Verdict with Ted Cruz - Roe and Casey Are Overruled

00:00:00.000 This is an iHeart Podcast.

00:00:02.400 Guaranteed human.

00:00:04.640 The Constitution does not confer a right to abortion.

00:00:08.880 Roe and Casey are overruled, and the authority to regulate abortion is returned to the people

00:00:15.720 and their elected representatives.

00:00:17.920 So declares the United States Supreme Court.

00:00:21.260 This is Verdict with Ted Cruz.

00:00:22.600 Welcome back to Verdict with Ted Cruz.

00:00:31.100 I'm Michael Knowles.

00:00:32.960 It is the greatest political event of my lifetime.

00:00:39.300 I suspect, Senator, of your lifetime.

00:00:41.740 We are not in our usual locations right now.

00:00:44.980 I am in Chicago for a wedding.

00:00:47.880 You are in Milwaukee.

00:00:49.880 And we said, we need an emergency bonus verdict to discuss and to celebrate the Supreme Court's

00:00:58.920 overruling of Roe v. Wade.

00:01:01.360 Well, Michael, it's truly extraordinary.

00:01:03.860 And you're right.

00:01:04.720 This has been 49 years in coming.

00:01:07.220 You have never lived a day on planet Earth without Roe v. Wade being the law of the land.

00:01:12.540 I was two when Roe was decided.

00:01:14.620 And for 49 years, that was unshakable and unstoppable.

00:01:24.640 And today, we've returned to what the country was for the first 185 years, which is the elected

00:01:30.500 people, the elected representatives of the people, the voters, now have the right to decide

00:01:36.840 questions of life.

00:01:37.920 That's how the Constitution was designed in the first place.

00:01:42.080 But I got to just pause and reflect on the extraordinary efforts that led to yesterday's

00:01:49.880 decision.

00:01:52.360 Millions of activists, an entire movement, millions of young women and old women and people

00:02:01.020 marching in the March for Life every year, millions of grassroots activists who mobilized,

00:02:07.480 who mobilized behind the campaign of Ronald Reagan, who mobilized behind the campaign of

00:02:12.320 George Herbert Walker Bush, who mobilized behind the campaign of George W. Bush, who mobilized

00:02:17.360 behind the campaign of Donald Trump.

00:02:19.580 And this is the culmination of 49 years of work, of organizing, of mobilizing, of incredible

00:02:32.640 and fervent prayer.

00:02:34.460 And it's truly an extraordinary moment because a lot of us in the pro-life movement have wondered,

00:02:43.360 would this ever happen?

00:02:44.600 Would Roe ever be overturned?

00:02:46.740 Was this futile?

00:02:47.760 Was this a waste of time?

00:02:49.240 I can't count how many times I've heard people raise those questions.

00:02:53.540 This will never happen. 1.00

00:02:54.940 These, you know, these damn politicians are just, they're just lying to us. 1.00

00:02:58.860 They're just pretending. 1.00

00:03:00.240 And this will never happen.

00:03:02.060 It, it, it, there aren't words to describe.

00:03:05.040 It is the most consequential Supreme Court decision of the last 50 years since Roe in 1973 that,

00:03:13.800 that, that, that started, started us on this journey.

00:03:16.120 It is, I have to say, I didn't, I didn't expect it.

00:03:20.620 Even, even, I didn't want to allow myself to hope that it could actually happen.

00:03:24.780 Even after the leaked opinion, I still sort of thought it was 50-50.

00:03:29.060 I didn't know if the people who showed up outside the justices' homes and the, the attempted

00:03:33.440 assassination of Brett Kavanaugh and all the craziness, if that would succeed in, in bullying

00:03:37.840 the, the justices, it obviously did not.

00:03:40.380 And so now I'd like your take, not just as someone who's been in the pro-life movement

00:03:44.540 for a very long time, not even just as a U.S. senator, but as an expert on the Constitution,

00:03:50.040 someone who has argued cases before the Supreme Court, someone who clerked for the chief justice.

00:03:54.780 What does the opinion say and do?

00:03:57.780 Because there's the opinion, there's the opinion of the court on the pro-life law that brought

00:04:01.640 this issue to the fore.

00:04:02.700 That was the Mississippi pro-life law, 6-3, all the conservatives joined by Chief Justice

00:04:07.700 Roberts vote to uphold the Mississippi law.

00:04:10.620 Then the chief justice splits off.

00:04:13.340 He does not vote to overrule Roe and Casey.

00:04:16.560 So that's a 5-4 decision.

00:04:18.600 You've got Thomas, Alito, Barrett, Kavanaugh, and Gorsuch vote to overrule Roe and Casey.

00:04:25.600 But then it gets even more complicated because Kavanaugh files his own concurring opinion, which

00:04:32.280 seems somewhat modest.

00:04:33.880 Justice Thomas files his concurring opinion, which seems perhaps more ambitious.

00:04:39.540 And then you've got the dissent from the liberals.

00:04:41.560 I'm sorry, Chief Justice Roberts has his own concurring opinion.

00:04:44.000 So anyway, what does it all mean?

00:04:46.000 Well, let's let's walk through it and let's walk through it systematically.

00:04:49.280 So let's turn to the decision itself.

00:04:51.200 So I would encourage, look, many of you presumably are not lawyers.

00:04:55.680 I would encourage you to sit down and read this opinion.

00:04:58.140 Uh, Justice Alito wrote this opinion for the ages and yes, it is a legal opinion and a Supreme

00:05:05.840 Court opinion, but it is designed to be accessible for a reader to walk through, not just why Roe

00:05:16.220 was wrong, but, but it also explains how constitutional law is supposed to work.

00:05:21.300 So the opinion begins, the first paragraph, Justice Alito talks about their three different

00:05:28.460 groups in America.

00:05:30.100 There's one group that are convinced passionately that an unborn child is a human life that is

00:05:37.280 precious, that needs to be protected, that has full rights.

00:05:41.580 And he acknowledges there's another group that is just as passionate.

00:05:44.620 They're just as heartfelt that are convinced an unborn child is not a human right.

00:05:49.160 That, that abortion is about the liberty of a woman to control her body and her life. 0.65

00:05:55.520 And then he points out there's yet a third group that is in neither of the two camps, but

00:05:59.740 thinks that abortion should be allowed in some circumstances, but there should be some significant

00:06:05.120 restrictions on it.

00:06:06.140 And he points out where those restrictions are run the gamut.

00:06:10.880 I liked that opening observation.

00:06:12.980 One of the things that the majority opinion does a good job of doing is not denigrating those

00:06:18.920 who have different views.

00:06:20.320 The majority opinion, I think it's fair to say, is not necessarily a pro-life opinion.

00:06:29.420 It's a pro-constitution opinion.

00:06:32.120 It's saying, we're judges.

00:06:35.500 We don't know any better than you do how to answer questions that are fundamentally moral

00:06:41.800 questions or scientific questions or philosophical questions about whether an unborn child is

00:06:51.240 entitled to the same rights as the rest of us.

00:06:54.200 I think that modesty is important.

00:06:56.880 And the opinion goes through systematically.

00:06:58.780 It points out the first 185 years, those questions were decided by elected legislatures.

00:07:04.940 That's how the constitution operated.

00:07:06.520 And it points out, and we've talked about this before, on the second page, Justice Alito

00:07:12.880 says, after cataloging a wealth of other information, having no bearing on the meaning of the constitution,

00:07:19.060 he's talking about Roe versus Wade.

00:07:20.920 The opinion concluded with a numbered set of rules, much like those that might be found

00:07:28.580 in a statute enacted by a legislator.

00:07:31.600 And it's Harry Blackmun's opinion in Roe is really one of the worst judicial opinions

00:07:36.220 ever written, and it's universally criticized.

00:07:39.520 And in fact, the majority opinion here then quotes John Hart-Ely, who was a revered liberal

00:07:48.860 constitutional scholar.

00:07:50.220 And here's what he says.

00:07:51.420 One prominent constitutional scholar wrote that he, quote, would vote for a statute very much

00:07:59.440 like the one the court ended up drafting if he were a legislator.

00:08:03.180 So he agreed with abortion as a policy matter.

00:08:07.300 But he then describes Roe and says, Roe, quote, was not constitutional law at all and gave,

00:08:16.160 quote, almost no sense of an obligation to try to be.

00:08:22.280 This is a liberal talking about it.

00:08:25.780 Justice Byron White, who was one of the original dissenters in Roe.

00:08:29.440 He was appointed to the court by President John F.

00:08:31.700 Kennedy, was on many issues a liberal.

00:08:35.060 But Justice White in Roe described the opinion as, quote, the exercise of raw judicial power.

00:08:44.400 Yeah.

00:08:45.180 It's powerful.

00:08:52.500 And then Roe was the law until 1992.

00:08:57.020 In 1992, the Supreme Court decided Casey.

00:09:00.000 And one of the reasons so many conservatives felt frustrated is a lot of us thought Casey

00:09:05.040 would overrule Roe.

00:09:06.680 You'd had the Reagan revolution.

00:09:08.240 You had justices put on by presidents who had campaigned against Roe.

00:09:15.860 And what happened is that three of them, Justice Kennedy, Justice O'Connor, and Justice Souter,

00:09:21.420 shocked everyone and together wrote a joint opinion in Casey, reaffirming Roe.

00:09:28.240 And look, the Casey opinion is another terrible opinion.

00:09:32.840 It is an opinion.

00:09:34.040 It doesn't attempt to defend Roe.

00:09:36.280 It doesn't attempt to go through and say Roe was right.

00:09:39.240 Roe is based on the Constitution.

00:09:40.940 Roe was well-reasoned.

00:09:42.720 Well, it actually overrules parts of Roe.

00:09:45.020 Significant parts of Roe.

00:09:47.100 Instead, it just says under the principle of stare decisis.

00:09:50.500 Stare decisis is a very important principle in law, which is that you respect precedents.

00:09:55.180 The court was not going to overturn it.

00:09:58.240 And it created a new standard.

00:10:01.500 So instead of Roe drew lines during the pregnancy of the first trimester, the second trimester,

00:10:09.820 the third trimester, and it laid out the different standards.

00:10:13.520 And it said only in the third trimester does the state have an interest in protecting what

00:10:18.760 it called potential life.

00:10:21.420 Well, Casey came in and said, all right, don't use the Roe standard anymore.

00:10:25.120 Instead, what is permissible, what is impermissible, is a law that imposes an undue burden on a

00:10:36.420 woman's right to access an abortion. 0.52

00:10:38.600 Now, the problem is, what the heck is the difference between a due burden and an undue burden?

00:10:45.360 And nobody knows.

00:10:46.880 This is magic.

00:10:49.300 And so the majority opinion in Dobbs describes, says the decision provided no clear guidance

00:10:56.620 about the difference between a due and an undue burden.

00:11:00.040 But the three justices who authored the controlling opinion, quote, and this is one of the more

00:11:06.800 grandiose, condescending statements in it.

00:11:10.720 Here's what Casey said, quote, called the contending sides of the national controversy

00:11:17.180 to end their national division by treating the court's decision as the final settlement of

00:11:24.260 the question of the constitutional right on abortion. 1.00

00:11:27.860 So like philosopher kings on high, they say, you stupid people, stop bickering. 1.00

00:11:36.320 We have decided. 1.00

00:11:38.680 And you might think you have a right to vote.

00:11:41.140 You might think you have a right to engage, but you are wrong.

00:11:44.580 Well, their assessment that suddenly after Casey, people would say, oh, okay, never mind.

00:11:51.280 We accept that.

00:11:52.520 That is not what played out.

00:11:57.980 The operative paragraph of the opinion found on page five, we hold that Roe and Casey must

00:12:05.740 be overruled.

00:12:07.340 The Constitution makes no reference to abortion and no such right is implicitly protected by any

00:12:13.960 constitutional provision, including the one on which the defenders of Roe and Casey now chiefly

00:12:18.960 rely, the Due Process Clause of the 14th Amendment.

00:12:22.140 That provision has been held to guarantee some rights that are not mentioned in the Constitution,

00:12:27.160 but any such right must be deeply rooted in this nation's history and tradition and implicit

00:12:35.120 in the concept of ordered liberty.

00:12:36.740 Now, there's a lot of substance there.

00:12:39.580 So let's try to unpack that a little bit.

00:12:41.240 And actually, the court does a very good job of that.

00:12:44.340 What is the source of the right to abortion? 0.60

00:12:47.780 Well, Roe doesn't say.

00:12:50.060 And in fact, as Dobbs says, Roe was egregiously wrong from the start.

00:12:55.300 That phrase is used a couple of times.

00:12:56.900 The source, though, I want to flip over to the discussion because it's, so Alito is particularly

00:13:05.720 withering saying, okay, well, what part of the Constitution are you finding this newfound

00:13:09.780 right?

00:13:10.880 And the Dobbs opinion says, Roe expressed the, quote, feeling that the 14th Amendment was

00:13:21.500 the provision that did the work, but its message seemed to be that the abortion right could

00:13:26.600 be found somewhere in the Constitution and that specifying the exact location was not

00:13:33.060 of paramount importance.

00:13:35.900 It could be this amendment.

00:13:37.380 It could be that amendment.

00:13:38.560 It's the emanation of the penumbra of the invisible ink.

00:13:41.840 They say it's there and find it wherever you want to find it.

00:13:46.200 Well, and in fact, they drop a footnote quoting from Roe of a provision that is just

00:13:51.260 really, so here's what footnote 16 says.

00:13:56.040 The court's words were as follows, quote, this right of privacy, whether it be founded

00:14:02.880 in the 14th Amendment's concept of personal liberty and restrictions on state action, as

00:14:08.700 we feel it is, no, this is not reasoning, this is not thinking, this is feelings, we

00:14:15.040 feel it is, or as the district court determined in the 9th Amendment's reservation of rights

00:14:20.620 to the people, is broad enough to encompass a woman's decision whether or not to terminate

00:14:27.560 her pregnancy.

00:14:30.220 What the majority opinion does is systematically dismantles the reasoning in Roe.

00:14:37.180 It's not explicitly protected in the Constitution, and it then says, okay, just because it's not

00:14:42.180 explicitly protected, that doesn't mean it's not there.

00:14:45.460 It might be implicitly protected, but if it's implicitly protected, there's got to be something

00:14:51.340 implying, and so the court systematically goes through where does this come from, and the

00:14:57.080 principal basis that the defenders of Roe and Casey allege that it comes from is the 14th

00:15:04.520 Amendment to the Constitution, and in particular, the due process protection.

00:15:09.520 The due process protection prohibits states from depriving people of life, liberty, or property

00:15:17.700 without due process of law, and it is liberty in particular, and so the argument is, what

00:15:24.420 is the liberty you cannot be deprived of without due process of law, and how do you determine

00:15:31.960 them?

00:15:33.340 Now, there are two different legal questions that let's walk through for a second, because

00:15:41.000 they also highlight a disagreement that then comes up with Justice Thomas and his dissent.

00:15:47.080 There's a notion called substantive due process, and there's a notion called procedural due process.

00:15:55.440 Procedural due process is what the actual provision in the 14th Amendment and also the 5th Amendment

00:16:00.680 protects due process against the federal government, the 14th Amendment protects due process against

00:16:05.360 the states.

00:16:08.360 Procedural due process says the state can't take your life from you, can't take your liberty

00:16:13.300 from you, can't take your property from you without due process of law, which means without

00:16:17.880 a legal proceeding, without notice, without opportunity to be heard.

00:16:22.000 There's got to be, they can't just come in and seize your stuff and say, ha ha, there's got

00:16:27.260 to be a process, it protects procedural rights, which you would think, call it something saying

00:16:34.280 we're protecting due process, would protect process.

00:16:39.580 Right.

00:16:40.040 So that's the ordinary understanding of due process, but the Supreme Court has created a

00:16:45.160 second category that is called substantive due process.

00:16:49.420 And the idea is that there are some things that are just protected in substance, that it

00:16:56.700 doesn't matter what the process is.

00:16:58.960 The government can't do that.

00:17:02.760 There have been many constitutional scholars and some justices that have argued substantive

00:17:10.020 due process is nonsense.

00:17:12.300 It's made up.

00:17:13.360 Um, John Hardeeley, I quoted before, had a great phrase also about substantive due process.

00:17:19.980 He said, that's like saying green pastel redness because substantive and process are the opposite

00:17:28.660 of each other.

00:17:29.360 Like, like it doesn't mean anything to say, but what the majority opinion does, it doesn't

00:17:37.560 do anything significant in changing substantive due process.

00:17:43.720 He said, look, we've had lots of decisions that we've found things are protected by substantive

00:17:47.340 due process, but they fall into two categories.

00:17:51.500 One, are rights that are explicitly enumerated in the Bill of Rights that the court has incorporated

00:18:00.820 against the states.

00:18:02.100 And we, and we've talked about this before, how the Bill of Rights only applies to the federal

00:18:07.180 government by its terms, but over the years, the Supreme Court has interpreted the due process

00:18:14.140 clause to apply them against the states as well.

00:18:19.100 So that's one mechanism and virtually every right in the Bill of Rights has now been incorporated

00:18:24.360 and applies against the states and against local governments as well.

00:18:28.060 That's a fairly straightforward way of, of determining.

00:18:31.400 And what the court has essentially says is they're all packed into the word liberty in

00:18:37.360 saying, no state shall deprive you of life, liberty, or property without due process of

00:18:41.780 law.

00:18:43.640 In addition to that, there are some unenumerated rights that are not in the Bill of Rights that

00:18:50.240 the court has incorporated in, but it has required pretty strict, and the test it has laid out

00:19:00.980 is whether a right is deeply rooted in our history and tradition, and whether it is essential

00:19:10.160 to our nation's scheme of ordered liberty.

00:19:13.120 So, so that's the, the test.

00:19:15.480 And, and look, part of the reason is if you're just saying, what does liberty mean?

00:19:19.480 If, if judges are allowed to define what they think liberty means, you can have lots of different

00:19:26.360 definitions of liberty and very quickly judges become legislators saying, here's what I think

00:19:31.480 you ought to be able to do.

00:19:32.520 And so part of the reason the court over the centuries has adopted this test is it's a way

00:19:41.880 to constrain judicial power to say, okay, there will be implicit, uh, protections.

00:19:49.040 And so, for example, on page 12 of the opinion, uh, in Dobbs, it talks about one example of incorporating

00:19:57.760 an express right against the states.

00:19:59.740 And it says, Justice Ginsburg's opinion for the court in Tim's is a recent example in concluding

00:20:05.700 that the eighth amendment's protection against excessive fines is quote, fundamental to our

00:20:10.000 scheme of ordered liberty and deeply rooted in this nation's history and tradition.

00:20:13.840 Her opinion traced the right back to the Magna Carta, Blackstone's commentaries, and 35 of

00:20:21.080 the 37 state constitutions in effect at the ratification of the 14th amendment.

00:20:26.160 So that's an example of what looking to those texts means as well.

00:20:29.260 Has this right been protected for centuries?

00:20:32.580 Was it protected throughout law?

00:20:34.280 Was it deeply rooted in our history?

00:20:36.920 So this, this applies some limits, which obviously you would need because as you say, otherwise

00:20:42.040 you would have these, these philosopher Kings on the Supreme court defining liberty, however

00:20:46.360 they would like.

00:20:47.220 But, but this issue of substantive due process does seem to me to be the point where all of

00:20:53.360 the liberals, all of the, I shouldn't even say liberals, all of the pro abortion advocates

00:20:58.620 are, are focusing their fire because it, and you even see this in the dissent, they're not even so much

00:21:05.400 making a substantive argument for abortion rights, rights, quote unquote, as they are saying,

00:21:11.120 if we get rid of this, we're going to have to overrule Griswold, which, which finds a constitutional

00:21:16.860 right to contraception.

00:21:17.920 We're going to have to overrule Lawrence v. 0.82

00:21:20.140 Texas, which finds constitutional right to homosexual sodomy. 0.85

00:21:23.400 We're going to have to overrule Obergefell, which finds a redefinition of marriage to include

00:21:28.680 same-sex unions, all of which rely on substantive due process.

00:21:32.640 And so then this question, the, the disagreement here between the court's majority opinion and,

00:21:38.300 and then Thomas's concurrence, which goes further, this, this does seem to be the, the biggest

00:21:43.840 point that the liberals are going to focus on.

00:21:46.400 Well, that's right.

00:21:47.420 And, and I think it's worth reflecting on what that tells us.

00:21:51.960 It tells us that even the far left thinks abortion is not a winning issue for us.

00:21:58.680 Like they're not arguing, many of them, they're not arguing the substance of this decision because

00:22:04.160 they recognize that the vast majority of Americans favor at least some significant restrictions

00:22:11.080 on abortions, that the positions of the left of unlimited abortion on demand up until the

00:22:16.340 moment of birth, partial birth abortion with no restrictions is, is a fringe view, less

00:22:22.140 than 9% of Americans support that view.

00:22:24.280 And, and so smart liberals, which may be oxymoronic, but smart liberals and smart Democrats, they

00:22:31.200 don't actually defend their view on this issue because they know it's unpopular.

00:22:36.020 What they say is, well, what this means is all of these other decisions are going to be

00:22:41.520 struck down.

00:22:42.140 And, and I got to say the majority in Dobbs says, I think for separate time, no, it doesn't.

00:22:50.220 We're not overruling those opinions.

00:22:52.380 We're not calling question into those opinions.

00:22:54.900 Those opinions are totally different.

00:22:56.620 Like it, at one point they say, we don't know how we could be any clearer.

00:23:00.580 And, and, and the majority opinion points out, says, look, so, so the ones they focus on,

00:23:07.380 they focus on contraception and you have two decisions, Griswold and Eisenstadt.

00:23:11.740 Griswold was a right to access contraceptives for married couples. 0.91

00:23:16.540 Eisenstadt was a right to access contraceptives for single people. 0.64

00:23:20.600 They also focus on loving versus Virginia, which was a right to marry regardless of race.

00:23:28.420 So inter, inter, inter, interracial marriage. 0.95

00:23:31.420 And then they focus on, uh, Lawrence, the right to homosexual sodomy and consensual sexual acts 0.91

00:23:39.080 between adults, uh, and then Obergefell gay marriage.

00:23:43.060 And what the court says repeatedly is, look, those are all completely different decisions.

00:23:48.100 Why?

00:23:48.500 Because none of them involve ending a human life.

00:23:52.720 Abortion is fundamentally different.

00:23:54.820 Ending a human life is a big deal.

00:23:59.400 Even Roe called it potential life.

00:24:02.540 Uh, and so repeatedly the majority goes, jumps up and down and says, we are not calling into

00:24:09.660 question these decisions.

00:24:10.980 This has nothing to do with it.

00:24:12.920 The left keeps saying, oh, but these other issues, I think they're telegraphing.

00:24:19.700 Listen, if you had a referendum on, should we ban contraceptives in America?

00:24:24.980 Nobody would vote for it.

00:24:26.060 I mean, Michael, you might, but the rest of us would.

00:24:28.420 The rest, I don't think there's a majority for it.

00:24:31.100 That's certainly the case.

00:24:32.360 And it, it also, it, it, I've talked to friends of mine who are gay, for instance, and who support

00:24:38.380 gay marriage.

00:24:39.140 You know, if they, if they went out to vote, they would vote to redefine marriage to, to

00:24:43.500 include same sex unions.

00:24:44.900 And many of my gay conservative friends will say, yeah, all of that notwithstanding, Obergefell 0.99

00:24:51.780 is a crap decision by the court that the court actually, it doesn't make a ton of sense. 0.95

00:24:56.920 And, uh, so while I, I support this issue and I, I support it in the legislature and I would 0.75

00:25:02.360 vote for people who are going to vote for this kind of thing, I, I don't think that's the role

00:25:06.400 for the Supreme court.

00:25:07.540 So one can be in favor of all sorts of outcomes of certain Supreme court cases and still oppose

00:25:13.760 a, a principle that was made up in, in the 20th century that, that seems bogus from a judicial

00:25:21.100 perspective.

00:25:21.640 Well, that's exactly right.

00:25:23.560 And you talked about, so justice Thomas wrote a concurrence.

00:25:26.280 He joined the majority in full.

00:25:27.560 So the majority opinion is a majority opinion of the court.

00:25:31.040 It is binding law.

00:25:32.740 Justice Thomas wrote a concurrence in which he said he would go further and the court should

00:25:38.080 reconsider.

00:25:38.800 He actually didn't say overrule.

00:25:40.180 He said, reconsider all of its substantive due process cases, basically.

00:25:44.800 And he said for a long time, substantive due process is gobbledygook and we ought to reconsider

00:25:49.020 it all.

00:25:49.560 Well, if you look at like, he's referred to, let's say the contraceptives law.

00:25:54.720 So Griswold versus Connecticut was a Connecticut law that restricted the sale of contraceptives.

00:25:59.280 Justice Thomas has referred to that as quote, an uncommonly silly law. 1.00

00:26:03.820 He's on record saying, this is a stupid law. 1.00

00:26:05.840 I don't support this law. 1.00

00:26:07.480 But he says the constitution doesn't prohibit silly laws.

00:26:11.600 It's up to the voters to get rid of it.

00:26:12.900 I think that is a right and principled legal distinction.

00:26:17.500 But I also think it speaks volumes that Justice Thomas's concurrence was alone, that the other

00:26:26.300 justices have no interest in going down that road. 0.88

00:26:30.200 And the number of times the majority opinion says, no, no, no, no, no, no.

00:26:38.560 And it's worth, look, the distinction the majority opinion makes is abortion ends a human life.

00:26:44.320 But there's another distinction.

00:26:45.320 Which is those opinions, unlike Roe, Roe created enormous societal divisions.

00:26:55.100 Deep, long felt.

00:26:57.300 People didn't listen to Casey's admonitions of just accept that you're wrong and put it behind you.

00:27:04.020 Millions of people care passionately about this issue.

00:27:07.000 None of these other issues have created that kind of long-lasting, multi-decade division.

00:27:16.320 There are not, there's a march for life every year in D.C.

00:27:21.420 There's not a march against condoms every year.

00:27:25.060 But like, the rights at issue have not prompted the kind of massive societal disagreement the way that abortion uniquely has.

00:27:42.300 And so, some commentators will leap on Justice Thomas's concurrence.

00:27:47.760 But I think the chances that the court goes down that road are zero.

00:27:52.140 And I think even Justice Thomas knows that.

00:27:55.380 He's arguing this would be the most principled way to interpret the Constitution.

00:28:00.040 But I don't think even Justice Thomas thinks that other justices are going to agree with that or that any of these decisions are going to be revisited.

00:28:09.480 You know, it seemed clear to me reading his concurrence, which I thought was brilliant and marvelous.

00:28:15.120 It seemed clear to me he's writing this for his principled stance and for law students.

00:28:20.560 You know, this is not, this is not to persuade people right now in this moment in American politics.

00:28:25.740 Before we get to the mailbag, I do think we have to touch on the Kavanaugh concurrence and the Roberts concurrence.

00:28:33.580 Roberts basically says, yes, I vote to uphold the pro-life law.

00:28:38.740 But come on, guys, do we really have to deal with Roe?

00:28:41.220 I really don't want to do this.

00:28:42.340 Can't we do this at a later date?

00:28:44.080 And and then Kavanaugh's concurrence here doesn't seem all that different from the opinion of the court.

00:28:51.420 But he he it seems almost as if that concurrence is taking aim at one of the amicus briefs that was submitted by the Oxford professor, John Finnis, and by your old professor, Senator Robbie George, which argued that the Supreme Court actually does not need to send the abortion question back to the legislatures.

00:29:12.040 The Supreme Court can outlaw abortion based on the 14th Amendment.

00:29:16.800 Kavanaugh seems to just spend most of his concurrence rejecting that idea outright, although he doesn't call it out by name.

00:29:24.960 Yeah, look, I think that's right.

00:29:26.680 Let's start with with the Roberts concurrence.

00:29:30.660 So so Chief Justice Roberts concurs in the judgment.

00:29:34.740 Now, what is concurring in the judgment means?

00:29:36.500 It means he agrees with the outcome of the of the case.

00:29:42.340 And the judgment of the case is whether the decision below is affirmed or reversed.

00:29:49.760 And in this instance.

00:29:52.360 The judgment was that the Mississippi law banning abortion after 15 weeks is upheld.

00:30:00.740 Roberts agrees with that.

00:30:01.800 So he concurs in the judgment, in the conclusion that that law is valid.

00:30:07.640 But he did not join the majority opinion.

00:30:10.880 And he doesn't agree with the majority opinion.

00:30:14.020 And what he says is we should just conclude that this law is OK.

00:30:20.740 We should abandon Roe versus Wade's viability standard, which in Casey, they referred to as as the core holding of Roe.

00:30:33.500 He said we should abandon the viability standard.

00:30:35.580 I agree that doesn't make any sense.

00:30:36.900 They made that up.

00:30:37.540 But we should have a new standard that says, does a woman have a reasonable chance to get an abortion? 1.00

00:30:47.540 And if she has a reasonable chance, then it's OK.

00:30:51.980 And, you know, I got to say the majority opinion in Dobbs, it's interesting.

00:30:55.020 One of the things I'm very glad about, much of the majority opinion is word for word identical to the leaked draft.

00:31:01.680 I'm really glad Justice Alito changed very little.

00:31:06.520 I think it really is a statement from the court that lawlessness, that leaking an opinion, that rioting, that attempted murder is not going to change the operation of our judicial system.

00:31:19.720 And virtually all of that leaked opinion is still in this draft.

00:31:23.320 The main changes he did was responding to the other opinions.

00:31:26.940 So there are passages that are responding to, for example, Chief Justice Roberts.

00:31:32.220 And I think Alito eviscerates Roberts.

00:31:36.440 Says, well, gosh, you say you want to do this for stare decisis.

00:31:40.820 But then you're overruling Roe, the core holding of Roe.

00:31:45.120 How exactly is that a decision for stare decisis if you're overruling the core holding of Roe?

00:31:50.280 And the test you're putting out, a reasonable chance.

00:31:54.020 He points out none of the parties advocated for it.

00:31:57.500 None of the amici advocated for it. 1.00

00:31:59.440 Roberts is just making this up.

00:32:01.100 And in fact, both sides in this litigation said, no, you've either got to overturn Roe or uphold it entirely.

00:32:08.360 Both of them agreed this is the whole enchilada.

00:32:13.120 And he points out, you know, gosh, the chief justice has proposed standards.

00:32:17.620 So how is a reasonable chance different from an undue burden or a due burden or an unreasonable stance? 0.98

00:32:23.460 And this is all just you're just making this crap up. 0.78

00:32:26.300 And I think Alito does a very effective job. 0.98

00:32:34.760 Roberts instincts are caution that he wants to proceed incrementally.

00:32:43.260 And I think Alito makes the case that this has been 49 years is too long and the opinion is wrong.

00:32:52.440 By the way, I do want to go back to something Alito said.

00:32:55.140 We were talking about different kinds of liberty.

00:32:56.680 And like if you just said, well, you can say liberty means whatever you want it to mean.

00:33:00.980 He has a quote that I'd never heard before, but it's a very, very good one.

00:33:04.320 And it's from Abraham Lincoln, who says, we all declare for liberty.

00:33:09.580 But in using the same word, we do not all mean the same thing.

00:33:15.060 And he goes on to say in a well-known essay, Isaiah Berlin reported that, quote, historians of ideas.

00:33:21.660 By the way, that sounds like a cool profession.

00:33:25.800 Historians of ideas had cataloged more than 200 senses in which the term had been used, the term liberty.

00:33:35.580 So I just thought that those were very interesting points in Alito's majority opinion.

00:33:39.740 And I'm quite confident I can't come up with 200 senses in which liberty has been used.

00:33:45.640 But then again, I'm not an historian of ideas.

00:33:48.060 I'm not yet.

00:33:51.660 So, look, I think Roberts's opinion was derived from.

00:33:58.900 Political caution rather than legal fidelity to the Constitution.

00:34:05.380 I just don't understand the political caution.

00:34:07.480 I agree with your assessment of his motivations.

00:34:10.900 My only thought was if he's seeking to preserve the integrity and credibility of the Supreme Court,

00:34:17.600 wouldn't a 6-3 ruling accomplish that much more likely than this sort of 6-3 ruling on the case,

00:34:26.660 but 5-4 on the overrule of Roe and this gobbledygook concurrence that he presents that says it's going to get rid of this certain viability standard,

00:34:35.100 but doesn't really do.

00:34:36.040 I mean, to me, it just seemed to have the opposite political effect of the one he may have intended.

00:34:42.200 You know, I think that's right.

00:34:44.020 And a couple of things.

00:34:45.820 Number one, I do think it's worth pointing out that the opinion that came out yesterday

00:34:51.380 is almost identical to the opinion you and I predicted the week after the oral argument.

00:34:57.980 If you go back and listen to the verdict podcast,

00:35:01.840 we told verdict listeners the decision will be 6-3.

00:35:07.860 Roberts will support upholding the Mississippi law but not overturning Roe,

00:35:14.600 and we'll try very hard to get someone to join him,

00:35:17.520 but five justices will stand together and overturn Roe, and it's exactly what happened.

00:35:22.520 I think this was evident at the time of the argument.

00:35:25.540 I will say this.

00:35:26.640 I was somewhat surprised.

00:35:30.300 After the leak, I put the odds at maybe 30% to 40%.

00:35:37.340 This is just my own kind of internal odds-making that Roberts would turn around

00:35:43.220 and join the majority opinion.

00:35:44.440 And it, I could have seen, what's interesting is they don't refer to the leak,

00:35:53.220 which I was quite curious if they were going to.

00:35:57.220 I could have seen Roberts joining the majority and writing an opinion,

00:36:02.620 something to the effect of, I had concerns and would not go

00:36:08.820 as far as this majority opinion did in this case,

00:36:12.620 but given the historic and unprecedented leak designed to change the outcome,

00:36:20.860 I believe the best way to protect the court is to say,

00:36:26.180 our opinions will not change based on leaks.

00:36:29.300 I could see him doing that.

00:36:31.120 He didn't do that, but I thought there was some chance

00:36:33.880 that he might have decided to, and ultimately he did.

00:36:37.620 So that's the Roberts concurrence.

00:36:40.000 Senator, what's your take on the Kavanaugh concurrence?

00:36:44.500 Well, the Kavanaugh concurrence,

00:36:47.100 Justice Kavanaugh joins the majority opinion in full.

00:36:50.100 So he is supporting every word in the majority opinion,

00:36:56.200 and that's what gives it the force of law.

00:36:57.960 For it to be a majority opinion, five justices have to join it in full.

00:37:01.220 And in fact, the way it becomes a majority opinion typically is the opinion will be circulated

00:37:08.680 to the justices, and each justice that joins will say in writing, I joined this opinion.

00:37:13.340 And that is, you are essentially adopting all of the words in the majority opinion,

00:37:19.480 saying those are my words too.

00:37:21.440 So Alito's opinion, he is speaking for all five justices,

00:37:25.940 and it is as if they have said exactly those words.

00:37:29.940 Now, Kavanaugh's concurrence, he's just speaking for himself,

00:37:32.700 and he adds some additional thoughts, and in particular what he says,

00:37:36.300 he says, on the question of abortion,

00:37:38.260 the Constitution is therefore neither pro-life nor pro-choice.

00:37:45.560 He is defending the proposition that we've explained on this podcast multiple times,

00:37:50.440 which is the consequences of Roe being overturned

00:37:53.260 are not that abortion is suddenly illegal everywhere,

00:37:56.540 but rather that it returns to elected legislatures to make the decisions,

00:38:01.840 and different states will make different decisions.

00:38:03.620 But as you note, he takes on an argument advanced by Amiki,

00:38:09.540 and in particular, he says,

00:38:11.920 some amicus briefs argue that the court today should not only overrule Roe

00:38:16.740 and return to a position of judicial neutrality on abortion,

00:38:21.340 but should go further and hold that the Constitution outlaws abortion

00:38:26.140 throughout the United States.

00:38:28.420 I respect those who advocate for that position,

00:38:31.580 just as I respect those who argue this court should hold that the Constitution

00:38:37.020 legalizes pre-viability abortion throughout the United States.

00:38:41.920 But both positions are wrong as a constitutional matter, in my view.

00:38:47.240 The Constitution neither outlaws abortion nor legalizes abortion.

00:38:55.120 That point, I think, is clearly where all nine justices are.

00:38:59.760 One of the things Kavanaugh says, and he's right,

00:39:01.680 no justice of this court has ever advocated that position.

00:39:05.860 So the idea that the court should prohibit abortion nationally,

00:39:12.060 there's never been a Supreme Court justice advocate that,

00:39:15.400 and Kavanaugh is now on record saying that would be wrong to do so.

00:39:20.820 The legal argument, there's always been an interesting academic legal argument,

00:39:25.200 and you mentioned the amicus brief from my old professor, Robbie George.

00:39:29.160 Robbie George, professor-

00:39:30.160 From your amicus.

00:39:32.580 Yes, indeed.

00:39:36.120 And by the way, amicus is short for amicus curiae,

00:39:39.620 which is Latin for friend of the court.

00:39:42.280 And so that amicus brief, or amici, if there are multiple of them,

00:39:47.260 are filed to urge the court to give someone another perspective.

00:39:53.120 So they are briefs that are separate from the parties,

00:39:55.300 but lots of amici will file briefs typically in Supreme Court cases.

00:40:00.280 Robbie George was my thesis advisor at Princeton.

00:40:02.840 He's a brilliant scholar.

00:40:04.600 He's a brilliant lawyer.

00:40:05.640 And the argument we talked about before,

00:40:11.300 the 14th Amendment protects, says no state shall deprive any person of life,

00:40:16.160 liberty, or property without due process of law.

00:40:18.440 The argument is pretty straightforward,

00:40:20.020 that for an unborn child who is being aborted,

00:40:23.160 you are being denied life.

00:40:24.820 Your life is taken away from you.

00:40:27.540 And there is no due process of law.

00:40:29.580 You don't have the ability to challenge that in court.

00:40:31.720 You don't have the ability, you don't have notice,

00:40:33.100 you don't have opportunity to be heard.

00:40:35.640 There's a Supreme Court decision called Caroline Products,

00:40:40.320 and footnote four of it described the Equal Protection Clause

00:40:46.580 protects what it called discrete and insular minorities.

00:40:51.980 In other words, if you're small and limited and politically powerless,

00:40:58.760 unable to defend yourself,

00:41:00.880 then equal protection protects you from the majority.

00:41:04.640 And the argument goes,

00:41:06.960 it is difficult to think of a more discreet and insular minority

00:41:10.400 than unborn children who, by definition,

00:41:13.240 are not able to speak out and defend themselves,

00:41:15.680 don't have a voice,

00:41:16.700 don't have an ability to engage in the political process

00:41:20.100 or an ability to engage in the legal process.

00:41:24.460 That's the argument.

00:41:26.580 I think Justice Kavanaugh is right,

00:41:28.560 that there is not a single justice

00:41:30.180 who has ever suggested the court should adopt it.

00:41:34.640 And I will say, if the court were to issue such a ruling,

00:41:39.320 just as Justice Alito walked through the over two centuries of our nation's history,

00:41:44.580 at no point has any justice ever intimated such a right,

00:41:49.160 at no point has the court ever issued such a ruling.

00:41:51.700 A ruling like that would be a dramatic break from our constitutional history.

00:41:58.340 And I think that's one of the reasons why Kavanaugh says what he does.

00:42:02.360 So the Kavanaugh concurrence,

00:42:05.860 as putting the legal academic debate aside,

00:42:10.300 he's just also making a sort of historical point,

00:42:13.640 which is, if you look throughout our tradition, it's not there.

00:42:16.760 And so I just want to be crystal clear.

00:42:18.760 I'm not with Robbie George and John Finnis.

00:42:23.060 Before we get to the mailbag too,

00:42:24.700 I suppose we have to touch on the liberals in the dissent.

00:42:28.220 I am not a lawyer.

00:42:29.760 I did not go to Harvard Law School.

00:42:31.320 And yet when I read the dissent,

00:42:33.520 I was not impressed.

00:42:35.860 What little I can make sense of in these legal arguments,

00:42:39.360 I just thought they weren't really making

00:42:41.820 a whole lot of constitutional or legal arguments.

00:42:45.040 Am I being too harsh?

00:42:46.820 You're not.

00:42:47.600 And I think the majority opinion eviscerates the dissent.

00:42:52.540 I mean, just shreds it.

00:42:56.820 The dissent doesn't try to defend Roe.

00:43:00.100 Roe on its own is indefensible.

00:43:01.920 I mean, the reasoning, there's nobody that defends Roe.

00:43:05.240 The reasoning of it.

00:43:07.060 And the dissent doesn't even really try to defend Casey

00:43:10.980 other than to say,

00:43:11.880 star decisis, star decisis, star decisis.

00:43:13.720 That you can't overturn it.

00:43:15.720 You know, the majority opinion explicitly addresses

00:43:18.580 star decisis and points out that,

00:43:21.260 yes, star decisis is very important,

00:43:23.220 but the court has many, many times overturned precedent.

00:43:27.500 And there's a two-page footnote

00:43:30.900 outlining the many landmark cases

00:43:34.140 that were overturning precedent.

00:43:36.180 And many, if not most of the biggest cases of the Supreme Court

00:43:41.760 are cases that are overturning precedent.

00:43:44.440 And what the majority says is,

00:43:46.500 on many other occasions,

00:43:47.860 this court has overruled important constitutional decisions.

00:43:51.160 And they have the two-page footnote.

00:43:53.180 And then they say something that is really powerful.

00:43:56.380 They say, without these decisions, overruling precedent,

00:44:00.860 American constitutional law as we know it

00:44:04.100 would be unrecognizable.

00:44:07.240 And this would be a different country.

00:44:09.800 I think the majority does a tremendous job

00:44:12.940 of refuting the dissent.

00:44:15.000 And in particular, taking it to task for,

00:44:19.400 you don't defend Roe.

00:44:20.960 You can't point to any constitutional provision

00:44:23.160 this comes from.

00:44:24.520 You can't point to any laws

00:44:26.820 before the late 20th century

00:44:29.440 that reflected what you said.

00:44:32.040 You can't point to any Supreme Court decisions.

00:44:33.920 You can't point to any judicial decisions.

00:44:36.220 I mean, it just systematically goes through.

00:44:39.380 And the dissent has no response to that.

00:44:41.880 The dissent can't say anything other than they do

00:44:45.360 what we talked about a few minutes ago.

00:44:47.340 They say, well, gosh,

00:44:48.880 this is going to undermine contraception.

00:44:52.280 And the majority says, no, no, no, it's not.

00:44:55.700 But the dissent can't defend the position on the merits.

00:44:58.640 So they've got to find other issues to press instead.

00:45:01.800 There's one mailbag question that came in

00:45:03.800 that I thought offered a really interesting perspective.

00:45:07.040 And this is kind of zooming out now

00:45:08.900 from the nitty gritty of the opinion itself.

00:45:11.320 Questions from Laurel, who asks,

00:45:14.000 do you think the language shift

00:45:15.960 from safe, legal, and rare to shout your abortion

00:45:19.620 helped people really wake up and fight against abortion?

00:45:23.000 Or do you think the left started to shift their narrative

00:45:26.480 once they saw the hostility toward abortion

00:45:29.640 start to become more vocal?

00:45:31.960 I think the cause of the shift of the language

00:45:34.900 is the Democratic Party became radicalized on it.

00:45:38.540 That in many ways, today's Democratic Party

00:45:41.220 on issue after issue is captured by their extremes.

00:45:46.480 I do think some of that language

00:45:48.100 probably helped move public opinion.

00:45:49.960 You know, one of the,

00:45:50.440 some of the most interesting polling we see

00:45:52.320 is that young people

00:45:53.440 are getting consistently more pro-life.

00:45:56.560 And that's different from historically.

00:45:59.740 Look, you think historically, young people,

00:46:02.380 usually you think of as being more liberal on issues. 0.63

00:46:05.780 That, that, that, you know, those crazy youth, 0.70

00:46:07.900 that's like that.

00:46:09.000 And by the way, our parents said that

00:46:10.940 and their parents said that,

00:46:12.100 like that's the, this is,

00:46:13.300 we're dealing with millennia of human development

00:46:16.260 that, that, that young people often are more liberal

00:46:19.300 in one sense or the other.

00:46:20.600 But it is Marko, it is really striking

00:46:25.680 that, that younger voters today

00:46:28.240 are significantly more, more pro-life

00:46:30.560 than, than, than my generation,

00:46:33.040 than, than, than Gen X.

00:46:35.120 And I think the extremes of the Democratic Party

00:46:40.860 has certainly played a part.

00:46:41.980 I also think the advance of scientific knowledge

00:46:44.740 has played a part.

00:46:45.540 I think the pro-life community

00:46:56.100 and the pro-life movement

00:46:57.880 was very smart and savvy

00:47:01.640 in, in waging a political campaign against extremes.

00:47:05.900 And for example,

00:47:06.820 I think focusing on partial birth abortion 0.97

00:47:08.880 was a smart decision

00:47:11.480 because the, the act was so gruesome

00:47:15.540 that, that people who were not really

00:47:18.180 closely engaged with the issue,

00:47:21.680 not paying attention

00:47:22.740 when they, when they confronted

00:47:25.740 how gruesome it was,

00:47:27.000 I think that helped change people's minds.

00:47:30.580 No, I, I totally agree with what you've said.

00:47:32.740 And in particular on the advance

00:47:35.040 of modern medical science,

00:47:36.200 and I think it applies to the language too,

00:47:38.100 which is that ideas have a habit

00:47:41.040 of coming to their logical conclusions.

00:47:43.620 Knowledge has a, has a habit of this.

00:47:46.240 And so when we're talking about the language

00:47:48.760 of safe, legal, and rare,

00:47:50.340 it never made a lot of sense.

00:47:52.160 If the baby is a baby,

00:47:53.260 then it shouldn't be legal.

00:47:54.440 And if the baby is not a baby,

00:47:56.320 then there's no reason why it should be rare.

00:47:58.400 And so it would,

00:47:59.080 that was always an unstable slogan

00:48:01.380 that collapsed into,

00:48:03.120 I think it's logical conclusion,

00:48:04.140 which is abortion on demand without apology.

00:48:06.500 And it's the same with the advance of science

00:48:08.580 on babies and on pregnancy.

00:48:10.620 The more that we know about this thing,

00:48:13.080 the more people can see it,

00:48:14.580 as you described, Senator,

00:48:16.100 the more we see,

00:48:16.960 oh yeah, it's, it's a baby.

00:48:18.540 And you don't need to have your nose

00:48:20.520 in the philosophy books

00:48:21.760 or the bioethics books

00:48:23.160 to realize that it's a baby

00:48:24.540 and, and that there's just something wrong 1.00

00:48:26.960 about killing that baby. 0.99

00:48:28.860 And so, uh, uh, you know, 0.99

00:48:30.780 part of it was this natural progression

00:48:33.300 of these ideas.

00:48:34.880 And then of course,

00:48:35.840 that comes with the courage

00:48:37.320 of these justices on the court.

00:48:38.960 Courage is a virtue.

00:48:40.240 It's the prerequisite

00:48:40.960 of all of the other virtues.

00:48:42.700 And they exhibited that.

00:48:44.400 And, and now we're,

00:48:45.160 we're experiencing this

00:48:46.820 truly historic moment.

00:48:48.960 So historic, of course,

00:48:50.360 that we can't leave it.

00:48:51.380 We've, we've run late here

00:48:52.580 as usual on the show,

00:48:53.840 but there's so much more to say,

00:48:55.100 which is why people ought

00:48:56.500 to go check out the cloakroom

00:48:58.120 with our friend, Liz Wheeler.

00:48:59.600 Liz, what are you going to talk about?

00:49:01.100 Hi, Michael.

00:49:01.540 Hi, Senator.

00:49:02.100 I really enjoyed,

00:49:02.880 this was such a phenomenal episode,

00:49:04.800 listening to the words

00:49:05.760 of, um, the majority opinion

00:49:07.660 and particularly actually

00:49:08.880 the concurrence Thomas's opinion.

00:49:10.360 It's like listening

00:49:10.740 to classical music.

00:49:11.840 It's what's good

00:49:12.680 and what's true

00:49:13.280 and what's beautiful

00:49:13.940 and what's logical.

00:49:14.920 And it's, uh, phenomenal.

00:49:16.820 There is a really interesting

00:49:18.280 aspect of this though.

00:49:19.720 There have been very few people

00:49:21.100 who have praised

00:49:22.220 Roberts' concurrence

00:49:23.640 or Roberts, uh, writing

00:49:25.180 where he upheld,

00:49:26.420 upholds, um, the finding,

00:49:28.400 but not doesn't want

00:49:29.440 to overturn Roe v. Wade.

00:49:30.160 There is one person though,

00:49:31.080 Alan Dershowitz,

00:49:31.820 Harvard law professor,

00:49:32.680 Alan Dershowitz,

00:49:33.340 says that Roberts is right on this

00:49:35.560 and actually slams

00:49:36.560 the rest of the court

00:49:37.420 saying that they engaged

00:49:38.400 in judicial activism.

00:49:40.380 I do.

00:49:41.260 And I think it should never be done

00:49:42.520 under any circumstances,

00:49:43.560 but I do think the Supreme court

00:49:45.260 should never have had to reach

00:49:47.300 beyond the 15 weeks.

00:49:48.980 That's what was before

00:49:50.140 the Supreme court.

00:49:51.020 And everybody on this show

00:49:52.600 seems to think

00:49:53.540 that 15 weeks is reasonable.

00:49:55.860 Senator Rubio thinks 15 weeks.

00:49:57.560 The Europeans think 15 weeks. 0.96

00:49:59.500 Why did the Supreme court 0.85

00:50:00.620 have to jump into this

00:50:02.120 and say,

00:50:02.820 we're not going to decide

00:50:03.760 the case before us.

00:50:05.060 We're going to ban, 0.64

00:50:05.820 we're going to ban

00:50:06.940 Roe v. Wade,

00:50:08.080 overrule it,

00:50:08.980 and allow states,

00:50:10.640 allow states to be sure,

00:50:12.240 allow states

00:50:13.140 to abolish abortion completely.

00:50:15.440 That was judicial activism

00:50:17.240 overreaching.

00:50:18.780 And Sean,

00:50:19.360 you oppose judicial activism.

00:50:21.760 You should join me

00:50:23.220 and agree with Justice Roberts

00:50:25.340 that judicial activism

00:50:27.100 was at play here

00:50:29.000 and it was unnecessary

00:50:29.780 to go beyond

00:50:31.300 the 15-week Mississippi case.

00:50:33.340 Okay,

00:50:33.760 so the question is,

00:50:34.780 was this judicial activism?

00:50:36.260 Did the justices

00:50:36.980 abandon judicial restraint?

00:50:38.560 Or is Roberts 0.92

00:50:39.240 as nutty as we all think he is? 0.94

00:50:40.780 That's what we're going to talk about 0.91

00:50:41.580 on Cloak Room.

00:50:42.460 You can join us

00:50:43.160 at verdictwithtedcruz.com

00:50:45.020 slash plus.

00:50:46.060 If you use my promo code,

00:50:47.360 which is obviously Cloak Room,

00:50:48.660 you can get your first month

00:50:49.560 free on your annual subscription.

00:50:51.020 That is verdictwithtedcruz.com

00:50:53.260 slash plus.

00:50:54.200 Promo code Cloak Room.

00:50:55.360 Leave it to Alan Dershowitz

00:50:57.320 to have the single

00:50:58.500 least popular opinion

00:51:00.080 on this ruling.

00:51:02.080 It sounds very interesting,

00:51:03.000 though.

00:51:03.100 I look forward to

00:51:03.960 hearing the episode.

00:51:05.840 You know,

00:51:06.040 we had already taped

00:51:07.760 an episode

00:51:08.440 on another wonderful ruling

00:51:10.720 from the Supreme Court term.

00:51:12.440 We had already pre-taped that

00:51:13.720 the night before

00:51:14.380 this ruling came out.

00:51:15.520 So that episode

00:51:16.320 is going to be released

00:51:17.340 this coming week.

00:51:19.040 Just more to celebrate.

00:51:21.320 And so I will be

00:51:22.300 sitting back,

00:51:23.280 listening to

00:51:23.920 this wonderful discussion.

00:51:25.360 that will follow

00:51:26.480 this episode,

00:51:27.740 probably with a cigar

00:51:29.300 and maybe a drink

00:51:30.400 to really toast

00:51:31.580 and celebrate

00:51:32.180 this historic

00:51:33.300 and wonderful turn of events.

00:51:35.460 I'm Michael Knowles.

00:51:36.420 This is Verdict

00:51:36.960 with Ted Cruz.

00:51:46.320 This episode of Verdict

00:51:48.040 with Ted Cruz

00:51:48.880 is being brought to you

00:51:49.960 by Jobs, Freedom,

00:51:51.120 and Security Pack,

00:51:52.140 a political action committee

00:51:53.720 dedicated to supporting

00:51:54.880 conservative causes,

00:51:56.300 organizations,

00:51:57.200 and candidates

00:51:57.840 across the country.

00:51:59.240 In 2022,

00:52:00.440 Jobs Freedom

00:52:01.060 and Security Pack

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Verdict with Ted Cruz - June 26, 2022

Roe and Casey Are Overruled

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