No Lie with Brian Tyler Cohen - Supreme Court's bombshell Roe decision set to backfire spectacularly

Episode Date: May 8, 2022

Brian discusses the Supreme Court draft overturning Roe getting leaked and how it’ll backfire on the GOP. Brian interviews Congresswoman Pramila Jayapal on what Congress can do about codifying abortion, why the Republicans keep trying to make this about the leak, and whether this will be the defining issue of the midterms. And Michigan Law School professor Leah Litman joins to discuss whether the conservative Supreme Court nominees who promised to respect precedent lied during their confirmation hearings and whether the Court would even uphold a law codifying Roe.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 Supreme Court draft overturning Roe and how it'll backfire on the GOP. I interview Congresswoman Pramilla Jaya Paul and what Congress can do about codifying abortion protections, why the Republicans keep trying to make this about the leak, and whether this will be the defining issue of the midterms. And I'm joined by Michigan Law School Professor Leah Lippman to discuss whether the conservative Supreme Court nominees who promised to respect precedent lie during their confirmation hearings, and whether the court would even uphold a law codifying Roe. I'm Brian Tyler Cohen, and you're listening to No Lie. So this past week, Political released a first draft of the Supreme Court decision overturning Roe, which guarantees access to a safe and legal abortion in the United States.

The draft majority opinion was written by Justice Samuel Alito, and it read, quote, Roe was egregiously wrong from the start. We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. Now, I should note, for accuracy's sake, that because the decision was leaked and not yet published, it is so possible that the justices could change their votes. I wouldn't count on it, because this is the end result of a decades-long effort by Republicans to get this exact outcome. And yet, when you actually listen to what the GOP has to say about this, this is what you hear.

These leaked documents showing the Supreme Court voted to overturn Roe v. Wade. Forgive me for offering opinion right up front, but I call it a betrayal of the Supreme Court. Supreme Court. How about you? I was flabbergasted. It is truly stunning in over two centuries of our nation's history. This has never happened. You need, it seems to me, excuse the lecture, to concentrate on what the news is today. Not a leaked draft, but the fact that the draft was leaked. Chief Justice John Roberts has tasked the Supreme Court Marshall with looking into how that draft opinion made its way from the high court and into the hands of Politico publishers.

When we stop loving our institutions, our separation of powers, the court's confidentiality is all part of that wrapped up into that narrative, then we're going to save Ukraine? I don't think so. Right. We can't save Ukraine if there is a leak at the Supreme Court. We have to love our institution, says Laura Ingraham, who's misinformation about the election helped inspire a mob of insurrectionists to try and stop Congress from certifying that race. Like, it must be nice to live completely untethered from any sense of shame or hypocrisy.

Now, I just want to say one thing on the leak, and I wouldn't normally draw attention to the Republican talking point here, but I actually think that this distraction is important because it is so lame, so pathetic, so transparent, so boring, that it actually puts on full display just how horrified Republicans are of acknowledging what they've done. Remember, 70% of Americans support Roe, only 28% oppose that Supreme Court decision. This is woefully unpopular. And so while they want it, they couldn't possibly admit that because the optics are so bad that Americans would revolt.

And so instead, Republicans are so desperate to distract your attention away from the issue at hand that they're actually trying to convince you that the real issue in all of this is that there was a leak. And that the decision that would have come out in a few weeks anyway came out this week instead, and so that's the scandal of a lifetime. Like, if you need an example of how stupid Republicans think their voters are, this is it. And so as Republicans continue this public quest to find the leaker, just know that this is actually par for the course for him. Like, you could not get more quintessentially Republican than launching a witch hunt to find the villain. Like, they love

focusing it on one person to pin the blame on, because the GOP always, always needs a boogeyman. We had like 90 years of it being Hillary Clinton, then it was AOC for a bit, Dr. Fauci during the pandemic, now it's Hunter Biden. There always needs to be one person whose lives Fox and Republicans can turn upside down and make out to be some evil villain because they've figured out that vague complaints aren't super effective. But when you can find a person and focus all of your energy on that person and vilify them and dig up dirt and defame them and make them the root of all evil in the world, then you can focus all of that energy. where you want it. So now Republicans are desperately searching for the leaker because if they can find a skull to sacrifice, then they know that they'll be able to change the narrative.

Like, it's a tried and true tactic. And so now it's all about the leaker. And so they'll opine on which justice has the most partisan clerks, which one looks the sneakiest, which one has an Instagram page that has the word pro-choice on it. It's not because they think that they'll actually find that person. They just need to feed the narrative. It's about doing anything humanly possible to ensure that you're not paying attention to the thousand pound elephant in the room

because, God forbid, they own up to the thing that they themselves pushed for. Now, as for the decision itself, I want to read one specific quote from Alito. He said, quote, The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely, the due process clause of the 14th Amendment. That provision has been held to guarantee some rights that. are not mentioned in the Constitution, but any such right must be deeply rooted in this nation's

history and tradition and implicit in the concept of order of liberty. He's saying any constitutional right must be deeply rooted in the nation's history. The right to an abortion is from 1973. It's almost 50 years old. If that's not deeply rooted, then what about interracial marriage? That was decided six years earlier. Is that not deeply rooted either? What about black women having the right to vote, which was decided two years before that? What about when the court decided that racial segregation is unconstitutional, decided 11 years before that, are those not deeply rooted? Even same-sex marriage, that was decided just a few years ago. Like, Republicans love to warn about a slippery slope, but when your entire rationale for striking

down a constitutional right is that you don't think 50 years ago is deeply enough rooted in our nation's history to count, then what you've done is put a hell of a lot more rights on the chopping block. This is what you get when you have partisan hacks whose rationale is so tortured all to conform to their predesired outcome that they don't even realize what else they are fucking up in the process. Alito would go on to criticize Casey, that was the case that upheld the right to an abortion

that was established in Roe. He said that it was based, quote, solely on the theory that the right to obtain an abortion is part of the liberty protected by the 14th Amendment's due process clause. In other words, he's taking issue with the framework for legal abortion, which I should note is the same framework that the Supreme Court used in certain other rulings like Loving v. Virginia.

which legalized interracial marriage, Griswold v. Connecticut, which guaranteed access to contraception, Lawrence v. Texas, which decriminalized consensual sex between adults and Obergefell, which legalized same-sex marriage. So I'm sorry,

but it would be so aggressively naive to sit here and think that nothing else is in jeopardy when the draft decision itself quite literally sets the stage for reversing all of these constitutional rights. And if you think that that sounds alarmist, might I remind you that the court just voted to overturn Roe.

It's not a matter of if, it's a matter of when. Like, this is not a party that's looking for measured responses or incremental change. They will proceed as quickly and boldly and aggressively as possible. Just this past week, Louisiana Republicans voted to advance a bill out of committee, making abortion from the moment of fertilization a crime in which the mother could be charged with homicide.

That means if you use the Plan B pill, you can get charged with murder. If you use IVF or an IUD or birth control, you can be charged with murder. If you have a miscarriage and your body doesn't release it and you get an abortion so that you don't die, or if you have an ectopic pregnancy and you get an abortion so that you don't die, you can get charged with murder. I get that we have our usual litmus test issues on the left and right, but at what point if you are a regular Republican voter, do you watch a woman literally dying from an ectopic

pregnancy in this country and think to yourself, maybe this ain't it. Maybe this isn't why I'm a Republican. Maybe this party has gone too far. Maybe when women are being given literal death sentences, I might not belong to a pro-life party after all. So look, here's what I think needs to happen. I speak about this issue with Representative Jaya Paul coming up in a few minutes, but we need to keep this issue top of mind.

We need to bring the bill codifying row up for a vote at least, at least once a month. The Women's Health Protection Act already passed the House. Senate Majority Leader Schumer should bring this thing up over. and over and over again. And if it fails every time, then the American people will be reminded every time where the Republican Party stands

on an issue that not only 70% of Americans support, but one of the most animating issues that 70% of Americans support. We cannot let this just be one more issue relegated to the laundry list of bullshit that Republicans have rammed through. And the other solution here, and I apologize if you've heard me say this on any of my videos this week,

but I think it bears repeating, and I don't think we hurt ourselves at all by adopting the GOP strategy of repetition, everyone needs to find five people who didn't vote in the last election. Maybe someone who just turned 18 or 19, maybe a family member who doesn't care about politics, maybe a friend who thinks that they're more just in the middle.

Whoever you have in your life, make a list of five people and make them your responsibility. Like, I can sit here every hour of every day and dole out every reason in the world to go vote. It still won't hold a candle to the power that you have over your own personal relationships with people. So please, please, please don't let that power go to waste. Find your five people, make them your responsibility,

and ensure that they vote for the only party willing to actually defend a woman's right to her own bodily autonomy. We have an election coming up in November. I can promise you the results of that election will be cataclysmic, especially on this issue. So remember the feeling that you have right now and hold on to it. Republicans are banking on us for getting this by November, so don't give them the satisfaction. Next up is my interview with Representative Jayapaw. Now we've got the chair of the Congressional Progressive Caucus, Congresswoman Pramilla Jayapal.

Good to see you again. It's great to see you, Brian. So I know that we've been talking about the road decision for a few days now. I guess at this point, the question becomes, what is Congress going to do? I mean, the House already passed the Women's Health Protection Act. At this point, is it just wait and see what Mansion allows? Like what's next at this point? No, I think for me, there's kind of a three-part roadmap.

The first is we should get every Republican on board opposing the Women's Health Protection Act if that's what they're going to do. So I do think that the bill should be brought up to the floor for a vote, as Senator Schumer has said he will do. But I also think, Brian, this is the second part. There are a couple of Republican senators who say that they're pro-choice. and voted to confirm these justices, a couple of whom lied under oath. And I'm talking specifically about Brett Kavanaugh, also Amy Coney-Barritt. They all talked about Roe as if it was settled law and it was outrageous that somebody would think that they wouldn't follow precedent and, you know, stick with settled law.

And there were senators who said that they voted for them based on those discussions and based on that testimony. So I think we should try to appeal to those senators to be on the right side of history. And I'm talking about Susan Collins and Lisa Murkowski. And if we had those two senators with us, then we would be able to carve out an exception to the filibuster with 51 votes. And we wouldn't have to have Joe Manchin on board, but we could have two Republican women on board who would be making history the right side of the right part of history. If all of that fails, then obviously the third thing is we're going to have to go to the ballot box and we're going to have to, in any situation, we have to go to the ballot box because this is the playbook

that Republicans have laid out is take away our rights. You know, they have a Supreme Court that doesn't respect precedent, that doesn't respect women, that doesn't respect freedom, that doesn't respect privacy. And we're going to have to get a bigger margin in the Senate so that we can carve out exceptions to the filibuster, if not eliminate it entirely, which you and I have talked about is what I want to do is get rid of it entirely. But at a minimum, let's carve out exceptions. We did it for the debt ceiling, Brian. We carved out an exception to the filibuster for the debt ceiling. It wasn't so sacrosanct that if we needed to make a carve out for the debt ceiling that we couldn't do it. But then all of a sudden

goes right back to being, well, God forbid, we touch the filibuster. Exactly. Exactly. And that's the hypocrisy, I think, that is often there when we say we can't do something. It's not that we can't. It's that we won't. And I think in this situation, we do have an opportunity to try to get these two women on board and to carve out an exception. But in any way you cut it, this is the playbook that they've written. And if I can just say one thing about this opinion that really stunned me, I guess, as I read through it, and I did read it, it's the argument that we are not going to protect any right that is not explicitly named in a constitution that was written 200 years ago and the idea that somehow the values of 200 years ago are still the values of today.

What does that mean about Loving v. Virginia and interracial marriage? What does it mean about same-sex marriage? What does it mean about Brown versus Board of Education? These are all settled law cases and they weren't rights that were explicitly named in the Constitution. So it goes to privacy and to all the other things that you can draw a straight line to overturning with this kind of a five-person majority on the Supreme Court. Forget about abortion. Forget about same-sex marriage. They didn't even have women enumerated as people in the Constitution. Women or black people didn't have personhood in the original

document. So to harken back to that document as if it's sacrosanct, again, is just, you know, like, what road do you want to go down? Exactly. Will this be the defining issue of the midterms? Well, it's hard to say. I think it is absolutely going to be a wake-up call to people across the country, that this is what we are fighting against. And it is really, as you say, kind of on every level that we're being challenged with the

Republicans. So I think that this will certainly be one of the defining. issues. And I hope that people understand exactly what you just said and the impact of this decision and also recognize that we have to get bigger majorities. If we lose our majorities, we will only see Republicans taking away health care, taking away a woman's right to choose, taking away reproductive freedom, taking away a lot of things that we've sort of grown up thinking were protected. And I think that's the thing that happens. to animate people.

Now, Republicans are desperate to talk about the leak, as it to try and convince everyone that the real scandal here is that we got the decision two weeks early and not the fact that 50 years of settled law was wiped out, depriving women of their bodily autonomy. Why do you think it is that they refuse to acknowledge the thing that they've been vying for for years and instead are desperately trying to make the real story about the leak? Because they know how damn popular it is to uphold Roe v. Wade. They know how unpopular it is to overturn it. So they're trying to do anything they can to get us to talk about something else that is a total red herring like the leak instead of talking about what this means for pregnant people across this country, to not have the choice to make decisions about our own bodies.

And it's really interesting the night that the leak broke, this draft broke, I turned to Fox News so that I could watch to see what they were saying. Do you know they didn't say a word about it, not a word about it? I'll tell you what, between that and the sunrising in the morning, just shockers all over the place. Right. And it's because if you look at the polling across the country, and depending on how you word the question, anywhere from 60 to 75 percent of Americans, support a woman's right to choose, support the idea that this is a freedom that we should have over our own bodies. Republicans seem to have gotten so lucky in a sense that there feels to be very little accountability.

Like even out of the majority, they were largely able to get away with January 6th thus far. They've managed to sink voting rights and build back better. And now it seems that they're going to be able to gut row. This is an issue that we should be reminding voters of in November. It's an issue like you said that 60 to 70 percent of Americans agree with us on. How do you stop this from falling into the pot of all the other shit that mixed together doesn't seem to be sticking? Well, I think it's about really energizing our base. Whatever is being said on television, you know, programs like yours are so important because

they're going right out to the people, right? We know that cable news is not spending a lot of time focusing on the things that we've gotten done or the things that Republicans are taking away from us. And I think we really need to think about this as a national organizing campaign where we are going to specific sets of voters targeting people. helping people to understand what is at stake and how I say, Brian, that the ultimate swing voter is actually our base, like young people, folks of color, who won't swing to vote for Republicans, but will swing right out of the election if they feel like their voice isn't

being heard. We need to make sure that people understand, we've got your backs, we're fighting for you, we need bigger majorities, we have accomplished a lot given our slim majorities, but we have a lot to do. And if we don't come out and vote, and if we don't inspire people to feel like their voice matters and that we can make a difference, then I think, you know, the Republicans will win. So I think we've got to run a national organizing campaign.

We're going to rely on people like you and your viewership, people who can translate what the effect is of these decisions that the Republicans have basically pushed with a Supreme Court, which, by the way, these five justices were appointed by two presidents who did not get the majority of the popular vote, which again goes to why we need to, you know, reform the electoral college system. But I think in order to do any of these big things, eliminate the filibuster, reform the electoral college, get voting rights, get money out of politics, take on climate change. We need bigger majorities. And that's what I believe we are so close.

close on so many of these issues in terms of popular opinion. But we do need bigger majorities in the House and the Senate. On the issue of messaging and keeping this issue top of mind for voters as we head to November, why not bring this up for a vote over and over again? Like, Republicans are so good at repetition with build the wall and lock her up. It's the same shit over and over again. Why not bring a bill a codifying row up every other week from now until November? Because I can guarantee you that Republicans are banking on us for getting by then. love that idea. And I mean, I really do. And I also think we can bring up other bills, right, over and over again to show. Allowing the government to negotiate lower drug prices,

lowering the cost of insulin at $35 a month. Exactly. Lowering the eligibility age for Medicare. Do you know how popular that is across the country? You know, all of these things, social security, expanding social security benefits. These are all things that will absolutely energize are based to see who these Republicans are and put them on the spot. But yes, you're right about the repetition. I mean, I think it's a really important idea to keep these things front and center. And I also hope that on January 6th, that we are going to see some action out of the January 6th commission and out of the Department of Justice.

And I was just talking to some folks at the Department of Justice this morning because I think we need to get a lot more aggressive about getting accountability for these people who tried to overturn our democracy with a coup, with a coup attempt. And now we're the same people that have instilled these justices on the court that are taking away the freedom for pregnant people to make decisions about our own bodies. Yeah, exactly. I think that's perfectly put. Now, I know that you have your own story on why being pro-choice is important. We spoke about that last time, last time I interviewed you. Have you heard from anyone in these last few days, for example, that kind of illustrates what this fight is about, why this fight is so important? Yes. I actually

have gotten a lot of calls to my office. And, you know, with one in particular, I'm thinking about a woman in Ohio who called me just to thank me for being out there telling my story and then told hers and said she doesn't feel like she can go out and tell it. But in hearing these stories being told by me and Barbara Lee and now Gwen Moore has come out and told her story, we know that there are others around the country that are telling us. their stories. It gives people who have gone through the same experience of making a very nuanced choice or just simply making a choice because it was the right thing for them in the moment. It doesn't have to be a bad abortion story in order, a traumatic story. It's just the

ability to make the decision. I think I am hearing these stories from people. They can't tell them themselves, but they're asking us to make sure we keep them in mind as we go forward. And these, you know, some of these stories are really, really difficult, really traumatic. Again, not to say that everyone is, but that's one thing I've really been grateful to hear from people across the country, that it matters when we speak out and we use our platforms to share because other people are going through the same thing. I spoke to Senator Warren and run for something co-founder Amanda Littman last week. And separately, they both sounded the alarm on delivering. And this is something that you just spoke about a few minutes ago, you know, that even though

there are procedural hurdles that Democrats can't overcome with the filibuster in place, most people don't know those intricacies. They just see that Democrats are in power and that stuff isn't passing. So as far as delivering is concerned, realistically, what can we expect to get done between now and midterms? Like, what will Joe Manchin and Kierston Cinema allow us to have? what can we actually expect to see on some of the promises that on some of the issues that have been promised? I think there's two pieces to this. One is legislative action. The other is executive action. So on legislative action, I think, you know, we should put up a bill for that is sort of a combination of what 50 senators have already said that they would support. And this

includes Joe Manchin and Kirsten Cinema. Something that has reforms of the tax revenue. We know that there is a Venn diagram where there's a piece where we can reform the tax system, make the wealthy pay their fair share, and then take that money and add to it prescription drug pricing negotiation. We're not going to get everything you and I want. We should get Medicare negotiating, but we know that one of those senators is not for that. But there was another piece in Bellback Better that was around prescription drug pricing. We should put that together with the tax revenue reform and then put the money in half a trillion into climate change and hopefully another piece into something in the care economy. It can be pre-K, it can be childcare, but something that

speaks to our women and families across the country. All of the 50 senators have said they would support something like that. And if Joe Manchin wants to put some of it towards deficit reduction, I'm okay with that. But that bill should move. And if he won't say what he wants, then let's just put the bill on the floor with just those things that he has already said he supports. And let's see where it goes. So that's the first thing. We can also split those things up and put them on separately, but I think it's worth trying to do a reconciliation bill that has all of that in one. And then separately, I think we should put up a number of bills that even if they can't pass show that the Republicans are opposing, just like we talked about. Separately on the executive action,

Ryan, we released a list for the Progressive Caucus of 55 executive actions that the president can take right now with the power of the pen and bring relief to raise wages and lower costs for Americans across the country. He has already done some of them, like fixing the family glitch. That's great. Brought health care to a million people. Some things around climate, very important. Today they announced a very important action around environmental justice that is a priority on that list, but there are two big things that we're still pushing on, along with a number of other things. One is student debt cancellation. This would bring relief to some portion of 45 million borrowers who are holding student debt. And it is absolutely within the president's power to do it.

99% of the people that hold student debt did not go to Ivy League schools. 40% of them didn't even get a college degree. So we're talking about regular folks being crushed by student debt. And the soon of the president does this, the better. That will deliver real relief. Also, there's an executive action we've proposed to raise the overtime threshold. This means that people actually get paid for the hours that they work over time. So it's not even, you know, paying people for something that they're going to do. It's paying people for the work they're doing right now. That could help 30 million Americans across the country and raise wages and stop corporations from taking advantage of people just by forcing them to do more and more work that they don't get

paid for. So those are just two examples of things the president can do right now and should do right now because it will deliver immediate relief for people in these difficult, difficult times. A hell of a lot better agenda than banning books and stripping women of their bodily autonomy, I must say. Okay, let's finish with this. What happens on day one of the 118th Congress if Democrats hold the House and expand their Senate majority by two seats. Day one, I think we should put Build Back Better, whatever version of Build Back Better on the floor that hasn't yet been done. And let's make that the priority to deliver child care, pre-K, and a number of other things to people across the country. I mean, that is, let's have a big

agenda, just like we did with the Rescue Plan. Remember, we did that with not a single Republican vote. We got shots in arms. We reduced child poverty, child hunger. Let's do that again with a big package that shows people that we are out to support them. And of course, let's eliminate the filibuster if we have a big enough margin in the Senate so that we can codify row, pass same-sex marriage, pass voting rights, all of those things that we need to do desperately. Well, thank you for your work and for pushing for all this stuff that's desperately needed. Representative Jaya Paul, thank you for taking the time. I appreciate it. Thank you so much, Brian, for everything you do.

do. Thanks again to Representative Jayapaw. Now you've got Michigan Law School Professor and co-host of the Strict Scrutiny Podcast, Leah Lippman. Thanks so much for coming back on. Thanks for having me. Just once, I want you to come on where we talk about something good. Like in a bombshell decision, the justices decided that actually democracy and institutions

are a good thing. If only, unfortunately, I don't see that happening anytime soon. Yeah. Maybe on Earth, too. On that note, let's talk about the Supreme Court decision overturning Roe. During the confirmation hearings, all of the justices who decided with the majority in the draft of the Roe decision, every single one of them during their confirmation hearings, crowed about how much they'll respect precedent with regard to Roe. I'm sure you've seen the clips. I played it for my audience just a few minutes back during my monologue. this might be reductive, but in signing this brief, if you've got these nominees under oath

promising to respect precedent and then as sitting justices not respecting precedent, is that not lying under oath? I think the problem is that everyone agrees as a general matter that precedent should be respected, but no one agrees on when it shouldn't be. That is, no one thinks that in all cases, the Supreme Court should always stick with the prior cases. The whole dispute is, which decisions do you overrule? And we know because the Republican Party platform promised to do so that they were appointing

justices who would overrule row. And so they can say, you know, on one hand, I generally respect precedent, but no one thinks precedent should be respected all the time. The entire game is which precedents do you think should be overruled and why. I guess people look at this and what's the point of having these confirmation hearings where these people say one thing and promise to respect. I mean, Not that it's binding or anything, but promise to respect one thing. And then they turn around and do whatever they want in accordance with their political agenda. The problem is, is they are completely unrevealing unless you know exactly what to look for. They've just become a form of political theater, largely on the part of the senators.

We saw that in the confirmation hearings for Justice Jackson, in which Republican senators largely treated her as irrelevant and just screamed at her about various culture war issues. And the justices themselves, you know, when they're seated, they don't say very much. You know, they will say things that I think are revealing, you know, Justice Amy Coney-Barrant explicitly said, Roe versus Wade is not a super precedent. That was as clear a sign as any that she was going to overrule it. Similarly, Justice Kavanaugh and his confirmation hearings said he refused to agree with whether Eisenstadt versus Baird, the decision saying states can't criminalize contraception for single individuals. He refused to say whether that was correctly decided. So there are signs if you know what to look for. but the problem is there's just so much noise in there. Now, I want to talk about the leak for a moment,

not because I think that it's important. I actually think it's a pretty hilariously pathetic attempt at distraction, but something's been nagging me about this. Who would benefit more from the leak? Like, I've seen a lot of theories, but if this decision was going to be revealed anyway in like a month, and the left would ultimately be up in arms anyway in like a month, then the only difference is that now the GOP gets a talking point

to clutch their pearls about and to distract everyone with, you know, and air some faux outrage about the sanctity of the court being compromised. So it would seem to me that the right actually has more to gain by a leak. I think that's absolutely right. You know, if the opinion hadn't come out until the end of June when it's, you know, formally out, and I should say, like, the opinion hasn't actually come out. That is, this is not like a formal final decision, official decision of the Supreme Court. You know, then all of the outrage would be happening at the end of June, beginning in July closer to the midterms. And I think all of the surprise and rage that people are feeling now would be fresher and we would be less numb for if and when this happens at

the end of June. So I completely agree with your assessment that to the extent this benefits anyone, it's the conservative wing of the court and it's the Republican politicians who have supported overruling Roe versus Wade, but don't actually want to say that. And so right now, you know, it looks like the court is going to overrule Roe. You don't see a bunch of Republican and politicians jumping up and celebrating. Instead, they get to say, well, they spend this horrible breach at institutional norms. And that gets to be their talking point. Right. Now, even if we do get a majority in the House and Senate and are able to eliminate the filibuster, this is a court that's clearly hostile to abortion rights. So in the same way that they struck down Roe and Casey,

could they not simply strike down a Woman's Health Protection Act? Oh, yeah, on at least two grounds. One is they could invoke the idea that fetuses are people under the Constitution who are entitled to constitutional protection and therefore governments have to criminalize abortion. There are seeds of that, frankly, in this draft majority opinion that was circulated. The opinion cited in a footnote in Amicus brief by two scholars, John Finnis and Robert George, who have argued that fetuses are people who are entitled to constitutional protection. And under that theory, governments must prohibit abortion. The issue can't just be returned to the states. And then second, they could say, well, Congress doesn't have the authority under its Article I powers under the Constitution to

regulate abortion. And it could use either of those grounds or some combination of them to invalidate a federal statute protecting the right to an abortion. And if this draft opinion reveals anything, it's that logic, reason, and precedent, they're not a constraint on this conservative supermajority. With that said, if they use the former rationale, then in theory, the Supreme Court could refuse to allow a law codifying row, but then they could allow a law banning abortions, the personhood argument. Yep, absolutely. Under that theory, the federal government would not just be permitted to ban abortions, but probably required to do so. What is the solution here if we're looking for nationwide legal protections for abortion?

Like if the court would strike down legislation codifying Roe, what is the only option to expand the court? I mean, frankly, the solutions are all long term. And by long term, I mean, they involve looking at the conservative legal movement strategy that took three decades more and more in order to actually overrule Roe. Progressives need to focus on every election from here until basically forever. Because once Roe versus Wade is off the books, every single. federal election represents the possibility of a nationwide ban on abortion. Because you know the next opportunity that Republicans have when they control both the House and the Senate and the presidency, they're going to enact a nationwide abortion ban. They just will. You know, you already have Republican legislatures pushing for that. And so progressives need to make politics a regular

part of their lives. They need to do that for the foreseeable future. They need to invest in state and local elections, they need to protect voting rights because without, you know, extremely gerrymandered state legislatures and voter suppression, it would be much harder to enact these policies that lack popular support, that lack any sort of mandate. And that needs to be the solution that's not going to be fixed in one election, you know, in 2022 or 2024. That is going to be something that takes decades, but that's what it's going to take. In the draft decision, Alito had written quote, the Constitution makes no express reference to a right to obtain an abortion and therefore those who claim that it protects such a right must show that the right is somehow

implicit in the constitutional text. He went on to say it held that the abortion right, which is not mentioned in the Constitution, is a part of a right to privacy, which is also not mentioned. So his claim is that anything not specifically enumerated in the Constitution isn't protected by the Constitution, but what about the 14th Amendment, which guarantees fundamental rights that are not specifically granted elsewhere in the Constitution? This is the problem, and this is the concern that some people have identified about the opinion, is that its reasoning seems to call into question many other foundational precedents and fundamental rights that the court has identified that aren't specifically mentioned

in the constitutional text and aren't deeply rooted in the nation's history, like the right to contraception, the right to interracial marriage, the right to same-sex marriage, the right to same-sex sexual intimacy, and so many other things that we take for granted. Would you assume that all of those things, you know, from same-sex marriage, same-sex intercourse, contraception, inter-racial marriage, would you assume that those would immediately be on the chopping block? So immediately, I think that's maybe unlikely. Are they going to be on the chopping block? Absolutely. I mean, you already have quotes from some of the proponents of Texas SB aid who have urged the courts to overrule Roe and Dobbs saying we're coming for Obergefell, the decision recognizing marriage equality and Lawrence, the decision protecting same-sex sexual intimacy. We're coming for those decisions next. You have the Louisiana House Republicans voting out of committee, you know, a bill that would ban abortion and criminalize it. at murder and it defines abortion as any point after fertilization. And that would encompass some forms of emergency contraception. So states are already expressing interest in doing this. And it has support within the Republican Party and the conservative legal movement. So I think

it would be woefully naive to think this definitely isn't going to happen. And this opinion plants the seeds for that possibility. All right. Let's finish off with this. You are a law professor at Michigan, are you seeing any type of an uptick in students taking up law as the result of what we've seen is a lunge to the far right from, you know, these Republicans who are kind upending settled law? You know, it's hard to know exactly what is motivating people to go to law school at any given time. You know, there are reports that there was like a Trump bump, you know, with people going to law school after seeing lawyers, you know, pushing back against the Trump administration's legal abuses. And it's hard to know exactly what this Supreme Court's decision and their behavior might do

as far as influencing people, you know, I can imagine it on one hand turning people off. You know, they are showing such decay and rot in the legal profession. You know, on the other hand, maybe it might motivate people to try to, you know, push back and make the legal profession do better than what it's doing now. Are you suggesting that the Rudy Giuliani's and Sidney Powell's aren't doing your profession any favors here? Is that the assumption? I don't think that's an assumption. And I'll say it explicitly. So it's no longer an implication. Yes, I do think they are.

And Sam Alito isn't doing great things for it either. Yeah. Where can we hear more from you? Always welcome to tune in to strict scrutiny, our podcast about the Supreme Court and the culture that surrounds it. And I'm on Twitter. And, you know, basically anyone who will give me a microphone or a television camera to talk to people about the danger that is the Supreme Court, I'll be there. Well, great. And hopefully next time we have you, it'll be under better circumstances.

But, you know, track record isn't great right now, but we'll see how it goes. Leah Lippman, thanks for coming back on. Thanks for having me. Thanks again to Leah. And finally, if you're new to this podcast, please subscribe and consider throwing me a review and suggest it to a friend. Word of mouth is the best way to get new listeners.

Okay, appreciate the help. 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 Nicotera, 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 briantylercoen.com for links to all of my other channels.