Verdict with Ted Cruz - January 09, 2022


The End of a Grievous Error

Topics
save time and money with Stamps.com viability Roe V. Wade unborn child rights debate safe haven laws and adoption options
Hosted by
Ted Cruz
Mentioned
Casey John Roberts Amy Coney Barrett Thomas Anthony Kennedy Kagan Breyer Harry Blackmun David Souter Lawrence Scalia Plessy Sonia Sotomayor Reagan Bush Alito Brown Ruth Bader Ginsburg Elizabeth Warren Richard Nixon Maisie Hirono and 13 more
Hindsight Is 2021 Who Is Ray Epps？

Episode Stats


Length

52 minutes

Words per minute

164.34

Word count

8,568

Sentence count

584

Harmful content

Misogyny

10

sentences flagged

Toxicity

8

sentences flagged

Hate speech

12

sentences flagged


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

Ted Cruz gives his thoughts on Roe v. Wade, Dobbs v. Jackson, and why he thinks the Supreme Court will likely uphold it. He also gives his take on the legal arguments and reactions from the justices in the case.

Transcript

Transcript generated with Whisper (turbo).
Misogyny classifications generated with MilaNLProc/bert-base-uncased-ear-misogyny .
Toxicity classifications generated with s-nlp/roberta_toxicity_classifier .
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
Topics generated with Qwen2.5-3B-Instruct.
Hosts, guests, and mentioned names generated with spaCy (en_core_web_sm), reconciled against Wikidata.
00:00:00.000 This is an iHeart Podcast.
00:00:02.540 Guaranteed human.
00:00:04.300 After 48 years, the United States may be coming to the end of an error, a grievous error.
00:00:10.380 One of the most grievous errors, if not the single most grievous error, in the history
00:00:14.700 of the United States.
00:00:16.620 The Supreme Court has just heard oral arguments in Dobbs v. Jackson Women's Health Organization
00:00:23.280 and, in the coming year, could very possibly overturn Roe v. Wade.
00:00:29.020 This is Verdict with Ted Cruz.
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00:03:16.120 Welcome back to VERDICT.
00:03:17.780 I'm Michael Knowles.
00:03:19.400 And we are going to get into the legal arguments and the precedent and Roe and Doe and Casey
00:03:25.560 and all of the law stuff that I don't really know anything about.
00:03:29.340 But something I do know a lot about is personality.
00:03:31.540 And frankly, I think what a lot of this case is going to come down to are the justices.
00:03:36.540 So last month, we heard the oral arguments where the lawyers made their case.
00:03:41.580 Senator, since you're the one who actually knows some of these people, you have argued
00:03:45.680 cases before the Supreme Court, what is your take on the questions and reactions from the
00:03:51.900 justices?
00:03:52.820 Well, listen, the short answer is I'm quite optimistic.
00:03:55.800 And I am very pleasantly surprised.
00:03:58.520 Going into argument, I was worried about this case.
00:04:02.280 And I'm still worried, but I'm much more optimistic today than I was before the argument.
00:04:06.920 Uh, if you look at the court right now, we've got nine justices on the court, there are only
00:04:14.080 two that I am absolutely confident, uh, going into argument, uh, we're going to number one
00:04:22.460 vote to uphold, uh, the state law in question, the, the ban on abortions after 15 weeks.
00:04:29.460 But number two, even more fundamentally, there were only two justices that, that I was certain
00:04:34.860 we're going to vote to overturn Roe versus Wade.
00:04:38.580 Um, coming out of the argument, I'm much more optimistic than that.
00:04:42.220 The, the, the two that I'm confident about are Justice Thomas, uh, and Justice Alito, both
00:04:46.840 of whom have been clear and explicit, uh, that they believe Roe was wrongly decided and should
00:04:51.260 be overturned.
00:04:52.900 Um, the justices that I was far less confident about, uh, are Chief Justice Roberts, uh, and
00:05:00.860 then the three Trump justices, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett.
00:05:06.080 Um, those are the justices really that are in play.
00:05:11.120 The remaining justices on the left, their votes are clear.
00:05:15.340 They're going to vote to strike down the state law.
00:05:17.320 They're going to vote to reaffirm Roe versus Wade.
00:05:20.860 Uh, there's no, no, no doubting where their votes are coming out of the argument though.
00:05:26.320 I'm actually quite encouraged.
00:05:27.540 Uh, the questions seem to lean quite heavily, uh, in the direction of affirming the state
00:05:35.740 law.
00:05:36.600 Uh, so the good news is at this point, having listened to the argument, I would be shocked
00:05:43.580 and even astonished if the Supreme court struck down the state law prohibiting abortions after
00:05:50.160 15 weeks.
00:05:50.920 So that's a big deal.
00:05:52.340 That's a major victory.
00:05:54.320 Uh, and I think there is a very real possibility that this court would, will do what the court
00:06:01.340 has been unwilling to do for, for nearly 50 years, which is overturn Roe versus Wade and
00:06:08.380 return the authority to make decisions and determinations and laws concerning abortions,
00:06:14.120 return them to the states and return them to the people. 0.99
00:06:16.800 And, and it's worth noting at the outset, the consequences of overturning Roe are not
00:06:24.980 that abortion is suddenly illegal.
00:06:26.720 A lot of people don't understand they hear overturn Roe versus Wade, it kind of startles
00:06:30.420 them.
00:06:30.660 That sounds like a, sounds like an extreme and shocking thing.
00:06:35.120 For most of our country's history, abortion was a matter that was regulated at the state
00:06:40.460 level and different states could adopt different laws.
00:06:42.780 And they did.
00:06:44.420 And in 1973 and Roe versus Wade, the Supreme court changed all that.
00:06:49.880 And, and it struck down, actually struck down Texas's law, uh, that protected the life of
00:06:55.040 an unborn child.
00:06:56.300 And it, it issued a decision that, that, that I believe was lawless, that that was wrong,
00:07:01.560 that was not tethered to the constitution.
00:07:03.340 Uh, as we've talked about a lot on this pod, the book I wrote last fall, one vote away, how
00:07:10.620 a single Supreme court seat can change history.
00:07:12.680 There's an entire chapter on that book focused on life.
00:07:15.860 And it begins with Roe versus Wade.
00:07:18.240 Um, I think that decision profoundly and perhaps irreparably politicized the Supreme court.
00:07:24.740 And it, it brought us into this world of deeply political nasty Supreme court confirmation fights,
00:07:33.580 because if you have nine unelected lawyers decreeing the law for, for 330 million Americans
00:07:42.580 and, and, and determining what they can make rules about and what they can't, that, that
00:07:47.660 significantly compromised the independence and the integrity and the judicial nature of
00:07:55.080 the court.
00:07:55.980 I hope they overturn Roe and I've got some, some real sense of optimism that they're going
00:08:00.360 to.
00:08:01.240 Senator, before we get into it, I, I tell you, I know that you're a constitutional scholar.
00:08:06.180 You've argued before the court, you're a Senator.
00:08:07.880 Me, you know, I'm just some guy I've, I've listened to the oral arguments, read the history,
00:08:11.560 but I am reliably informed.
00:08:13.980 We are not allowed to have an opinion on this matter because this is a woman's issue and 1.00
00:08:18.660 all women love abortion and all women totally love Roe v. Wade. 0.63
00:08:21.920 So Liz, uh, since you are the only woman that we have for miles around here, uh, is that, 1.00
00:08:27.280 that's all true.
00:08:27.880 We got to uphold Roe abortions great and, and we men need to shut up. 0.76
00:08:31.720 Well, I can reliably inform you as a woman, Michael, that, uh, that is fake news that all 0.99
00:08:36.280 women do not like Roe v. Wade, do not need abortion to succeed. 1.00
00:08:40.280 But you actually bring up an interesting point because listening to these arguments in front
00:08:44.940 of the Supreme court, I was frankly surprised at how weak the arguments from the pro-abortion
00:08:51.100 side was.
00:08:52.380 They essentially focused on two things.
00:08:54.140 They focused on the very unscientific argument, I guess, if you even want to call it an argument,
00:08:59.080 um, that this was about a woman's body instead of differentiating that, of course, the unborn
00:09:02.840 child is a separate body, that there are competing interests between that child and that mother.
00:09:07.360 Um, but also in Senator, maybe you can speak to this a little bit.
00:09:11.320 They, they kept categorizing Roe as being the super precedent that because it is quote unquote
00:09:17.140 settled law, that it simply cannot be overturned.
00:09:20.180 This is not true in the history of our nation.
00:09:23.000 Well, it's not.
00:09:24.120 And, and, uh, the Supreme court has overturned a lot of precedents over the 200 plus years of
00:09:29.400 our nation's history.
00:09:30.240 Uh, the justice that leaned in the hardest on saying that was justice Breyer.
00:09:34.880 And listen, he was trying to find a way to save Roe.
00:09:38.560 Uh, and his argument, uh, his argument really, really stemmed from the decision in Casey.
00:09:45.880 So, so a little bit of the history.
00:09:48.140 Roe was 1973.
00:09:50.140 Uh, it struck down essentially all the laws across the country that, that banned abortion.
00:09:55.760 Uh, it was a seven, two decision.
00:09:58.540 It was written by Harry Blackman, uh, who had been an appointee of Richard Nixon and a
00:10:03.980 Republican appointee.
00:10:05.620 Um, and Blackman had previously been general counsel of the Mayo Clinic and, and Blackman
00:10:13.160 was, was not a distinguished jurist.
00:10:15.720 Um, he, he was one of the least distinguished members to ever serve on the court.
00:10:20.220 And the Roe versus Wade opinion is a terrible opinion.
00:10:23.720 Uh, it, it, it doesn't derive from the constitution.
00:10:26.460 It barely purports to, and, and Roe versus Wade set up this, this trimester formula.
00:10:33.940 Uh, in the first trimester, the state had almost no leeway regulating abortion.
00:10:37.880 In the second trimester, they had more.
00:10:39.760 And in the third, they had significantly more.
00:10:43.000 That's, that doesn't come from the constitution.
00:10:44.940 It doesn't come from the bill of rights.
00:10:46.000 Uh, but it was invented in Roe versus Wade.
00:10:51.720 Fast forward to 1992, 1992, you've had 12 years of Reagan Bush.
00:10:59.320 You've had multiple Republican justices appointed to the court.
00:11:03.060 You had Sandra Day O'Connor appointed to the court. 0.81
00:11:05.120 You had Justice Scalia appointed to the court.
00:11:08.720 You had Anthony Kennedy appointed to the court.
00:11:12.160 You, you had David Souter appointed to the court.
00:11:14.720 And in 1992, the decision that everyone thought was going to overturn Roe versus Wade was a decision called Casey.
00:11:27.260 And at the time, you know, it's a little bit like where we are now.
00:11:30.660 It's part of, part of why conservatives are wary, even though the argument seems good.
00:11:35.000 The argument seemed good in Casey.
00:11:37.600 Casey concerned the state of Pennsylvania had a whole series of laws they passed that were some fairly modest restrictions on abortion.
00:11:45.720 So, for example, Pennsylvania required parental consent for a minor to get an abortion.
00:11:51.620 Pennsylvania required informed consent before a woman could get an abortion. 0.99
00:11:57.600 Pennsylvania required a 24-hour waiting period.
00:12:00.200 Pennsylvania also required spousal notification.
00:12:06.020 And when the case went up there, almost every observer said Roe versus Wade is going to be overturned.
00:12:11.480 Well, what happened, it wasn't overturned.
00:12:15.280 Casey, Casey reaffirmed Roe.
00:12:19.400 And it upheld most of the different Pennsylvania laws.
00:12:24.220 So, it upheld the parental consent aspect.
00:12:26.300 It upheld informed consent.
00:12:28.020 It upheld the 24-hour waiting period.
00:12:30.380 But it struck down spousal notification.
00:12:33.420 And in Casey, you had three justices, O'Connor, Kennedy, and Souter, who wrote this joint opinion, which is very strange.
00:12:41.820 Normally, an opinion is signed by one justice.
00:12:43.940 None of them signed it.
00:12:45.540 They wrote it together as a joint opinion because they were, I think, really trying to hide from accountability for what they were saying.
00:12:53.500 And they threw out Roe's trimester system. 0.99
00:12:57.000 And they replaced it with a new standard called undue burden.
00:13:00.500 And we'll talk about that more in a minute.
00:13:01.700 But Casey talked a lot about how Roe was a super precedent, that it had a high threshold to be overturned.
00:13:10.860 And so, Justice Breyer kept repeating the portions of the Casey opinion, saying Roe was a super precedent because he's trying very hard to preserve it.
00:13:22.900 I'm not sure his arguments were very persuasive to his colleagues, though.
00:13:26.380 We actually have a lot of great questions about this case specifically from our Verdict Plus subscribers.
00:13:32.540 People are very interested in the nitty-gritty, the legality of this, not just the cultural aspect of abortion.
00:13:37.940 Before we get to that, we've compiled a bunch of video clips, or not video clips, audio clips, from the Supreme Court oral arguments to address some of these questions.
00:13:46.800 So I want to toss this to Michael.
00:13:48.640 Great.
00:13:49.120 All right, Liz, we'll get back to you a little bit with the mailbag.
00:13:51.440 And, Senator, what you've laid out here has actually, it's made me even more confused.
00:13:58.700 It's not your fault.
00:13:59.600 It's just the history of the way these decisions have gone on at the court.
00:14:03.700 So we've got Roe.
00:14:05.600 We've got Doe, which is different than Roe, I take it. 0.94
00:14:08.940 And then later on, we've got Casey.
00:14:11.500 And all of this affirms some right to an abortion.
00:14:15.840 But the justification for the right to an abortion kind of changes.
00:14:19.580 I guess, actually, Justice Thomas, now in the Dobbs questioning, gets to the heart of this question.
00:14:25.840 He says, what right is this really about?
00:14:30.640 Take a listen.
00:14:31.640 What constitutional right protects the right to abortion?
00:14:37.680 Is it privacy?
00:14:39.360 Is it autonomy?
00:14:40.700 What would it be?
00:14:41.580 It's liberty, Your Honor.
00:14:43.780 It's the textual protection in the 14th Amendment that a state can't deprive a person of liberty without due process of law.
00:14:51.260 And the court has interpreted liberty to include the right to make family decisions and the right to physical autonomy, including the right to end a pre-viability pregnancy.
00:15:00.080 So, simple question from Justice Thomas, what right are we talking about?
00:15:04.340 If I talk about the right to have a gun, I can point to the Second Amendment and say, there's my right to have a gun.
00:15:08.700 What is the right?
00:15:09.400 The right is abortion. 0.96
00:15:10.320 And she says, no, it's liberty in the 14th Amendment, maybe applied differently depending on the case you're talking about.
00:15:18.800 So what, Senator, please help me.
00:15:20.360 What is she talking about?
00:15:21.160 So let me say at the outset that I love Justice Thomas's voice, the deep, gravelly voice.
00:15:29.280 And I'll tell you, I've been blessed.
00:15:30.980 I know Justice Thomas fairly well and spend time with him.
00:15:34.420 When he laughs, it is like Santa Claus.
00:15:37.820 It is the most unbelievably deep, ho, ho, ho, that is just spectacular.
00:15:45.480 And he is a true American hero.
00:15:51.160 Um, the reason he asked that question is because if you look at the Constitution, if you look at the Bill of Rights and you go look for the word abortion, you don't see it.
00:16:02.380 Um, if you look for pregnancy, you don't see it.
00:16:06.480 Uh, if you look for any authority for restricting and restricting and preventing states from, from protecting unborn life, you don't see it.
00:16:19.440 And there's a reason for that, which is that many of the states did so, that that had been the case for 150 years of our nation's history, that the states had the authority, uh, to prohibit abortion.
00:16:30.260 You know, the Hippocratic oath, you know, the oath that doctors take, every doctor takes, says, I will not help a woman procure abortion. 0.99
00:16:37.100 Um, so there had been centuries of, of legal precedent that the states had the authority to do this.
00:16:46.860 So how did we get to Roe?
00:16:48.300 Well, to, to understand how we get to Roe, you have to get to a, you have to start with a decision called Griswold versus Connecticut, which was one of the precursors to Roe.
00:16:55.920 Okay.
00:16:56.820 And, and it was a manufactured case.
00:16:59.320 It actually came out of Yale Law School.
00:17:00.780 Your alma mater teed up Griswold versus Connecticut.
00:17:03.240 And, and it was a, a woman who went to purchase contraceptives, was denied the, the, the, the ability to purchase contraceptives pursuant to a state law that was rarely, if ever, enforced.
00:17:16.440 But they went and found someone to enforce it so that they could tee up this test case.
00:17:20.680 The Supreme Court in Griswold versus Connecticut struck down the prohibition on contraceptives. 1.00
00:17:27.680 Um, look, I think a prohibition on contraceptives is incredibly stupid. 1.00
00:17:33.440 It is very bad policy. 0.99
00:17:35.540 Uh, I don't know any rational person in this country who believes contraceptives should be illegal.
00:17:41.680 Well, we'll get into it later.
00:17:42.820 I'm sorry.
00:17:43.120 We'll get into it later, Senator.
00:17:44.360 No, let's go on.
00:17:45.600 Even Michael Knowles, I don't think believes that.
00:17:48.940 Um.
00:17:49.420 Um, depends on what year you ask me, you know, as a young man.
00:17:52.560 I said, no, yes.
00:17:53.600 But Griswold, actually the reasoning, it, it, it said, and this is where the court got a little metaphysical.
00:18:01.980 It said, it, it, it, it was the first major decision that created what's called the right to privacy.
00:18:08.280 And Justice Thomas in that clip refers to the right to privacy.
00:18:11.100 And, and the word privacy doesn't appear in the Constitution either.
00:18:15.260 But what the court said is, is, is the court said, well,
00:18:18.360 yeah.
00:18:19.420 The protections in the Bill of Rights have emanations.
00:18:25.740 Basically, they glow.
00:18:28.480 And those emanations cast penumbras.
00:18:33.600 A penumbra is a fancy word for a shadow.
00:18:36.880 Now.
00:18:37.200 Okay.
00:18:37.420 And within the penumbras from the emanations, we find the right to privacy.
00:18:44.020 Okay.
00:18:46.500 All right.
00:18:47.640 Um.
00:18:48.360 Fast forward to Roe.
00:18:49.860 So, within that right to privacy, Justice Blackmun wrote, the right that came from a penumbra from an emanation that, mind you, that rights in the Bill of Rights are casting, is where the right to an abortion came from.
00:19:03.680 It's one of the reasons why Roe versus Wade, even when it came down, was almost universally ridiculed as just, almost incoherent.
00:19:13.240 Just, just bad legal writing, not tied to the Constitution, even liberals, you know, Ruth Bader Ginsburg was actually quite critical of the reasoning in Roe versus Wade.
00:19:21.700 She agreed with the outcome.
00:19:51.680 And so, look, is, is, is there a liberty interest protected in the, in the Fifth Amendment and Fourteenth Amendment?
00:19:57.760 Absolutely.
00:19:59.340 But they also protect life and, and liberty.
00:20:02.320 You're free to do what you wish, but that restriction always has limitations when it impacts the rights of another.
00:20:09.740 And, and so, the, the, I, I think it is a too cute by half argument to say it is within the liberty interest.
00:20:18.680 And, and, and, and, but that, I would say is the more modern liberal argument for the right to abortion is to the extent they're trying to ground it anywhere.
00:20:31.680 Um, they, they, they, they, they, they, they try to ground it within, uh, a liberty interest.
00:20:39.880 Although autonomy, uh, was the, the basis that Justice Kennedy found for striking down Texas's law, uh, criminalizing, uh, homosexual sodomy.
00:20:54.860 And, and, and he talked about the right to autonomy.
00:20:57.700 And, and, and in fact, there's a passage that, that Justice Scalia ridicules as the sweet mystery of the universe passage, where he says, and I, I, I, I can't quote it exactly, but for each of us, the, the process of defining ourselves, our existence, and the sweet mystery of the universe is at the core of humanity.
00:21:16.140 It's this like poetic gibberish.
00:21:18.840 That's right.
00:21:19.300 The, the right to define our own concept of existence.
00:21:23.760 And it, which if, if that is the case, I do define myself as a professional major league baseball player.
00:21:30.120 That is my right, Senator.
00:21:32.060 And please, I would appreciate it if you would address me as such.
00:21:34.660 Well, and Michael, baseball has been very, very good to me.
00:21:40.140 And that's from a Saturday Night Live before, probably before you were born.
00:21:44.220 When I was, uh, just a glint in my father's eye, that's true, but, uh, but about as coherent, by the way, as Justice Kennedy's argument.
00:21:52.740 And it, so the case you were just citing is Lawrence v. Texas, which strikes down laws against homosexual activity. 0.93
00:22:00.020 And, and by the way, to be, to, to be clear, I think laws against homosexual activity are every bit as asinine as laws against contraceptives. 0.58
00:22:09.840 I, I would emphatically vote against those laws as a state legislator, as a, as a member of the Senate. 0.80
00:22:16.520 I don't think government has any business regulating in, in that instance, the, the conduct of consenting adults.
00:22:23.000 I think you ought to be able to do what, do what you wish.
00:22:26.120 But the reason Justice Thomas asked that question is there's sort of three different buckets from which different people have sought to try to derive, uh, a right to abortion.
00:22:38.700 Well, and to, to your point on, on Lawrence v. Texas, Senator Scalia made this point.
00:22:43.740 He said, there are plenty of things that are bad.
00:22:46.260 There are plenty of things that I don't like, plenty of things that I do like and that are good, that are just simply not in the Constitution. 0.99
00:22:51.660 He said there, there can be things that are SBC, stupid, but constitutional. 0.94
00:22:56.840 And, and so as you're describing, this right to an abortion would appear to be a conclusion in search of an argument, a conclusion in search of evidence. 0.98
00:23:05.880 And the evidence keeps changing and the arguments keep contradicting each other sometimes, but they, they come down and they, they say there's a right to an abortion and they reaffirm it.
00:23:13.780 So then the question is, and this was a question that, that the judges and the justices are dealing with, is what about stare decisis?
00:23:22.180 What about precedent?
00:23:23.680 Let's say you've got a really bad decision.
00:23:26.000 Well, what, what, what if it's been on the books for 50 years?
00:23:29.780 Doesn't it have to remain there?
00:23:31.080 Justice Kavanaugh listed a number of landmark cases in the court's history that were not exactly settled law.
00:23:37.620 Take a listen and history helps think about stare decisis as I've looked at it and, uh, the history of how the courts applied stare decisis.
00:23:46.460 And when you really dig into it, um, history tells a somewhat different story, I think, than is sometimes assumed.
00:23:54.220 If you think about some of the most important cases, the most consequential cases in this court's history, there's a string of them where the cases overruled precedent.
00:24:06.620 Brown v. Board, uh, outlawed separate but equal, uh, Baker v. Carr, which set the stage for one person, one vote, West Coast Hotel, which recognized the state's authority to regulate business, Miranda v. Arizona, which required police to give warnings when the right to, about the right to remain silent and to have an attorney present to suspects in criminal custody, Lawrence v. Texas, which said that the state may not prohibit same-sex conduct.
00:24:36.620 Mapp v. Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment.
00:24:46.480 Gideon v. Wainwright, which guaranteed the right to counsel in criminal cases.
00:24:52.140 Obergefell, which recognized a constitutional right to same-sex marriage.
00:24:55.820 In each of those cases, and that's, uh, a list, and I could go on, and those are some of the most consequential and important in the court's history.
00:25:05.520 The court overruled, uh, precedent.
00:25:08.060 And, um, it turns out, uh, if the court in those cases had, had listened and they were presented in our, with arguments in those cases, adhere to precedent in Brown v. Board, adhere to Plessy, uh, and West Coast Hotel, adhere to Atkins, and adhere to Lochner.
00:25:26.960 And if the court had done that in those cases, uh, you know, this, the country would be a much different place.
00:25:36.240 So, Justice Kavanaugh is asking, okay, you're, you're, you don't have much of a legal or constitutional argument for abortion.
00:25:43.500 You're staking a lot of your argument on stare decisis, on the idea that precedent, even a, even a badly decided case should, should carry some weight.
00:25:53.040 Well, what about all these other cases that overruled precedent?
00:25:56.580 And so, so, which is it?
00:25:58.460 Are we going to celebrate cases that overrule bad precedents, or are we going to just deal with precedents, even if they were egregiously decided?
00:26:06.800 Well, that, that question that you just played from Justice Kavanaugh is probably the single most encouraging thing that happened at the oral argument.
00:26:16.000 Um, I wrote at length in, in my book, One Vote Away, that, that I was quite concerned, uh, about Justice Kavanaugh and how he would rule on, on a challenge to Roe.
00:26:28.460 And I was quite concerned, uh, about Justice Gorsuch as well.
00:26:33.120 Uh, and, but, but especially Kavanaugh.
00:26:36.680 And basically, let me step back for a second.
00:26:39.600 What played out at the oral argument, as I listened to it and read through the transcript, was, I think there are six votes to uphold the state law, the ban on abortions after 15 weeks.
00:26:53.280 All but the three liberals are going to vote, I believe, to uphold the law.
00:26:56.740 Chief Justice Roberts, I believe, does not want to overrule Roe.
00:27:01.580 And at the argument, he was spending much of his time casting about for a way, can the court do something smaller?
00:27:11.900 Uphold the state law, but not overrule Roe versus Wade.
00:27:17.340 And so he's trying to find, you've got three votes on one side.
00:27:22.720 Roberts just needs one.
00:27:24.120 He needs to get Kavanaugh or Gorsuch or Barrett.
00:27:27.380 So Roberts is hunting for one additional vote.
00:27:30.640 If Roberts gets one additional vote, Roe won't be overturned.
00:27:35.020 And so the entire argument, and John Roberts, as you know, is someone I know very, very well.
00:27:40.920 He, like me, clerked for Chief Justice Rehnquist.
00:27:43.400 He was an extraordinarily talented Supreme Court advocate.
00:27:46.540 And so he's casting about for, essentially, don't we, we can just uphold this law and we don't have to go so far as overturning Roe.
00:27:57.420 So that question from Kavanaugh is really encouraging because he's going through big landmark decisions of the Supreme Court.
00:28:08.240 Most of those decisions I talk about in the book One Vote Away.
00:28:11.060 I go into the history of a lot of those different decisions and how they overturned precedents.
00:28:16.120 The biggest one, Brown versus Board of Education.
00:28:19.120 Brown versus Board of Education decided in 1954, struck down segregated public schools.
00:28:26.620 And it overturned a decision called Plessy versus Ferguson.
00:28:30.260 And Plessy, it's one of the most disgraceful decisions in the history of the Supreme Court.
00:28:35.160 The court upheld something called separate but equal.
00:28:38.880 It concluded that even though the Constitution gives everyone equal protection of the laws,
00:28:44.480 that it was consistent with the Constitution for the government to say one school for black children, one school for white children.
00:28:50.700 One water fountain, another right.
00:28:53.200 And Brown overturned Plessy.
00:28:55.500 It was absolutely the right thing to do.
00:28:57.560 Plessy was an abomination.
00:29:00.580 You know, Justice Kavanaugh began with Brown and went through a whole litany of big major cases that were overturning precedents.
00:29:08.700 And the reason that's encouraging is you listen to that question.
00:29:11.780 It suggests pretty strongly that Justice Kavanaugh is open to and leaning towards overturning Roe.
00:29:20.260 That's a big, big deal, particularly because the questioning from Gorsuch and Barrett was encouraging as well.
00:29:28.360 So if I were counting noses right now, we may well get to five on getting the court out of the business of legislating on questions of abortion.
00:29:39.680 And we may well send that back to the states instead, which is where where it has always belonged under the Constitution.
00:29:47.160 Well, that is that is what I want to get into beyond the legal arguments, which I think you have done as good a job as anybody possibly can to helping me to understand what the pro abortion side is arguing here.
00:29:59.860 And it's it's not very coherent. And even many people who support abortion have agreed that the way these cases were decided doesn't make any sense.
00:30:06.480 And the legal logic is not really there. But now we're talking about people.
00:30:10.440 We're talking about votes who actually is going to have the guts to to do this.
00:30:15.860 Thomas, he's he's going to overrule Roe 100 percent.
00:30:19.660 Alito, he's going to overrule Roe. Almost. Yeah.
00:30:22.620 You've got the three liberals. They're certainly not.
00:30:24.940 Then you've got maybe a fourth liberal chief chief justice, John Roberts, who probably, as you think, does not want to overrule Roe.
00:30:32.160 Kavanaugh, you like his arguments. So you're also saying then that Barrett and Gorsuch, you liked what they were asking.
00:30:38.400 You felt that the way they were approaching the oral arguments showed that they were leaning toward overruling.
00:30:44.840 I did that their questioning was quite good.
00:30:47.980 One of the things that they emphasize is the point I made, that if Roe is overturned, it doesn't immediately ban abortion nationwide.
00:30:57.580 It instead leaves it to the states. And by the way, there are a bunch of blue states in which abortions will still be widely available.
00:31:04.880 You know, New York, California.
00:31:06.580 Nobody thinks the state legislatures in those states are going to suddenly wake up tomorrow and ban or even significantly restrict abortion.
00:31:15.260 You and I would hope and pray that they would.
00:31:19.460 But as a political reality, that's not happening even without Roe versus Wade on the books.
00:31:25.500 What we would see instead is each state adopting different standards and there would be a variety of them.
00:31:32.520 And, you know, Justice Gorsuch, one of the reasons I was very encouraged, Gorsuch, Gorsuch is a very smart lawyer.
00:31:37.520 And he pressed the lawyers on, OK.
00:31:40.920 OK. So to uphold the state law, Roe had a standard it made up of viability that basically said before the unborn child is viable, can live outside the womb.
00:31:57.900 Before the unborn child is viable, the state can do very, very little to protect the life of the unborn child.
00:32:05.800 After viability, the state can do more.
00:32:08.560 Justice Blackman made that up.
00:32:11.120 And in fact, there's an interesting exchange where Chief Justice Roberts notes that in the Blackman papers.
00:32:16.820 So this is after he retired as a justice, he released his papers, his notes on writing Roe versus Wade.
00:32:22.920 And he admits in his notes that viability was just a concept he made up from when he worked at the Mayo Clinic and had nothing to do with the Constitution.
00:32:31.560 It just he pulled it out of his rear end and invented it.
00:32:35.820 And it's a funny little exchange because Roberts is like, well, this is sort of an odd source, the Blackman papers, but I guess they're there.
00:32:43.640 And he admits it's made up and what Roberts is pushing for.
00:32:47.580 So he's to.
00:32:50.940 Uphold the state statute here, you have to reject viability because viability is 24 to 26 weeks, not 15 weeks.
00:32:59.140 And right now, scientifically, a 15 week unborn child can't live outside the mother's womb.
00:33:06.020 And there's another issue, which is that viability does move.
00:33:09.160 Yes, it moves with scientific advancement.
00:33:11.040 So whereas a baby could previously could not survive before 24 weeks, now babies can survive at 21 or even 20 weeks.
00:33:19.100 And what's the argument that's being made for the Mississippi law is that the baby cannot survive at 15 weeks.
00:33:25.000 But he looks like a baby.
00:33:26.480 The baby's got all his little baby parts.
00:33:28.240 He's got his little fingers and his little toes.
00:33:30.080 He he seems to have all the features of what we would call a baby.
00:33:34.920 But because he doesn't meet that standard, you have to you have to change the standard.
00:33:40.280 The standard that you you observe was just pulled out of thin air.
00:33:43.920 Roe versus Wade established the trimester system, which Justice Blackman made up.
00:33:48.380 In Casey, the joint opinion, the opinion that was written by by Kennedy and and O'Connor and Souter throughout the trimester system said it's made up.
00:34:02.720 It's no longer the law.
00:34:03.760 And so it actually overruled part of Roe.
00:34:05.800 It reaffirmed Roe, but it threw out part of Roe.
00:34:07.880 And it invented a brand new test.
00:34:11.640 And the brand new test was that states can have restrictions on abortions, but they cannot have an undue burden on the right to abortion.
00:34:23.060 So they can apparently have a due burden, but not an undue burden.
00:34:27.000 And undue burden is not a term found anywhere in the Constitution.
00:34:30.520 It's not a term that means anything in law.
00:34:33.440 It's just something they made up.
00:34:35.120 No undue burdens, which puts the court due burdens fine in the in the business of measuring how much of a burden is due.
00:34:44.180 So.
00:34:46.160 Roberts was basically arguing at the oral argument.
00:34:50.820 Well, viability was an arbitrary made up line.
00:34:54.240 Even the Blackman papers tell us that.
00:34:55.760 So if we jettison viability, we can uphold the Mississippi law, right?
00:35:00.400 Yes.
00:35:00.700 So we don't have to overturn Roe or Casey, because if we jettison viability, we can simply say this is fine.
00:35:09.580 Gorsuch was pressing hard.
00:35:11.540 Gorsuch was pressing hard on the defenders of abortion saying, OK, if viability is not the line.
00:35:21.160 How do we draw a line?
00:35:22.960 How do we draw a workable line?
00:35:25.540 This is a 15 week prohibition.
00:35:27.960 How about 12 weeks?
00:35:30.080 How about 10?
00:35:31.240 How about nine?
00:35:32.200 Like, how do we draw and what was interesting is the defenders of abortion, the Biden administration said, yeah, it's basically unworkable.
00:35:40.880 We can't draw those lines.
00:35:42.020 There's no ways courts are just making it up to draw those lines. 0.98
00:35:46.580 And what's fascinating about that, look, Gorsuch is pushing on that because if they admit there's no workable legal standard, that is one of the major factors under stare decisis.
00:36:01.620 Stare decisis is the Latin word for respecting precedent.
00:36:05.420 That's one of the major factors for overturning a precedent.
00:36:08.360 So when Gorsuch is asking, without viability, is the legal rule unworkable, what he's saying is, and therefore, shouldn't we overturn Roe versus Wade?
00:36:23.900 In other words, is there not a middle ground?
00:36:27.100 Don't we have to go all the way?
00:36:28.680 And Gorsuch was pretty aggressive on that, and Barrett was pretty good on that.
00:36:33.040 And so that combination led me – I was quite skeptical going into arguments that there were five votes to overturn Roe.
00:36:43.420 I'm pretty hopeful right now.
00:36:45.880 So before we get to mailbag, as always, we're running late.
00:36:49.540 I have to touch on what I think was the most persuasive argument made on the pro-abortion side.
00:36:55.880 It was not made by one of the lawyers.
00:36:57.640 It was made by one of the judges, Sonia Sotomayor, who said, if you overrule Roe versus Wade, how will we ever get the stench of politicization out of the court?
00:37:11.380 Take a listen.
00:37:11.800 Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?
00:37:30.040 Senator, how are you going to get the stench out of the court?
00:37:32.920 Well, you know, they're the ones that put the stench there. 0.94
00:37:37.120 It was – and Roe played a big part in putting the stench there.
00:37:41.100 Ever since that day, the court has been deeply political, and it is why – and I got to say, you listen to the argument.
00:37:50.720 Justice Sotomayor was relentless defending Roe, defending Casey.
00:37:58.300 She was fighting – to be honest, she was a better advocate than either of the two lawyers standing at the podium arguing for abortion.
00:38:06.600 Sotomayor was relentless.
00:38:08.760 Now, you also saw Breyer.
00:38:10.400 Breyer does it more as a law professor, more in the abstract, and you saw Kagan.
00:38:15.100 Kagan is the best litigator of the three liberals.
00:38:19.220 And so she was trying to find ways to push, and she recognizes – I think Kagan recognizes – this law is going to be upheld.
00:38:29.880 But I think Kagan is quite interested in who can we pick off – Kavanaugh, Gorsuch, Barrett – to join with Roberts and don't overturn Roe.
00:38:44.400 And so Kagan was very focused on that.
00:38:46.780 And that's the question.
00:38:47.660 Do one of the three go for the middle ground or not?
00:38:51.200 Sotomayor gave a speech that frankly is not all that different in her questions from what would be given by Elizabeth Warren or Maisie Hirono in the Senate.
00:39:02.900 It was a political speech because with Roe, the court jumped emphatically into the political sphere rather than the legal and judicial sphere,
00:39:13.500 which is one of the biggest reasons why I think the court should return it to the political sphere and let the people decide.
00:39:21.720 And by the way, one of the reasons abortion is so contentious, so angry is because there's no outlet.
00:39:30.460 Listen, we disagree, and abortion is a personal – it is an emotional – it is – the feelings on both sides are genuine.
00:39:39.780 They're not making it up.
00:39:41.020 Both sides really, really believe it.
00:39:44.460 Normally in the democratic process, there's a safety valve to work that out because you can argue back and forth,
00:39:49.580 and you can try to persuade each other, and sometimes you can reach middle grounds,
00:39:53.540 and all of that makes our democracy work.
00:39:57.140 But when you have nine unelected judges say, I don't give a damn what you think about it.
00:40:02.840 I'm smarter than you are, and we know better, and we're going to take it away from you,
00:40:07.860 it produces the kind of intense division that we've seen.
00:40:11.680 And based on this oral argument, I think we have a real chance of seeing the end of an era that was, as you put it, a grievous error.
00:40:22.560 Well, in the spirit of hearing from the people and making their voices heard, we should get to the mailbag.
00:40:27.980 So let's bring our friend Liz back. 0.64
00:40:29.520 Liz, what do you have for us?
00:40:31.000 Well, a lot of people, a lot of our subscribers, a lot of our friends on Verdict Plus asked about this case specifically.
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00:41:08.880 So, Senator, the first question I want to ask is from someone whose username is Twinsister.
00:41:14.320 She says, why hasn't anyone on the pro-life side argued a fetus is a person and therefore entitled to due process as the Fifth and Fourteenth Amendments mandate before depriving him of life?
00:41:27.500 Shouldn't the unborn child be given the equal protection under the law? 0.88
00:41:31.000 So, look, that is a very good question, and it is a question that is debated in legal circles.
00:41:38.020 You are right that the Constitution, the Fifth and Fourteenth Amendments, both protect the rights to life, liberty, and property, that you can't be deprived of any of the three without due process of law.
00:41:50.420 There's another decision of the Supreme Court called Caroline Products, and in Caroline Products, footnote four, and lawyers are weird because footnote four of Caroline Products is actually a thing that lawyers refer to.
00:42:02.860 It describes that the protections of the due process clause and of equal protection are more significant for what discrete and insular minorities.
00:42:17.840 So that's the phrase in footnote four of Caroline Products.
00:42:20.840 Discrete and insular minorities mean minorities that are readily identifiable, that are insular.
00:42:26.940 In other words, they're weaker and can't protect themselves, and what Caroline Products said is, look, they can't use the democratic process to protect themselves because they're discrete and insular minorities, and so the constitutional protections are more robust concerning them. 1.00
00:42:40.620 And there have been legal scholars who have pointed out it is difficult to imagine a more discreet and insular minority than an unborn child who, by definition, cannot protect herself or himself in the political process.
00:42:54.920 You know, Reagan famously quipped, you know, I notice all the people in favor of abortion have already been born, and the unborn children are not given a voice in this.
00:43:05.980 That is certainly a legal argument one can make.
00:43:09.740 It is not an argument the court has ever gone so far as to embrace or suggest.
00:43:16.520 And look, the consequence of that argument would be a Supreme Court decision protecting the right to life across the country.
00:43:24.480 There are none of the nine justices on the court who have suggested they would go that far.
00:43:29.140 Each of them has said the Constitution is silent on this.
00:43:32.920 And so it is left to the states and to Congress to regulate it.
00:43:37.940 And by the way, even the pro-life lawyers did not make this argument.
00:43:43.020 They actually specifically stayed away from this argument, perhaps to try to appeal to some of those justices who are on the fence.
00:43:49.300 Michael, the next question is less of a legal question and more of a cultural-legal hybrid question, so I want to focus on you for this one.
00:43:56.920 It's from John Bennett. He says, during the Supreme Court case, Dobbs v. Jackson, the leading pro-abortion argument was the negative economic impact childbearing or childrearing is on women or has on women,
00:44:08.820 which poses the question that doesn't it also have an economic impact on fathers?
00:44:12.780 If fathers don't have a say, then why are they responsible for child support?
00:44:16.560 If they are responsible for child support, shouldn't they also have a say in the termination of their child's life?
00:44:21.260 And given the option to keep the child and release the mother of her responsibility?
00:44:25.420 Well, I think certainly a father should have the say in whether or not a child will live or die and be killed through some obscene pseudo-medical process.
00:44:35.040 But I don't think that we need to make an economic argument.
00:44:37.980 I think the observation is really quite good that the pro-abortion side is now nakedly making a money argument.
00:44:47.320 They're saying, well, look, you might decide to keep your kid or give up your kid, but if you keep your kid, it's going to cost you money.
00:44:54.640 And if you give up your kid, you can sacrifice him to the idol of lucre and mammon.
00:44:59.320 This is nothing new.
00:45:01.040 I'm glad you phrased it as a cultural question.
00:45:03.400 This is nothing new.
00:45:04.140 We've seen this in cultures from the beginning of the world, but it's wrong.
00:45:08.060 It is wrong to view your kid as a money bag or an economic drag or even an economic benefit.
00:45:15.100 Your kid is your kid. 0.83
00:45:16.240 Your kid is made in the image of God and to some degree in your image and is worth more than dollars and cents.
00:45:22.800 And this is a big problem.
00:45:24.760 So it's a clever argument to try to make some economic argument on the right.
00:45:28.480 But I just think it's completely missing the point.
00:45:30.920 It is simply wrong and there's no amount of mammon or lucre that could convince me or I think any reasonable person otherwise.
00:45:39.980 Well, and Michael, let me jump in on this also because this was a point that Justice Barrett engaged in where she pointed out that now states all across the country have enacted so-called safe haven laws.
00:45:53.020 Where if a mother gives birth to a child and that mother does not feel she can care for that child, that you can go and hand over the child and the child will be cared for.
00:46:02.580 And so it's just a protection in law if for whatever reason, whether economically, if the mother is destitute and can't afford to provide for the child or for whatever reason, there is an option to hand over the child to be cared for another.
00:46:17.000 And so Justice Barrett asked about that and said, look, doesn't one of the arguments that was used by the majority in Roe and used by the majority in Casey was this economic argument that it could be a financial burden on a mother who is not – doesn't want to have a child at that point.
00:46:35.240 And Justice Barrett said, well, look, hasn't this changed now that at least the economic consequence, if you don't want to bear it, the states have enacted laws to enable an alternative that protects the child's life without imposing a financial burden on you.
00:46:51.600 And she also pointed out in the second line of questioning, adoption, which is obviously another avenue of that, and adoption – I think it was her question's point out that it was mentioned only in like brief passing in Roe but not really considered at any level that with adoption that is another avenue.
00:47:14.300 That if you have a mother who does not believe that if you have a mother who does not believe she is in position to raise the child, that she has an option that can still preserve the life of the child.
00:47:26.220 And this is such a great point, Senator, and it's one that very few people seem to understand the reality of because what the pro-abortion side will say is that there are so many orphanages and the foster system teaming with children who are not being adopted and therefore adoption is not a viable alternative.
00:47:44.840 But it's really hiding the ball. It's really misrepresenting what's going on. It's true. It's very difficult for older children to be adopted and there are lots of problems in the foster care system.
00:47:53.720 And of course, one could speak for hours about that sort of thing. But when we're talking about babies who are being put up for adoption as newborn babies, there are an estimated 36 couples for every newborn baby in the United States who is put up for adoption, 36 couples who want to adopt that baby.
00:48:10.120 So there is absolutely no shortage of demand, to put it in economic terms. There's no shortage of loving homes. If a woman feels I am not at a place in my life where I can care for this baby, there are so many avenues, adoption and as you say, laws that will enact these safe havens. So the economic argument just does not carry water.
00:48:30.680 There's also some kind of glorious poetic justice, I think, in Justice Amy Barrett or Amy Coney Barrett sitting up there, the mother of seven children, this woman who is just so distinguished, her career, she has achieved the pinnacle of what you can achieve when you are, you know, a lawyer the way that she is and her children have empowered her and not held her back.
00:48:49.940 So there's some kind of, like I said, poetic justice in that. On that note, anybody who wants to submit a question for next week's episode of Verdict, you can do so at verdictwithtedcruise.com slash plus, become a subscriber on Verdict Plus, and you'll have behind the scenes access to Senator Ted Cruz to ask questions that we will answer right here on the show.
00:49:09.320 So often we're talking about how everything is just going to hell in a handbasket and, you know, the news is all terrible, but this is really, you have convinced me, Senator, that there really is a concrete reason to hope here, specifically when it comes to this case, to the end of a grievous error, but we'll have to hold it there.
00:49:27.300 Thank you, Senator. I'm Michael Knowles. This is Verdict with Ted Cruz.
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00:50:38.600 15 of you are going to get a box of Verdict merch.
00:50:41.000 And perhaps the most fun, this isn't exactly a giveaway, but it's even better.
00:50:46.340 If we get to 50,000 reviews on Apple Podcasts, that means that you go over, you subscribe to the show, Verdict with Ted Cruz.
00:50:52.720 You leave us a five-star rating. You give us a glowing, obviously great review over there.
00:50:57.540 If we get to 50,000 reviews, then we're going to do a poll to see exactly what Michael and Senator Cruz are going to do in 2022.
00:51:04.920 These are the options. And by the way, shout out to Real Truth Cactus for this idea.
00:51:08.700 These are the options. Either the Senator wears a Braves jersey for a whole episode.
00:51:14.040 That's option number one. Option number two, Michael and the Senator arm wrestle.
00:51:17.700 I'm very biased, but this one's my favorite. Option number three, the Cactus makes a guest appearance on our show.
00:51:23.080 Or option number four, Michael roasts Princeton and the Senator roasts Yale in a throwdown episode.
00:51:28.740 50,000 reviews on Apple Podcasts, and you will be in control of one of the episodes in 2022.
00:51:35.320 Head on over to Apple, subscribe, give us a great review. And those are our giveaways for the two-year anniversary of Verdict with Ted Cruz.
00:51:42.200 This episode of Verdict with Ted Cruz is being brought to you by Jobs, Freedom, and Security Pack,
00:51:48.300 a political action committee dedicated to supporting conservative causes, organizations, and candidates across the country.
00:51:55.220 In 2022, Jobs, Freedom, and Security Pack plans to donate to conservative candidates running for Congress
00:52:01.220 and help the Republican Party across the nation.
00:52:04.760 This is an iHeart Podcast.
00:52:07.120 Guaranteed human.
00:52:08.080 Guaranteed human.