The Daily Beast Podcast - Amy Coney Barrett Basically Thinks Women Are Incubators

Episode Date: December 4, 2021

Balls & Strikes Editor-in-Chief Jay Willis is a white man, however, he is also an expert in topics related to the Supreme Court. He joins The New Abnormal host Molly Jong-Fast on this bonus episode to talk about the conservative justices and some of the wild things they’ve said about abortion rights. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hello and welcome to another bonus episode of the new abnormal, and we thank you so much for being here. Today we have an extra special guest with editor-in-chief of balls and strikes, Jay Willis, who's going to talk to us all about what the hell's going on in the Supreme Court. Welcome to the new abnormal, Jay. Hey, thanks for having me. I appreciate it. You know, there's not quite been enough men discussing women's bodies and reproductive rights the last day or so. I'm glad to be here to sort of help it up. I was like, where can we find a white man to talk?

about abortion. I'm always available for that, you know? It's good. Actually, you know, it's funny because I was watching a white man talk about abortion yesterday and thinking to myself, like, there has to be a better way, but we're going to talk about other stuff besides abortion. And you're here because you write really interesting stuff about the Supreme Court, and also because that's your bead.

Yeah, so I'm the editor-in-chief of balls and strikes. We do sort of progressive, critical commentary of the Supreme Court and the legal system more generally, which is fucked up in all kinds of ways. And we try and make sure that we cover the full gamut. So the first thing I want to talk to you about was I wanted to get like a little more history from you on the Supreme Court, if that's okay. Please. Is this the most conservative Supreme Court ever or now? Oh, man. That might be like a little too much history for me.

but it's certainly the most conservative Supreme Court since the Great Depression. So we're talking at least, you know, close to a century here. Wow. Because I think of like the Sandra Day O'Connor Court was conservative, right? It certainly was. And the Supreme Court really has been conservative since the end of the Warren Court under Chief Justice Earl Warren. Was Warren related to the Warren Commission of JFK? Yes.

Chief Justice Earl Warren was he. was sort of the leader on the Warren Commission. So the Supreme Court really has been a conservative institution since Chief Justice Earl Warren left the Supreme Court in the late 1960s. There's sort of this popular conception of the court as like fairly balanced, right? For decades, there was a liberal wing and a conservative wing, and then a so-called swing justice. For a long time, it was Sandra Day O'Connor. Then it was Anthony Kennedy. But San Bernarday O'Connor and Anthony Kennedy were both Republican appointees, both conservatives. So at all times, the court has leaned conservative. And then obviously, since Anthony Kennedy was replaced with your good friend in mind, Brett Kavanaugh,

that entire model has been out the window. So Justice Kegstand is now the swing justice, right? I don't know if I'd call him the swing justice, just because not a lot of liberal wins. these days, but you're right. He's the media injustice. Let's put it that way. Right. I mean, the irony of like beach week being the swing. I mean, I guess he's not the first nor the last time he'll be the swing anything, right? Thank you. Ladies and gentlemen, I'm here all week. Try the veal. Yeah, that laugh was especially for you. You can pay me later for that. I think you've also seen just sort of establishment legal media have a real prime. I think you've problem with this, right? Again, for decades, the court was like, I don't want to say an easy institution

to cover, but the structure of it was really familiar, really intuitive, really easy to grasp. Right. And since you've seen the court take this hard right swing, again, where you've got a six conservative super majority, the media has not been able to adapt its coverage to cover the institution that's changed so much. And so you sort of see journalists constantly grasping to, to talk about, it seems like the conservatives have the upper hand, but liberals might surprise you here. I mean, it's just the same sort of failure of the media that we saw, especially early on in the Trump administration, right? When every time Trump coughed off a complete sentence, we would get these Trump striking new tone, becoming more presidential stories. Whenever the court hands down a decision that is something mildly less than the most possible conservative outcome,

the media will sort of race to reward the conservatives for their moderation and their institutionalism and their incrementalism. And then that's just simply not borne out in the results. And I'll give you an example. Towards the end of this most recent term, there were a whole flood of articles about how the court, the Amy Coney-Barrant court, was shaping up to be a three-three-three court with three liberals, three hard-right conservatives, and three justices that were sort of variously referred to as the institutionalists or the incrementalists. That's Kavanaugh, Amy Coney Barrett, and Roberts. What?

I would put Gorsuch before I would put Amy Coney Handmaid's Handmaid's Tail Barrett. I mean, you're going to have to take it up with the pundits who were twisting themselves into rhetorical knots here. Right. I mean, at least Gorsuch is a businessman. I mean, I'm not saying that with any kind of praise. But, I mean, I just think of him as a little more pro-business than Amy Coney-Barrant. All right, continue, so anyway. So right after this, you know, flood of analysis about the new court, what happened, right?

The court handed down just a bunch of, like, straightforward, doctrinaire, conservative rulings. I would say most notably in Bernovich v. DNC, they hollowed out the other half of the Voting Rights Act that they had sort of left over from 2013's Shelby County, the holder. So you had all these pundits sort of straining to frame the court as a moderate or surprising body. And then the court just doing standard, conservative, supermajority shit. Right. And I am deeply concerned and preemptively mad at the coverage that we will get with this abortion case in Mississippi, where if the court does anything less than over. rule Roe and Casey, that there will be a flood of commentary praising the court for its moderation

and its compromise. And like I say, I'm already sort of drafting the mad tweets in my head. It's interesting because, you know, when I was listening to those oral arguments yesterday, Alito has brainworms. I mean, he said something about how the only places that had no restriction on abortion. You heard that, right? North Korea. Point of order, I believe that was Justice Roberts. I also thought at first it was Alito and someone corrected me. Jesus Christ, that's not great. Because I thought there was Alito for sure because it's so insane. Oh, yeah. Like Sam Alito is lots of what Sam Alito says at oral argument is like indistinguishable from your average Tucker Carlson monologue. And so when I heard the invocation of China,

in North Korea, I thought, oh, Alito doing Alito shit. But then, yeah, I was corrected. It was Chief Justice Roberts, and I was like, sorry for misidentifying the justice and also, sorry America that that was the chief justice. I was sort of interested in the coverage this weekend of Thomas, like, he's

getting his wish. Did you see that article? Absolutely. Clarence Thomas has been sort of beating this, like, idiosyncratic drum about his constitutional theories, like extreme reactionary and to date, mostly limited to just him, right?

The classic Clarence Thomas opinion is a concurrence that no one agrees with where he's like, I think we should just throw out this area of law altogether, and no justice wants any part of it. But this is what happens with a six-justice, again, conservative supermajority that has more and more members who are further to the right, is that his perspective starts to win more support, more adherence. And you're seeing the court shift towards Clarence Thomas. And not always all the way to Clarence Thomas yet.

But if you've been following Clarence Thomas for the last 30 years, you know that basically any move in his direction is a fucking disaster. Yeah. It's so interesting because I'm incredibly old at 43. I'm sure you're like 23, but... I'll pay you later for saying that. And I appreciate that. That's right. But if you were as incredibly old as I was, I am, you would have lived through your teenage years watching my early teenagehood watching the Thomas hearings, where you just thought this person is absolutely the most reprehensible person.

You know, just the idea that this person would then have a lifetime appointment. And he's really continued that streak. I mean, Clarence Thomas has, we sort of laugh a lot, laugh so we don't cry, right? at Brett Kavanaugh sort of making these like weird allusions to partisan revenge during his confirmation hearings. But Clarence Thomas wrote that books.

Brett Kavanaugh was just reading from it. Clarence Thomas has been bitter about his confirmation hearings again for what, more than three decades now? I just don't see how you watch those hearings and think this guy can probably be just like a fair, open-minded jurist now, which is a sentence that I guess you could apply to either one of the two men we're talking.

about. It's like Anita Hill was right. And I mean, I even think when I watched those hearings, I thought there's no way Anita Hill wasn't telling absolutely the complete truth, you know, and they didn't care. Yeah, I just, I don't know why you make up stuff like that, like pubic hair on a Coke can. Like, come on. Yeah. Now, none of this comes out until, but right before they go on vacation. Technically, that's my Supreme Court pundit voice, a decision could come down at any point, But in practice, all of the sort of hot button, most controversial, most partisan cases, yeah, they come down at the end of the term. So in all likelihood, we're looking at late June, early July. Oh, excellent.

I was hoping that they could just do it in the middle of the summer so that, no. I mean, can you imagine a career where you get to sort of dump the really bad shit you do in the middle of the summer and then go on vacation so no one can bother you? You release the report that everyone's going to hate and then you put your phone on airplane modes? sick. Right. It's pretty amazing. You think they'll rule on Texas? I've talked to other people who have like two-side pund and brain who have said that the Supreme Court will still rule on Texas, but I feel like that's just a total fantasy. I think what I like to do is kind of step back from like the specifics of the Mississippi case and the Texas case and how they might intertwine and how one might affect the other and the timing. And just think about like the high level takeaway

from oral argument yesterday, which is like, you can't have listened to that and think that the future of abortion care in this country has any kind of future, right? Like, even if some sort of unexpected alliance emerges that preserves some husk, some shell of Roe and Casey, the right to abortion care is a dead right walking, right? You had this really revealing moment when Brett Kavanaugh, again, the media's favorite swing justice, right? He went through just sort of like a, almost like a soliloquy, thinking out loud, talking about some of the court's most revered decisions in which it overturned its own precedent. So among them, there was Lawrence v. Texas, there was Obergefell v. Hodges,

which affirmed the right to marriage equality. And, of course, a favorite right-wing talking point these days, Brown v. Board, which overruled Plessy v. Ferguson and said that separate facilities are inherently unequal. They can never be unequal. And Kavanaugh's point was, man, these are some of the most, you know, consequential and important cases. And if the justices hadn't had the courage to act, you know, this country would be much worse. It's a deeply offensive comparison for any number of reasons, right? And counsel pointed this out very well at oral argument where, hey, Justice Kavanaugh, all of those decisions were decisions that expanded people's rights.

And by analogizing Roe, you're talking about a contraction of people's rights. That is how the conservatives think about this. This is not like a technical legal question for conservatives. There's no legal argument that you can make that will sort of turn on the light bulb in your brain for why reproductive rights are important. To them, this is like a moral crusade. They spent decades positioning themselves to win this. You know, yes, overturning Roe would be overturning 50 years of precedent,

which usually Supreme Court justices proclaim to be very concerned about overturning precedent. But the conservatives don't give a shit about that. They don't think this is like an abdication of their judicial responsibility. In their movement, this is like an act of tremendous courage that they've been building towards for decades. And it's like a privilege for them to be able to follow through on this promise, to follow through on this movement. They're going to be rewarded for the rest of their lives. No, I agree. It seems like there's a whole other level of wacky going on here.

I thought the Kavanaugh, the most disgusting Kavanaugh moment of yesterday's oral argument, if we're just going to go through a play-by-play, was when he was like, just kick it back to the States. I mean, who cares? You know, don't get us dirty with this. Do you remember that? Yeah. So what Kavanaugh was doing there was trying to reframe the entire argument. I believe his line was, you know, that the court would be, if the court were to overrule Rowan Casey, the court would be, quote, scrupulously neutral, end quote, on the question of abortion rights. He said, you know, the Constitution is neither pro-choice nor anti-abortion. And I'm sorry, I just don't agree with a framing that treats fundamental rights like their treats to be doled out by the states.

But what he's trying to do there is make himself appear less partisan. He's trying to make himself appear more reasonable. And this is like a classic Kavanaugh move that we've seen over and over again. He really wants to do conservative things and reach conservative outcomes. But he doesn't want journalists to say mean things about him. He doesn't want people to like glance side eye at him at cocktail parties, right? And so he tries to position himself, again, the median justice, right? He tries to position himself as moderate. And median is not the same as moderate, no matter how hard he tries. You really do see them sort of working stuff out. The moment that I was probably should have expected but got me the most upset, and I think it got a lot of people

upset was the Amy Coney, if you have adoption, why do you need abortion? I agree. That was a real shocking moment in how flippantly she seemed to treat the health burdens and health risks of pregnancy and the importance of giving pregnant people choices about their own bodies. So what she was getting at there, just a little bit of background. One of the foundations of Roe and then especially Casey, is that access to abortion allows people who might become pregnant to participate fully in society, that having an unplanned child won't derail their plans to go to college or to start a career or something like that. And so what she was getting at in talking about these safe haven laws, which are state laws that allow people to surrender their parental rights by, you know,

delivering the child to a police station or a fire station. Amy Coney-Barritt's position was, well, if you can give up your baby for adoption, like, what's the big deal? You're not prevented from participating in society. You can just have your baby, and then you can go back to work, and it's like nothing changed. And again, counsel at oral argument had an eminently reasonable response, which is, first of all, in Mississippi, it's 75 times more dangerous to give birth. Right. I thought that was really interesting. Yeah, than to have a pre-viability abortion. Mississippi has one of the highest maternal mortality rates in the country. And it's, I mean, it's grimly funny, right? When Mississippi lawmakers say that they're passing these bills to protect the health of the mother,

it's like, this is like the only time that you ever give a shit about that. But I mean, even setting aside that just Barrett's casual treatment of women as incubators, sort of writing off the nine months of pregnancy as just like something that will not interrupt or change a pregnant person's life beyond the, you know, the last day of that pregnancy. Again, it was really flippant, really shocking, and does not portend well for what comes next. Yeah. And it was, and it's interesting, too, because she has seven kids, many of whom are adopted, and she knows just like how traumatic, I mean, which is not to say that adoption isn't wonderful, but as someone who has many children myself, you know, it's not like adoption is a trauma-free experience. She must know,

how hard it is to be having been given up for adoption, which is a real emotional thing. And so there really was, I thought, a certain degree of bad faith going on with that besides her ideological insanity. Sure. And this is why Amy Coney-Barrant is just put together in a lab for the conservative legal movement, right? Like she is firmly, virulently, unapologetically anti-choice. But she also has had a bunch of kids and has adopted. kids. And it's just like classic conservative identity politics to sort of set up this likely forthcoming opinion, right, in which they can say, well, look, you always criticize us for men controlling women's bodies, but what if the opinion's written by the woman can't get mad

now, can you, libs? Yeah, I mean, I'm laughing because I'm so depressed, but yes, tell me what else is on the docket for the Supreme Court. Obviously, the biggest case is this Dobbs, the Jackson Women's Health Organization, which is, in my view, very likely to end or severely curtail the right to abortion access after 50 years of multiple generations of women relying on its protections. But the other big case I'm watching is New York State Pistol and Rifle Association v. Bruin. Oh, yeah. This is the really fucked one. I mean, this one is actually could ultimately have more bearing on my life, believe it or not, than the other one, because because this will flood New York City with guns.

Yeah, so the brief background is that in 2008, the conservative Supreme Court for the first time in 200, 250 years, was like, ooh, yeah, Second Amendment absolutely protects your individual right to gun possession. Of course, as anyone who's gone to middle school knows, the Second Amendment begins with a phrase talking about how gun possession is necessary to the functioning of a well-regulated militia. and the Supreme Court, in an opinion by, again, your friend and mine, Justice Antoin, Antonin Scalia, rest in peace. Yeah, sure.

Yeah, definitely. They just sort of hand-waved that away. They said, ooh, the militia clause doesn't really matter what's more important. What matters here is that right to gun possession. And since then, conservative activists have been trying to expand on that right. Like, this is how the conservative legal movement works. They get a toehold in one of their extremist positions, and then they try and build on it. So that case, District of Columbia v. Heller, was about the right to gun possession in your home.

And in this case, it's about in Bruin, which the court will decide this year, it's about the right to carry a gun in public. And if the Supreme Court so decides, there are regulations in lots of these big blue states, right? California, New York, Massachusetts, all of which regulate gun possession in some way, because lawmakers have figured out that more guns in the hands of more people and more places is generally bad for public safety. I'm shocked. Yeah. And if the court extends Heller here, it's sort of going to open kind of a wild west, right? Right. There will suddenly be much more uncertainty, and it will be much more difficult for state lawmakers to make decisions to keep their people or their constituents safe from gun violence. Oh, I know it's bad because our soon to be mayor is worried about it and he's pretty conservative.

So that's kind of terrifying. Anyway, thank you so much for joining us, Jay. This was great. Hey, thanks for having me. Not a lot of great news coming out of the Supreme Court these days. It's not really what the Supreme Court is about, but I'm always glad to talk and commiserate about it. On that note, we'll wrap this episode of the new abnormal from The Daily Beast. In future episodes, we'll be talking to smart folks from The Daily Beast and beyond from media, culture, politics and science.

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