime, download the show, The Megyn Kelly Show, on Apple, Pandora, Spotify, and Stitcher.
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