Advisory Opinions - Dobbs Fallout with a First Amendment Twist

Episode Date: May 9, 2022

Sarah and David talk more about the leaked draft opinion in Dobbs, but this time with a First Amendment twist. Activists have encouraged protesters to demonstrate outside the homes of the conservative Supreme Court justices. Does it violate the First Amendment to ban protests outside a justice’s home? Is it dangerous and foolish even if it’s lawful? Also, they track the political fallout and discuss three very different polls. Each of them is interesting. One of them is an outlier.   Show Notes: -Washington Post: “How the future of Roe is testing Roberts on the Supreme Court” -Reason: “Washington Post Reports On More SCOTUS Leaks” -Pew: “America’s Abortion Quandary” Learn more about your ad choices. Visit megaphone.fm/adchoices

This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover 5 seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's 5 seconds.

Certain conditions apply. Details at phys.ca. Sasquatch here. You know, I get a lot of attention wherever I go. Hey, Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready?

I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. We've got, you know, I'm sorry to say we've got more jobs to cover today. Some really interesting developments over the weekend, some dangerous developments over the weekend that we're going to cover that both have a moral, a political, and a legal angle. And we're going to hit them all. But before we do that, Sarah, you've got some tidbits to start with. So let's just start with the tidbits before we move on to the controversy that's tearing America apart. Yeah, I mean, look, I don't want to turn this podcast into like Politico's playbook, but we'll do a little Politico playbook here at the front end.

Go for it. So the Fifth Circuit had their judicial conference in Nashville, which as some may note is not in the Fifth Circuit, but it was Mississippi's turn to host. And unfortunately, Mississippi does not have room for all of the attendees that's not attached to a casino. And it's like the one rule in the Fifth Circuit that you can't stay at a casino or get reimbursed for money you spend at a casino.

So wait, there's not a place in Jackson, Mississippi that can host the judicial? That strikes me. Yeah, not big enough. It has to be big enough and not attached to a casino. It's amazing. Okay, So they hosted it in Nashville. Husband of the pod was in attendance, as were many, many others, all the Fifth Circuit judges, yada, yada. But one person was not in attendance, David. Do you want to guess who it was? One person not in attendance.

Yeah. There's a justice who is assigned to oversee each circuit and the justice for the fifth circuit is one Samuel Alito. So he was supposed to be there in person and address the attendees. Most of the justices address their circuit conferences. I believe he said something to the effect of, I regret that I am unable to attend in, you know, in person, um, and otherwise gave remarks unremarkable or remarkable, but not topical. Yeah. Um, so that was the fifth circuit judicial conference, but over the weekend, there was a reunion of the Scalia clerks. They still hold wonderful big black tie

fancy pants reunions. And boy, was that a who's who of the spotteds. I only have a partial list to share, but I think you'll get the point. Friend of the pod, Cannon Shanmigan, who just argued that Oklahoma McGirt 2.0 case there in his finest. Chief Judge Sutton of the Sixth Circuit, Paul Clement, who argued, of course, the Coach Kennedy case, and then three days later argued the Florida social media bill case. He needs sleep. Poor Paul. Noel Francisco, former Solicitor General, now biggie partner at Jones Day. Curtis Gannon, Deputy Solicitor General. Alex Azar, Sopan Joshi. Remember, I had my huge oral argument crush on Sopan from the Solicitor General's office.

So it was a to-do and there was one other person there david justice amy coney barrett was there as a former scalia clerk in her official capacity um gave remarks as well though again sort of a high level what she learned from the justice things like that uh So, well, we'll see. David Latt is normally pretty good at getting his gossip on the record. So I'll be tuning into original jurisdiction to see if he gets some juicier juice. Yeah. Interesting. Interesting. Well, yeah, we're in an environment where people are, rumors are flying all over the place, including in the press. Do we

want to just go ahead and skip to the leak part of this? Sure. I mean, we had more leaks over the weekend. Let's talk leaks. Yes. Okay. So the Washington Post published a long story about the leaks as every news outlet has, and we're on like the fifth generation, seventh generation. Can you believe it hasn't actually been a week yet, David? It's absolutely amazing. It feels like I've never lived in a time before this week. It's I on Sunday, I put a link to all of the stuff that I did last week regarding Dobbs. And I was literally exhausted just linking to everything. So here's what the Washington Post wrote. The leaked draft of Alito's opinion is dated February 10 and is almost surely obsolete now, as justices have had time to offer critiques,

dissents, and revisions. But as of last week, the five-member majority to strike Roe remains intact, according to three conservatives close to the court who, like others, spoke on the condition of anonymity to discuss a sensitive matter. A person close to the court's most conservative members said Roberts told his fellow jurists in a private conference in early December that he planned to uphold the state law and write an opinion that left Roe and Casey in place for now. But the other conservatives were more interested in an opinion that overturned the precedents the person said. So let's break this down a little bit, David. First, back up to the timeline, the Wall Street Journal just days before the Politico

draft had something that no one paid much attention to in their editorial unsigned not sourced but basically saying um you know we think alito has the majority uh and five votes to overturn roe but like david you and i have been sort of saying that right so like no one really thought it was like a leak leak right then you have the politico draft that was cited to a person close to the court uh who said that there were five votes to overturn row and that remained unchanged as of now last week or a week and a half ago potentially and now you have the washington post three conservatives close to the court uh and then a person close to the court providing details out of that conference about what robert said okay so david you have conservative leak to the wall

street journal we don't know and conservative leak to the washington post I now think that we can narrow this down a little bit in terms of the motivation of the draft leaker. I think that the theory that including I was very open to it being a conservative and potentially even an Alito clerk who wanted this to be the majority and didn't think that it would be could have leaked it. But remember what I said, David, the justices will know the motivation of the leaker because they'll know what's going on at the court. If there's wavering one direction, then they'll know the motivation to try to push them the other direction. And so the justices this whole time have really known almost with certainty, the motivation of the leaker. Given all of this, the motivation of the leaker is someone who was on the left. The conservative leak theory no longer holds

any water for me. Even if Justice Alito's opinion has changed in some relevant ways, and the person wanted some line in there, you'd wait until it comes out and then leak that original draft some number of months later, maybe a year later, just to show like, ah, it could have had this other line in it, something like that. Instead, why I think it's the February 10 draft now is because it was the worst draft. Interesting. And that in responding to the dissents and the concurrences and edits coming in, the draft is just better, right? Like, so for instance, some of the incorrect year on the Florida law, things like that will have all been cleaned up through the process. And so what will be the most embarrassing to the court, hurt the institution and its credibility the most,

and undermine this opinion when it comes out, leaking the initial draft that isn't cleaned up, that was meant to sort of solicit comments at the beginning. And I found it particularly frustrating. Nina Totenberg was on ABC right before me and said that the leading theory was that it was a conservative. She didn't even really acknowledge the possibility that it was a liberal league, which again, at maximum, it's that if you know nothing, there are theories for how it could be any number of people. But it's certainly not the leading or nearly dispositive theory that it was a conservative.

That was never true. And I think with this Washington Post story, with conservatives pushing back in the Washington Post, it very much means that there is no wavering going on, that they believe that it was a liberal leak. And it especially doesn't make sense to be a conservative leak if they believe it's a liberal leak. It is still possible, David, in my view, that it's someone not a clerk, someone who accessed this in an untoward fashion, and that therefore the conservatives believe it was a liberal and the liberals are like, I don't know, we didn't do it. But it basically rules out the motivation of a conservative trying to rein in a Kavanaugh or Barrett vote. That appears not to be the case behind the scenes.

Yeah, your comment about this being the early draft and therefore the roughest draft is really interesting. I hadn't even thought about that angle until you said that, that this is something that is the least clean version of the argument. It's probably directionally still where the argument is going, but the least clean, the most mistakes, maybe the most holes that you can poke through it. I hadn't thought about that before. And I think that's a really interesting and compelling point. And, you know, look, when this first when this thing first leaked, my mind went boom instantly.

This was leaked from the left. And then I had this sort of check, wait a minute, I can also imagine a way, if there's a conservative who's kind of flaking out on this, that they would try to lock in the boat, you know, so that there wouldn't be any sense that someone caved. But it's very interesting to me that you now have additional leaks that have been identified as coming from the right side. Now, the way the language is used, I can't tell if you're actually talking

about somebody actually in the employ of the Supreme Court or somebody close to those in the employ of the Supreme Court or somebody close to those in the employ of the Supreme Court. And it's intentionally vague, of course. So what's your- As someone who has dealt in citations of this nature. Now, here's the part of the problem. I have to assume a certain sophistication on the part of the source to know how they've negotiated their own attribution. But let's assume a certain sophistication, because while I'm not going to name names here, I actually have some thoughts about who these who one of them is the person close to the court on the conference, that second paragraph. on the conference, that second paragraph. And no, I think they are former clerks in touch with current clerks and or their justice. That would be someone who is close to the court and who a

reporter would trust if the person said, I just spoke to my justice or I just spoke to a current clerk. Now, if you were a current clerk, there's just all sorts of reasons that you wouldn't do it without your justice's authority. You certainly wouldn't do it now, post-leak, when they're about to have a leak investigation. And one of the questions will be, have you ever talked to a reporter about the inner workings of what happened at conference, potentially under perjury? So, but if you were a clerk talking to a reporter, you certainly wouldn't allow yourself to be attributed as a person who works at the court because it would narrow it down way too much. So in fairness, you would still attribute yourself as a person close to the court in my view. But again, I just see no way that these leaks are current clerks because of the investigation that's going on. And by the way, David, speaking of that, we don't know what the marshal of the court is doing,

whether they're making everyone sign 1001 under penalty of perjury forms, talking to the marshal of the court and being asked questions like, have you ever spoken to a reporter about the court? Have you ever provided a draft? Are you aware of someone providing a draft? Things like that. One of the leaks that I think we will find out eventually is what happened during this investigation, which chambers participated, which chambers didn't. And that will, again, narrow down, I think, the motivation of the leaker potentially, or again, show that it probably wasn't a clerk and that it very well, like nobody knows at the

court because this is some other problem. A bunch of people have asked about document security at the court. And it's interesting. You can get some conflicting answers, and some of that I think is COVID-related. Clerks can definitely take a laptop home that they can access. Some clerks will tell you that they never had a printed copy that they took home. Other clerks will tell you, no big deal. You absolutely could take a printed copy home. That's going to be a problem for this investigation that there wasn't a whole lot of common practice security issues that you'd have, for instance, in a classified setting. Yeah. You know, that is, I've long been skeptical that we're going to find the leaker. I mean,

this is, you know, a lot of people around me have said, oh, we'll find the leaker, won't we? And I'm constantly saying, yeah, I don't know about that. I mean, as we talked earlier, leak investigations are not easy, but will we know how the investigation was conducted? Will we know all the steps that were taken during the investigation? Will we know how people reacted to those steps? Maybe, maybe. Another thing about sort of these new leaks, which I agree with you, highly doubtful it's a clerk, highly doubtful. Probably somebody who knows clerks or knows people close to the justice at least knows them well enough to where a reporter of one degree removed swirling about opinions. The kind of stuff that when the opinion comes out, you're not shocked at all, but you have information that as a journalist, that's not solid enough to run with. So I'll give you a good example, the Bostock decision. So in the Bostock case, this is the one where Justice Gorsuch seemed very open.

Then as the weeks and months passed by, there was this kind of swirl that was essentially treating Bostock as done, as over. Gorsuch was writing this nothing so that when it came out, nobody was surprised by it. That is not super unusual. It's not super unusual, but it's never solid enough to sort of say, oh, Sarah, I've got news. I've talked to two people or three people, and here's how Bostock's going to go. It's much more like, hey, Sarah, here's some rumors that I'm hearing.

But I think this was beyond that. This was beyond the sort of the normal rumor mill that's out there. So David, I also spoke with some reporters about whether they thought we'd find the leak, which is always interesting as well. Fine. And certainly the reporters who deal in classified leaks

are very confident that you will never find their sources because the, for lack of a better word, tradecraft is pretty well honed and they know what they're dealing with. The question is, when the initial leak person approached a reporter with what I can only assume, if it's a clerk, is a relative lack of sophistication, whether that initial contact is going to provide a footprint of some kind. Because from there, Josh Gerstein is an incredibly careful reporter. I think there's a split over whether Ward, the national security reporter, is the contact or Gerstein, and people think it's Ward because

what business does he have on there? For this reason protecting the source because he deals in classified information leaks and disclosures and so he will be able to sort of keep a clean space if you will um as as someone pointed out if ward were the source of the draft he wouldn't be second on the byline yeah you would just your ego would not allow you to not be first so um i very much believe gerstein's the source i very much believe that gerstein is a very careful reporter who would protect his source with all of his skills which are immense um the question is whether the again again, if it's a clerk, made a mistake in that initial reach out. But if they have a real relationship with Gerstein and met him in person, that's going to be hard if they brought their cell phone to that meeting.

And again, this is assuming that the marshal of the court pulls out all the stops. The one way that I think we find the leaker is with that 1001 under penalty of perjury thing that they will need to sign yeah you didn't commit a crime right now if you raise your hand and said i did this you will lose your job you'll probably get a teaching position at yale i don't even mean that in a snarky way i mean that in a you're a supreme court clerk who went to a great law school who's about to become famous um if you sign that piece of paper though and then lie you've committed a crime for which you could go to jail if the

administration chooses to prosecute you but i think they would absolutely do so um so the clerk may question their own ability to hide their footprints and raise their hand if it's put between signing that document or not. Or David, if the marshal of the court does what anyone in the rest of the executive branch would do, you can sign that document under penalty of perjury or quit your job. But the marshal doesn't have that ability to, you know, these are the employees of the justices, right? No, they're not. They're employees of the court. Now, it has been professional courtesy to treat them as employees of the justices. But technically speaking, they are not.

Interesting. Oh, Sarah, that's good information. That's good. See, that's why you tune in. That's why I tune into this podcast for Sarah's information. That's good stuff. That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man.

To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. Hot chicken in the window. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. All right, so Sarah, let's move on to a really unpleasant topic, to be honest. There were protests that, according to some reports, were pretty intense outside of Justice Kavanaugh's house, got very heated in the online discussion of this, that, you know, of course people should be able to protest. These guys are taking our rights away from us. They should, what, you know, don't you support free

speech? You know, if you're protesting outside the Supreme Court, why can't you protest outside of somebody's house? And there's a couple of ways I want to talk about this. One is, There's a couple of ways I want to talk about this. One is, do we need to actually discuss why it's so much more menacing to be outside somebody's house than it is outside the Supreme Court, outside a government building where protests are common and where an entire system is built to handle it, to protect the rights of the protesters while also protecting the safety of justices versus somebody's home? Do we really need to do that? And the other interesting question, though, Sarah, is the law. The law. Are these protests illegal? Now, this is interesting. My first thought was, no, they're not illegal. I mean, it might be illegal to block a residential street, for example, but the protests themselves, if they're taking place on a spot where the people are allowed to be, not trespassing on private property or not blocking the street. Here's an interesting statute, 18 U.S.C. Section 1507. It says, of the United States or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent used as a soundtrack or similar device resorts to any other demonstration in or near any such building shall be fined under this title or

in prison not more than one year or both. Huh. Interesting. Now, my first thought on this is, is there case law on it? I'm relying here on a great post from Eugene Volick in the Volick Conspiracy on Reason. Section 3 was upheld in a case called Cox v. Louisiana, but the logic of that decision would apply equally to residential picketing. But in U.S. v. Grace, the court struck down a total ban on demonstrations near the Supreme Court, but there was that the law there, because the law was there, was not limited to expressive activities that are intended to interfere with, obstruct, or impede the administration of justice. So this decision, I mean, this law actually makes a great deal of sense if you think of, imagine you have a juror and you know that a juror, where a juror lives, is it justice? Is it the proper administration of justice that you can gather right outside his house and his or her house and start protesting? Or a judge presiding over a murder trial, gather right outside his or her house and start protesting to try to influence the outcome?

It's a really interesting statute, Sarah. It seems to pretty clearly apply here. What say you about the statute? Cox v. Louisiana was decided in 1965. I don't know, man. I don't know. So on the one hand, it's viewpoint neutral. Obviously, it's not you can't protest judges if you're trying to get them to find someone not guilty, something like that. to find someone not guilty, something like that. On the other hand, I don't, well, I appreciate your point on why judges and things within the judicial system like jurors, et cetera, we might want to treat them differently. I don't know that the First Amendment makes that exception.

Now, so the question for me is, could a similar law be used for all of us that you are never allowed to protest outside someone's private primary residence? I think would have to be the way that it's written. You can always protest outside a government building or commercially zoned office space. government building or commercially zoned office space. But if it's a private residence, you can't protest unless you are happening to walk by a protest that has a permit that's, you know, moving down the street and that's part of the parade route or whatever. And it passes private residences, but you aren't targeting the person in the residence. I don't know, David, do you think the first amendment allows such a law? I'm very skeptical, to be honest with you.

I am too. I'm very skeptical about that. Now, I do think, for example, disturbing the peace statutes. In other words, I don't have a right at midnight in my neighborhood to wake everybody up. Time, place, and manner restrictions, y'all. Time, place, and manner. Yep. So I don't have a right at midnight in my neighborhood to wake everybody up. Time, place, and manner restrictions, y'all. Time, place, and manner. Yep. So I don't have a right. And you don't have a right to threaten someone. All of the normal First Amendment things adhere. Time, place, and manner, threats, violence, pornography, all of that would still apply. But can you ban what would otherwise be allowed First Amendment activity on public property, in this case a sidewalk or a street, because it's a judicial residence? I say no. I think no, too. I think no, too.

No, too. I think no, too. So interestingly, Cox v. Louisiana, as we said, decided in 1965. U.S. v. Grace, another Supreme Court opinion, 1983, struck down a total ban on demonstrations near the Supreme Court. Whoa, you thought you could ban demonstrations in front of the Supreme Court? And that took until 1983. Honestly, David, that might be the most shocking Supreme Court case I've heard about in a long time in terms of that it took that long. Wow. Wow. So yeah, I think legally this has some real problems. I think prudentially, David, the idea that it's okay. You know, the video that I saw for what it's worth. Um, I do not think that, and maybe you disagree. I did not find the video that I saw to be threatening. Um, it seemed like a relatively normal protest. However, it was at night.

It was certainly loud. And it was in front of someone's private home where maybe they're home. I don't know. Maybe their kids are home. Maybe their spouse is home. Their neighbors, some of them are certainly going to be home. So I do think that there are time, place, and manner ways to shut this down. I also think from a prudential level, you look like a real dumb to me. Because if your

point is, you know, Justice Kavanaugh, for instance, we know didn't write, didn't draft this opinion, that he is one of the votes to sign on to it. And he is the swing vote on the court right now. And I'm defining that by the person who has been in the majority the most for the last two terms. So if what these protesters are saying is that whoever is the median vote on the court, they are going to be outside your house screaming at your kids. And it's up to you to decide whether you find that threatening or not and whether your neighbors are upset by it, what is the incentive that they're setting up for there not to be a swing vote on the court? Because it has nothing to do

with whether he drafted it and all to do with the fact that they think that standing outside his home and screaming at him and his kids might change his mind? No. So that's not going to happen. And as you know, look, these people didn't fall off a turnip truck yesterday. They knew that Dobbs was coming. They also know that their justices on the Supreme Court, they know the current climate. This was already baked in, David. to influence Kavanaugh. It's an attempt to punish Kavanaugh. Let's just be honest about it. This is what this is. It's an attempt to punish him. And look, from just a golden rule standpoint of treating others the way you would like to be treated, if you think for one second it is not extremely menacing to have angry people right outside your home, you're, I don't know how to, I don't know how to have that conversation. Well, and it means for instance, so all of my friends who have older children, they had tons of sports this weekend. It's spring. All of these games are outside. I mean,

it was just like endless scheduling for all of my friends. This one has soccer. This one has basketball. Then there's gymnastics. They couldn't, if they were in their home, which I actually doubt that they were, which is a whole different, like now they can't live in their own home. They can't take their kids to scheduled things, sleepovers, practices, because God only knows the fear that you would have to pull out of your driveway. Well, I mean, and then the people saying, well, they're not hurting anybody. How do you know? There's a gang of people angry enough to be right outside your home screaming. And I'm supposed to trust that they're going to be peaceful?

That when I pull out with my kids to go to the soccer game, that they're going to, you know, check who's in the car and calm down and let us pass without banging on the car and scaring my kids, giving them nightmares. Or, I mean, that's like on the lower end of it, David. The higher end, of course, being they don't just bang on the car and scaring my kids, giving them nightmares. Or, I mean, that's like on the lower end of it, David. The higher end, of course, being they don't just bang on the car. And to all of those people, you're probably not listening to this podcast, who goes, we're saying, well, what about the outrage over threats of school board, threats to school board members and election workers?

I'm like, you're talking to the wrong account here. If you think that I have had a double standard on that, you're talking to the wrong person because all of that is way over the line. The protests at election workers' homes, the threats against pro-mask advocates at school boards happened right down the street from me here in Williamson County, way over the line. And we have to draw the line here and say, I don't care if right, left, I don't care if your underlying message, I love so much I want to marry it, you can't be in front of somebody's house.

That is dangerously escalating from a moral and prudential standpoint, even if that relevant statute is unconstitutional, which I think in most of its applications it likely is, the moral and prudential move towards at-home protests, I think, is just flatly indefensible. It's just indefensible and it's destabilizing. So, David, two questions. One, what did you think of Trump appointees being protested at public restaurants, places of public accommodation? I was totally against that as well. Totally against that and said so very loudly. I am no fan of Pam Bondi, for example, but there was this really disturbing incident, I where she was people started

screaming at her outside of a movie theater and and look it is difficult to describe if you've never been through this what it's like when somebody is very angry with you in public. What ends up happening is you immediately are on high alert not to argue with that person. Who cares? But you don't know what that person's ultimate goal is. You don't know what their ultimate intent is. And so you're immediately escalating to the point where a person that you're confronting in public is reasonably concerned that their safety or the safety of their friends or family are an immediate risk. And I'm sorry, you're creating a dangerous situation. You just are. And this idea that says, well, are you not ready to argue and defend your position in public? I can't look into the heart of another human being who's furious at me in a public place.

I can't see inside them and know that all they want to do is have an aggressive debate. That's absurd. It creates a sense of real alarm and danger. And look, politicians are accustomed to arguing with angry people. But this idea that you're going to go into a bathroom, like with Kristen Sinema, outside of the theater with Pam Bondi, confronting somebody at a restaurant table, all of those things are creating a situation where the line between argument and violence is cast into question. Do you think that a restaurant owner can ask them to leave? Oh, you mean ask somebody to leave that they don't want eating there?

Can they ask Pam Bondi to leave the restaurant? Yeah, they, I mean, absolutely. They can ask Pam Bondi to leave the restaurant. Should they? I think that's pitiful and weak that they would do that, but in ridiculous. But yeah, I mean, and that's not, that might be rude, but it's not dangerous. And I think there's a big difference. I want to read you part of the White House briefing from last week. Yeah. This is with Jen Psaki and Peter Doocy of Fox News. Question. So you guys had some time yesterday talking about what you think are the extreme wings of the Republican

Party. Do you think the progressive activists that are now planning protests outside of some of the justices' houses are extreme? Psaki, peaceful protest? No, peaceful protest is not extreme. Doocy, but some of these justices have young kids. Their neighbors are not at all public figures. So would the president think about waving off activists that want to go into residential neighborhoods in Virginia and Maryland? Psaki. Peter, look, I think our view here is that peaceful protest, there's a long history in the United States and the country of that. And we certainly encourage people to keep it peaceful and not resort to any level of violence.

Let me tell you what I was referring to and what the president was referring to yesterday. Do you see? Not about yesterday, though, just about moving forward. These activists posted a map with the home addresses of Supreme Court justices. Is that the kind of thing this president wants to help your side make their point? Saki, look, I think the president's view is that there's lots of passion, a lot of fear, a lot of sadness from many, many people across the country about what they saw in that leaked document. We obviously want people's privacy to be respected. We want people to protest peacefully if they want to. That is certainly what the president's view would be. Do you see? So he doesn't care if they're protesting outside the Supreme Court or outside someone's private residence. Psaki, I don't have an official

U.S. government position on where people protest. I want it, we want it, of course, to be peaceful, and certainly the president would want people's privacy to be respected. What do you think of that response from the White House, David? I think it's a ridiculous response. I think if you're run, especially if you've run on the soul of America, restoring the soul of America, the idea that you can't unequivocitbart had posted the addresses of Justices Sotomayor, Kagan, and Bre, petrified of their base, that it's leading to decision-making that's so obviously morally bankrupt, it's hard to even know where to begin with it. Don't publish people's home addresses. This is dangerous. Don't go to someone's house. This is dangerous. I mean, the idea that that's controversial. And then the problem is, again, and I'm going to just keep saying this, way too many of

these people have their nose buried deep into Twitter. And Twitter is where you have a completely disproportionate sense of the world because you're going to have a lot more apologetics for violence or for disruptive protest on Twitter than you're going to see in real life. And so these people get gang tackled on Twitter for saying something incredibly common sense, which is don't protest in front of someone's house. And they get nervous and scared and worried that they're getting out ahead of the base. Just do the right thing here. base, just do the right thing here. Just do the right thing. Get your nose out of Twitter and put

yourself in the position, even if you hate the justice, put yourself in the position of a justice's kid in that house and think, is this the country we want? In the meantime, eight-foot fences have been erected around the Supreme Court, which breaks my heart a little, David. The Supreme Court has always been one of the more open buildings in a lot of ways in the government. And justices have been given additional security. move around the city with security necessarily, you know, when they go to dinner or something like that. Now, when they travel, they do. And when there's more than one someplace, they do. But this is the U.S. Marshals have a specific section within the Marshals that's under the Department of Justice that does judicially stuff. And I certainly hope they have enough people there that they're getting the additional funding that they may need for overtime and things like that for the next few weeks, because that is one area where the executive branch controls that little piece of what protects the judicial

branch. And Saki's comments to me were concerning from that perspective, that the Department of Justice is actually responsible for the security of the justices through the U.S. Marshals. That being said, the U.S. Marshals are awesome and don't mess with them, guys. Yeah, do not. Do not. Yeah, do not. Do not. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos.

She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting AuraFrames.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com.

Use code ADVISORY at checkout to save. Terms and conditions apply. Should we move to polling? Yes. Yes, we should. I thought there was some excellent polling over the weekend, and I thought there was some less than excellent polling over the weekend. David, I think you have some less than excellent polling you want to share. Well, yeah. Well, there's polling that seems to be off there's polling that seems to be off or,

or unusual. Okay. So we're going to talk about three different sets of polls, a Pew poll issue, poll Yahoo issue, and sort of congressional preference and CNN issue congressional preference. So Yahoo, let me just read from the start. Many right-wing politicians and pundits have spent the week rejoicing over Monday's momentous report that five conservative Supreme Court justices

appear to poise to strike down Roe. Yet a YouYahoo News YouGov poll, one of the first to be conducted entirely after the leak of Samuel Alito's controversial draft opinion, suggests that Republicans risk overplaying their hand on abortion ahead of the 2022 midterms. The survey of 1,577 U.S. adults found that registered voters initially preferred a generic Democrat 44% over a generic Republican by 39% by five percentage points. Pause. Things that make you go, hmm, that they initially, that this poll had initial Democratic preference when asked how they'd vote in their district. But when voters were asked to choose between a pro-choice Democrat and a pro-life Republican, GOP support fell to 31%, while Democratic support held steady, more than doubling the gap between the two candidates to 13 points.

That feels like an outlier to me, Sarah. That feels like an outlier. I don't know. You are a resident polling expert. What say you? And I want to move to the CNN poll afterwards, which seems to me to be the more, and again, all of this speculation until the actual election, but not really um that poll seemed off to me what what do you think so when i you sent that to me and i first read it and i thought to myself huh i my initial take on this might be wrong so again my thesis was that largely because the abortion debate has gone on for so long, each side has already baked into it

the voters who are going to either be single issue voters or voters that will move because the Democratic Party is almost exclusively pro-choice, whatever that means, and the Republican Party is almost exclusively pro-life, whatever that means, which we're going to get into when we talk about some of these other polls and so that's my thesis and i saw that poll it was like i'm i need to be very open about just my thesis being wrong potentially and that something actually happening changes the calculation for some voters versus a bunch of talk boy who cries wolf stuff from both sides maybe etc and then when i dug into the numbers, David, let me just say, I actually am very open to being wrong about this. And I think I might be.

I am too. I am too. This poll made me nervous about thinking I was wrong, if that makes sense. As in, it was not the thing that was able for me to be like, ooh, maybe I need to revisit. So one, the generic ballot on every other poll has Republicans ahead. Why does this one have Republicans down? Second, the problem that we've had with national and state-based polling in 2016, in 2018, in 2020 has not been the under polling of Republicans as a whole. It has been the under polling of a certain type of Republicans. And those Republicans are disproportionately more likely to vote

for Donald Trump or Donald Trump supported candidates. If that's the case and that error persists and that generic ballot, which could have been reweighted just using Republicans, is already there, I see sort of a doubling problem. You don't have enough Republicans in your poll potentially, and you might not have the right type of Republicans. Now, are Trump voting Republicans, or a particular type of very supportive Trump Republican, or a particular type of very supportive Trump Republican, disproportionately likely to be pro-life or on the extreme side of pro-life. I actually don't have a lot of data on that, David,

for what it's worth. But because they have been not represented by overall Republican weighting in these polls, I don't have a lot of faith that they're not going to be distinct in some way on the abortion question as well. Well, and that brings me, so there's a CNN poll that I think is interesting because one of the things that you've talked about is not necessarily that you will increase the total number of Republicans or increase the total number of Democrats by this, by a Roe reversal, but that it will do something to intensity, which will, you know,

lead to mobilization and be a turnout difference. So here comes CNN poll, and CNN poll says 66% of Americans say Roe should not be struck down. 59% would support Congress passing legislation to establish a nationwide right to abortion. Even 30% of Republicans would be on board with that. So in other words, under the underlying issue, seems like strong majority support for a much more pro-choice position. But then you go to who's going to vote and why. The share of registered voters who say they are extremely or very enthusiastic about voting this fall rose six points between the first survey, which was pre-leak, and the second, which is post-leak. But that increase is about even across party lines. Among Democrats, 43% now say they're extremely or very enthusiastic, up seven points. Among Republicans, it's 56% up nine points. And voters who say overturning Roe would make them happy are nearly twice as enthusiastic about voting this fall as those

who say such a ruling would leave them angry. So in other words, narrow intensity and the number of voters who are really placing the number of vote, the majority of voters are pro-choice to some extent. underlying dynamic is that more Republicans tend pro-life Republicans tend to vote on life than pro-choice Democrats vote on choice, if that makes sense. And so therefore an increase in intensity isn't always going to be just one way. And so that poll struck me as much more consistent with a lot of experience. I think that we've both had with this issue. So exactly right. And further proof, by the way, that Twitter isn't real life and that depending on where you live isn't real life also. If you're surrounded by people who agree with you on this issue, you may be in a bubble, to quote Jeff Foxworthy. So Pew Research, their religious, uh, polling section put out really fascinating stuff, David, and, uh, all the more fascinating because they've been working on it for a long time. And the timing was such that this draft, it was supposed to come out, of course, before Dobbs,

I'd imagine, you know, in the month before Dobbs, let's think about how we all think about abortion. And instead it comes out the week, the week of the leaked draft. I really appreciated how nuanced and how detailed and hard these questions were. And it really probed Americans, not just voters, obviously. So just to give you one example, of the 37% of U.S. adults who say abortion should be illegal in most or all cases. So this is the pro-life contingent within the pro-life contingent. Abortion should be blank if pregnancy threatens the woman's life or health. 46% legal, 27% it depends, 27% illegal. Abortion should be blank if the pregnancy is the result of rape, 36% legal, 27% it depends, 30%, 37% illegal. How well does this statement describe

your views? The decision about whether to have an abortion should belong solely to the pregnant woman. 21% said extremely or very well. And remember, this is among the people who said abortion should be illegal in most or all cases. 20% said somewhat well. 58% said not to or not well at all. David, there's a lot of, well, in that last question, contradiction in there. I think it shows you how hard issue polling is to do well, because obviously, to me at least, some of those people didn't understand the question or have such nuanced views about abortion that they have an understanding of the question that is what the rest of us, I think, would not read into the question. And again, this poll, we'll put it in the show notes, but the way that they thought about it was just so much smarter than I've seen sort of the basic political polling, for instance,

ask these questions. David, just some other interesting numbers to run through. 71% of the people polled said that abortion should be legal in some cases and illegal in some cases. That, to me, is a total misjudgment of the political, the moral dynamic. Because when you do that, you're not really asking someone the difference between, for instance, their moral views and their legal views. And you're not asking the difference between 39 weeks and 15 weeks in terms of even the legal dimension or the moral dimension. And so that 71% to me tells you important stuff that the American people understand this issue better than you think they do and better than politicians who treat them as sort of black and

white automatons do. So Pew also went through the number of weeks, which I really appreciated because very few sort of spend the money to go through the number of questions that it takes to go through the number of weeks. Six weeks into a pregnancy, you've got 44% of Americans saying it should just be legal. You've got then another interesting clump, legal with some exceptions, legal with some exceptions. It depends. Illegal with some exceptions. Illegal was 12%. Illegal with no exceptions was 8%. So 20% at six weeks think it should be just illegal. And 44% think it should be legal. And the rest are in the mushy middle. They have thoughts about when it should be legal at six weeks, when it shouldn't, what exceptions might be made. And remember, we're not asking about whether this is a minor, whether the person has

had an ultrasound, whether, you know, all of these things that they're not asking, because obviously at some point you just can't ask at all. 14 weeks they ask. So it goes from 44% to 34%. Just say it should be legal. The number in the middle stays almost identically the same. And the number on the illegal side jumps, as you might imagine. 24 weeks, exactly what you think, David. We're now down to 21%. So another just over 10 point drop. I think it should be legal all the time at 24 weeks, which the question, by the way, I thought was also very interesting, Damon, as you may know, 24 weeks into a pregnancy near the end of the second trimester is about when a healthy fetus could survive outside the

woman's body with medical attention. Do you think abortion at that point should be, I mean, what a smart way to ask that question. I just really liked that. I liked the medical attention because right, this idea that like, okay, we'll just deliver all the babies at 24 weeks. No, no, that's a really bad idea. We can't do that either. So as I said, it was 22% thought it should be legal. Then on the illegal side, we're up to 42%. So almost a direct flip of the number at six weeks. Yeah. And this is, all of this has been pretty remarkably consistent. One of the, one of the graphs that was interesting to me was they had this sort of legal in all slash most cases, illegal in all slash most cases. In 1995, legal in all slash most 60%, illegal Illegal in all slash most, 38%. Fast forward to

2022, after decades of argument, legal in all slash most cases, 61%. Illegal in all slash most cases, 37%. So 1% movement, which is so much within the margin of error, it's meaningless. But the interesting question to me always about when we go through these kinds of issue polling or this kind of issue polling around abortion, I'm always reminded of the enormous amount of issue polling that's done around gun control in this sense that we say constantly, and you constantly hear, that we say constantly, and you constantly hear, Americans are broadly supportive of X or Y kind of gun control. Therefore, why can't it happen?

Why isn't that the law? Well, the reason is that that's not actually what people necessarily vote on. They might have a preference about a gun control policy, but it's a low preference. They're going to be much more interested in many other issues. And those who really do vote on guns tend to not break out the way the public opinion polling breaks out. And I think a lot is similar with abortion is that someone may say, I want it legal in all slash most cases, but I'm going to vote Republican.

Well, because I'm a Republican or because, you know, look, Joe Biden needs a check and I'm really upset about inflation. And the inflation is going to matter a lot more to them than the abortion issue does, even though, you know, I can sit here and all day and say, wait a minute, abortion should matter to you more than inflation. It should matter to you more than inflation. But it doesn't. There's all kinds of polling of evangelicals that evangelicals, many of them supported Trump more because of immigration than abortion. And you could say, well, evangelicals, you should care more about abortion than immigration.

But should doesn't matter. as far as what their actual behavior is. It is what it is. And so I think that a lot of this issue polling, what it does is it makes people feel like democracy isn't, quote, working in many ways when a popular position doesn't become law, when what's really happening is the issue polling doesn't accurately reflect priority. And I'm not quite sure how to do that better. I mean, you know, we do ask people to list priorities and it is interesting when you see that happen, how low abortion goes. But I think a consistent pattern on issues is that priority really, really, really matters. And the fact of the matter is that especially as abortion has become

much less common in America, this issue is much more downstream from people's lives. And again, I could be totally wrong about this. I could be totally wrong that this galvanizes when the opinion actually comes out and this galvanizes Democrats in a way that we didn't anticipate and alienates Republicans in a way we didn't anticipate. But that would be surprising to me. David, I'm going to give you two numbers. One, I think supports what you and I both think, having looked at this data for many, many years.

And one of it gives me pause. Okay. Okay. Give us pause. You want pause first? Let's go with pause first. Okay. Pause first. In that same Pew poll, when they did divide it out on Republicans versus Democrats, 95% of Democrats said abortion should be legal at least some of the time. 30% said it should be legal in all cases, no exception. 65% said legal in some times and illegal at other times. On the Republican side, 6% it should be legal in all cases, no exceptions. 79% said it should be legal sometimes and illegal other times. So, David,

there actually is some wiggle room there. First of all, if 6% of people who identify as Republicans think abortion should be legal in all cases, no exceptions, obviously if all of those 6% decide to vote for a Democrat because they become single-issue voters, that would change every election that we're talking about here. Now, the vast majority of those, I think we can assume, aren't single-issue voters or they already would be voting Democrat at this point. Exactly. But here's where the pause comes. 79% say abortion should be legal sometimes and illegal other times. 79% then might disagree with a Republican policy that says that abortion is illegal at six weeks. And if it's only 3% who disagree with that but are willing to change their vote over it or stay home or vote for, you know, in a ranked choice voting situation, a different candidate. I see some room there for some movement. Now on the Democratic side, same thing, right? 65% don't think it should be legal in all cases, no exceptions, which is the Democratic party platform.

I tend to believe that if those people were single issue voters willing to change their vote over this issue, they already would have. But turnout, enthusiasm, all of that, both sides should take a little bit of warning in those numbers. David, here's the number that I think is fascinating, that most people, especially on Twitter, are going to have a hard time believing. Broken out by gender, women and men. broken out by gender, women and men. So 89% of women think abortion should be legal at least some of the time. 91% of men think abortion should be legal at least some of the time. Almost all of these numbers, David, are directly within the margin of error in terms of the gender difference. There are a few more women who think abortion should be legal in all cases, no exceptions. It's 21% versus 17% for men. And these should be legal sometimes, illegal other

times. 68% of women to 74% of men. And then abortion should be legal in all cases, no exceptions, 9% women, 8% men. And again, remember, this is going to have a relatively large margin of error. And I've talked about this before, David, there's the statistical margin of error, and then there's sort of the built-in margin of error of how humans have error. So I always add in more margin of error than just the statistical margin of error based on, you know, means and well, statistics. So David, this idea that we're about to move a whole bunch of suburban white women, which is this like thing that I keep seeing everywhere. Where is it in those numbers? Yeah, that's, that's a very, very good question. That's a very good question. And again, caveat, we could be all wrong about this.

The idea that all of these suburban white women are going to move on this, it really belies the fact that that's also, suburbia is, tends to be a decently culturally conservative arena. It is, it's not Park Slope Brooklyn. It's not Berkeley. It's, it is, it is not necessarily where you're going to have the hot button of intensity. Um. Suburbia isn't necessarily a hot button of political intensity, period. And a lot of, you got a situation there where an awful lot of people are kind of content with life and recoil from radicalism. And I think if you're going to see, you know, I think the pro-choice side could easily overplay its hands with its hand with these home protests and getting in people's faces. And it creates a dispositional there.

A lot of people, a lot of people recoil from that, even if they might agree with some underlying policy positions, they're going to recoil from that in much the way that people believed they don't like police brutality, but they recoiled strongly from the riots. People might be broadly pro-choice, but they're recoil strongly from a radical and menacing response to it. I mean, this is complicated stuff And sort of this idea that because a majority of Americans register as pro-choice, that this is ironically enough going to be an ultimate political winner for Democrats is just not baked into the cake. It's just not. just say that from my own perspective this past week has been uh one of the more difficult potting weeks for me in terms of the amount of humility that i personally feel about talking about this issue even from a legal perspective right um and you know knowing that a whole bunch of people

listen to this podcast and have very strong emotional um and valid views on it. I hope that you have found that we have treated this issue with respect, regardless of what your feelings, personally, morally, or legally on it are. And I was just reflecting on that last night, David, that that is my goal in how we've talked about this. And I hope we've met that for most of you. I feel exactly the same way, Sarah. This is, you know, this is an issue. I said it, you know, it's downstream for most people's lives, but from the folks who've been engaged in this,

this is, it doesn't get more intense. It doesn't get more intense. And so it is incredibly difficult to have conversation about it in a way that doesn't deeply alienate somebody in the conversation. It's very, very difficult. And I was thinking about the way that I talked about Justice Alito's opinion, and that my frustration with it is that I didn't think it aimed to persuade that it wasn't written to um give a lot of credence to the other side or to validate the other side and i believe that and at the same time feel like if you think you know if you've been fighting this fight for a long time and justice alito comes out like where was that sympathy when Roe came out, for instance, and all of this? There's that side. There's the, Sarah, we don't really care if you don't like his tone. The point is he overturned Roe and took away a right that women have had for 50 years.

It's all of it. And I'm just very intensely aware of that on behalf of our listeners. Well, and I appreciate thoughtful feedback we've gotten. We've gotten a lot of it, very thoughtful, very interesting, and I really appreciate it. As I said, I read it all. I read it all. As unpleasant as that can be on occasion. Can I tell you, David, one piece of feedback that we got that I thought was very smart and is worth sharing was on the Obergefell point when we were talking about why Justice Alito's reasoning would equally apply to Obergefell. I think it's worth noting that while Justice Alito mentions those types of cases multiple times throughout the opinion, the bulk of it comes in the stare decisis factors. And when you are thinking about the difference in Obergefell versus Roe just in that stare decisis analysis,

it is very different. And so if the history and tradition around abortion might factor into overturning Roe and Obergefell, you still have to look to those other factors. And as many people have pointed out, the reliance factor, for instance, on Obergefell or Griswold or Loving would just be such a different weight that regardless of whether that first history and traditions or the originalism philosophy might counsel that those were decided incorrectly look alito was in the dissent on obergefell he's told you he thinks it was decided incorrectly that is different than the decision of whether to overturn a case that has already been decided um and a point worth emphasizing yeah no i think a point worth emphasizing.

Yeah, no, I think that's worth emphasizing. And then one other thing about this, and then we can close the podcast, is there are a lot of people who are saying essentially, why are you even talking about Alito's reasoning about Obergefell? He's going to do what he wants to do anyway. And the thing that I would say to that is there's not much I can say to you if you think that a justice just is completely outcome oriented. If all that matters is the outcome, then analyzing opinions is kind of worthless and useless. I mean, it's just who wins, who loses, that's that. I firmly believe that analyzing and reading these opinions matters. I really do. And because I firmly believe that the jurisprudence, while definitely influenced by judicial philosophy, that these judicial philosophies matter and the words of these cases matter, and that,

you know, the record demonstrates that while the Supreme Court does reverse precedent, it's not—the Supreme Court does not necessarily—a current court does not necessarily reverse its own precedent with alacrity. says abortion is different from the many of these other cases involving marriage for example it's not there's not much historical precedent for this same court to say psych we didn't mean that 18 months ago or two years ago or three years ago um when the court tends to reverse precedent it tends to reverse precedent after time and changes in composition of the court and And so essentially what people are arguing is that Alito and others are operating in such bad faith that they're going to depart from the previous practice of the court. They're going to ignore their own precedent, the precedent they just set. And I'm sorry, I just don't'm sorry, I just don't buy that.

I just don't buy that. I don't buy this analysis that says it's all completely reductive. And it would really make this podcast quite pointless in a lot of ways. Totally. I mean, what? David, by the way, I have a message for the pro-life activists and community out there, for the pro-life activists and community out there, including all of the especially Republican state legislators, members of Congress, the president. I'm just going to use my platform to say that there is a baby formula shortage out there that is especially hitting those who need

specialty formula, as my son did, in order to stay alive. These mothers are now running on days left of formula. They don't know what they're going to do next week. Please, please look into this and figure out how to get formula back through the supply chain. There was a factory that was shut down by the FDA in Michigan. I understand that. I'm glad that we're also caring about the safety of babies, but there are a lot of babies out there that are counting on formula day to day and moms who are losing sleep right now. So that is something very pro-life that we can all, I think, agree on. Let's get the baby formula moving and let's get it to the moms who need it. Amen to that. All right. Well, boy, this was a little different advisory opinions,

but good podcasting, Sarah. Good podcasting. Oh my gosh. And if you agree, please rate us on wherever you get your podcasts. Please subscribe and please check out the dispatch.com.