Roe and Casey Are Overruled
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Summary
Ted Cruz reacts to the Supreme Court overruling Roe v. Wade, the landmark decision that legalized abortion in 1973, is overturned, and the authority to regulate abortion is returned to the people, the elected representatives of the people.
Transcript
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The Constitution does not confer a right to abortion.
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Roe and Casey are overruled, and the authority to regulate abortion is returned to the people
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It is the greatest political event of my lifetime.
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And we said, we need an emergency bonus verdict to discuss and to celebrate the Supreme Court's
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You have never lived a day on planet Earth without Roe v. Wade being the law of the land.
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And for 49 years, that was unshakable and unstoppable.
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And today, we've returned to what the country was for the first 185 years, which is the elected
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people, the elected representatives of the people, the voters, now have the right to decide
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That's how the Constitution was designed in the first place.
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But I got to just pause and reflect on the extraordinary efforts that led to yesterday's
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Millions of activists, an entire movement, millions of young women and old women and people
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marching in the March for Life every year, millions of grassroots activists who mobilized,
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who mobilized behind the campaign of Ronald Reagan, who mobilized behind the campaign of
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George Herbert Walker Bush, who mobilized behind the campaign of George W. Bush, who mobilized
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And this is the culmination of 49 years of work, of organizing, of mobilizing, of incredible
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And it's truly an extraordinary moment because a lot of us in the pro-life movement have wondered,
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I can't count how many times I've heard people raise those questions.
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These, you know, these damn politicians are just, they're just lying to us.
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It is the most consequential Supreme Court decision of the last 50 years since Roe in 1973 that,
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that, that, that started, started us on this journey.
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It is, I have to say, I didn't, I didn't expect it.
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Even, even, I didn't want to allow myself to hope that it could actually happen.
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Even after the leaked opinion, I still sort of thought it was 50-50.
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I didn't know if the people who showed up outside the justices' homes and the, the attempted
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assassination of Brett Kavanaugh and all the craziness, if that would succeed in, in bullying
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And so now I'd like your take, not just as someone who's been in the pro-life movement
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for a very long time, not even just as a U.S. senator, but as an expert on the Constitution,
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someone who has argued cases before the Supreme Court, someone who clerked for the chief justice.
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Because there's the opinion, there's the opinion of the court on the pro-life law that brought
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That was the Mississippi pro-life law, 6-3, all the conservatives joined by Chief Justice
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You've got Thomas, Alito, Barrett, Kavanaugh, and Gorsuch vote to overrule Roe and Casey.
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But then it gets even more complicated because Kavanaugh files his own concurring opinion, which
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Justice Thomas files his concurring opinion, which seems perhaps more ambitious.
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And then you've got the dissent from the liberals.
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I'm sorry, Chief Justice Roberts has his own concurring opinion.
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Well, let's let's walk through it and let's walk through it systematically.
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So I would encourage, look, many of you presumably are not lawyers.
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I would encourage you to sit down and read this opinion.
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Uh, Justice Alito wrote this opinion for the ages and yes, it is a legal opinion and a Supreme
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Court opinion, but it is designed to be accessible for a reader to walk through, not just why Roe
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was wrong, but, but it also explains how constitutional law is supposed to work.
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So the opinion begins, the first paragraph, Justice Alito talks about their three different
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There's one group that are convinced passionately that an unborn child is a human life that is
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precious, that needs to be protected, that has full rights.
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And he acknowledges there's another group that is just as passionate.
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They're just as heartfelt that are convinced an unborn child is not a human right.
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That, that abortion is about the liberty of a woman to control her body and her life.
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And then he points out there's yet a third group that is in neither of the two camps, but
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thinks that abortion should be allowed in some circumstances, but there should be some significant
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And he points out where those restrictions are run the gamut.
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One of the things that the majority opinion does a good job of doing is not denigrating those
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The majority opinion, I think it's fair to say, is not necessarily a pro-life opinion.
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We don't know any better than you do how to answer questions that are fundamentally moral
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questions or scientific questions or philosophical questions about whether an unborn child is
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It points out the first 185 years, those questions were decided by elected legislatures.
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And it points out, and we've talked about this before, on the second page, Justice Alito
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says, after cataloging a wealth of other information, having no bearing on the meaning of the constitution,
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The opinion concluded with a numbered set of rules, much like those that might be found
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And it's Harry Blackmun's opinion in Roe is really one of the worst judicial opinions
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And in fact, the majority opinion here then quotes John Hart-Ely, who was a revered liberal
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One prominent constitutional scholar wrote that he, quote, would vote for a statute very much
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like the one the court ended up drafting if he were a legislator.
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But he then describes Roe and says, Roe, quote, was not constitutional law at all and gave,
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quote, almost no sense of an obligation to try to be.
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Justice Byron White, who was one of the original dissenters in Roe.
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He was appointed to the court by President John F.
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But Justice White in Roe described the opinion as, quote, the exercise of raw judicial power.
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And one of the reasons so many conservatives felt frustrated is a lot of us thought Casey
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You had justices put on by presidents who had campaigned against Roe.
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And what happened is that three of them, Justice Kennedy, Justice O'Connor, and Justice Souter,
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shocked everyone and together wrote a joint opinion in Casey, reaffirming Roe.
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And look, the Casey opinion is another terrible opinion.
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It doesn't attempt to go through and say Roe was right.
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Instead, it just says under the principle of stare decisis.
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Stare decisis is a very important principle in law, which is that you respect precedents.
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So instead of Roe drew lines during the pregnancy of the first trimester, the second trimester,
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the third trimester, and it laid out the different standards.
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And it said only in the third trimester does the state have an interest in protecting what
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Well, Casey came in and said, all right, don't use the Roe standard anymore.
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Instead, what is permissible, what is impermissible, is a law that imposes an undue burden on a
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Now, the problem is, what the heck is the difference between a due burden and an undue burden?
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And so the majority opinion in Dobbs describes, says the decision provided no clear guidance
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about the difference between a due and an undue burden.
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But the three justices who authored the controlling opinion, quote, and this is one of the more
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Here's what Casey said, quote, called the contending sides of the national controversy
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to end their national division by treating the court's decision as the final settlement of
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the question of the constitutional right on abortion.
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So like philosopher kings on high, they say, you stupid people, stop bickering.
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You might think you have a right to engage, but you are wrong.
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Well, their assessment that suddenly after Casey, people would say, oh, okay, never mind.
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The operative paragraph of the opinion found on page five, we hold that Roe and Casey must
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The Constitution makes no reference to abortion and no such right is implicitly protected by any
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constitutional provision, including the one on which the defenders of Roe and Casey now chiefly
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rely, the Due Process Clause of the 14th Amendment.
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That provision has been held to guarantee some rights that are not mentioned in the Constitution,
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but any such right must be deeply rooted in this nation's history and tradition and implicit
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And actually, the court does a very good job of that.
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What is the source of the right to abortion?
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And in fact, as Dobbs says, Roe was egregiously wrong from the start.
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The source, though, I want to flip over to the discussion because it's, so Alito is particularly
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withering saying, okay, well, what part of the Constitution are you finding this newfound
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And the Dobbs opinion says, Roe expressed the, quote, feeling that the 14th Amendment was
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the provision that did the work, but its message seemed to be that the abortion right could
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be found somewhere in the Constitution and that specifying the exact location was not
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It's the emanation of the penumbra of the invisible ink.
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They say it's there and find it wherever you want to find it.
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Well, and in fact, they drop a footnote quoting from Roe of a provision that is just
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The court's words were as follows, quote, this right of privacy, whether it be founded
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in the 14th Amendment's concept of personal liberty and restrictions on state action, as
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we feel it is, no, this is not reasoning, this is not thinking, this is feelings, we
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feel it is, or as the district court determined in the 9th Amendment's reservation of rights
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to the people, is broad enough to encompass a woman's decision whether or not to terminate
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What the majority opinion does is systematically dismantles the reasoning in Roe.
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It's not explicitly protected in the Constitution, and it then says, okay, just because it's not
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explicitly protected, that doesn't mean it's not there.
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It might be implicitly protected, but if it's implicitly protected, there's got to be something
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implying, and so the court systematically goes through where does this come from, and the
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principal basis that the defenders of Roe and Casey allege that it comes from is the 14th
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Amendment to the Constitution, and in particular, the due process protection.
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The due process protection prohibits states from depriving people of life, liberty, or property
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without due process of law, and it is liberty in particular, and so the argument is, what
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is the liberty you cannot be deprived of without due process of law, and how do you determine
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Now, there are two different legal questions that let's walk through for a second, because
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they also highlight a disagreement that then comes up with Justice Thomas and his dissent.
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There's a notion called substantive due process, and there's a notion called procedural due process.
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Procedural due process is what the actual provision in the 14th Amendment and also the 5th Amendment
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protects due process against the federal government, the 14th Amendment protects due process against
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Procedural due process says the state can't take your life from you, can't take your liberty
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from you, can't take your property from you without due process of law, which means without
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a legal proceeding, without notice, without opportunity to be heard.
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There's got to be, they can't just come in and seize your stuff and say, ha ha, there's got
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to be a process, it protects procedural rights, which you would think, call it something saying
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we're protecting due process, would protect process.
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So that's the ordinary understanding of due process, but the Supreme Court has created a
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second category that is called substantive due process.
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And the idea is that there are some things that are just protected in substance, that it
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There have been many constitutional scholars and some justices that have argued substantive
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Um, John Hardeeley, I quoted before, had a great phrase also about substantive due process.
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He said, that's like saying green pastel redness because substantive and process are the opposite
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Like, like it doesn't mean anything to say, but what the majority opinion does, it doesn't
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do anything significant in changing substantive due process.
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He said, look, we've had lots of decisions that we've found things are protected by substantive
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due process, but they fall into two categories.
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One, are rights that are explicitly enumerated in the Bill of Rights that the court has incorporated
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And we, and we've talked about this before, how the Bill of Rights only applies to the federal
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government by its terms, but over the years, the Supreme Court has interpreted the due process
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clause to apply them against the states as well.
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So that's one mechanism and virtually every right in the Bill of Rights has now been incorporated
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and applies against the states and against local governments as well.
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That's a fairly straightforward way of, of determining.
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And what the court has essentially says is they're all packed into the word liberty in
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saying, no state shall deprive you of life, liberty, or property without due process of
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In addition to that, there are some unenumerated rights that are not in the Bill of Rights that
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the court has incorporated in, but it has required pretty strict, and the test it has laid out
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is whether a right is deeply rooted in our history and tradition, and whether it is essential
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And, and look, part of the reason is if you're just saying, what does liberty mean?
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If, if judges are allowed to define what they think liberty means, you can have lots of different
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definitions of liberty and very quickly judges become legislators saying, here's what I think
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And so part of the reason the court over the centuries has adopted this test is it's a way
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to constrain judicial power to say, okay, there will be implicit, uh, protections.
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And so, for example, on page 12 of the opinion, uh, in Dobbs, it talks about one example of incorporating
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And it says, Justice Ginsburg's opinion for the court in Tim's is a recent example in concluding
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that the eighth amendment's protection against excessive fines is quote, fundamental to our
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scheme of ordered liberty and deeply rooted in this nation's history and tradition.
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Her opinion traced the right back to the Magna Carta, Blackstone's commentaries, and 35 of
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the 37 state constitutions in effect at the ratification of the 14th amendment.
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So that's an example of what looking to those texts means as well.
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So this, this applies some limits, which obviously you would need because as you say, otherwise
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you would have these, these philosopher Kings on the Supreme court defining liberty, however
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But, but this issue of substantive due process does seem to me to be the point where all of
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the liberals, all of the, I shouldn't even say liberals, all of the pro abortion advocates
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are, are focusing their fire because it, and you even see this in the dissent, they're not even so much
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making a substantive argument for abortion rights, rights, quote unquote, as they are saying,
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if we get rid of this, we're going to have to overrule Griswold, which, which finds a constitutional
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We're going to have to overrule Lawrence v.
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Texas, which finds constitutional right to homosexual sodomy.
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We're going to have to overrule Obergefell, which finds a redefinition of marriage to include
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same-sex unions, all of which rely on substantive due process.
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And so then this question, the, the disagreement here between the court's majority opinion and,
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and then Thomas's concurrence, which goes further, this, this does seem to be the, the biggest
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And, and I think it's worth reflecting on what that tells us.
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It tells us that even the far left thinks abortion is not a winning issue for us.
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Like they're not arguing, many of them, they're not arguing the substance of this decision because
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they recognize that the vast majority of Americans favor at least some significant restrictions
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on abortions, that the positions of the left of unlimited abortion on demand up until the
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moment of birth, partial birth abortion with no restrictions is, is a fringe view, less
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And, and so smart liberals, which may be oxymoronic, but smart liberals and smart Democrats, they
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don't actually defend their view on this issue because they know it's unpopular.
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What they say is, well, what this means is all of these other decisions are going to be
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And, and I got to say the majority in Dobbs says, I think for separate time, no, it doesn't.
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We're not calling question into those opinions.
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Like it, at one point they say, we don't know how we could be any clearer.
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And, and, and the majority opinion points out, says, look, so, so the ones they focus on,
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they focus on contraception and you have two decisions, Griswold and Eisenstadt.
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Griswold was a right to access contraceptives for married couples.
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Eisenstadt was a right to access contraceptives for single people.
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They also focus on loving versus Virginia, which was a right to marry regardless of race.
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So inter, inter, inter, interracial marriage.
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And then they focus on, uh, Lawrence, the right to homosexual sodomy and consensual sexual acts
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between adults, uh, and then Obergefell gay marriage.
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And what the court says repeatedly is, look, those are all completely different decisions.
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Because none of them involve ending a human life.
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Uh, and so repeatedly the majority goes, jumps up and down and says, we are not calling into
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The left keeps saying, oh, but these other issues, I think they're telegraphing.
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Listen, if you had a referendum on, should we ban contraceptives in America?
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I mean, Michael, you might, but the rest of us would.
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The rest, I don't think there's a majority for it.
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And it, it also, it, it, I've talked to friends of mine who are gay, for instance, and who support
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You know, if they, if they went out to vote, they would vote to redefine marriage to, to
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And many of my gay conservative friends will say, yeah, all of that notwithstanding, Obergefell
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is a crap decision by the court that the court actually, it doesn't make a ton of sense.
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And, uh, so while I, I support this issue and I, I support it in the legislature and I would
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vote for people who are going to vote for this kind of thing, I, I don't think that's the role
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So one can be in favor of all sorts of outcomes of certain Supreme court cases and still oppose
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a, a principle that was made up in, in the 20th century that, that seems bogus from a judicial
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And you talked about, so justice Thomas wrote a concurrence.
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So the majority opinion is a majority opinion of the court.
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Justice Thomas wrote a concurrence in which he said he would go further and the court should
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He said, reconsider all of its substantive due process cases, basically.
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And he said for a long time, substantive due process is gobbledygook and we ought to reconsider
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Well, if you look at like, he's referred to, let's say the contraceptives law.
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So Griswold versus Connecticut was a Connecticut law that restricted the sale of contraceptives.
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Justice Thomas has referred to that as quote, an uncommonly silly law.
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He's on record saying, this is a stupid law.
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But he says the constitution doesn't prohibit silly laws.
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I think that is a right and principled legal distinction.
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But I also think it speaks volumes that Justice Thomas's concurrence was alone, that the other
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justices have no interest in going down that road.
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And the number of times the majority opinion says, no, no, no, no, no, no.
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And it's worth, look, the distinction the majority opinion makes is abortion ends a human life.
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Which is those opinions, unlike Roe, Roe created enormous societal divisions.
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People didn't listen to Casey's admonitions of just accept that you're wrong and put it behind you.
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Millions of people care passionately about this issue.
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None of these other issues have created that kind of long-lasting, multi-decade division.
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There are not, there's a march for life every year in D.C.
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There's not a march against condoms every year.
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But like, the rights at issue have not prompted the kind of massive societal disagreement the way that abortion uniquely has.
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And so, some commentators will leap on Justice Thomas's concurrence.
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But I think the chances that the court goes down that road are zero.
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He's arguing this would be the most principled way to interpret the Constitution.
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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.
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You know, it seemed clear to me reading his concurrence, which I thought was brilliant and marvelous.
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It seemed clear to me he's writing this for his principled stance and for law students.
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You know, this is not, this is not to persuade people right now in this moment in American politics.
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Before we get to the mailbag, I do think we have to touch on the Kavanaugh concurrence and the Roberts concurrence.
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Roberts basically says, yes, I vote to uphold the pro-life law.
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But come on, guys, do we really have to deal with Roe?
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And and then Kavanaugh's concurrence here doesn't seem all that different from the opinion of the court.
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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.
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The Supreme Court can outlaw abortion based on the 14th Amendment.
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Kavanaugh seems to just spend most of his concurrence rejecting that idea outright, although he doesn't call it out by name.
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So so Chief Justice Roberts concurs in the judgment.
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It means he agrees with the outcome of the of the case.
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And the judgment of the case is whether the decision below is affirmed or reversed.
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The judgment was that the Mississippi law banning abortion after 15 weeks is upheld.
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So he concurs in the judgment, in the conclusion that that law is valid.
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And he doesn't agree with the majority opinion.
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And what he says is we should just conclude that this law is OK.
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We should abandon Roe versus Wade's viability standard, which in Casey, they referred to as as the core holding of Roe.
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He said we should abandon the viability standard.
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But we should have a new standard that says, does a woman have a reasonable chance to get an abortion?
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And if she has a reasonable chance, then it's OK.
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And, you know, I got to say the majority opinion in Dobbs, it's interesting.
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One of the things I'm very glad about, much of the majority opinion is word for word identical to the leaked draft.
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I'm really glad Justice Alito changed very little.
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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.
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And virtually all of that leaked opinion is still in this draft.
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The main changes he did was responding to the other opinions.
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So there are passages that are responding to, for example, Chief Justice Roberts.
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Says, well, gosh, you say you want to do this for stare decisis.
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But then you're overruling Roe, the core holding of Roe.
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How exactly is that a decision for stare decisis if you're overruling the core holding of Roe?
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And the test you're putting out, a reasonable chance.
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He points out none of the parties advocated for it.
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And in fact, both sides in this litigation said, no, you've either got to overturn Roe or uphold it entirely.
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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?
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00:32:23.460
And this is all just you're just making this crap up.
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And I think Alito does a very effective job.
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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.
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And he goes on to say in a well-known essay, Isaiah Berlin reported that, quote, historians of ideas.
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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.
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So I just thought that those were very interesting points in Alito's majority opinion.
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And I'm quite confident I can't come up with 200 senses in which liberty has been used.
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.
00:34:07.480
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,
00:34:36.040
I mean, to me, it just seemed to have the opposite political effect of the one he may have intended.
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,
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and we'll try very hard to get someone to join him,
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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.
00:35:30.300
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
00:35:44.440
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,
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but given the historic and unprecedented leak designed to change the outcome,
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I believe the best way to protect the court is to say,
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.
00:36:40.000
Senator, what's your take on 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,
00:36:57.960
For it to be a majority opinion, five justices have to join it in full.
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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,
00:37:21.440
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,
00:37:38.260
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,
00:38:11.920
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
00:38:28.420
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,
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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.
00:39:36.120
And by the way, amicus is short for amicus curiae,
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.
00:40:11.300
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.
00:40:29.580
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,
00:40:35.640
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,
00:41:00.880
then equal protection protects you from the majority.
00:41:06.960
it is difficult to think of a more discreet and insular minority
00:41:13.240
are not able to speak out and defend themselves,
00:41:16.700
don't have an ability to engage in the political process
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.
00:42:10.300
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.
00:42:24.700
I suppose we have to touch on the liberals in the dissent.
00:42:35.860
What little I can make sense of in these legal arguments,
00:42:41.820
a whole lot of constitutional or legal arguments.
00:42:47.600
And I think the majority opinion eviscerates the dissent.
00:43:01.920
I mean, the reasoning, there's nobody that defends Roe.
00:43:07.060
And the dissent doesn't even really try to defend Casey
00:43:15.720
You know, the majority opinion explicitly addresses
00:43:23.220
but the court has many, many times overturned precedent.
00:43:36.180
And many, if not most of the biggest cases of the Supreme Court
00:43:47.860
this court has overruled important constitutional decisions.
00:43:53.180
And then they say something that is really powerful.
00:43:56.380
They say, without these decisions, overruling precedent,
00:44:20.960
You can't point to any constitutional provision
00:44:32.040
You can't point to any Supreme Court decisions.
00:44:41.880
The dissent can't say anything other than they do
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.
00:45:03.800
that I thought offered a really interesting perspective.
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
00:45:34.900
is the Democratic Party became radicalized on it.
00:45:41.220
on issue after issue is captured by their extremes.
00:46:02.380
usually you think of as being more liberal on issues.
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That, that, that, you know, those crazy youth,
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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
00:46:35.120
And I think the extremes of the Democratic Party
00:46:41.980
I also think the advance of scientific knowledge
00:47:01.640
in, in waging a political campaign against extremes.
00:47:06.820
I think focusing on partial birth abortion
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and, and that there's just something wrong
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