No Lie with Brian Tyler Cohen - Republicans finally prepare to gut Roe

Episode Date: December 5, 2021

Conservatives on the Supreme Court prepare to gut Roe and Democrats issue messaging surrounding that case and midterms more broadly. Brian interviews Pennsylvania’s Democratic candidate for the US Senate, John Fetterman, about Dr. Oz jumping into the race for Republicans and the need to eliminate the filibuster before it’s too late. And Michigan Law School professor Leah Litman joins to answer all of our legal questions surrounding the Mississippi case at the Supreme Court.Donate to the "Don't Be A Mitch" fund: https://secure.actblue.com/donate/dontbeamitchShop merch: https://briantylercohen.com/shopYouTube: https://www.youtube.com/user/briantylercohenTwitter: https://twitter.com/briantylercohenFacebook: https://www.facebook.com/briantylercohenInstagram: https://www.instagram.com/briantylercohenPatreon: https://www.patreon.com/briantylercohenNewsletter: https://www.briantylercohen.com/sign-upWritten by Brian Tyler CohenProduced by Sam GraberRecorded in Los Angeles, CASee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Today we're going to talk about the conservatives on the Supreme Court preparing to gut Roe v. Wade and the Democrats' messaging surrounding that case and midterms more broadly. I interview Pennsylvania's Democratic candidate for the U.S. Senate, John Federman, about Dr. Oz jumping into the race for Republicans and the need to eliminate the filibuster before it's too late. And I'm joined by Michigan Law School Professor Leah Littman, who answers all of our legal questions surrounding the case of Mississippi's 15-week abortion ban at the Supreme Court. I'm Brian Tyler Cohen, and you're listening to No Lie. So I was going to use this time to talk about the implications of the latest Supreme Court argument and what's at stake with Roe, but I think that if you listen to this podcast, you understand that a woman deserves bodily autonomy.

You understand that the government is not our church and that our elected officials are not our priests and we are not here to be proselytized by politicians who don't understand that their job isn't to shove their religious beliefs down the throats of people who don't share those religious beliefs. You understand all of that. I don't think anyone's coming here with a half-baked opinion on abortion. Like, I think that if there's one thing I could probably take to the bank, it's that you've probably made up your minds about that. Plus, I've got an amazing guest coming up who will talk about that issue far more eloquently and intelligently than I would. So instead, I want to talk about what we are doing about it and what we should be doing about it.

And what the Democrats are doing right now isn't much. The DSCC, the Democratic Senatorial Campaign Committee, which is responsible for electing Democrats to the Senate, tweeted, elect Democrats to protect abortion rights. Dick Durbin, the chair of the Senate Judiciary Committee, tweeted Abortion is a constitutionally protected right, and the court should uphold this constitutionally protected right. Retweet if you agree.

And the list goes on and on, but, I mean, just with those two examples alone, from a messaging perspective, this ain't it. Those tweets rightfully made people really angry because, look, yes, the Supreme Court should uphold our rights, but retweet if you agree that judges who should do something but won't isn't going to do anything beyond give Dick Durbin a tweet. with some retweets. Like, the Supreme Court isn't going to be like, ah, well, look at that number of retweets.

Damn it, Kavanaugh, we have no choice. And as far as telling people to elect Democrats, we did. We turned out in record numbers in 2018, flip the House, turned out in record numbers again in 2020, and flipped the Senate in the White House. So what you can't do is tell people that the onus is only on them to do the thing that they just did. And look, on a basic level, the most basic level, the DSEC is right. Electing more Democrats is the solution.

Practically speaking, to pass anything, we need 60 votes in the Senate to overcome the filibuster, or we need 50 senators willing to eliminate the filibuster. We don't have 60 senators to pass legislation outright, and we don't have 50 to eliminate the filibuster. We have, I don't know, 48? So yeah, if we elect two more Democratic senators and we hold on to the House, then yes, we can enact the rest of our agenda. We can protect women's reproductive rights.

We can pass the Women's Health Protection Act and codify row and expand the court that would likely try to strike it down. But without that being clear, just telling people to do the thing that they just did isn't going to cut it. And so first and foremost, we need a plan, a cogent plan as far as messaging is concerned, because throwing shit against the wall to see what sticks with 11 months to midterms and zero voting rights legislation on the horizon is a really shitty plan. So whatever that message is needs to be clear and concise and coordinated just like the Republicans do.

And granted, their messaging isn't bound by facts or decency or any semblance of reality, tell you what, they can sell it, they can sell build the wall, they can sell make America great again, they can sell high gas prices, and they do. So first off, make it clear to people what the issue is. Yes, we have a 50-50 Senate, but the filibuster means that we need 60 votes to pass anything. We've got about 48 senators willing to eliminate the filibuster. We get two more, and then we'll codify row. We'll expand the court to make sure they can't undo that law. We'll pass universal background checks. We'll enact climate change legislation. We'll pass a $15 to minimum wage. Help elect a couple more Democrats, and we can finish the work that we started.

We're doing everything we can right now to pass the bills that you want passed from vaccines to climate, to paid leave, to universal pre-K, to drug prices, but we're limited with what we can do right now. Let's finish the job and do the rest of what you sent us to Washington to do. At least explain that as a rationale to eliminate the filibuster instead of just patronizing people about electing more Democrats while we're sitting here staring at Democratic majorities in the House, the Senate, and the White House. And second of all, use it to turn up the pressure on the people on our side who are actually blocking that progress. Like, I'm sorry, but we don't need to unilaterally run cover for Joe Mansion and Kirsten Cinema. We don't need 96% of Senate Democrats

to be apologists for 4% of Senate Democrats. If Democrats in Washington are feeling a lot of pressure right now, focus that pressure where it belongs, and that is with the holdouts, the moderates who seem to be more beholden to arcane Senate procedural tools than their own constituents. And look, will it work? Maybe, maybe not. Honestly, I couldn't tell you what would happen if there was actually a full court press on Joe Manchin and Kirsten Cinema. Maybe Manchin laughs it off because, let's face it, he is a Democrat in a plus 40 red state. But if Biden fought like hell, if Schumer fought like hell, if Pelosi, their colleagues, their constituents, then who knows? But we won't know if we just skip that part and instead bark at people that we

should be doing more. You do more first, because all of us seeing that you're willing to fight, even if we don't win, but seeing that you're willing to fight is going to have a bigger impact than just hoping that we show up to elect more people who think that retweet if you agree is a strategy to protect women from an assault on their bodily autonomy. The fact is that this is a fight worth having. It is a righteous fight and a popular fight and a necessary fight, but we have to share the responsibilities. We're willing to go to bat here, but we want to know that we're not the only ones.

Next step is my interview with Pennsylvania's John Federman. Today we've got the candidate for U.S. Senate in Pennsylvania, John Federman, thanks so much for coming back on. Always a pleasure. Thanks for having me back on. So a lot's happened in the last few weeks as far as the Pennsylvania Senate race is concerned. On the right, the Trump endorsed candidate, Sean Parnell dropped out, and then Dr. Oz threw his hat into the ring as we just continue to descend deeper into lunacy.

But actually, you know, with that said, in light of the fact that a reality TV star went on to win in 2016, how seriously are you taking Dr. Oz's candidacy? You really have to take it very seriously. I mean, he has a lot of resources and his high name ID. And of course, I mean, people know who he is and everything like that. So it's a strange development. I, you know, to use that meme, you know, that wasn't on anyone's bingo card a few months ago that, you know, a celebrity TV doctor was going to jump into the race. But American politics these days has, in my opinion, an increasingly larger element of that to it. And so here, you know, here we are. I don't think, I don't think anyone's bingo card

had had that, but that's what's happened. Well, in Dr. Oz's Senate announcement, beyond mentioning that he was running for the Pennsylvania Senate seat, he never actually mentions the state of Pennsylvania once. And that issue is exacerbated by the fact that the guy doesn't even live in Pennsylvania. He lives in New Jersey and he works in New York. Now, without shitting on New Jersey, because you and I have our differences of opinion as far as the great state of New Jersey is concerned. I would never. I mean, my only issue with Jersey was their official account, they were trying to steal our cheese steak. And then that started a whole different thing there. The NJ.gov tried to come for the cheese steak.

And I was like, I had to defend my state's honor here at that point. It's understandable. Well, you know, in light of that, that he doesn't live in Pennsylvania, that he works in New York, that he lives in New Jersey. What are your thoughts on the fact that Republicans are offering up candidates to represent a state that they literally have nothing to do with? Yeah, no one on our team has done a deep dive on his specific residency or the statutory requirements of what he made or meets or anything like that.

You know, it's like his announcement was his announcement. And ultimately, it's going to be up to the primary voters for the Republicans to decide if Dr. Oz is their standard bear and what have you. I think it just speaks to the surreal nature of where we are in this moment and time in American politics, I guess. And I think, you know, Pennsylvania is going to ultimately decide. what it's looking for in their next, their next United States Senator because this is obviously a crucial race. But it's just such a strange development, one that no one would have ever

foreseen or taken notice of. But yeah, I mean, I don't know what his roots are in Pennsylvania or how extensive they are, but nevertheless, he's in. And I don't know what that will bring in terms of what the Republican electorate's going to think of him. And it's, it's interesting. I know. Well, you know, obviously Dr. Oz has kind of failed up on the right, given that as a doctor who's willing to promote right-wing talking points, he's proved useful for Republicans. And so they've propped him up as he's advocated for disproven COVID treatments and reopening schools, even if that meant we would lose two or three percent of people. And those are his words. What do you think that says about the danger of allowing the Senate or the House or the White House, for that matter, to fall into Republican hands at this moment in particular? I mean, it's a crucial race for that very very simple fact. And I pride myself on believe in science. All of our children, we have a seven year old, we have a 10 year old, and we have 11 year old. They're all vaccinated. You know, you know, Jezell and I are fully vaxed and, you know, we're both going to get our booster. So we firmly believe in science and we firmly believe in, you know, the reality of what we need to do

in COVID. And I was surprised or disappointed that some of the things that Dr. Oz has promoted with this with respects to COVID. It's not something I would have expected that a trained surgeon and doctor that he is would have said. And, you know, I haven't really focused much on what Dr. Oz has said in terms of COVID treatments. I focused on what we know is the general consensus is that it works. And vaccines have been incredibly effective. And we need to be vigilant and we need to make sure we're taking the appropriate steps. And I don't think there's, there should be much room for some strange interpretation of the reality here because, you know, when we stop agreeing on what should be agreed upon and the effectiveness of vaccinations has marked the upward

surge of public health and child welfare and the welfare of all of us with vaccines that we've all received as children, I don't understand why, you know, in a world that we live in today that this was ever a debate to begin with, quite frankly. Yeah, I mean, it's just another instance of the right turning things into cultural war issues that don't deserve to be turned into cultural war issues. I mean, I think the American people are getting tired of having to square up over everything. You know, I mean, it's just like we all wanted our schools back open. And part of that until vaccines were readily available for children was masking.

And, you know, in January, you know, our masking requirement, And here in Pennsylvania, I'm only speaking of Pennsylvania, is going to become, you know, selective based on what the school district and the local leaders ultimately decided. And for sure, there are going to be some school districts across Pennsylvania that are going to decline to make masking mandatory. But as long as the vaccinations are an option for children and we continue to push for the solution. I mean, you know, I don't understand why that's controversial and I never have. And, you know, whether it's my campaign or whether it's my role as lieutenant governor, it's, vaccines, vaccines, vaccines. No one wants to go ever, you know, no more lockdowns, no more any of these kind of extremes. And we have an idea of what we're looking at with COVID. But this past Thanksgiving, there were nearly 800,000 empty chairs, you know, across our tables. And this Thanksgiving was so much better than last Thanksgiving because we could all get together. And I just wish people would remember that. And that is because of the vaccines. And that is because our country is on the right path and we are able to see COVID for what it is. It's something that we need to address and take

seriously. And now that we have a vaccine that has proven to be incredibly effective, we shouldn't have anybody on either side. It's not a political issue. It's a medical issue. And I would say, especially coming from a lifetime doctor, a professional like that, I think it's very irresponsible. Yeah. Well, you know, now we're nearing the end of Biden's first year in office. And basically, the beginning of the campaign for midterms. Now, at the same time, we've seen no movement from the Senate on voting rights legislation. What's your message to those senators paying more deference to the filibuster than Americans' rights to fair representation? I mean, that's a great question. And, you know, I've always said that the Republicans are setting the table in anticipation for

2024. That's their endgame. That is a second term of President Trump. And you look at states, whether it's mine or whether it's Arizona or Georgia, especially Georgia, Wisconsin, and these other states that the right to vote is being suppressed, it's being curtailed, curtailed, it's being shaved off. In my own state, they are going to pass, attempt to pass a constitutional amendment, making sure that universal voting ID for every time you vote, not just when you sign up to vote, but every time you vote, because they understand that at any given time there's tens of thousands of Pennsylvanians who typically typically are on the poorer side and are people of color that are less likely to have their

ID at any one given time, they understand that that could shave up to anywhere between 70 to 90,000 votes based on the statistic that were calculated in 2012, the last time they wanted to make universal voting ID. So, you know, and if you look at how small the margins were in 2020, my state, it was 80,000 votes, Arizona, Wisconsin, Georgia, all, 45,000 votes between those three states. It's at a very insidious and effective strategy that they're employing. And more than just, you know, the voting right suppression legislation, they're also replacing the elected officials and the secretaries of state that stood their ground, you know, on the Republican side that said, look, I voted for President Trump. I believe

in him, but he didn't win this state, fair and square, there was no voter fraud. In fact, the hero Republican commissioner in Philadelphia, you know, who got death threats and all these, this horrible outcome for telling the truth in Philadelphia, he's leaving his post and he's taking on a different job. So a lot of the guardrails really got mangled in 2020. I mean, he had a front seat to that. And we need to replace them. And in the absence of those guardrails being removed by this legislation or by removing these elected officials that stood So removing the filibuster for the Senate is critical because nothing's more fundamental than, you know, free access to the right to vote. And that is being strategically curtailed and suppressed in these states that are crucial to either side if they want to win the presidency.

And getting rid of that filibuster should be the priority and getting these things done. because if not now, when, given the fact, when are we going to have the presidency, the House, and the Senate all under Carjan, you know, one thing, two things that the Republicans have going for them. They are united and they are ruthless. And, you know, I always ask folks in campaign events, who's Merrick Garland? And people are like, well, he's our attorney general. And I'm like, well, who should he be? You know, he should be on the Supreme Court. And that demonstrates and reminds people that just how ruthless they can be. And don't think for a second,

if they were ever in a position to run the table, one, two, three, president on down, that they won't get rid of the filibuster and they'll make all kinds of changes as Roe now has become in front. Like this is, you know, it's all falling in the place for them. And right now, like I've said, if not now, when?

Yeah, I mean, we keep treating this like they're just playing chicken. But the fact is that when they have the opportunity to do these things that we would assume are just too insidious for them to eat. even do, well, look, I mean, Roe is right on the verge of being gutted right now. And I mean, there is no bottom. There is no bottom. And I've said it's like, you know, Democrats need to be, need to be united and ruthless for, for working people, for reproductive rights, for voting rights, for basic economic development and for, you know, like all these

things that none of this is radical. None of this is anything other than what the overwhelming majority of Americans want. You know, whatever the democratic will of my state is, I want. I want that to be true. And right now in my state, the Republicans are still going ahead with this bizarre database to audit the vote, even though it has nothing to do with anything. And we had five cases of voter fraud here in Pennsylvania that were all charged, arrested, convicted. They're all on probation. We've dealt with all of that. The plank has become the platform, whereas if you don't subscribe to the big lie in 2020, you are no longer considered a viable member of the Republican Party from an electoral standpoint.

And we in the Democratic Party need to make sure we appeal to that segment of the electorate saying, look, you know, you may not agree with us on every issue politically, but we believe in democracy in America. You know, you didn't see the Democrats in Washington, I mean, in Virginia say, oh, it was rigged. It was rigged. You know, you know, Yonkin cheated. Like, no, that's a hallmark of us. We're going to tell the truth whether we like the result or not.

But the other side isn't there. And I don't think they're ever going to. to come back. Yeah. Well, no, you've been on the campaign trail for a long time. You threw your hat into the ring a long time ago. So you have the benefit of being able to hone your message while the rest of us have kind of just been running around like chickens with their heads cut off figuring how to correctly approach 2022. But we can take lessons from the voters of Pennsylvania, especially given how important that state is. So what issue is most salient with Pennsylvanians that you've spoken to? Most Pennsylvanians want a sense of stability, normalcy, and we don't want to return to the chaos.

I think that's what the majority of voters actually want. I really do. I hear some of the understandable concerns about inflation and things like that are going up. But I also want to remind everybody where we were a year ago for Thanksgiving, let's say. We didn't know if the vaccine was going to be effective. We didn't know how it was going to be distributed in time. You know, last Thanksgiving, I know I didn't. I hadn't seen my parents all year. And, you know, think about how much better Thanksgiving is this year than it was last year when we, you couldn't get together with your loved ones without risking giving them a deadly violent virus.

The economy is, is on the upswing. You know, Joe Biden has brought a sense of normalcy and competence to everyday life that was lacking during the pandemic. And the message that, that we're promoting, whether as lieutenant governor or, or as a candidate, is that the Democratic Party has always had working families, the working parties, Americans' best interests at heart. And if you enjoyed the chaos and you enjoyed the noise, then I don't know how anybody could want to return to a time like that. And as far as policies go, whether it's build back better, whether it's the infrastructure plan, you know, all these great

investments. I mean, the Biden presidency is going to be transformative, certainly through the remainder of his first term. Second term, it's going to reverberate for quite a while because, you know, they have been able to get some important legislation passed, but nevertheless, there's still a lot that should get done, you know, in the Senate. And we need to, in the United States Senate, Democrats should vote like Democrats. And we should all realize, look, these are unique times in American politics. And if we don't do this now, we are going to be complicit in the kind of changes the Republicans are going to make that or will make it that much more difficult to win in both 22 and in 24 because we all know

that's where the Republicans endgame lay. Yeah, that's exactly right. Now, I know one of your biggest issues is weed legalization. If this administration doesn't move to reschedule marijuana as a schedule one drug, do you think that opens the door for Republicans to pounce on what is an easy populist issue. Yeah. I mean, I wouldn't say it was one of my biggest issue, but it's one thing I care about. I mean, it's an enormous economic leverage, force multiplier. It has an enormous criminal justice ramifications, you know, in my state and in states, you know, we know it's overwhelmingly impacts communities and people of color. And it just creates a lot of jobs. I mean, it's a win-win. You know, back in 2020, I said that whichever party picks up that mantle of legalizing,

That's an enormously powerful weapon that could have enormous electoral ramifications. And I think I was proven right, you know, all these states. And then there's other states like Wyoming even, they're working to get a ballot on. You know, I think Democrats need to just realize that this would be a huge thing. And you're right. You know, in my state, they went from turning, you know, calling me a liar. And it's like, oh, he's a stoner. And for the first time ever, a couple months ago, for the first time in Pennsylvania's history,

a state senator introduced a former U.S. Marshal, I might add, among the most conservative members of the caucus, his own bill to legalize marijuana in Pennsylvania recreationally, and he called it inevitable. Inevitable. So the Republicans are quickly, you know, wising up saying, hey, this is an issue that a majority of our constituents want, you know, why not leverage it? And your point is right on. Like, you know, it's going to be there for the taken for one of the parties. And let me tell you, in an air of increasingly divided government and partisanship, legal weed is one of the great uniders. And I hear that from people, you know, Trumpers approached me and they like, when are you going to end this bullshit and make it legal? And I'm like, well, you know, it's, you know, Republicans have traditionally stopped it. It's a strategic issue for, for whichever party picks it up. And to your point, it certainly creates an opportunity for Republicans to embrace it and overtake it in some of these areas. All right, well, let's, let's finish with this. What do you, what do you get in Giselle for Christmas?

I, I don't know, but, you know, the kids, I don't know. It's like we're in that place where we only have one who's an absolute Santa, you know, true believer. And I had to warn our oldest. It's like, you know, like we got to, you know, so August is, is carefully, you know, getting his letter together and everything like that. You know, I don't, I'm not sure what I'm going to get Giselle, but, you know, for me, this will be a, you know, a special Christmas because, you know, our, you know, August is still all in on Team Santa, whereas our older two, you know, not so much. But yeah, it's, it's nice. And we just were, we did a big Christmas parade in Homestead, which is a town close by where we live. So. Yeah. Well, well, you know, enjoy the holidays and keep kicking ass on the campaign trail here. John Federman. Thanks so much for coming back on. Hey, thanks for having me on.

Thanks again to John Federman. Now we've got Michigan Law School Professor and co-host of the strict scrutiny podcast, Leah Lipman. Thanks so much for coming on. Thanks so much for having me. So this is all on the heels of the Supreme Court hearing Mississippi's case on the 15-week abortion ban. Could you give a quick overview of the case and the difference between the two questions at play here, which are the legality of a 15-week abortion ban and the constitutionality of Roe more broadly? Sure. So the case involves a challenge to Mississippi statute, the law that prohibits abortions more than 15 weeks after a person's last period. And I think if the court, as people expected to do, uphold this statute, there is no way in which the court won't be sticking a dagger through the heart of Roe versus Wade. Because when the Supreme Court reaffirmed Roe versus Wade in the 1992 decision, Planned Parenthood v. Casey, it emphasized that the central holding of Roe, the core of the right that it announced was,

the ability of the woman to decide before viability to have an abortion. Mississippi statute conceitedly prohibits women from deciding to have abortions before viability, before the point at which a fetus becomes viable outside the womb, which roughly occurs sometime around 22 to 24 weeks of pregnancy. And so no matter whether the Supreme Court issues the words, Roe v. Wade is overruled. upholding this statute will dramatically reduce the constitutional protections for abortion rights and be, in a lot of ways, practically, overruling Roe. Is there a planet in which they can say, okay, we've upheld a 15-week abortion,

but try to spin it as if Roe hasn't been effectively gutted to try to salvage something politically? So if that's what they end up doing, I have no doubt that they will try to gaslight their way into favorable press coverage that would say, you know, Supreme Court does not overrule Roe or reaffirms the protections of Roe. But the reality is that the Supreme Court isn't going to say, well, states can only prohibit abortions at 15 weeks after a person's last period and no earlier. Once the court erases the viability line, because that has been the clear, bright line rule that has prevented states from prohibiting abortions at 15 weeks.

or earlier, then it will immediately provoke the question of, well, how much earlier before viability can states prohibit abortions? States across the United States have attempted to prohibit abortions at 12 weeks after a person's last period, 10 weeks, 8 weeks, 6 weeks in the case of the notorious Texas SB 8. And so once the Supreme Court says, well, you can prohibit abortions at some points before viability, then the constitutionality of all those laws are are immediately going to be on the table. Now, during the arguments, Kavanaugh kind of showed his hand in terms of his interest in gutting row entirely, and that was when he brought up the argument that other past cases

also haven't adhered to precedent, like Obergefell, like Brown v. Board of Ed, Miranda. But what he conveniently left out is that none of those cases restrict an already existing right, they enhance them. Has there ever been a time where a constitutional right that we've already had has gone on to be eliminated? So in her opening remarks, Solicitor General Elizabeth Preliger said the Supreme Court has never revoked a right that is so fundamental to so many Americans, so central to their ability to participate fully and equally in society. And she told the court, you know, you shouldn't overrule this central component of women's liberty. Some people, right, might say, well, maybe there is a previous case suggesting that, that states cannot regulate, let's say, economic conditions or contracts, and by subsequently allowing states to more freely regulate economic welfare or contracts, you know, the court was

rescinding a right it had previously recognized, but that would just be a deeply false equivalence. There is no parallel between the centrality of Roe and the ability to decide whether to have to undergo a full term of pregnancy and unwanted childbirth and any previous case that the Supreme Court might have overruled. And of the examples that you know, Justice Kavanaugh listed, almost all of them involve cases where the Supreme Court subsequently granted a right that it had previously failed to recognize. And so there just isn't any similarity between those two things at all. There have been retorts to the implications of conferring personhood to a fetus. Like, okay, if legally we're going to treat a fetus as a person for the purposes of abortion,

then what about child support? What about insurance? What about Medicaid, child tax credit, prenatal benefits? Are those valid questions? Like, is that not the natural progression of this? And are the people who say no undermining their own arguments about personhood? Well, I think they have undermined their own arguments in about a million ways to Sunday. I mean, they have shown so little care for the health and safety of pregnant people. Mississippi is a state that doesn't provide any paid family leave. It is a state that sought to limit the temporary assistance to needy family benefits for poor women who want to have children. So they have already shown their hand and their cards that they don't actually value the choices

and lives of pregnant people or their children, and it is quite galling when you line it all up. You know, yes, they're not going to be consistent at all when they say fetuses are people. They are just going to use that argument to try to further eviscerate abortion rights. Right. And I mean, you can extrapolate it further, right? Like the whole pro-life argument is also undermined by the fact that this is the same party simultaneously arguing against vaccine mandates that we know we're going to keep people safe, against vaccines themselves, which we know protect you entirely from coronavirus and, you know, guns and the list goes on and on.

It's the same Supreme Court that has a brutal efficiency allowed states to execute people, even when there might be colorable claims of innocence or colorable claims that their convictions or sentences are illegal. This is the Supreme Court that allowed the Trump administration to execute federal prisoners and bring back the federal death penalty in the waning days of the Trump administration, even after Joe Biden was elected and promised to end the federal death penalty. So there is very little consistency or even efforts at consistency here. Yeah. Okay. So right now there are calls within Congress to codify Roe based on the arguments

that we've heard thus far from these justices. Is it fair to imagine a world in which they would also strike down the Women's Health Protection Act if that was to pass? Yes, absolutely. And it wouldn't necessarily be on the ground that fetuses are people. I think the conservative justices could find any number of ways to strike down federal statutes that seek to protect women's access to abortion and reproductive justice. They could say Congress lacks the authority under Section 5 of the 14th Amendment to protect rights that the Supreme Court has said don't exist as a matter of constitutional law. Or it could say, you know, that statute exceeds the scope of Congress's powers under the Commerce Clause. It could find the statute violates the First Amendment. I mean, this court has shown no hesitation to be aggressive and exceedingly creative in the legal arguments it is willing to accept in order to undermine democratic initiatives.

I do want to bring up the idea of court expansion in this instance because if this court is going to brazenly and overtly act as partisans, like if they'll refuse to respect any modicum of basic precedent, if they'll say, okay, we'll confer personhood to non-viable fetuses in the instance when it's convene. for us, but not in the instances when it's not convenient for us, which are, you know, the, the examples that I, that I mentioned earlier, why constrain ourselves by pretending that there's no recourse when we could expand it? Like, why say the court can do whatever it wants, but the rest of us have to continue to abide by a different set of rules and just allow ourselves to be screwed, basically? I don't think we should force ourselves to act in accordance with a set of rules or norms that don't actually exist. There is nothing in the Constitution that says the number of, of justices on the Supreme Court has to be nine. In fact, the Constitution gives Congress an extremely significant and substantial amount of power over the size of the Supreme Court and also over the kinds of cases that the Supreme Court hears. And so there are many different things that a motivated Congress could try to do in order to address the threat that the Supreme Court poses not only to reproductive rights and justice, but also to constitutional democracy more

broadly. And I don't think, you know, a failure to do so would be because we falsely think we are bound by a set of rules. Those rules don't exist. There's nothing in the Constitution that says Congress can't adjust the size of the Supreme Court, something Congress has done previously and before. There's nothing in the Constitution that says Congress can't adjust the set of cases that the Supreme Court can hear. That's also something Congress has done repeatedly. And so there's just, there isn't a set of rules that we are bound by. And so we shouldn't pretend that to be the case when it is really just, frankly, a lack of political will and backbone that is leading to this course of action or inaction. Yeah, that seems to be the preeminent theme

of our political ecosystem right now, where we just kind of abide by these rules that we've set for ourselves. The same thing with the filibuster. We just say, well, that's there. And so by virtue of that, just being there, that's the thing that we have to abide by, even if it goes against the very reason for all of us being here, which is passing legislation. So we'll pretend that we can't pass any legislation because of this imaginary thing that we've decided is more important than the legislation itself. Yeah, definitely an analog to the filibuster. Do you think that the court has undermined its own legitimacy? Yes, but I don't think that overruling row or eviscerating row would be kind of the lone example of this.

This has been a long, steady march and a continuous progression toward this. This is the Supreme Court that invalidated the central crime. crown jewel of the Voting Rights Act, the preclearance regime that required southern states with particularly egregious histories of racial discrimination to obtain permission before altering their voting laws or procedures in ways that might disproportionately negatively affect racial minorities. This is the same Supreme Court last term who then eviscerated and largely nullified the remaining protection of the Voting Rights Act, Section 2, that prohibited laws or policies that disproportionately disadvantage racial minorities.

This is the same Supreme Court that has invalidated public health measure after public health measure designed to reduce the transmission of the coronavirus saying that they violate religious liberty and free exercise, even though existing precedent was very clear that they did not.

So this Supreme Court has been quite aggressive, and I think they have been quite aggressive because they know they have nothing to fear from the political process, which has shown no willingness whatsoever to even try. to constrain them. With that said, like, if Roe is gutted, what are the broader implications of an entire branch of government or multiple branches handing down dictates like this that are opposed

by the vast majority of Americans? Like, polling shows that Roe is supported by, what, 70% of Americans, including a majority of Catholics? Like, is that a tenable position for a government to take? I think we need to understand the attack on Roe as part of a larger trend of Republicans trying to, entrench minoritarian rule. And it would be, I think, foolish to try to separate what they are doing with Roe

and reproductive rights and justice from what they are doing with voting rights or, say, partisan gerrymandering. They have created a system that allows them to pursue deeply unpopular and reactionary policies without actually having to answer

for those policies in elections because they have insulated themselves from popular will by drawing legislative districts, that are so heavily gerrymandered, you know, you can get state legislatures that are elected with less than a majority of the vote and end up holding something like over two-thirds of the seats in state legislatures. And so that is how we should understand their ability to pursue these extreme and aggressive policies. I think if we addressed the underlying defects in our

constitutional democracy that have enabled minoritarian rule, and the Supreme Court has certainly had a part in that from eviscerating voting rights protections to greenlighting partisan gerrymandering, then that would allow us to address these very unpopular and harmful policies. Yeah, I think that's perfectly put, couldn't have said it any better. Now, if either the 15-week abortion ban is upheld or Roe is gutted entirely or some semblance of the two, I mean, they're not mutually exclusive. How much of an animating issue do you think that this will be in 2022. I think it's hard to say, and I say it's hard to say for a few reasons. One is, yes, on one hand, people have wondered about the backlash that would come from the Supreme Court formerly overruling

row or eviscerating it. But I think people need to balance against that what we were just talking about, namely how difficult it is for a popular majority to win political power right now, of how state legislatures have acted and how the Supreme Court has acted. People also need to balance against that the reality that the longer and longer Democratic representatives do nothing about the Supreme Court, the less incentive people will have to try and elect them. Because right now, you are seeing fundraising emails and ads saying elect Democrats to protect Roe. We have a majority in Congress. We control the presidency. and still, Roe remains in jeopardy.

So if you're not going to do anything about it, then you can't run on it. You can't say we will protect Roe and then allow the Supreme Court to eliminate it. And so the combination of all of those factors, I think, makes it very unclear what type of political cost or consequence there will be from overruling Roe. Yeah, and that's actually exactly what the monologue that precedes this interview is about. So with that said, Leah Littman, thank you so much. And again, for anybody listening, check out the strict scrutiny podcast. It is excellent.

This previous episode talks all about this case. It was super interesting to listen to. So thank you again for your time. I really appreciate it. Thanks so much for having me. Thanks again to Leah. One quick note, I'm still raising money for voter registration through the Don't Be a Mitch fund. We've already raised over $660,000 and we're closing in on a goal of $750,000 by the time

2021 is over. So if you want to help the people doing the work on the ground right now, if you want to help replicate the strategy that worked in Georgia in states like Pennsylvania and Wisconsin and North Carolina and Arizona and Florida, then donate just a few bucks because I promise it'll make a difference. If we do the work now, we'll see the benefits in November of 2022. Okay, that's it for this episode. Talk to you next week. You've been listening to No Lie with Brian Tyler Cohen.

Produced by Sam Graber, music by Wellesie, interviews captured and edited for YouTube and Facebook by Nicholas Nicotel. and recorded in Los Angeles, California. If you enjoyed this episode, please subscribe on your preferred podcast app. Feel free to leave a five-star rating and a review, and check out bryantlercoen.com for links to all of my other channels.