Judging Freedom - Is there a Slippery Slope for more Supreme Court rulings

Episode Date: May 4, 2022

Supreme Court draft indicates Roe v. Wade will be overturned #abortion #supremecourtSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Resolve to earn your degree in the new year in the Bay with WGU. With courses available online 24-7 and monthly start dates, WGU offers maximum flexibility so you can focus on your future. Learn more at wgu.edu. Hello there, everyone. Judge Andrew Napolitano here for Judging Freedom. We got to start all over, Gary. For some reason, you were on there.

I'm sorry, Judge. My fault. I was doing something. I can cut it out, and that's the beauty of this right now. So you can just pick it right up, just the way you did. Hello, this is Judging Freedom. Yep, right from the top, but right ahead. Okay. Hello there, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, May 4, 2022. It's about 1040 in the morning here on the east coast of the United States. The uproar over the leak of a draft opinion written by Justice Samuel Alito on the Supreme Court of the United States, a draft which, if it becomes the majority opinion, will overturn Roe versus Wade. The uproar continues. In fact, the uproar is monumental.

It's a tidal wave politically. Republicans, whether they are serious believers in right to life or just attaching themselves to the Catholic and Christian communities seemed overjoyed, but the Democrats seem animated, fiercely, wildly, almost violently animated in their apocalyptic predictions for what may happen next. This whole thing comes down to whether or not the mother has the right to kill a baby in her womb. The Supreme Court's opinion in Roe v. Wade is based on the right to privacy. It makes it clear there's no right to an abortion under the Constitution. So when Joe Biden, President Biden says under Roe v. Wade, you have a constitutional right to abortion. That's wrong. Under Roe versus Wade, you have a constitutional right to privacy.

And the decisions made between the mother and the physician in that zone of privacy are immune from government intrusion. Now, that's not a distinction without a difference. Privacy comes from the Fourth Amendment. Privacy keeps the government out of our persons, houses, papers, and effects. Privacy is the quintessential American right. You might not know that, listening to Stephen Colbert. Privacy is not inherent in the Constitution. What does that affect? What other rulings do that affect? Is that Obergefell, which is gay marriage,

or Loving v. Virginia, which is interracial marriage? So this is, of course, an effort by... And I love Stephen, and I was on his show, not the one he has now, but the one that he used to have on Comedy Central. And by the way, Stephen, if you're watching, have me on. Let me give the Sam Alito version of what you discussed last night. Privacy is as American as apple pie, and the Supreme Court has found a half dozen different places in the Constitution from which the right to privacy comes, not the least of which is the writings

of James Madison, who wrote the Fourth Amendment, or Justice Louis Brandeis, who said the most civilized right is the right to be left alone. He actually wrote let alone, but today we'll say left alone. So Stephen is suggesting that if there isn't the right to kill your baby in your womb, somehow there won't be the right to choose your mate. Well, that's not protected by privacy. That's protected by substantive due process, a different clause in the constitution. One that keeps the government out of interfering with intimate decisions like who is your mate? An intimate decision. That's none of the government's business. What what is the race

of your mate? An intimate decision that is none of the government's business. That was resolved under the 14th Amendment, not under the right to privacy, where the Supreme Court said the states are obliged to protect everybody equally. And if they allow whites to marry whites and blacks to marry blacks, they have to allow whites to marry blacks. So this is an attempt to confuse the constitutional principles at stake here. What is really at stake here is the failure of the state to protect the life, liberty, and property of all persons, and because it protects postnatal persons from homicide, it must protect prenatal persons from homicide as well. That's not in the Alito opinion. That's Judge Napolitano. That's me on personhood and the Constitution. What Justice Alito has written in the draft, if it becomes the law of the land, says two things.

One, this is not a federal issue. So Bernie Sanders, if the Congress enacts a law guaranteeing the right to an abortion, the court will invalidate it. It's not a federal issue. So don't get your hopes up, Senator Sanders. Two, health care and criminal law are reserved to the states. So if you want to live in a state where in a state where they'll pay for abortions, they may even pay you to have an abortion, go to California or New Jersey. If you want to live in a state where the right to life is respected from shortly after conception, go to Oklahoma or Texas. As Ronald Reagan used to say, the beauty of this is you can vote with your feet. Again, in my opinion, and I've been a legal scholar for nearly 50 years,

the baby in the womb is a person entitled to all the protections of postnatal persons. But that's not what this case does. This case removes some, but all abortions. So if you look at this from a moral perspective, abortion is one great enormous evil. It's homicide of the most vulnerable. If we can stop some of those homicides, even most of them, that's a good thing. I'd like to stop all of them. I'd like to stop all homicides. That's probably not feasible in the current political environment. Judge Napolitano for judging freedom. Great, Judge. See you on the other side. I don't know that Colbert's going to put me on, but that's what I had to say.

That's fun. All right. See you later. What's the next one? Give me a second. Oh, just what happened to Dave Chappelle last night being attacked? Do you have a clip of it? You know, I do, but most of them are shaky phone recordings from back of the hall. They're not worth watching. That's why I wasn't going to add to that.

Yeah. Maybe we should bag and just end with this. Okay. I wasn't going to add to that. Yeah. Maybe we should bag and just end with this. Okay. Yeah. I just have too much to do in the next 45 minutes. Okay. All right.

I'll let you know how this lunch with Jack Devine. Good. I have a feeling he wants to tell me something that he can't say through the screen. Oh, sure. Okay. He asked for the lunch. I didn't. As you know. Yep. All right. So I'm out of pocket, uh, the rest of the day, unless we have to do something by the iPhone.

Got it. Okay. Yeah. And maybe listen, I'd like to do that. So I, uh, when that's a good time, I'd like to even try it. Okay. Okay. All right. Great. Gary. Thank you. Talk to you later. Yep. Okay. Bye. Resolve to earn your degree in the new year in the Bay with WGU. WGU is an online accredited university that specializes in personalized learning. With courses available 24-7 and monthly start dates, you can earn your degree on your schedule. You may even be able to graduate sooner than you think by demonstrating mastery of the material you know. Make 2025 the year you focus on your future. Learn more at wgu.edu.