Advisory Opinions - Making Sense of the Supreme Court Leak

Episode Date: May 3, 2022

In an emergency podcast, David and Sarah discuss the leak of Justice Samuel Alito’s abortion opinion. Why did someone leak it? What are the ramifications for the Supreme Court? What should we make of Alito's opinion? What are the political consequences? All that and more in an unprecedented emergency pod for an unprecedented Supreme Court leak.   Show Notes: -Politico: “Supreme Court has voted to overturn abortion rights, draft opinion shows” -TMD: “Supreme Court Reportedly Poised to Overturn Roe v. Wade” Learn more about your ad choices. Visit megaphone.fm/adchoices

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. 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 five seconds. Certain conditions apply.

Details at fizz.ca. You ready? certain conditions apply details at phys.ca you ready i was born ready Welcome to the Advisory Opinions Podcast Emergency Edition. This is David French with Sarah Isger. And oh my goodness, Sarah, at about 7.30 Central Time, 8.30 your time, that mushroom cloud I saw in my living room was what was left of my phone. Yeah, so can I tell you something, David? And I was texting you, right? But I was at the National Constitution Center in Philadelphia

for the dedication of the First Amendment engraving that used to be, like the 50-foot one that used to be outside the museum. They have established it inside the National Constitution Center. So I went up with that to hear Judge Ludig speak, Jeff Rosen. It was fantastic. I was texting you about how excited I was to talk to you about the free speech conversation on Thursday. And so I was in my car driving. I know. I was texting you wondering why aren't you texting me back? This is important stuff, Sarah. Yeah. No, I'd rather not text and drive. I called husband of the pod and was like,

start reading, start telling me things, you know, and then I was going 80 down 95. Um, okay. So David, we're going to divide this up into three parts. Yes. The leak, the substance, the politics. Correct. Now, pre-leak, when this came out, obviously the first thing that anyone wants to know is, was it real? We now know the chief justice has confirmed it's real. But I do think it's also worth noting why you and I knew it was real last night. worth noting why you and I knew it was real last night. The formatting that the Supreme Court uses is very unique, very specific, would be very difficult to redo if you didn't at one point

work at the court relatively recently. So there's that for me. Also, number two, if you were going to do a fake opinion and take the time to put it in the proper formatting, and I mean the footnotes, they don't use the blue book, all of that stuff, you wouldn't do 98 pages of it. You'd do 12 pages or something much shorter. So it was real right from the second I opened the link. Oh, yeah. As soon as I opened the link and I saw it, I thought, opened the link. Oh yeah. As soon as I opened the link and I saw it, I thought either this is real or it is the most elaborate channeling of a Supreme court justice I've ever seen in my life. And who can do that? Right. Who can do that? So it's real. Now let's, let's do another bit of

housekeeping. Okay. Does this mean the case is decided? Okay. That is, you know, a lot of people are treating this as this means the case is decided. It is not decided. This may be the majority opinion or it may not be the majority opinion. It may be the guts of it or it may not be. A case isn't decided until the case is issued. As we've talked many times, Sarah, the history of the Supreme Court is littered with examples

of justices believing, for example, they're writing a majority opinion and it turns into a dissent. There is a very famous flip in the abortion world in Planned Parenthood v. Casey. Going back to 1992, there's a Washington Post article. We've mentioned this before, and here's how the Washington Post article starts. The Supreme Court on June 29th affirmed, June 29th, 1992, instead of overturning the Roe v. Wade abortion standard because Justice Anthony Kennedy changed his vote. A flip attributed in court circles to liberal constitutional scholar, Lawrence H. Tribe, pulling strings backstage. I wanted to put a pin in that, that this means,

this does not mean the case is decided because it's really indispensable to the analysis of the leak itself. Yeah. And so here's what we know from the source that gave it to Politico. This is a draft from February. It was the first draft circulated. So again, let's assume that our source knows what they're talking about because they had access to this draft and that they're not lying to Politico.

So we'll take everything they say at face value. A, the opinion was assigned to Alito after conference based on the votes of five justices, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. That means that Thomas assigned the opinion to Alito, which is a whole other interesting thing that is surprising a little bit. Right, David? Not surprising to me because I have a theory on that that we can hit. I want to hear it, actually. Let's do it now because that's how this whole thing starts, right? If it were Thomas, why didn't he write it himself? Why not assign it to himself? This

is Plessy, right? I mean, the overturning of Plessy. I will tell you why. Because Thomas is writing a separate concurrence saying that abortion should be prohibited by the 14th Amendment. That's why. Okay. Oh, I see. Oh, I see. Yes. So there are amicus briefs that were submitted to that effect. I believe Robbie George wrote an amicus brief to that effect.

It is a very live debate within pro-life constitutional circles as to whether the 14th Amendment is sort of silent on abortion, and that's left to the states, or whether the 14th Amendment prohibits abortion. of the states or whether the 14th Amendment prohibits abortion. And that's just, I'm not 100% certain on that, Sarah, but let me say I'm at 70%. That's a really good explanation for how Alito ends up with the majority opinion. Now, for those who are surprised that, for instance, Barrett didn't end up with it or something like that, I think you kind of have to get into the mindset both of the pro-life community who does not believe that this is a women's issue, but also just the Supreme Court. You would not assign Brown v. Board of Education to the most senior or junior justice on the court regardless. So I was not surprised about that part. Okay, so that's

something we know in terms of it gets assigned to Alito based on this source. The draft circulates February. This is the first draft. We don't have any of the next drafts and presumably there are later drafts. So that tells us something. Next, the source says

that those were the five votes at conference and nothing has changed about those votes. So that was interesting to me, David, because that's different than saying five justices have signed on to the Alito opinion. And to me, that gap might be the answer to the leak, as, they have five votes in conference. Then the draft gets circulated for justices sign on to that draft by this point. But that fifth vote from conference hasn't actually agreed to sign on to the majority opinion, making it not a majority of the majority opinion as of May,

you know, early May here. And of course, that would mean, David, that the leaker is not... I mean, this makes me so angry that people are using specific clerk's names based on zero actual information. Oh, zero. But it would mean, for instance, that it is not a Sotomayor clerk, that it's a clerk on the conservative side. Yeah. So this is a good point to braise. And this is something I'm actually writing about for my newsletter, which might, which might hit the, uh, internet before our podcast does. It'll be a race, Sarah. It'll be a race. Um, we can't presume this was a left-wing

leak. Okay. The motive for a left-wing leak. The motive for a left-wing leak, and we'll just use left and right-wing leaks as a shorthand, the motive that this leaks from the progressive side is pretty clear that the leaker would be wanting to create a Kennedy flip and that hopefully public pressure or a convulsive public response to this draft would create pressure on the court to reach a middle way or to change course in some way, to ease the public pressure. Okay, that's sort of where a lot of people in my Twitter feed just raced for that.

Which makes no sense, by the way, because what this is most likely to do is lock in the status quo. So if you're a liberal and you have five votes out of conference, the last thing you want to do is lock in status quo, force people to be embarrassed if they switch their vote, you know, to be embarrassed if they switch their vote, anything like that. Like all it would do in my view is if you, if the motivation is liberal is to sort of get people riled up, but the opinion itself was going to do that in June and closer by the way to an election. Yeah, that, that was, so one of my initial thoughts was this is trying to thoughts was, if you're trying to lock in the status quo, the leak is the way to do it. And I immediately thought, okay, I see the left-wing motivation, but I also see a right-wing motivation. doesn't go wobbly, then the leak here would indicate and broadcast, hey, wait a minute, we had this. We had this and somebody flaked out. Now, the argument against that is that same thing, if the fifth justice has not signed on to this opinion and they're waffling, they're going to

know exactly why this was leaked to try to lock them in, which is going to piss them off and have them writing a separate concurrence, not joining that opinion because they're not going to bow to pressure from some law clerk, in which case it's going to backfire. Yeah, it is a mess. And I think the really important takeaway from this here is don't presume. Don't presume that one side or the other has leaked this thing. Let the process play out. Let's investigate it.

I'm somewhat pessimistic that we're going to find out who did it. Leak investigations are notoriously difficult. Yeah. I mean, look, as someone who worked at the Department of Justice, when many a leak investigation of classified material, you know, an obvious crime were investigated, the leak prosecutions that happened were when someone made a mistake, when the leaker was sloppy, stupid. And so maybe that happened here, but I will note that it was a scanned version of the draft opinion that went online, which right away I was like, someone put their smart hat on. Obviously, there's a lot more to look at than just that. But right off the bat, someone was at least thinking about protecting this person's job. Now, the chief justice has put out a statement. He confirmed the authenticity and said he has directed the marshal of the court to launch an investigation into the source of the leak.

Interesting for a couple of reasons. So obviously he could have referred this to the FBI. The FBI then would be able to use all of the traditional law enforcement techniques, subpoenaing third parties like Google to look at Gmails, things like that. However, that would also mean that the FBI has all of their traditional law enforcement techniques, including subpoenaing the emails of law clerks and justices, something that perhaps the chief justice did not feel totally comfortable with. The marshal of the court is sort of the chief law enforcement officer within the court. I am not totally clear on what sort of independent law enforcement tools the

marshal of the court has without needing to refer something to the Department of Justice, for instance. In terms of whether a crime was committed, David, look, the closest thing, and by the way, the FBI can launch an investigation regardless of whether sort of a known crime was committed. In this case, because they do not know how the leak happened, there could have been a hack. This could be Russian hackery then releasing a draft opinion to undermine the institution, for instance. Because they don't know, they can launch an investigation just based on that. You don't have to have some statute that you're like, aha, we're pretty sure it's this. But assume for a moment that it was not a hack, that it's what we all think it is, which is a perturbed clerk of one variety or another.

18 USC 641, theft of government property is, you know, like the closest. So I'll read it to you. Anyone who embezzles, steals, purloins, or knowingly converts to their use or for the use of another, or without authority, sells, conveys, or disposes of any record, voucher money, or something of value of the United States or any department or agency or any property made under contract, find, or imprisoned. Here's the problem, David. A, so it says record, it says steals, but I think if you go look at the history of how the statute has been used and even just the text of it, I don't think that reporter paid for the draft of the opinion. And if something of value wasn't converted, I think that probably that statute's going to be hard to fit into this little thing. Now, that doesn't mean that this person wouldn't

be punished. They would obviously lose their job at the court. Bar complaint, they could potentially get disbarred by their state. Although once the political motives of the person is known, that could be a whole different mess in terms of whether, for instance, the state bar of New York would disbar a Sotomayor clerk for leaking the draft. That would be disappointing to me that no matter who did this, that they wouldn't be disbarred. So maybe a quick rundown of who all would have access to this. Obviously, the justices and the law clerks all have access right off the bat to this draft opinion. The justices also have chamber staff, which would move papers between chambers, for instance, they would have access to the justices email to something like this. Though I will note that those people often

are lifers with their justice. Like there's nobody more loyal than the secretary to the justice in terms of like people who will like actually take a bullet for the justice. It's very unlikely that it's one of those people. That's why I think for the purposes of this podcast, we're assuming that it's a clerk because it's probably not staff, and it's almost certainly not a justice given that all of them, I think, believe so strongly in the institution. It's hard to use words to describe what this has just done to the Supreme Court as an institution. You know, and let me give you my thinking on why it's a clerk. And my mind entertained every option last night.

I was thinking secretary. I was thinking, I even raised the thought justice. And then thought about it and then mostly dismissed it. There's a cultural thing going on here. And that is, we've got this really interesting world in which younger staffers of major cultural institutions have had a consistent pattern of trying to disrupt the institution from within. And this is entirely consistent. This is entirely consistent with that hyper-politicization of a youthful cohort combined with sort of a lack of respect for institutional traditions.

And I don't know, maybe that's way too sort of like pop psychology slash cultural analysis-y or whatever, however you want to say it. But the thought crossed my mind that this would be consistent with the kind of conduct we've seen in other institutions. I think that's exactly right. And again, on both sides of the political spectrum, although on the more extremes of both sides of the political spectrum, they believe,

right, it's like the speech is violent stuff. If an institution is unjust, it is not just your right, but your duty to tear down that institution. So if this is an opinion you disagree with, for instance, then the institution is unjust. Therefore, you can destroy the institution, because what's more important is Roe, not the Supreme Court as an institution. because what's more important is Roe, not the Supreme Court as an institution. On the other side, the common good constitutionalists actually, funny enough, believe very strongly that institutions are the safeguard of everything, that they must be very, very strong institutions looked over by the ruler in sort of an authoritarian sense. But they believe these institutions are too weak to do that. And therefore, you are justified in destroying these institutions to then replace them with strong authoritarian institutions. So again, on both sides of that extreme political spectrum in this upcoming generation, I agree, you can destroy institutions because your personal beliefs about something being unjust are more important than an

institution. Yeah. Yeah. So like I said, we can't presume the motive of the leaker because even if you apply this sort of pop culture or this cultural analysis, it cuts in both directions here. We have sort of horseshoe theory, mirror image style conduct from radical right and radical left. So we can't presume this. All right. So let's just get into, Sarah, a question. Why is the leak bad? I mean, leaking happens in all- I was going to ask. Yes, I was going to push back on this too. Why is the leak bad? Oh man, David, we are in Dobbs' mind meld today for the emergency pod. Okay. So here's- Transparency, right? You and I like transparency. We like free speech.

All of these things kind of go together. So why are we putting the institution, which is a secrecy institution, ahead of transparency as a virtue. Well, the court isn't Congress, for one thing. The court isn't Congress. And the deliberations that go into court decisions are... Let's back up for a minute. So if you have, let's just play this out. So you submit a court case for ruling by a panel of judges. And if you had an atmosphere in which we were seeing the draft opinions in which we were understanding who's, who's where, when, and what, what you're talking about is essentially transforming the institution itself in a absolutely fundamental way to where individual judges are opened up to individual

pressure campaigns that are where, in many ways, what you would start to see is perhaps people starting to send draft opinions into courts. You would start to see a situation where threats, and we already have an atmosphere of threats, but much more targeting threatening behavior. You then have this atmosphere where justices can't trust their colleagues. They can't trust their clerks. trust their clerks. You're ripping open a process that I think for very many good reasons for a very long time has allowed people to deliberate in sort of an atmosphere of calm reflection. And the difference between the judicial branch and the legislative branch is demonstrated by the quite dramatic difference in the selection process in the terms of the respective individuals. Here you have a nomination by president, advice and consent of the Senate, and a lifetime term. Congress is entirely different. You're up for vote every two years or every six years. And so in that circumstance, how can you know about what your congressperson is doing without a degree of transparency? You're part of the accountability structure here.

different institution from Congress, and it's designed from the ground up to be. And if you've got these institutions leaking like a sieve, then what you're doing is you're turning the court into a version of Congress with a version of public pressure that applies to Congress, and you're undermining the very structure of what the thing is supposed to be. I like the SCOTUS blog said it in a very brief tweet. It's impossible to overstate the earthquake this will cause inside the court. In terms of the destruction of trust among the judges and staff, this leak is the gravest, most unforgivable sin. Do you go that far? So David, I disagree wildly with everything you just said. Good, let's go. But not

in the way you think. Okay. I disagree that Congress should be transparent. That in fact, we should be distinguishing between transparency of outcome, how your money is spent, what laws say, of outcome, how your money is spent, what laws say, what they will ban versus transparency of process. And I think what we've generally seen is that transparency of process undermines institutions and deliberation that is thoughtful and meaningful. And that transparency of outcome is incredibly important for self-government for exactly the reason that you said, right? Voters need to be able to vote on something. Now, so what is process? Unquestionably, everything that happens in the court that isn't oral argument, briefing, and opinions, that's internal process. That's deliberative process. process. That's deliberative process. In Congress, you know, debates on the Senate floor, that to me is similar to oral argument. That's not deliberative process. That is actually part of outcome in some respect. It's what your senator wants to say to you, their constituents, and to their fellow members. Whereas, you know, draft bills, discussions between senators,

all the dirty, messy compromises that are, you know, even considered, that is deliberative process. And we should actually, I mean, I don't know how we're getting all these horses back in the barn, but Congress would actually be a better institution if they would protect their process more and have less transparency. You know, I love that the Supreme Court does live audio of the oral argument so you don't have to attend in person, but not video. I would be just fine if Congress did the same thing. Right. Okay. I got you. I got you i got anyway that's all to say transparency is not a virtue in and of itself transparency in the right context is a virtue above all others but deliberative process you know for the same reason that you know you and i talk about what we're gonna what topics we're

gonna talk about on this podcast that's deliber process. We don't air that all the time. If you're having conversations at your dinner table, it's going to be very different than if I record you, transcribe it and put it on the internet along with a video of you. It's just going to change your dinner conversations. Sometimes dinner conversations are good and important. So yeah, I do think that SCOTUS blog went absolutely far as well they should have because I think this will change the institution in ways we can't even guess right now. If I were the chief justice, father of the pod, by the way, disagrees with this, but if i were the chief justice i would seriously consider because of the time it is in the term simply um letting go all of the clerks

you're not going to find out who it was and it's that way you don't you're not pointing the finger at someone whose guilt you can't prove. That would obviously be unacceptable from an institution dedicated to justice. It's May. The clerks are all on a year term that ends at the beginning of July for the most part, sometimes June, sometimes a little later in July. If this set of clerks cannot as a whole be trusted, then they should as a whole be relieved of their duties. Not fired, not that they lose their next job, but if at the conclusion of this leak investigation, which I hope is quick, they can't determine who it was, which I think will be the outcome, that's what I would do as Chief Justice. Now, it's also important to note the

Chief Justice, the clerks technically work for the court. However, they certainly are considered to work for their justices and the chief justice, I do not think would exercise the authority, even if he has it to fire every clerk. That is interesting, Sarah. That is interesting. And my blink reaction to that is, yep. That's my blink reaction. And I'd be very open to getting rid of cameras for a lot of these congressional hearings. Very open to that. But my blink reaction on the clerk issue is, yep, I think that's an interesting, that's a very interesting idea, but it would be one that would send a message to every single

future generation of clerks that this cannot be tolerated. And that you need to police your own to the extent any other clerk knew the possibility or if there was talk of this at all. Also, leaks beget leaks. So clerks will now feel the need to stand up for their justice, defend their specific chambers. And there will be more leaking because of this. We've already seen another leak now about where the chief justice's deliberations have taken him. Nope, dunsies. Unfortunately for them, they would all have to go because they have now all been tainted by this one bad apple. That's now going to, you know, the, the mold, the mites are going to spread to all the other apples. Um, unfortunately. Yeah. All right. So boy,

we're, we're plowing through here. Okay. Let's move on to the Alito opinion itself. 98 pages total, but 30 of it is listing out state statutes. So we've got over 60 pages of substantive Roe no more. I have been looking forward to this part of the conversation since last night, David. You have been a leader in the pro-life movement now for some time. Is it everything you hoped for? It is, it is, it is. And, you know, I think what's important about it is that it, it shows its work. Okay. Because there's this sort of, um, shorthand way that we talk, uh, especially in sort of the pro-life world, that we talk about Roe and Casey, that once you've been sort of steeped into all of this, you kind of start drinking your own Kool-Aid in a way, if that makes sense, and you take shortcuts. And the

thing I like about this opinion is that it doesn't really take shortcuts. So essentially what it does, the heart of it here is asking what is the source of the alleged right to a constitutional right to an abortion? been traditionally located. It is in the due process clause of the 14th Amendment. And he very painstakingly breaks it down and says, look, there's two categories of rights that have been protected, two categories of substantive rights that have been protected by the due process clause of the 14th Amendment. One category is the rights guaranteed by the first eight amendments of the Bill of Rights. And that doesn't apply. The first eight amendments of the Bill of Rights are silent regarding abortion. The second category is where the inquiry really lies. And that is on the series of, quote, fundamental rights that aren't mentioned in the constitution. Now you might say,

why on earth would you even be talking about rights that aren't mentioned in the constitution? Well, this goes back to the very basic theory of our government itself, Sarah. So the basic theory of our government itself is that your rights do not come, your rights are not granted by the state. In other words, you don't have the rights that are listed. Your rights are inherent in your identity as a human being. And that what the Bill of Rights does, for example, is recognize rights that already exist. And it is not deemed to be the complete listing of all of the rights of human beings. And so what are these other rights? In fact, if historians, real and amateur, who listen to the Advisory Opinions podcast will note that the Bill of Rights wasn't in the

initial Constitution, in part because the belief was that since the Constitution was a constitution that granted government only the power outlined in the Constitution, that everything it did not grant was reserved to the people or the states. So your rights to free speech, your rights to due process, and all of that were protected by implication. Now, I believe it was very wise to write a bill of rights as sort of a belt and suspenders approach to say they don't just exist by implication. They exist explicitly and they're explicitly outlined. But there is a line of reasoning that says, look, we have rights that aren't specifically outlined in the Constitution. And so how do you define what

those things are? And this is where Justice Alito says, in deciding whether a right falls into either of these categories, the court has long asked whether the right is, quote, deeply rooted in our history and tradition, and whether it is essential to our nation's scheme of ordered liberty. So the meat here, Sarah, is trying to answer that question. Is this something that is fundamental to our scheme of ordered liberty or deeply rooted in our history and tradition? And on the deeply rooted piece, he goes to great lengths to say that no, in fact, the historical record is pretty clear that an abortion right was not something that was deeply rooted. In fact, bans and probes on abortion were quite common throughout American history. liberty, what's interesting here is he seems to take pains to distinguish this from other controversial cases where, you know, it's like saying Obergefell, because he's saying, look, this is also implicating what courts have called the potential life. In other words,

there's not just one liberty interest at issue here. And so I think from that standpoint, what he does is he just shows, he does a very good job of showing his work as to why the right to an abortion isn't properly construed as part of sort of the unenumerated liberties that are implied by the due process clause and sort of our theory of government itself. So that's my filibuster. You look skeptical. I'm really glad that you went through sort of the high level substance of it because I don't want to. I have some specific nits that I want to talk about. But overall, I will say that to me, this opinion read like, here's my metaphor. Like someone said, hey, Sam, can you pass the salt? And he launches into a 20 minute

tirade on abortion. And then at the end says, I'm sorry, what did you ask? It, um, I do not think that if this draft were to look like the final opinion, that if this draft were to look like the final opinion, it would do very much for anyone who is not steeped in the pro-life community in terms of its persuasive value, which I found disappointing. It read, um, quite dismissive of people who may not agree with it already.

Interesting. At points, um, particularly dismissive of the arguments that the Solicitor General made. And again, this might just be me reading into a tone that wasn't intended, etc. So you're saying this is spicy Alito? And I thought that it was, for the topic, too spicy, which is why I was not... Yeah, I'm not sure this was the best person to write this opinion. But okay, some things that I found interesting to knit, not even to disagree with,

just like little points. One, comparing how to do constitutional analysis to determine whether a right exists in the scope of that right, he compares to how they have treated Second Amendment analysis, which I found interesting. And walking through like, here's how we've approached the Second Amendment in McDonald, for instance, compare that to how Roe was approached, and you'll see like wildly different, you know, judicial philosophies. Fair enough. Of course, in the Second Amendment case, there was a Second Amendment and there was text they were looking at as opposed to this. Now, that's kind of his pull point, but it's a little hard to compare that as an apples to apples comparison. Second, a lot of hate for Lochner, man.

I mean, lots of Lochner hate. Roe and Casey reflected the, quote, freewheeling judicial policymaking in discredited decisions such as Lochner. Lochner is a case that conservatives can feel quite differently on, and Justice Alito coming out strong in the anti-Lochner camp. So this was a case, by the way, for non-lawyers out there, about maximum working hours that were part of a whole bunch of cases that struck down health and safety regulations in various factory setting. So like minimum wages for women, maximum hours that bakers could work in a bake shop that, uh, Lochner said infringed on the Liberty rights of the worker to contract their labor. And so if the state set a maximum number of work hours a day, you as the worker couldn't offer your labor for additional hours in that day. Um, turns out baking was a pretty dangerous, miserable job. So lots of Lochner hate. That will be interesting for conservatives to parse.

David, two of the footnotes were like on fire spicy. I bet you know one of the footnotes that I mean, and that is the eugenics footnote. So at one point in dismissing some of the amici, he notes that they have but they were anti-Catholic in sort of their version of how these laws got passed, the motivation behind them. And his point is, I don't care what the motivation is. And also just because it's the motivation of a couple people doesn't mean you can attribute that to hundreds of legislatures across the country. And then he has a footnote, by the way, undoubtedly the motivation of some was, sorry, he doesn't say undoubtedly the motivation. He says, undoubtedly the, some people have said that the motivation was eugenics to limit population growth in black neighborhoods. And he says, well, I don't care about their motivations, undoubtedly the effect has been more on black babies than white babies.

Whew! Spicy eugenics footnote. Yeah, it says, and it is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black. For our part, we do not question the motives of either those who have supported and those who have opposed laws restricting abortion. And then, David, there's the stare decisis footnote that lasts for a full page, where he goes through every, not every, just many opinions that have been overturned by the court, making the point that stare decisis is stupid. No, that's not quite his point. His point is that there's four factors that you consider of whether stare decisis should apply and the importance of stare decisis, but that the court clearly does not simply follow a bad precedent to the ends of the earth.

And he lists a lot of precedents that were not followed and were in fact overturned, many of which, as he says, if they had not been overturned, would change the face of the country. Obviously, Plessy being overturned by Brown, but Obergefell overturns precedent. I mean, almost every case about rights overturned some precedent from before. Right, right. Yeah. And then, so there's one other part that i sorry that i thought was interesting and that's that the um and this i think gets to something that has been bothering him i mean this was a man who needed to get some stuff off his chest that's how the opinion read to me um so he talks about the distortion effect that abortion has had on the rest of the jurisprudence

constitutional jurisprudence for the court you You and I have talked about this, right? The abortion distortion, facial constitutional challenge, ignored the court's third party standing doctrine, disregarded standard res judicata principles, flouted the ordinary rules on the severability of constitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality, and distorted first amendment doctrine, citing Hill versus Colorado, the case that we just discussed about, what do you call them, barriers around abortion clinics. Yeah, you know, there are flourishes in here that you would hope wouldn't make it in, wouldn't make it in where you can tell it's sort of written with some heat rather than light.

And I was scrolling up to find one of them. But for example, I believe there's a part where he basically says there's no historical evidence to support the position that it's part of deeply rooted in our tradition. And then he adds zero, none. part of deeply rooted in our tradition. Then he adds zero, none. So it's the kind of thing that a good editor, if you're writing an op-ed, would fight with you about,

do you really need the zero and the none after you have said no evidence to begin with? So I do think that there is absolutely evidence of spice sprinkled throughout here that sort of like hot sauce is sprinkled throughout the opinion. I think that the sort of the fundamental analysis of it is is really solid, is really solid. Well, look, there's no even Ruth Bader Ginsburg didn't think that Roe was on particularly solid ground. And the reason is because of at least partially what Justice Alito lays out, which is that Roe miscited the history of abortion laws in the U.S. and the Western legal traditions before the United States existed. United States existed. And he lays out what the history actually was, you know, fair enough. In part, I think it could have been left there. And, you know, in Ginsburg, if you go back and look at her 1992 NYU address, you know, the language she used was pretty remarkable. She

called Roe breathtaking in scope. That was the word that she chose, breathtaking. And the interesting thing is she contrasted it with legal developments in other areas where the court had taken a much more incremental approach. And then noted that that breathtaking scope of Roe had exactly the effect that we've been seeing for the 30 years since she gave that address and the 19 years that she had seen since Roe was decided. I do think, you know, if this is an opinion designed to persuade those on the fence, I agree with you. opinion designed to persuade those on the fence. I agree with you. I agree with you. You could write it in a way that I think is more persuasive to those who are coming more fresh to the issue.

I think having Gorsuch, who wrote Bostock, write this opinion and just his natural writing style would have been a much better fit if you want the country to accept that this is really about who gets to decide. This is about, is this a political question left to voters and their representatives? Or is this a constitutional question? And in that case, we look to the founding, and then we look to the 14th Amendment to determine whether they understood abortion to be one of the unenumerated rights. I take very seriously the argument against the Bill of Rights that the anti-federalists also, sorry, that with the anti-federalist debate around the adoption of the Constitution, that if you had a Bill of Rights, it would then take away all those other rights that aren't listed. Just because it's not in the first or fourth amendment, my God, what about everything else? The question is whether abortion

was considered one of those, again, at the founding or at the time of the 14th amendment. If not, then it appears to be a political question. I think that's what a Gorsuch opinion would have looked like. It's not what this opinion looks like. This opinion looks like a pro life dream that someone concocted. But it does pretty effectively lay out the history, along with a lot of... I agree it lays out the history, but it does so in such a pro-lifey, dismissive, everyone else's stupid way that again, I just don't think this opinion, not only will it not be persuasive, I think it will have a similar effect to Roe because of its breathtaking dismissal of the arguments. We'll get to the politics here in a minute, but I think this

opinion is very different in terms of how it will be accepted than a Gorsuch version that would reach the same conclusion. David, but here's the question to you. A, will this be the opinion? B, will it come out early now? Or should we still expect this at the end of June? That's a great question. I always answer these speculative questions like this and thinking through it like this. If somebody puts a gun to your head and he says, you have to be right, live or die. Okay. If I have to be right, I'm going to say, A, this is the general outlines of the opinion

with some stylistic changes. And I'm going to be super nervous about that, but a, this is the opinion with some stylistic changes, maybe a D a little bit of despising. Um, and B it comes out sooner. Uh, that, that would be the idea that this sort of festers for more than a month, I don't know. I mean, that is difficult. But we'll get to it. And this is going to be a good segue to the political question. Can the Supreme Court tolerate this festering for week after week after week with all of that up for grabs? And I don't know.

I don't know. I don't know. So how do you answer those two questions? I don't see how Justice Alito can change a dot or period because the first thing that's going to happen after we determine that the decision is the same is to put them into the little red liney thing in word and see every dot and period that was changed and then agonize over why. I mean, we could do a whole week of emergency pods just on that red line. So I think that will be minimal. I think the bigger question, of course, is if my, you know, we have no idea who leaked this, but in terms of the who benefits idea that, for instance, one of the five is shaky and thinking about joining with the chief on a more narrow upholding of the Mississippi ban, and this turns into a concurrence. Then, by the way, it fits much better in my view as a concurrence.

And then maybe I get my Gorsuch-y version of a majority opinion. I don't know. I don't know. I guess I hope this isn't the opinion. And that's not a very good thing to base one's guess on. Right. Right. Yeah. It's, oh, on. Right, right. Yeah.

Oh, what a mess, Sarah. Oh, what a mess. 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. Okay, the politics. Politics. All right, I have a theory, but I want to hear yours first. from 1973 to 2000, 2010 even, in the Democratic caucus in the House of Representatives, there were dozens, dozens and dozens and dozens at the beginning of pro-life Democrats. And if you chart that number, it goes down real steadily. Until today, there are two. And by the way, in January of 2023, there may be zero. The culture war that is abortion has so effectively mapped itself onto

the two political parties in the country. There is almost no other issue, in fact, I cannot think of one, in which the parties internally are so cohesive as to be one wholly pro-life and to be one wholly pro-choice. Because of that sorting feature and how effective it has been, the likelihood is that this will have zero political impact at the national level. Because either, right, you need people switching their votes. So someone who was going to vote for a Republican because they thought they're better at handling inflation and gas is now going to say, never mind. The most important issue to me is abortion and passing a national law from Congress, a federal law. There's just nothing that we've seen that would support that sort of vote switching on the abortion issue. People have

already sorted themselves. Or the young people who turned out to vote in much higher numbers than we'd ever seen before as a percentage of their age cohort in 2018 and 2020, who now don't approve of President Biden. We were expecting a huge drop off in turnout in 2022, that this motivates them to turn out. They were Democratic voters, but they weren't going to show up in the fall, maybe. Again, I'm not sure that this is enough for most of them. They're sort of on to other issues. Abortion is our generation's fight more than it's theirs. So then the political fight at the state level gets more interesting. I think there's a lot more money poured into some of these state legislative and ballot fights. But frankly, the Republicans control the majority of state legislatures and states have largely already

dealt with this. I mean, I'm going to get the math a little bit wrong, and you probably know it exactly, but roughly a third of the states have protected abortion under their state law. A third of the states have trigger laws that will ban abortion the second the Supreme Court says we hear by. They don't need to wait for the rest of it. And then a third of the states haven't. That's where the fight's going to be. And those states sort of run down North to South, down the center of the country. Um, you know, that's, that will have a political impact because

now we're going to fight over those States in a Kansas, Nebraska way, it seems. So you're the political political expert more than me. Um, but so let's take this with a grain of salt. But I have a, I have a theory, Sarah. So I have a theory. And my theory is that this is kind of going to be the dog that does not bark in November. And here's the reason why. Now I do think, and I could be completely wrong about this, and I'm going to grant you right off the bat that when the decision does actually come out, and if it is a decision overturning Roe, that there will be days of convulsive political response. Note that I said days. There will be days.

David, the fact that this is leaked will actually take some of the air out of that balloon. It will. It will. Again, if you're a liberal clerk who's stupid, then fine, you leaked this. But if a liberal clerk has any political sense whatsoever, they would realize that the last thing you want to do is take any of the punch out of what's about to hit liberals in the face. Yeah. So, um, several things. Um, one, we have not seen really abortion as a galvanizing political issue for a while. Um, most recently we had this big contest between Terry McAuliffe and Glenn Youngkin and McAuliffe poured millions of dollars into the argument that Youngkin, if Rose overturned, Youngkin could really be in charge of abortion policy in Virginia to an extent that no governor has been in generations. And, you know, the exit polling, all caveats to exit polling, indicated that abortion was by far the least important issue of all of the issues at stake in the gubernatorial election. And of the voters who listed it first, most of those people were actually pro-life.

So abortion doesn't necessarily galvanize huge numbers of people. And if it is galvanizing a lot of people, that also tends to include a lot of pro-lifers as well. Second, abortion is a lot less common than it used to be. So if you're just talking about the number of people personally impacted by abortion, the abortion rate is lower than it was when Roe was decided, and Roe was decided when abortion was mostly illegal. So abortion just impacts a whole lot fewer people. It's much more downstream from people's lives than things that have less life and death consequence like inflation.

Inflation impacts every single voter. Abortion is way downstream from most voters' lives. most voters' lives. Third, abortion is not something that people like, okay? So there's this really interesting 2020 Notre Dame study that was done of hundreds of Americans, and demographically representative. And what they did is instead of asking them classic issue poll questions, they just sat down and talked with all of the folks at length about abortion and just really tried to get where their heart was on it. And what they found was pretty much what you find in the issue polling that Americans were a minority wanted to ban it in all circumstances. A minority wanted to protect it going all the way up until birth. The majority were somewhere in the middle between those two polls. But here's what they said that was interesting. None of the Americans we

interviewed talked about abortion as a desirable good. They all talked about it as something that they viewed even the most pro-choice folks as something that was important to protect, a right important to protect, but they were very ambivalent about the practice itself. And fourth, I don't think you could think that if you're talking about galvanization, you would only galvanize Democrats. So Republicans for this first time in 1973 would find that their votes on state regulation on abortion would really matter. They'd also find that voting for members of Congress who can cast a vote for or against federal legislation regulating abortion, those votes would really matter. So that's my sort of four-point thought on why I don't think it's going to be the galvanizing issue for the Democrats that they

might think it would be. Okay, let's talk about the right. So I agree that obviously on the Democratic side, we've both walked through that. But on the right, true pro-life activists, right, say overturning Roe is just the first step. Now they move to state stuff. But not most of the people in the Republican Party are not pro-life activists. How much of this is just going to be the dog that caught the car? I mean, most Republicans have moved on from abortion, not just generationally, although I think that is the most pronounced. But immigration being a more important issue, school curriculum being a way more important front of mind issue for most Republicans. I'm not sure even at the state level, again, for those states that have no law on the books, no trigger law, no abortions legal law, there's going to be some fights over that unquestionably.

But David, what happens when New York passes a law that says abortion is legal up until that baby comes out talking at the hospital or something? And pro-life activists are going to be outraged. They're going to want legislation on it. They're going to push for federal legislation. They're going to push the Supreme Court to find a right to life for someone unborn at some point. How does all that play out on the right? So I think what you're going to see is a whole heck of a lot of status quo. Because one of the interesting things, if you go and you look at the states that have already heavily regulated abortion, many of them already had, even before the regulations, newer regulations

like heartbeat bills and trigger bills locked into place, had very low abortion rates to begin with. And so the idea that this would be like a convulsive change in states like Tennessee, where abortion rate is substantially lower than it is in many other states, I think you're going to see not much change. In fact, Guttmacher, when it tried to do a serious analysis of what would it mean for the abortion rate to have Roe overturned, their analysis was at most you would see 87% of abortions take place. In other words, the biggest decrease would be a 13% decrease. Why is that? Because the states where

abortion is most heavily regulated are the states where abortion is pretty much the most rare to begin with. So I think in the mean, in the short term, you would have just a whole lot of status quo, which is one of the reasons why you would not see a huge amount of upheaval at the ballot box. Now, where you would get some real energy, I think, is less on Republicans voting to try to elect representatives and senators who would ban abortion nationally, and more on electing representatives and senators who will vote against Democrats trying to codify Roe. Now, why would you have more energy voting against Democrats who want to codify Roe? Because actually, and this from my standpoint, is sadly, abortion is a low priority even for evangelical voters. Even for evangelical voters. So, for example, going back to the Virginia general election, about 25, 28% of voters in the Virginia election were evangelical, were white evangelical voters.

Well, only 8% of all voters listed abortion as a number one issue. Of that, there was about 56% who were pro-life. Well, that means just doing your math, the vast majority of evangelical voters did not list abortion as a number one priority. And this has been replicated in survey after survey after survey. So I think what you'll see is far more energy politically to resist democratic efforts to extend abortion rights federally and less energy politically to use the power of the federal government to prohibit abortion nationally. That's my prediction. Don't know if it's correct, but that's my prediction. And then the thing though I worry about as a pro-life person is I'm worried about a diminished energy at the grassroots on things like crisis pregnancy centers and that person-to-person kind of contact things like crisis pregnancy centers and that person-to-person kind of contact that really makes a difference in people's lives, I worry that some people are going to say, in essence,

our work here is done. We've overturned Roe. Our work here is done. But really smart pro-lifers are running around on Twitter screaming, our work only starts. Our work only starts. I mean, our work only starts. Our work only starts. So David, if I could summarize your best case scenario on July 1 of this year, the Alito opinion comes out with five votes. Thomas writes concurrent saying, but also I would find a constitutional right to life

for an unborn person at some unspecified time. And that the Republican Party comes to its senses and everyone goes and volunteers at a crisis pregnancy center. Is that a relatively fair assessment of David French's July 1 dream? That would be a fair assessment of my July 1. Even if you can't go volunteer, you donate to a crisis pregnancy center. Got it. All right, here's mine. And I think it's realistic. The best way for Alito to save face, he can't edit his opinion, right?

That has been locked in. Get rid of the opinion. Don't have it at all. Totally different opinion comes out at the end of June and it's written by again, Gorsuch, probably, uh, Kavanaugh,

maybe. And it just reads very different and everyone will go, what the frick happened? And that will make my July 4th, um, delightful. I'll really enjoy that. Um,

so, wow. Okay. delightful. I'll really enjoy that. So, wow. Okay. That's quite... That's a lot to talk about. And it'll explain the leak in the sense that the leak is there aren't five votes for that opinion. He's going to write some different concurrence now with the

history part. Chuck the rest of it. And that's why it was leaked and it's done. And that's not the majority opinion. That's my hope. Interesting. Interesting. Well, we'll find out. I don't think I'm right. Yeah. We'll find out. I don't think I'm right in my hope because I'm worried that too many pro-life people will say, we did it. We did it. And in the meantime, I'll be sitting here jumping up and down. Let me end with two thoughts. Let me end with two thoughts. a couple of things lurking in the background that we haven't raised yet. And we should probably table this for further discussion. The best available evidence, Sarah, right now, we haven't had the full surveillance yet, but the CDC surveillance says that abortion rates actually rose during the Trump administration. That the long decline reversed itself during the Trump

administration. Guttmacher is going to come out with its 50-state survey. The CDC survey is not an all-50-state survey, and they're going to come out this year with their 50-state survey, so we'll table that. But there was some real evidence of some backsliding, a reversal of cultural fortune on the pro-life issue. Which is consistent with my concern, that as the issue has become more thoroughly politicized, it becomes less personal. That people start to believe that they're doing their duty by

voting more than they're doing their duty by caring for other people. And so I'm really concerned that people will sort of say, our work here is done when their work is really just beginning. Then here's the other thing, Sarah, we haven't talked about. Let's table it for Dispatch Live. Doesn't this supercharge Donald Trump on the right? He nominated the justices that got rid of Roe. You know what? That is a great question for Dispatch Live. And if you're a member, you can join tonight on Tuesday. We're starting at 8 p.m.

We've got this to talk about and we've got Ohio election results coming out. Another big marker on Trump's continuing influence within the Republican Party. So Caleb, let's get this emergency pod going. That's right. As always, please rate us, please subscribe, and check out thedispatchcut.com and tune in tonight for Dispatch Live. We will talk to you again very soon. Bye.