Judging Freedom - Biden Disinformation

Episode Date: May 5, 2022

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Good morning, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Thursday, May 5th, Cinco de Mayo, 2022. It's about 9.55 in the morning here on the East Coast. release of a draft opinion of Justice Samuel Alito, which if adopted by a majority of the court would invalidate Roe versus Wade and the cases that follow it, particularly Casey versus Planned Parenthood, continues. Let me say at the outset that I am not neutral in any of this. Those of you who know me and have followed my work know that I am pro-life. I am fiercely pro-life. To me, the baby in the womb is a person, and the 14th Amendment requires the states to protect persons equally. Just as it protects postnatal persons, people after they're born, from homicide, it must protect prenatal persons from homicide. That's my view. I am also not neutral on Justice Samuel Alito. Sam and I are boyhood friends. We have known each other since the

beginning of the freshman year at Princeton, where we were classmates. So Sam and I met, you're going to know how old I am, in September of 1968. He is strong, gifted, brilliant, and fearless. Having addressed those two issues, I feel the need, my iPhone going off, I feel the need to address again this brouhaha that's going on with respect to abortion. This could have been someone from the outside hacking the Supreme Court's computer system, in which case it's a felony, even though the feds hack into our computers all the time and they don't get prosecuted. When someone hacks into the federal government and they get caught, they do get prosecuted. But federal hacking is another issue for another time. But I don't think this was an outsider hacking the Supreme Court. I think this was an insider.

There are between 45 and 50 people in the court, including the nine justices, who have access to the draft opinions of justices, which are circulated so that others can make suggestions, offer criticisms, agree or dissent. Someone in that 50 released this in February to Politico, and my suggestion is it was done for one of two reasons. It was either a person who liked the opinion but was worried that one of the justices in the majority, the tentative majority, might change his mind. So this person who released it wanted to embarrass that justice or induce that justice to stay was the other. It was someone who detests the opinion and wanted to cause the turmoil that's now in the United States to see if a wavering justice might leave the majority in order to stop the turmoil. Whatever the motivation of this person was, it's an egregious breach of confidentiality. If the person is a lawyer, that person is destined to be disbarred and never practice law.

Assuming the person, if it's one of the insiders, is an employee of the federal government, that person will be fired from his or her job, but probably not prosecuted. If it's an insider, it's not a crime. It's just an ethics breach. If it's an outsider, as I said, who hacked the computer system, that's a serious federal crime. And when the feds are the victims, not the perpetrators on the court, I would concur in the outcome. I would agree that Roe should go for the reasons Justice Alito outlined. Health care, crime, abortion for 240 years were the province of the states, not the federal government. Roe itself is made up out of thin air. All of the procedures, the legal procedures as to when the state can interfere with an abortion and when it can't, outlined in Roe, were made up out of thin air by Justice Harry Blackburn. There's no science behind Roe, there's

no law behind Roe, there's no precedent behind Roe, and the Constitution doesn't support Roe. However, if you're confronted with an enormous evil killing babies in the womb, and you have the opportunity to reduce it even a little bit, and you can do so legally and morally, you should do so. So if Roe is invalidated, then it will be entirely up to the states. A state could ban all abortions at all time, no matter the reason, or a state could permit abortions up to the moment of birth. And you'll just have to vote with your feet. The president doesn't seem to understand all of this. Here he is yesterday.

Pay attention. He's outside. There's a little bit of background noise, but you can hear it. Here he is yesterday. And pay attention, he's outside. There's a little bit of background noise, but you can hear it. Here he is yesterday, Joe to choose to abort a child, to abort a child. We ran that twice so you could hear it. He only said it once, to choose to abort a child. Either he spoke in artfully or he really believes that the baby in the womb is a child. The baby in the womb as a child, as a person, Mr. President, is entitled to the protections of the 14th Amendment, which you swore to uphold when you took your oath of office. And you've taken that oath many times because you were a senator

for six terms, you were a vice president for two terms, and now you're the president. The oath is substantially similar to preserve, protect, and defend the Constitution of the United States. Here is the president again in the same interview arguing that the problem with the Alito opinion is there's a slippery slope and it may cause us to lose other rights. If it becomes a law and if what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose. It goes to other basic rights, the right to marry, the right to determine a whole range of things. Well, this is where the rationale that produced it, the logic behind it, the precedent on which it relies only pertains to abortion. It doesn't pertain to anything else.

Here's what he's talking about. Many of the states prohibited same-sex marriage, and many of the states, for a time, prohibited interracial marriage. The Supreme Court found that the Equal Protection Clause of the 14th Amendment, treating similarly situated people in a similar way, required the states to recognize interracial marriage. As well, the purpose of the 14th Amendment was to remove race from the armament of the states, so the states had to be colorblind, so to speak. That was not done by the Congress. It was not done by state legislatures. It was done by the Supreme Court. The other issue he's worried about is an opinion called Obergefell

versus Hodges, which I strongly support. It basically says you have the right to choose your mate, and it's none of the government's business as long as the mate is a consenting adult. That's the same-sex marriage opinion. Alito opinion overturning Roe becomes the law of the land. It somehow opens the floodgates to change your ability to choose a mate. They come from different parts of the Constitution. Supreme Court has already ruled that your ability to choose a mate, no matter the gender and no matter the race, is an inherent right that comes from your humanity, and nobody can take it away.

Here's the president on the last of his comments talking about the right to privacy. I think the decision of Roe was correct because there's a right to privacy. You know, that's really the problem with Roe, even the standpoint of a great liberal thinkers like the late great Justice Ruth Bader Ginsburg by anchoring the right to an abortion in the right to privacy, the court made a fatal mistake. It's basically saying just because the decision is made between the patient and the physician in a private moment, in a private conversation, in a private room, the state cannot intrude. Well, that doesn't make sense,

because if you're killing another human being in a private place, at a private moment, in a private room, of course the state can intercede, either to prevent you from killing that person or to punish you if you have done so. I don't know where this is going to go. Take a look at what the Supreme Court looks like this morning. This is sad. This is the highest court in the land. But the Chief Justice, who made two announcements this morning, is sad also. He basically said this leak is not going to change the way the court operates and whatever the votes were on this before the leak, but we do have to protect ourselves. We hate, I'm paraphrasing

the chief, we hate building a wall between the people and us, but we have a lot of people that work here and we have a lot of people angry about our work and our work goes on and our work must continue. My prediction is that the Supreme Court will vote by five to four to invalidate, to overrule Roe versus Wade and the case that upheld it 20 years later, Planned Parenthood versus Casey. This will be a great boon for the right to life folks, an enormous setback for the pro-abortion folks, and a great boon for the Democrats. I mean, this will animate the Democratic base. This is a gift to the Democrats, who until a week ago were expecting to lose both houses of Congress in the upcoming November elections, and right now they have the momentum and the upper hand.

But as Casey Stengel used to say when the Yankees were winning early in the season, it's just May. Judge Napolitano for judging freedom.