Verdict with Ted Cruz - July 05, 2022


The Cloakroom Preview： A response to Chief Justice Roberts


Episode Stats

Length

13 minutes

Words per Minute

162.7788

Word Count

2,226

Sentence Count

157

Misogynist Sentences

4

Hate Speech Sentences

5


Summary


Transcript

00:00:00.000 This is an iHeart Podcast.
00:00:02.540 Guaranteed human.
00:00:04.160 You're listening to a special interview of The Cloak Room,
00:00:07.220 a series with Liz Wheeler and Senator Ted Cruz
00:00:09.900 exclusively for Verdict Plus subscribers.
00:00:12.760 Each week, Liz is joined by Senator Ted Cruz
00:00:15.080 to pull back the curtain on the philosophy
00:00:17.000 that informs our political debates,
00:00:19.320 the stories that are reshaping our culture,
00:00:21.500 and the legal principles at play on America's stage and beyond.
00:00:25.780 To hear more of The Cloak Room,
00:00:27.040 become a Verdict Plus subscriber at verdictwithtedcruz.com slash plus.
00:00:32.340 All right, welcome back, everyone.
00:00:33.900 I'm Liz Wheeler.
00:00:34.560 This is The Cloak Room on Verdict Plus.
00:00:36.440 I'm sitting here with Senator Ted Cruz,
00:00:38.180 and this is such an amazing, insane time
00:00:41.280 to be alive in our country.
00:00:42.880 Roe v. Wade has just been overturned by the Supreme Court,
00:00:45.400 and I don't know about you, Senator,
00:00:47.220 but when I saw this news,
00:00:48.900 I was obviously following the Supreme Court
00:00:50.540 issuing their opinions,
00:00:51.500 and I'm on the West Coast right now.
00:00:53.720 I'm out in Santa Barbara, California,
00:00:54.820 so it was early in the morning.
00:00:55.820 It was just after 7 a.m.,
00:00:57.280 and I start frantically texting our producers,
00:00:59.680 are you awake?
00:01:00.300 Are you asleep?
00:01:00.980 Do you see what's happening?
00:01:01.920 This is absolutely bananas.
00:01:03.540 I don't think I'm ever going to forget that moment.
00:01:05.520 Yeah, no, it was extraordinary.
00:01:07.680 I was in D.C. at the time.
00:01:09.420 I had, the night before,
00:01:10.500 we had been late on the Senate floor
00:01:12.680 battling over gun control,
00:01:14.800 and then after that,
00:01:17.800 I had gone and filmed a verdict.
00:01:19.620 So we had Thursday night,
00:01:21.440 we did a verdict at 12.30 at night,
00:01:23.880 so we finished at,
00:01:26.060 I think I got home about 2 in the morning,
00:01:29.120 and so Friday morning,
00:01:30.780 I was still in D.C.
00:01:31.920 I was in my apartment
00:01:32.880 and saw the opinion came down,
00:01:35.400 and shortly thereafter,
00:01:36.540 I had a flight to Milwaukee.
00:01:38.520 I'm in Milwaukee right now
00:01:40.040 at a political conference
00:01:41.900 to energize and mobilize
00:01:44.540 grassroots activists here in Wisconsin,
00:01:46.560 but my flight wasn't until late afternoon,
00:01:50.680 so I actually played basketball for two hours
00:01:53.660 Friday morning with several guys on my staff,
00:01:57.760 and we played three-on-three
00:02:00.240 and four-on-four for a couple hours,
00:02:01.860 and then I jumped in the shower
00:02:05.120 and went and did a Fox hit
00:02:06.500 talking about the Dobbs ruling,
00:02:07.800 and then jumped on a plane
00:02:08.760 and flew to Milwaukee.
00:02:09.940 It's your first basketball game
00:02:11.180 in a post-Roe America.
00:02:12.820 Bet you never thought
00:02:13.460 that that would happen.
00:02:14.240 There you go,
00:02:14.900 and in fact,
00:02:16.060 on the plane,
00:02:17.060 I had with me this binder
00:02:18.840 with the full text of all of Dobbs,
00:02:21.160 and so I spent the entire flight
00:02:22.620 just reading carefully,
00:02:24.700 word for word,
00:02:25.680 the opinion in Dobbs,
00:02:26.600 which was pretty cool, too,
00:02:28.100 to go through it
00:02:30.040 and to try to,
00:02:31.120 although I will say,
00:02:32.420 a three-ring binder
00:02:33.780 on Southwest Airlines
00:02:36.260 with a guy in the middle seat next to you
00:02:37.720 is a little hard
00:02:38.520 to not jab him in the leg with,
00:02:40.300 so you try to somehow manage
00:02:42.600 to hold it
00:02:43.220 and your Diet Coke
00:02:44.060 all at the same time.
00:02:44.980 It wasn't easy.
00:02:45.960 That's when your Senate
00:02:46.580 negotiation skills come in.
00:02:48.020 You say,
00:02:48.340 I'll give you the armrest
00:02:49.840 if you don't mind
00:02:50.480 that my binder's going to be
00:02:51.820 whacking you the whole time.
00:02:53.620 I want to talk about
00:02:54.740 what the most unpopular
00:02:56.120 part of this opinion.
00:02:58.100 I read all 213 pages,
00:02:59.640 I think it was,
00:03:00.340 of the ruling as well.
00:03:01.500 It's beautifully written,
00:03:02.840 not the dissent.
00:03:03.800 The majority opinion
00:03:04.820 is beautifully written,
00:03:05.640 but I want to talk about
00:03:06.500 Robert's ruling for a second.
00:03:09.280 He voted to uphold
00:03:11.300 the Mississippi law,
00:03:12.600 which bans abortion at 15 weeks.
00:03:14.220 He voted not to overturn Roe v. Wade.
00:03:17.460 His reasoning is absurd.
00:03:19.340 It's ridiculous.
00:03:19.800 You and Michael talked about that
00:03:20.900 in depth on Verdict.
00:03:22.780 I highly recommend
00:03:23.440 if anybody hasn't watched that.
00:03:24.600 It's a really good episode
00:03:25.400 that you guys just filmed.
00:03:26.980 It hasn't aired yet,
00:03:28.140 but I sat here
00:03:28.700 and watched the whole thing
00:03:29.440 behind the scenes.
00:03:30.580 But Alan Dershowitz,
00:03:31.460 Harvard Law professor,
00:03:32.760 went on Fox News
00:03:33.780 and on Newsmax last night
00:03:35.080 and said that
00:03:35.980 Robert's was correct.
00:03:37.300 Now, Dershowitz is the only person
00:03:38.640 that I've heard
00:03:39.220 in the entire country
00:03:40.380 who says that Robert's is correct,
00:03:42.220 but his reasoning
00:03:43.540 is kind of legalistic
00:03:45.240 and something that I want us
00:03:46.160 to dig into.
00:03:48.300 I do,
00:03:49.060 and I think it should never be done
00:03:50.420 under any circumstances,
00:03:51.680 but I do think
00:03:52.320 the Supreme Court
00:03:53.140 should never have had
00:03:54.640 to reach beyond the 15 weeks.
00:03:57.020 That's what was before
00:03:58.040 the Supreme Court
00:03:58.900 and everybody on this show
00:04:00.500 seems to think
00:04:01.460 that 15 weeks is reasonable.
00:04:03.780 Senator Rubio thinks 15 weeks.
00:04:05.460 The Europeans think 15 weeks.
00:04:07.240 Why did the Supreme Court
00:04:08.540 have to jump into this
00:04:10.020 and say we're not going to decide
00:04:11.680 the case before us?
00:04:12.960 We're going to ban
00:04:13.660 Roe v. Wade,
00:04:16.000 overrule it,
00:04:16.720 and allow states,
00:04:18.540 allow states to be sure,
00:04:20.160 allow states
00:04:21.060 to abolish abortion completely.
00:04:23.140 That was judicial activism
00:04:25.140 overreaching.
00:04:26.880 And Sean,
00:04:27.260 you oppose judicial activism.
00:04:29.680 You should join me
00:04:31.140 and agree with Justice Roberts
00:04:33.220 that judicial activism
00:04:35.000 was at play here
00:04:36.920 and it was unnecessary
00:04:38.200 to go beyond
00:04:39.220 the 15-week Mississippi case.
00:04:41.140 So, Liz,
00:04:42.480 it may surprise you.
00:04:43.820 I actually don't think
00:04:45.320 either Roberts
00:04:46.980 or Dershowitz
00:04:48.100 are crazy
00:04:48.940 in what they're saying.
00:04:49.800 I think they have
00:04:50.420 a reasonable basis
00:04:51.340 for what they're saying.
00:04:52.180 I don't agree with it.
00:04:54.060 But it's not,
00:04:55.460 it's not a shocking thing
00:04:59.920 for them to be advocating for.
00:05:01.980 And the reason I say that,
00:05:03.180 I mean,
00:05:03.320 let's look at Roberts' reasoning.
00:05:04.700 Roberts approaches cases
00:05:06.280 and he's an incrementalist.
00:05:08.460 And there is a principle
00:05:10.220 of judicial restraint,
00:05:11.600 which is that the court
00:05:13.460 should not decide
00:05:14.760 any more than is necessary
00:05:16.680 to resolve the issue before it
00:05:18.580 in the case
00:05:20.280 that is being litigated.
00:05:22.000 That is a sound principle
00:05:24.140 of judicial restraint.
00:05:25.640 And it is the right way
00:05:28.040 to approach most issues.
00:05:32.360 That's what Dershowitz
00:05:33.720 is focusing on there as well.
00:05:35.500 Now,
00:05:36.340 what I especially don't agree with
00:05:38.000 is Dershowitz saying
00:05:39.060 this is judicial activism.
00:05:40.400 I think that is,
00:05:42.160 that's being provocative.
00:05:44.500 And as you know,
00:05:45.400 I know,
00:05:46.060 I know Dershowitz very well.
00:05:48.220 He was my criminal law professor
00:05:49.360 and he's a friend.
00:05:50.880 I think he's being
00:05:51.980 deliberately provocative with that.
00:05:53.480 I don't think he's right.
00:05:56.020 But the instinct of
00:05:58.000 don't do more than is necessary
00:05:59.840 is a sound judicial instinct.
00:06:03.360 So why do I think
00:06:05.060 it wasn't right here?
00:06:06.060 Well,
00:06:07.260 I would commend people
00:06:08.620 to read the majority opinion
00:06:10.460 where on pages 72
00:06:12.600 and the next several pages
00:06:13.940 of the opinion,
00:06:15.360 the majority opinion
00:06:16.400 squarely addresses
00:06:17.800 what Chief Justice Roberts
00:06:19.960 advocated for,
00:06:21.180 which was
00:06:22.020 uphold the Mississippi statute,
00:06:24.380 but don't overturn Roe.
00:06:25.460 And I think the majority opinion
00:06:28.400 dismantles the argument
00:06:29.800 as a legal matter.
00:06:31.800 What does the majority point out?
00:06:32.980 It points out,
00:06:33.740 number one,
00:06:34.260 Roberts doesn't attempt
00:06:35.140 to defend Roe's reasoning.
00:06:36.380 Nobody does.
00:06:38.520 Number two,
00:06:39.340 Roberts doesn't even
00:06:40.340 pretend to defend
00:06:41.520 Casey's reason.
00:06:43.660 Instead,
00:06:44.520 he grounds his argument
00:06:45.640 on stare decisis,
00:06:46.840 which Casey did as well.
00:06:47.900 But stare decisis
00:06:50.780 means not overturning decisions.
00:06:54.180 And what Roberts advocates
00:06:56.120 would overrule much of Roe.
00:06:59.860 So what he says is,
00:07:03.540 well,
00:07:04.360 okay,
00:07:04.760 Roe
00:07:05.280 prohibited restrictions
00:07:07.440 on abortion
00:07:08.100 before viability.
00:07:09.700 He said,
00:07:10.540 we should get rid
00:07:11.240 of the viability
00:07:12.000 requirement,
00:07:14.700 but we should,
00:07:16.740 here's what the majority,
00:07:18.260 how the majority puts it.
00:07:19.360 The concurrence
00:07:20.100 would leave for another day
00:07:21.540 whether to reject
00:07:23.220 any right
00:07:23.940 to an abortion at all
00:07:25.080 and would hold
00:07:26.000 only
00:07:26.600 that if the Constitution
00:07:28.180 protects any such right,
00:07:30.520 the right ends
00:07:31.640 once women have had
00:07:33.420 a, quote,
00:07:34.120 reasonable opportunity
00:07:35.500 to obtain an abortion.
00:07:37.660 The concurrence
00:07:38.260 does not specify
00:07:39.120 what period of time
00:07:40.200 is sufficient
00:07:40.840 to provide such an opportunity.
00:07:43.380 But it would hold
00:07:44.860 that 15 weeks,
00:07:46.480 the period allowed
00:07:47.220 under Mississippi's law,
00:07:48.300 is enough,
00:07:49.700 at least, quote,
00:07:51.060 absent rare circumstances.
00:07:54.340 So,
00:07:56.300 Roberts is proposing
00:07:57.500 overrule a big chunk of Roe
00:07:59.620 but create this new
00:08:02.040 reasonable opportunity rule
00:08:03.700 which,
00:08:05.800 notably,
00:08:06.720 he doesn't
00:08:08.580 find anywhere
00:08:10.220 in the Constitution.
00:08:11.440 He doesn't find anywhere
00:08:12.460 in the Supreme Court's precedence.
00:08:13.800 He doesn't find anywhere
00:08:15.020 in anything
00:08:15.680 resembling law.
00:08:17.340 He just makes it up.
00:08:19.180 Says,
00:08:19.480 well, gosh,
00:08:19.840 if we make up this rule,
00:08:21.700 then we don't have to
00:08:23.460 overrule Roe.
00:08:24.340 that...
00:08:29.020 Isn't that being
00:08:30.000 a legislator, though?
00:08:31.000 Yes.
00:08:31.820 That's exactly what,
00:08:32.800 and it's what Roe did.
00:08:34.400 He's got a new standard.
00:08:35.960 He thinks he's smarter
00:08:36.860 than Harry Blackmun.
00:08:37.760 He is unquestionably
00:08:39.120 smarter than Harry Blackmun.
00:08:42.560 Aren't we all?
00:08:43.300 And so he likes,
00:08:44.180 he likes his standard
00:08:45.300 and his standard,
00:08:46.640 this reasonable opportunity standard,
00:08:48.520 but it is not,
00:08:50.420 you know,
00:08:50.800 the majority opinion
00:08:51.800 points out
00:08:54.340 the rule
00:08:55.680 that Roberts is advocating,
00:08:57.920 the concurrence
00:08:58.740 would do exactly
00:09:00.020 what it criticizes
00:09:01.080 Roe for doing,
00:09:02.580 pulling, quote,
00:09:03.580 out of thin air
00:09:04.640 a test that, quote,
00:09:06.860 no party
00:09:07.500 or amicus
00:09:08.620 asked the court to adopt.
00:09:10.360 So neither of the parties
00:09:11.620 in this case
00:09:12.520 asked for that.
00:09:13.840 None of the amici,
00:09:14.960 I think there were 130 amici,
00:09:16.340 none of them
00:09:17.000 put forward this theory,
00:09:18.700 but look,
00:09:19.200 John Roberts
00:09:19.680 is a very smart man.
00:09:21.300 He came up
00:09:21.800 with his own theory.
00:09:22.540 He's like,
00:09:22.800 well, let's go
00:09:23.260 with this one instead.
00:09:25.340 And
00:09:25.900 it's based on
00:09:31.000 the idea
00:09:34.860 that
00:09:35.540 they don't have
00:09:39.500 to do anything
00:09:40.280 that will be seen
00:09:41.500 as politically
00:09:42.240 as traumatic
00:09:43.080 as overturning Roe,
00:09:44.680 but Roberts
00:09:45.720 is advocating
00:09:47.000 overturning
00:09:47.880 what the court
00:09:49.660 and Casey
00:09:50.200 called
00:09:50.680 the central holding
00:09:52.100 of Roe,
00:09:52.640 which is the
00:09:54.140 viability standard.
00:09:56.560 And Roberts
00:09:57.000 wants to get rid
00:09:57.820 of the central holding.
00:09:59.360 Well,
00:10:00.060 if you're getting rid
00:10:01.240 of the central holding
00:10:02.480 of a case,
00:10:03.660 you're overturning
00:10:04.960 the case.
00:10:05.400 like his proposed
00:10:08.000 minimalism
00:10:08.800 isn't very minimal.
00:10:12.940 And it would create
00:10:14.340 a whole new host
00:10:15.760 of problems
00:10:16.500 that are likewise
00:10:17.540 not found
00:10:18.740 in the law
00:10:19.480 or the Constitution.
00:10:20.340 And this is why,
00:10:21.140 Liz,
00:10:21.960 what Dershowitz
00:10:22.680 says is wrong.
00:10:23.480 He calls it activism.
00:10:24.340 Activism is a court
00:10:26.080 imposing its own
00:10:27.200 policy preferences
00:10:28.280 and not following
00:10:30.880 the law.
00:10:31.780 Let me ask you
00:10:32.300 about the leaker,
00:10:33.080 though.
00:10:33.280 This has gone out
00:10:33.980 of the news
00:10:34.280 very quickly.
00:10:35.080 The left was not
00:10:35.840 interested in discussing
00:10:36.800 the identity
00:10:37.460 of who this person
00:10:38.900 that publicized
00:10:40.160 gave to the media
00:10:41.040 the draft majority opinion,
00:10:42.720 which, by the way,
00:10:43.320 is very, very similar
00:10:44.420 to Alito's final draft
00:10:46.720 of his majority opinion,
00:10:48.020 which I was glad
00:10:49.100 to see that they
00:10:49.640 weren't bullied
00:10:50.140 into changing
00:10:52.200 any of their verbiage,
00:10:53.040 any of their language,
00:10:53.680 any of their arguments
00:10:54.280 based on this.
00:10:55.540 What do you think
00:10:56.160 the proper course
00:10:56.880 of action is now
00:10:57.740 regarding this leaker?
00:10:58.680 Should we continue
00:10:59.240 to investigate?
00:11:00.020 Should the name
00:11:00.500 be revealed publicly?
00:11:01.580 Should this person
00:11:02.620 be prosecuted?
00:11:03.580 And will they?
00:11:04.340 Yes, yes, yes,
00:11:05.740 and I don't know.
00:11:08.320 Look, the investigation
00:11:09.760 should continue.
00:11:10.900 Roberts has announced
00:11:11.760 that the court
00:11:12.380 has launched
00:11:12.860 an investigation.
00:11:13.960 The marshal's office
00:11:14.760 is leading the investigation.
00:11:17.480 I think it's critical
00:11:18.580 that we find out
00:11:19.320 who the leaker is.
00:11:20.120 I think their name
00:11:20.740 needs to be made public.
00:11:21.900 I think they need
00:11:22.500 to be criminally prosecuted
00:11:25.180 to the maximum extent possible.
00:11:29.220 Will it happen?
00:11:30.520 I don't know.
00:11:32.000 The marshal's office,
00:11:33.500 generally speaking,
00:11:34.260 doesn't have a whole lot
00:11:35.280 of experience
00:11:36.120 investigating crime.
00:11:38.020 That's not their...
00:11:39.340 Their principal focus
00:11:40.540 is protecting the court,
00:11:41.700 which is a different...
00:11:42.600 It is a law enforcement function,
00:11:44.100 but it is not...
00:11:45.260 It is not typically investigatory.
00:11:47.760 So I don't know
00:11:51.680 how effective
00:11:52.320 the marshal's office
00:11:53.200 will be at the investigation.
00:11:56.640 I also don't know.
00:11:57.940 There's been no public reports
00:11:59.140 about how much
00:11:59.760 the law clerks
00:12:00.360 are cooperating.
00:12:01.180 So, for example,
00:12:01.860 it's been reported
00:12:02.700 that the clerks
00:12:03.860 were asked to sign
00:12:05.360 a statement,
00:12:06.540 presumably saying
00:12:07.400 they did not hand
00:12:08.160 the opinion over to anyone.
00:12:09.860 I don't know
00:12:10.580 if there are clerks
00:12:11.200 who refuse to sign it.
00:12:12.300 I don't know the...
00:12:13.860 And nobody knows
00:12:15.120 outside the court
00:12:15.940 what has happened.
00:12:17.500 But I think it is critical
00:12:19.460 both for the long-term
00:12:21.220 integrity of the court
00:12:22.060 and for the rule of law
00:12:22.940 that we find
00:12:23.680 and prosecute the leaker.
00:12:24.800 I hope that happens.
00:12:26.460 On the question
00:12:27.420 of prosecution,
00:12:28.640 it will depend
00:12:29.900 on Merrick Garland's
00:12:30.940 Justice Department.
00:12:32.080 And unfortunately,
00:12:33.600 this Justice Department
00:12:34.660 has been so political
00:12:36.060 that I could easily see
00:12:38.760 the Department of Justice
00:12:39.720 refusing to prosecute it.
00:12:41.440 I hope they don't.
00:12:43.440 But I think that's a risk.
00:12:45.340 Step number one
00:12:46.080 is find the leaker.
00:12:47.820 And then step number two
00:12:49.940 should be ensuring
00:12:51.660 that there are real
00:12:52.940 and meaningful consequences
00:12:54.180 for the gross violation
00:12:57.100 of duty to the court
00:12:59.060 and to the rule of law.
00:13:00.720 All right.
00:13:00.940 Verdict clause members,
00:13:01.780 weigh in.
00:13:02.240 Post below.
00:13:03.020 Do you think
00:13:03.520 that we're going to find out
00:13:04.100 who the leaker is,
00:13:04.920 the identity of this person?
00:13:06.080 And if so,
00:13:07.000 do you think
00:13:07.560 that they will be prosecuted?
00:13:08.720 Do you think Merrick Garland
00:13:09.740 will do anything or not?
00:13:11.620 And if so,
00:13:12.620 what do you think
00:13:13.040 the charges will be
00:13:14.060 or should be?
00:13:15.120 Comment below, weigh in.
00:13:16.140 I'm really interested
00:13:16.660 in everybody's opinion.
00:13:17.720 Also, a little behind
00:13:19.120 the scenes going on here.
00:13:20.180 The senator is at
00:13:21.160 an activism conference
00:13:22.160 in Wisconsin right now,
00:13:24.040 and his staff is about
00:13:24.860 to pull him up
00:13:25.440 out of the chair
00:13:25.900 because we've run so late
00:13:27.080 talking about this topic.
00:13:28.460 So, Senator,
00:13:28.920 I'm going to let you go.
00:13:30.320 Thank you, everyone,
00:13:31.180 for watching.
00:13:31.560 This was a really
00:13:32.040 great discussion.
00:13:33.080 I'm Liz Wheeler.
00:13:34.040 This is The Cloak Room
00:13:34.980 on Verdict Plus.
00:13:36.940 This is an iHeart Podcast.
00:13:39.780 Guaranteed human.