OA548: Supreme Court Signals Roe v. Wade's Demise

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. I'm Thomas. That's Andrew. I feel like we're inching ever closer to Handmaid's Tale in real life. How are you doing, Andrew?

0:01:27 Andrew: Uh, yeah, I'm going to set aside my usual fantastic because I made the mistake of actually watching some of the Dobbs versus Jackson Women's Health Organization oral arguments before the Supreme Court yesterday. And, you know, my usual sunny optimism and demeanor has been replaced with we're in a super bad place. And weirdly, like those of us on our side, right, anybody to the left of the Republican Party, seem weirdly and oddly unprepared for this, so Um, Happy to do the show with you, always love that, uh, you know, that parts are are fantastic, we have an unbelievable couple of things to share that just like made me smile beyond all belief, but uh, but no, that uh, that those oral arguments yesterday were painful.

0:02:01 Thomas: Yeah.

0:02:16 Thomas: Wonder if we should save our happy things for the end or something. What do you think?

0:02:16 Andrew: Yeah, I agree with that, let's do that.

0:02:22 Thomas: Yeah, let's do that. Don't let us forget, though. Well, save our happy bits of good news for after we talk about the Handmaid's Tale trial.

0:02:32 Andrew: Let's do that, I kind of set up in that the okay so this is the is a long scheduled oral argument in Dobbs versus Jackson Women's Health Organization right which involves what the media keep describing as a 15 week ban on on abortion in Mississippi. And that's sort of true, but entirely misleading, right? In the sense that that ban contains with it a springing law, such right, that if the Supreme Court overrules Roe v. Wade,

0:02:34 Thomas: Yes, please. Please do.

0:03:05 Thomas: Wink,

0:03:05 Andrew: Right as part of upholding the 15 week ban, it immediately bans all abortion throughout the state of Mississippi. Right.

0:03:05 Thomas: Wink. Yeah.

0:03:13 Andrew: So we should not be talking about this as like, well, you know, do we push it back from 23 to 15 in Mississippi? We're if the Supreme Court rules in the way that I anticipate that it will and upholds the constitutionality of the Mississippi statute by explicitly overruling Roe versus Wade, which I think is likely to happen. It becomes a zero week total ban. Will become illegal in Mississippi and as many as 21 other states. Let me be clear on that. We're going to get into it. But that is 22 states where if you are pregnant, you will be immediately potentially capable of being charged with a crime if you seek an abortion. Portion. Don't know why that's not the headline every single day in every single newspaper in the United States.

0:03:19 Thomas: Yeah. Jeez. Wow. Yeah. I still can't get over it and like even, even right now I'm just overwhelmed with I don't even know what to say, like we're sitting here, uh, in the year 2020, I think, one, I'm told, I donno, it might be 2020 or 2022, I could, somewhere in there within three years. I know what year it is. And the court seems poised by all indicators here to overturn Roe v. fucking Wade, like a bedrock, know, fundamental right that I would have thought we as Americans should have now, you know, that functionally to Roe v. Wade has been overturned in many places for a long time. I get it. Get it. But like still to get to this point, an Excel spreadsheet. That's 50 years, roughly were you, I was shocked to hear, let me hear this. I'll be, I'll transition to my first clip.

I could go to a couple of places for this, but I might as well just go, I'm going to the end because the end is when the, who you looks like exactly the kind of person who would be arguing in front of the Supreme Court to take away abortion rights, that guy, like his face is exactly that. He summarized his case.

0:04:59 Thomas: Let

0:04:59 Clip: In Closing, I would say that in his dissent in Plessy v. Ferguson, Justice Harlan emphasized that there is no caste system here. The humblest in our country is the pure of the most powerful. Our Constitution neither knows nor tolerates distinctions on the basis of race. It took 58 years for this court to recognize the truth of those realities in a decision, and that was the greatest decision that this court ever reached. We're running on 50 years of Row. So it is an egregiously wrong decision that has inflicted tremendous damage on our country and will continue to do so and take innumerable human lives unless and until this court overrides it. We ask the court to do that so in this case and uphold the state's law. Thank you, Your Honor.

0:05:38 Thomas: That really shocking, Andrew, I know, we know, we all know that's what's going on, it, but is this one of the first times that they've been so bold as to be in front of the Supreme Court and say overturn Roe? Because?

0:05:48 Andrew: It Isn't, but it is the first time that advocates could have the level of confidence that you just heard in that closing argument on behalf of the state of Mississippi. So right, we've talked about this. We did a deep dive into Planned Parenthood versus Casey, a two parter back in season one. And that was the last time that the right wing tried this trick. OK, they looked at it and they said, hey, we've had a pretty good run.

We had an awful lot of, you know, Nixon appointments. Then Jimmy Carter was president for like eight and a half seconds, uh, and then, you know, we had back-to-back terms of Ronald Reagan plus, uh, W Bush, like that is, we've controlled the presidency, uh, as Republicans for all but four years from, excuse me, from 1969, yeah all the way up to 1996, and, uh, shocker, what that means is we've had an awful lot of Republican Supreme Court nominees, the court's way more conservative than it was in the 70s, which was true, uh, and so, uh, why don't we test these, uh, Reagan appointees out and, uh, see if, uh, we can get the court to overturn, explicitly overturn, Roe versus Wade.

And so what they did was, um, they crafted a series of laws that were designed broadly to appeal to the public, uh, but also plainly to violate the Roe versus Wade trimester standard, right. And again, we've been through that, go back, listen to those, uh, initial Casey episodes, uh, because I, I think we did really really good work in that, and and there may be a historical footnote in a couple of months. So.

0:06:32 Thomas: Yeah, by

0:07:24 Andrew: So the Roe test said that the state may not burden. Right. In other words, it was it a trimester balancing test. It had absolutely nothing to do with the viability of the fetus or anything like that, except that it roughly coincided.

0:07:35 Thomas: Put A pin in that, everybody You

0:07:39 Andrew: Yeah, it roughly coincided that fetal viability in 1973 was roughly equivalent to the third trimester. But but but instead what the And The government did a classic kind of balancing interest. And they said and again, I'm going to use the the archaic language from Roe versus Wade. We have spoken on this issue a lot. Is It very, very important to know that men, that trans men can become pregnant. That has led to a hospitalization, death, parade of horribles. We have spoken out on that.

0:07:44 Thomas: Mean When people don't recognize that fact, yeah Gotcha

0:08:09 Andrew: Yes, exactly right. You know, it's led to men who come in who are marked as men in the hospital say they're pregnant and then they don't get triaged. Right. Like, Yeah, are in solidarity with you, our trans listeners. This is a case from 1973. Roe versus Wade said there are two important interests here. There is the state's interest in protecting future life and there is the women's liberty interest in determining what to do with their own body. So we came up with a three-part balancing test, right? We said, hey, first trimester, the woman's liberty interest is paramount, and therefore the state may not restrict, may not interfere with her right to have an abortion. Third trimester, state's liberty interests is paramound, and, therefore, the state may outlaw abortion entirely in the third trimester. It doesn't have to, but it can. And then in the middle, they're in equipose. And so we will tolerate regulations, but not outright banning.

0:08:18 Thomas: Right Right

0:09:06 Andrew: And that was the state of the law for 20 years. And then Pennsylvania and a bunch of other states in the early 90s, the direction, completely astroturf, ginned up by the same groups that are doing this now, decided that what they wanted to do was come up with legislation that was broadly popular, that would nevertheless contravene the Roe versus Wade trimester system. And what they came up with was parental consent laws, right? And again, I am opposed to these laws. We are both opposed to These laws. But you can understand the focus group driven nature of how these laws were crafted, right. It was, hey, you your daughter's 15. Shouldn't you have a say? Shouldn't you at least know if she's going to go Get A medical Procedure right

0:09:52 Thomas: It's Nine O'clock Do You know if your daughter's getting an abortion or not,

0:09:55 Andrew: Exactly right, and that, uh, wound up being a very good wedge issue, uh, in getting suburban parents who would identify as pro-choice, right, who who certainly were not pro-life, to say, well, okay, but this seems like a reasonable restriction. You right? Should tell me if my daughter is about to have a medical procedure. Never minding, of course, that the only reason not to tell the parents based on significant in-family abuse, we don't need to go down there. But notice that that structure violated, violated the Roe trimester system because you had to inform the parents and or get their consent.

0:10:32 Thomas: Right. So that would be like a regulation in the first trimester.

0:10:36 Andrew: Right, exactly. It would be a regulation throughout, and that's prohibited in the first trimester. So when Planned Parenthood versus Casey was teed up, the first question that was asked, the way that it was argued was, you should overturn Roe v. Wade. This is a good example of that, you were, yeah, a little young. Planned Parenthood versus Casey's in 1992 decision. Um, I was a politically aware teenager, and there was the same level of tension of, hey, the Supreme Court just heard oral arguments in Planned Parenthood verses Casey, um, this could be the case that overturns Roe versus Wade. And it was was heralded as a surprise and, you know, a victory for the, you know, sort of apolitical impartiality of the Supreme Court when three Republican appointees, yeah, go ahead.

0:10:37 Thomas: OK. Really?

0:11:23 Thomas: Say. Well, as you say, a court that, had been controlled by Republican presidents for whatever, 30 something years, minus four or whatever, not even that court would out and out overturn Roe. So the flip side, a Court that, is full You of appointees from presidents who have never haven't won the popular vote except a single time in the past, however many decades they, on the other hand, are going to overturn Ro. Row. And it's, uh, it's sickening. I don't even know how to deal with it emotionally.

0:11:53 Andrew: Yeah, and the reason is that this court has abandoned all pretense of being apolitical and trying to reach the proper result, I want, right, to read a little bit from the majority opinion, again written by three Republican appointees, Sandra Day O'Connor, Anthony Kennedy, and not too many people know this because he drifted immediately to the left, but David Souter, George W. Bush appointee. Back then, they did not have the Federalist Society gatekeeping to make sure that you only appointed ideologues. And happened was George W. Bush appointed somebody that recommended to him as a jurist of impeccable and integrity in David Souter, uh, and got that, and, that used to happen too, but in any event, um, the Casey opinion, written by those three Republican appointees, uh, begins, part one says, "Liberty finds no refuge in a jurisprudence of doubt." Yet 19 years, they were like, man, it's been two decades, of it's now five, right, 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, that definition of liberty is still questioned.

Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. And then it goes into the importance of stare decisis, and I'm sure we're going to talk about that, um, but, but to begin kind of this monumentous holding with, hey, when we're talking about fundamental rights, uh, should not, this, this should not be something that is up for grabs based on the political content of the Supreme Court.

0:13:32 Andrew: Guessing you're not going to see that language written in a majority opinion or concurrence, except possibly ironically in this case.

0:13:40 Thomas: Why don't we go to the, uh the quote that I think is, is getting probably the most, coverage that I I'm sure everybody's already heard, but just in case you haven't, Sotomayor had some things to say. This has reported in the New York Times and everywhere and elsewhere Whereas Sotomayor, and that's who I was about to say it was. And I realized as I'm hitting play on the video, Andrew, the, cause there isn't actually video, this is just audio recording, but, uh, I'M on C-SPAN here on YouTube and they have, uh. Graphics up with like, who's talking and they show the headshot and they show that this is Kagan speaking. Would they have had like court reporters who would have been able to see this or, or no, is this closed?

0:13:45 Andrew: OK, there are definitely folks observing in the gallery. And I will tell you that the that official transcript right from the court reporters list this as Sotomayor.

0:14:21 Thomas: Okay. Oh, right. Yeah. Oh. That's so funny. Okay. So this is, so I thought it was Kagan cause I watched the video, but I apparently Sotomaior, but in either case here's someone who I think properly understands and is articulating what's going on here.

0:14:30 Andrew: So no,

0:14:40 Clip: Will the institution survive the stench that this creates in the public perception that the Constitution and its reading are just political, political acts? I, I don't see how it is possible. It's what Casey talked about when he talked about watershed decisions. Some of them, Brown versus Board of Education, had mentioned, and this one had such an entrenched set of expectations in our society. This is what the court decided, this is what we will follow, that we won't be able to survive if

0:15:34 Thomas: Will the court survive this stench? What do you think?

0:15:36 Andrew: So I at least appreciate what Justice Sotomayor is doing here, the shift in in her conduct and oral arguments, in her temperament, in her dissents over the past couple of years, is the equivalent of the opening arguments, like it's time to play hardball. And I think the only kind of remaining strategy is the Sheldon Whitehouse, you know, amicus brief that we mentioned all the time, filed in the New York State Pistol and Rifle Association case, that that basically calls out every single time the Supreme Court is going to agonizingly, you know, wring its hands and go through the motions and play pretend as if it is doing law when what it is doing is reaching a predetermined political outcome. Don't know if that will work. So far, the only person that it appears to work on on the court's right wing is Justice Roberts.

0:16:29 Thomas: Roberts?

0:16:29 Andrew: You know, we've talked about the shame John Roberts strategy. Yeah, But that's right. Like, we've now move from, you know, the prediction. And I should be very, very clear about this. Recorded, we, you know, one of our most somber and episodes was the one we recorded after Ruth Bader Ginsburg died. And the difference between John Roberts being a swing vote as a very, very conservative justice who can be shamed because of concerns about his institutional legacy, legacy, versus John Roberts being the fourth vote and there being a hard five block of conservative political activists, can't, cannot be overstated. Right.

0:16:30 Thomas: Yeah. You mean Mr. Irrelevant? Yeah, yeah.

0:17:12 Thomas: Why don't we talk about that? Because the basically all the coverage I've seen and my My impression from watching the oral arguments as well is like you've got these arguments happening and then you've got Chief Justice John Roberts in the corner trying to make this appeal to absolutely nobody. Like, no, he's like, hey, guys, what if we just, you know, like, what do we move the line from 22 weeks or whatever to 15 weeks? Would that be fine? Like, we could just do that. And everybody's like. This somebody hear something? I don't see here.

0:17:13 Andrew: Nothing. Yeah.

0:17:37 Thomas: Did you hear something anyway? Anyway, he's completely irrelevant.

0:17:37 Andrew: Look, that that's where we would have been. Yeah, that's where we would have been had Ruth Bader Ginsburg stayed on the court. He

0:17:41 Thomas: Yeah. Yeah. Because his vote would have mattered. And now his vote does not matter.

0:17:47 Andrew: He would have brokered a compromise. And that compromise, mind you, still would have Been disastrous for, for the United States of America. Right, but basically, he would, would have gone to the courts for Justice Liberal Wing at the time and said, "All right, I'm going to sign on to the howler monkey opinions unless, you're willing to come together and give me kind of a Casey like decision that reaffirms its central holding, but pushes the viability standard back to, you, whatever and make something up." Right. Because, look, look, a fetus is not viable outside the womb at 15 weeks, and so you can't say, "Well, know, it really kind of is still viable at 50," it isn't, right, you have to make up a new standard, um, that's where Roberts would have liked to have gone as chief justice of a conservative, but not discredited, Supreme Court, um, and it doesn't look like he's going to get

0:17:52 Thomas: It's still horrible. Yeah.

0:18:36 Thomas: Which,

0:18:36 Andrew: There. Yep.

0:18:36 Thomas: By the way, would have been perhaps, again, the more competent evil, Know, because that's just about as horrible. But then all the headlines would have Been like, wow, Roe is saved. They didn't technically overturn Roe.

0:18:48 Thomas: And, you know, we'd have to be here.

0:18:48 Andrew: Well, Those those Those were the headlines

0:18:50 Thomas: Yeah.

0:18:50 Andrew: Around Casey. Yeah.

0:18:51 Thomas: Yeah, but now we might, for better, well, for worse, but I guess the tiny, tiny positive note on that is that if they do actually just overturn Roe, we don't have to put up with a bunch of gaslighting headlines that are like, oh, they didn't actually overturn Roa. So I guess there's that tiny saving grace, but it may be more sinister to do it how Roberts has been doing it, which is to pretend you're not doing it because people don't pay attention and legal coverage is tough, I guess. So don't. Maybe this will motivate people more to actually just see that headline like Roe overturned. I don't know.

0:19:26 Andrew: Yeah, and I think you should play Stewart's answer, and then Sotomayor's comeback. It's right after, if you keep the clip going.

0:19:33 Thomas: Oh, sure. Yeah, let's keep it rolling.

0:19:36 Clip: Will we survive? How will the court survive? Justice Sotomayor, I think the concern about appearing political makes it absolutely imperative that the court reach a decision well grounded in the Constitution, in text, structure, history, and tradition, and that carefully goes through the stare decisis factors Casey did that. Casey went through every one of them. You think you did it wrong. That's your belief. But Casey did that.

0:20:05 Clip: And you haven't added much to the discussion in your papers as to the errors that Casey made, other than, I disagree with Casey.

0:20:04 Thomas: Just like your opinion, man.

0:20:17 Andrew: Okay, would not want to be Mr. Stewart at this point. Um, this is because he is lying to a Supreme Court justice in open court, and it does not matter. Right, that is the power dynamics here, um, I would be terrified, uh, you know, to have a justice, a Supreme Court justice, to have any judge look down at me, uh, and to know that what I'm about to to say is complete and utter bullshit, um, here are the Casey factors, right, this is the standards from page 855 of the Casee decision, and this isthe standard, that it's not just a special like rule for abortion, right, the Casey test has been the test that the Supreme Court has applied in every case until Janice versus Ask Me, which we've discussed, which was, which was basically like, yeah, we don't like this old case from the 1970s, so we're getting rid of it, which is part of why we've harped about it because it was so dangerous.

Prior to that, again, again, you know, for a good solid 30 years, what this court has done is used the following adjudication to figure out, hey, does stare decisis apply?

0:20:27 Thomas: Yeah.

0:21:23 Andrew: Should we continue to enforce an older decision that maybe we personally disagree with, would have decided differently, we think could have gotten it wrong? Or do we do what the Supreme Court did in Brown versus Board of Education and look back and go, nope, this is 100 percent wrong, right? Right. Like this is Plessy v. Ferguson said separate is separate, but equal is fine. Brown versus Board of Education said separate ist inherently unequal. There's no squaring that circle. So here's the test. That again. So in THIS case, WE MAY inquire whether Roe's central rule has been found unworkable, whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it, or significant damage to the stability of the society governed by it, whether the law's growth in the intervening years has left Roe's central rule a doctrinal anachronism discounted by society, and whether Roe's premises of fact have so far changed in the ensuing two decades, now five decades, to render its central holding somehow irrelevant or unjustifiable in dealing with the issue that it addressed, that is an incredibly high burden to clear, right?

0:22:34 Thomas: I think Alito has something to say about that, oh

0:22:36 Andrew: Go ahead, okay.

0:22:38 Clip: Is it your argument that a case can never be overruled simply because it was egregiously wrong? I think that, at the very least, the state would have to come forward with some kind of materially changed circumstance or some kindof materially new argument, and Mississippi hasn't done so in the past. Really? So suppose Plessy v. Ferguson was re-argued in 1897, so nothing had changed. Would it not be sufficient to say That was an egregiously wrong decision on the day it was handed down, and now it should be overruled. It certainly was egregially wrong on the date that it was handled down, Plessy, but what the court said in analyzing Plessie to Brown and Casey was that what had become clear is that the factual premise that underlay the decision, this idea that segregation didn't create a badge of inferiority, had been entirely mistaken.

0:23:29 Clip: So is it your answer that we needed all the experience from 1896 to 1954 to realize that Plessy was wrongly decided? Which answered my question, had it come before the court in 1897, should it have been overruled or not? I think it should have been overwhelmed, but I think that the factual premise was wrong in the moment it was decided, and the court realized that and clarified that in the overwhelming fear. So there are circumstances in which a decision may be overruled, properly overrulred, when it must be overuled, simply because it was egregiously wrong at the moment it was decided.

Well, think every per se decisive factor, likewise, would have justified overruling in that interest, that actually it would run counter to any notion of reasonable reliance, that it was not a workable rule, that it had become an outlier in our understanding of fundamental freedoms. Well, there was a lot of reliance on Plessy. The South built up a whole society based on the idea of white supremacy. So there was lot of a reliance. It was improper reliance, it was reliance on an egregiously wrong understanding of what equal protection means. But your answer is, I still don't understand, I still do not have your answer clearly.

Can a decision be overruled simply because it was, is erroneously wrong, even if nothing has changed between the time of that decision and the time when the court is called upon to consider whether it should be overruled. Yes or no? Can you give me a yes or no answer on that? This court, no, has never overruled in that situation just based on a conclusion that the decision was wrong.

0:24:19 Thomas: What here's the here's the kicker Andrew

0:25:08 Clip: It has always applied the stare decisis factors and likewise found that they weren't overruling in that instance. And Casey did that. It applied the star decisis factor. Factors. If stare decisis is to mean anything, it has to mean that that kind of extensive consideration of all of the same arguments for whether to retain or discard a precedent itself is an additional layer of precedent that needs to be relied on and can form a stable foundation of the rule of law.

0:25:33 Thomas: A what, a quote, by the way, we should give credit where it's due to this brilliant attorney, uh, Solicitor General Elizabeth, Elizabethe Prelagar.

0:25:40 Thomas: Yeah, she's brilliant, uh, and that was a quite a rejoinder. Show is brought to you by Raycon. I bet you you've just gone through a weekend of looking for Christmas gifts, because that's the society we live in. And I bet you, you didn't get all of them. There's, there is no way that you got all your gift shopping done. So I've got a great idea for you. This This Is A Great Gift For Anyone. Raycon Wireless Earbuds. I love my Raycons because I listen to podcasts all the time. I listen to podcast and books and I listen articles. I listen to everything. I always have my earbuds in, and so it matters that I have good ones. And Raycons give you amazing audio quality wherever you go, whether you use them to pump up, wind down, or to work, or work out. I don't do any of those things. I just do chores with them, but that's fine. I guess wind down. No, that counts. I use them do wind down, they'd be useful for anyone on your list.

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0:27:39 Andrew: To, I want to comment on a couple of things here, the right. First is the egregious and ridiculous, ridiculous sleight of hand that Alito uses in framing the question. Well, could we have, if nothing changes? It's 1897. Could we overturn Plessy versus Ferguson?

0:27:51 Thomas: Yeah. Like Yeah.

0:27:55 Andrew: And the answer to that is sure.

0:27:56 Thomas: Who gives a shit, yeah.

0:27:57 Andrew: Right. Because it's last year. Right? Like because and you see her trying to formulate a nuanced answer. There's no reliance. The Supreme Court, there's absolutely no stare decisis that, reliance interest that you would put in a rule you decided last year, right? So when you construct that as the hypothetical, now let's get past that. Now what you want to say is, suppose nothing changed from 1896 to 1954. By the way, a position that you wouldn't had, Justice Alito, had you been on the bench from 1886 to 1954, right, those espousing your ideology were the ones defending Plessy versus Ferguson, but we'll get to that in a minute. Argument is if nothing had changed. Right. Then you would not have that factual predicate to look back and go, oh, yeah, the idea that segregation does not create a de facto second class legal standard would also not have permeated the legal and public consciousness. We would not have had that opportunity to say, yeah, this rule is unworkably awful.

This rule, the factual assumptions that the Supreme Court made in 1896 turned out to be dead wrong. And the idea that that it is it is the court's hidebound reactionary contingent that are pinning themselves to Brown versus Board of Education when Brown versus board of education cannot be judged,

0:27:59 Thomas: Yeah. Yeah. Yeah.

0:29:22 Andrew: Cannot be justified in any way by the originalist standard that they use in interpreting the law. Right. Like is just galling. Right. It is like hearing Christopher Ruffo, you know, quote from Martin Luther King.

0:29:37 Thomas: It's pretty much exactly that, yeah.

0:29:39 Andrew: It's grotesque and it is wrong. Now, let's explain the game here. I referred to in the last answer, Janice versus ask me the 2018 decision, which which had to do with the question of whether a public sector labor union could recoup expenses, nonpolitical expenses from nonmembers on whom it nevertheless bargains on their behalf. Or whether non-members had the constitutional right, mind you, this is what Alito invented, to demand back a share of those union dues when they disagreed with the union, which, yeah, anyway, yeah. No, that that only works when, you know, you're talking about where in the Constitution does it say abortion? Yeah.

0:30:14 Thomas: Well that's weird where in the Constitution does it say that, Andrew, Andrew, for yeah. Just for those who didn't watch the whole oral arguments, uh, that's, that said a number of times that there's nowhere in the constitution. Does it say a dog can't play basketball, Andrew? So I

0:30:40 Andrew: Right. And again, as we point out the danger of that, there's a sidebar, but we point out the nature of that argument in episodes 533 and 535.

0:30:48 Thomas: Have a quote to go along with that. If you real quick, if you did, this was, I

0:30:50 Andrew: Oh, yeah. Let's do the sidebar and then and then get back to Janice, there'S

0:30:53 Thomas: Okay. We're sidebarring everybody put your pins in and we'll all take them out at the same time.

0:31:00 Clip: A line. There's so much that's not in the constitution, including the fact that we have the last word, Marbury v. Madison. Listen, there is not anything in the Constitution that says that the court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet what the court did was reason from the structure of the Constitution. That that's what was intended. And here in Casey and in Young, the court said, there is inherent in our structure that there are certain personal decisions that belong to individuals and the states can't intrude on them.

0:31:50 Clip: We've recognized them in terms of the religion parents will teach their children. We've recognized it in their ability to educate at home if they choose. They just have to educate them. We have recognized that sense of privacy in people's choices about whether to use contraception or not. We've recognize it in the right to choose who they're going to marry. I fear none of those things are written in the Constitution. Constitution, they have all, like Marbury v. Madison, been disarmed from the structure of the Constitution. Why do we now say that somehow Roe v.

0:32:37 Clip: Casey is, Roe and Casey are so unusual that they must be overturned? Well, Justice Sotomayor, I would emphasize two things. When you're going beyond the Constitution, this Court has looked closely to... No, what I'm saying is they didn't go beyond the Constitution. Your Honor, they did not deduce those from the structure of the Constitution They pointed to the 14th Amendment and reasoned that privacy in Roe, autonomy in similar values in Casey led to a right to abortion. That's not how this court traditionally does things including in the vast run of cases that Your Honor ran through. The court looks to history and tradition and here those decisively reject the proposition that states cannot legislate comprehensively on abortion abortion before, after viability, and all throughout. So it's history and tradition, Your Honor. And I would also add, Your Honor,

0:32:55 Thomas: Which is part of what amendment to what yeah it's not how they do things okay

0:33:02 Andrew: Think we have the The 14th Amendment to nothing.

0:33:24 Andrew: Okay, okay, you've got to

0:33:26 Thomas: Yeah

0:33:26 Clip: That viability

0:33:26 Andrew: Cut off there, and then we will go back. This is the gaslighting game on the originalist mode of interpretation that just have to call it out every single time you hear it. No. Throughout the history of the United States, the court has not been driven by history and tradition as the sole touch points for understanding what a right means. And that is clear in every aspect of jurisprudence, including, by the way, jurisprrudence that Neil Gorsuch has signed on to. Like Neil Gorsuch's textualist interpretation of Title VII of the Civil Rights Act of 1964, discrimination on the basis of sex, he extended to protect gender identity, transgender individuals, and sexual orientation, not because of the history and tradition. Right. Absolutely.

0:33:27 Thomas: Yeah Yeah. Yeah.

0:34:17 Andrew: There is zero history and tradition of.

0:34:18 Thomas: The rich history and tradition in this country of treating gender nonconforming people. Well, yeah, that true, that history. Yeah, so

0:34:22 Andrew: Yeah. Right. Yeah, zero. It had to do with the text of that particular statute or read broadly the text And, you when Elena Kagan said we're all textualists now, this is the sense in which she meant it. Because when you read the Constitution, you understand that certain phrases cannot possibly be interpreted literally, cannot possibly enter be interpreted according to their dictionary definition, must be interpreted as a general principle as setting up a framework from which we adduce specific rules. If you don't buy that, then, as as Justice Sotomayor just said, and you played, you do not accept Marbury versus Madison stare decisis.

0:35:10 Andrew: You absolutely cannot accept Brown versus Board of Education. You know why? Because the same because Congress had the right. There was no home rule in the District of Columbia in 1896 to 1954. And the same Congress that passed the 14th Amendment set the D.C. school budgets and standard, right? Like Congress governed D.S. almost entirely during that time period. And guess what Congress set up? Segregated schools in D.K. So if you look constitutional provision, you will not arrive at any of the Supreme Court's landmarks opinion. You will arrive, by definition, at the most hidebound institutionalist conservative result possible because that's the way it's always been done. That's all history and tradition means. Oh,

0:35:10 Thomas: Yeah yeah yeah yeah it's infuriating just. They keep, multiple times, again, I watched this whole thing multiple times. They love to tout the, well, if we can't overturn cases, then we never could have decided, you know, overturned Plessy and decided Brown. And as you point out there, just to make crystal clear, there is absolutely no originalist justification for overturning Plessie, right?

0:36:20 Thomas: There's no place in the Constitution where, as they say, it's unbelievable. So the very case they keep using to justify overturning solid precedent is the same case that they never would have themselves decided under their ideology.

0:36:20 Andrew: You cannot I mean, look, I I do not fault, uh, Solicitor General Elizabeth Proligar here who had an impossible job, it, did better than I would have done, uh, did as good a job as any jurist, as any lawyer could do in in her situation. She has a real future judiciary if she wants it. I mean, this is a top-notch legal mind. So all of that being said, I do not fault her because it is impossible when you're standing there, even when you recognize that it's farce, to turn around and throw the question back at Samuel Alito. Right. And to say it's something like, and again, this is Monday morning quarterbacking in the extreme, to say something like, a little confused at your question, Justice Lear, could, could you articulate the history and tradition that underlie overturning Plessy versus Ferguson, as opposed to that being the argument being cited in favor of maintaining Plessie in 1954? 54, um,

0:37:32 Thomas: I think you're crossing the streams here because this is Scott Stewart making the history and tradition argument, right?

0:37:34 Andrew: Right. Right, right, but it was also, that that's what I'm saying, is when, when Preligar was being questioned by Alito for the standards of stare decisis, it is 100% legitimate to take the standard that the other side is using, right, and end of them. So the way in which you craft the question, and again, not sure this is a a good question, I've, right, specifically said that, is to say, "Your honor, I want to understand your question in light of the standards that the State of Mississippi has articulated for stare decisis, which seemed to me to be incompatible with the gravamen of your question, Mr.

0:37:43 Thomas: Well,

0:38:09 Andrew: Stewart, on behalf of Mississippi, has said that what counts for stare decisis is history and tradition. And there are, of course, no history and tradition based arguments that would appeal to overturning Plessy versus Ferguson. Now, yeah, it is very it is superiorly easy for me to say that because of one weird trick that you've probably picked up on. And that is this. It is 100 percent permissible for Supreme Court justices to interrupt lawyers arguing before them. It is 100 percent impermissible for the lawyers to interrupt the justices when crafting those questions. And that is beaten into you since sort of day one of law school. And there's just no way. I mean, you'd have to be you'd have to be amazing uh you know to get off like that level of

0:38:09 Thomas: Yeah, it's the opposite, right.

0:38:46 Thomas: Yeah.

0:39:01 Andrew: Uh multiple nested uh know prologues to that so again just just fantastic stuff uh by prologar in a what is ultimately going to be a losing cause we're going to see just how losing uh probably in about six months

0:39:13 Thomas: And that's the thing. I mean, just talking about that in general, Alito was trying to get her to admit, which I guess would be a crushing admission if she said, yeah, if a case is wrong, just overturn it. Who gives a shit? Like Roe wasn't wrong.

0:39:27 Thomas: So like, well, you know, like, So I just want to note that the whole thing is stupid. Like the whole things. The we're stuck. It seems like, and correct me if I'm wrong, you can, you can kind of go off of this, but we, and I'm by we, I mean, you know, the brilliant attorneys who are defending demanding reproductive rights against the Supreme, uh, in front of the Supreme Court here are caught in the position of, all right, we know this court is a swamp of crap.

Like we know that the, and I'm, I'm going to play the Amy Coney Barrett quote that made me almost throw my computer out the window as I was watching it.

Uh, we knows it's a toxic mess of garbage, garbage, what we have to do instead of saying hey y'all fucking dummies, uh, people should have a right to their reproductive freedom, like the end of case, why, what are we doing, why are we arguing, what is anything, we can't do that, we haveと say, well, but stare decisis, like, uh, don't overturn, you know, and it's just a losing, you know, battle to try to say, I know you guys are are patriarchal toxic garbage monsters who want to take away reproductive freedoms.

0:39:27 Andrew: So you you

0:40:26 Thomas: However, please don't, pretty please. Don't, because the court has previously said they won't do that and made decisions that don't go that way. And we've relied on it. And these other tests, as you say, about stare decisis. And I just think fundamentally that's a, a, uh, a terrible place to have to kind of be, just logically speaking, and be ultimately a losing argument anyway, because they don't give give a shit about stare decisis, right? Do I have any of that wrong?

0:40:52 Andrew: Have absolutely none of that wrong. And let's pull that pin back out with the Janus versus AFSCME decision. So we went down that trail. Now we come back, to this was an Alito opinion. This is why he is so invested in it, because the situation that we described in Janice had been litigated already 40 years earlier in a case called Abood versus Detroit Board of Education. Exact same issue, exact same question. And the Supreme Court said, no, like there's no constitutional right to demand your agency fees back from the union if you don't want to be represented by them. But the significant part here is that the fundamental reason, uh, as Alito says, we upheld a similar law in Abood and we recognize the importance of following precedent unless there are strong reasons for not doing so, but there are very strong reasons in this case, uh, fundamental free speech rights are at stake, Abood was poorly reasoned, it has led to practical problems and abuse, blah, blah. And you see that. Right.

And Clarence Thomas has gone one step further in opinions, all of which I think have been dissents, but basically has said, you know, if a case is wrongly decided, it has no precedential value and stare decisis doesn't apply. Understand for a second what that means. Right, and that this goes hand in hand with our sounding the alarm on the abolition of the Chevron defense doctrine, which is coming. All of this is about removing constraints,

0:42:25 Andrew: Both practical and as a matter of history and tradition, that constrain the power of an activist Supreme Court to do whatever the hell it wants.

0:42:36 Thomas: Here's why. I don't care, Andrew, because if we ever wrestle control back of this court, which by the way may not happen in my friggin lifetime because of these appointments, if we never do that, we're gonna have to do the same thing. We're going to have to go there and say, yeah, well, these decisions were wrong and we need to overturn them because they're wrong. Right? I mean, isn't that going to be what we have to do?

0:42:36 Andrew: Okay. So I want to save that for for a future day because I think you can, uh, pack the court, uh, but nevertheless maintain respect for the court as an, as an apolitical institution, and I have some thoughts on that, so I disagree with you on that, but but I agree with you on your larger point, which is absent packing the court, um, it's easy for us to sound the alarm and say we have a super bad activist Supreme Supreme Court, which we do. The comparison I often make is to the Lochner era court. And right, that was when the Supreme Court invented a whole bunch of economic rights under the Constitution to work against kind of the rising tide of progressivism, socialism and communism in this country.

0:43:37 Thomas: To work in a coal mine as a child, basically.

0:43:40 Andrew: Yeah. Yeah. To strike down maximum cases, like a maximum 80 hours per week work week. And the court was like, no, we do not think you have the right to legislate that in the United States. Um, and everybody, justice is left, right and center, lawyers left, right and center, uh, if you ask them in their sleep, right, what's the most despised, the worst, the lowest era of the Supreme Court's history, will tell you the Lochner era. Um, the Loichner era is right, like is you're sort of drawing some arbitrary lines. But roughly speaking, 1897 to 1937. Right. Have we have a real good idea when it ended. And we've talked about that on the show. But that's 40 years of a regressive Supreme Court overturning democratically elected laws to try and make life better for a rapidly industrializing country.

0:43:41 Thomas: Yeah, yeah,

0:44:34 Andrew: Country. Um, so if you think, uh, oh, well, you know, it's all just, sometimes we like Democrats, sometimes we like Republicans, like it's always gonna, it, it is completely consistent with our nation's history to have four decades of an activist right-wing Supreme Court, and that's what we're looking at right now.

0:44:49 Thomas: Yeah. We're looking at decades and decades of back alley abortions, you killing pregnant people if they don't have the money or resources or wealth or whatever to cross state lines and go to somewhere that's not not quite Handmaid's Tale. Decades of that. And you know why, Andrew?

0:44:54 Andrew: Yep.

0:45:05 Andrew: So Yeah. Yep.

0:45:09 Thomas: Hillary had some emails that we didn't like. Like, sorry. Oh my God. How do we not just yell about this for four straight hours, Andrew. This is the consequence.

0:45:14 Andrew: Uh, I don't know, but you know, I will say it.

0:45:19 Thomas: This is the consequence of this. Again, if you evaluated the election in 2016 and you thought that like there's some otherwise good reason for your abstention or for doing anything other than voting for Hillary, you were just wrong. You were wrong in your calculation. You didn't include the fact that this, that Roe v. Wade would be struck down as a result of all that. Just, I, it makes me so angry, Andrew. You were just about all but uh, if we, you know, if we elect the centrist Democrat, we're never going to teach a lesson, we're not going to send a message with our vote, Andrew, God.

0:45:54 Andrew: You You know, I'm, I'm in, in hard agreement. I mean, I'll just sort of point to the contrary, and that is, uh, from a factual basis, the Republican support percentage of the vote. Did not differ appreciably from Mitt Romney to John McCain to Donald Trump. Republicans, right, line up. And as a result of that level of discipline, they have been able to craft a governing coalition that has wielded exceptional federal power with 46 percent and less of the popular vote. Vote. So all I will say is this. You guys send me emails all the time saying, when are you going to play hardball? Right. When are Democrats going to play as dirty as Mitch McConnell?

0:46:40 Andrew: I'm now fully on board with that. Right. Like, I've, I've said, my gentlemanly 2016 is kind of over, and I'm with you. Like, let's, let's pull out every trick we can in the book. I'm going to ask it back of you as a voter. If, right, you're going to play hardball, if you're going to ask me to publicly go out, right, and I'm about to testify before the Federal Trade Commission in a couple of days. I've testified before congressional delegation, right. I'm doing this work. If you can ask me to play hardball, I'm going to asked you to play hardball with your vote, and right, that is the rubber meets it, do whatever you want in the primaries, when the rubber meets the road, you got to give up that, you know, well, you know, this person doesn't support three of the 16 things that I think are a litmus test. Like, what hardball means. Hardball means lining up and, you Know, 90% of Republicans in in 2016 held their nose and voted for Donald Trump. And you know what, they got the stuff they wanted, right?

0:47:35 Thomas: Let me just make sure I have you right. Andrew, are you saying that the Supreme Court justices that we didn't get because we abstain from voting for Hillary Clinton aren't sending a message that's equally as good as the message that the Supreme Court justices that Trump got to appoint are sending? That's not as powerful a message? How could that be?

0:47:36 Andrew: Yeah, to use a classic legal phrase, I would say res ipsa loquitur, like the thing speaks for itself. Let's talk about where the rubber meets the road here, right? What are the implications? So what's going to happen, right? That there would be protecting the substantive right to reproductive freedom enshrined in Roe and Casey, but just kind of moving it back. That's clearly not going to happen. The Roberts position, right, a sort of narrow, de facto overruling, kind of like Casey on steroids that says, you know, well, there's some right to an abortion, but, you Know, who

0:47:58 Thomas: God.

0:48:24 Thomas: Which would be based on what, by the way? Like, it's so, who even knows? There's no, zero reasoning other than let's be slightly less evil so that we can gaslight people, right?

0:48:27 Andrew: Even knows? Yeah, Yeah. And that I would say that outcome would still be better than what we're very likely to get.

0:48:42 Thomas: And You think? What do think the odds are? Are good?

0:48:44 Andrew: I would say I would say 20 20 percent. Right. Yeah. Would say 75 percent. What I think we're likely to get is an explicit overruling of Roe versus Wade that that will be justified. The rhetoric you heard again and again at oral argument emphasized by state of Mississippi and also by Justice Kavanaugh is look Look, this is just sending things back to the states, you

0:48:47 Thomas: Okay. Wow.

0:49:02 Thomas: Kavanaugh mainly. There Yep. It's this brilliant line, Andrew. The constitution, we need to be radically neutral. Wasn't that the wording? We got to be radically neutral because there is no, no law in the constitution that either way, we have to be radically neutral about abortion, because that's that's what you do with with rights, right? You're like, well, we gotta be neutral about the right if it's not explicit. How does this not also apply to every single, almost every single other right, Andrew, that's not explicitly laid out in the constitution? I mean, again, Miranda rights, is that in the Constitution? That's one he referenced, I think it was Kavanaugh, I think that was one of his ones where it's like, it's good thing we, you know, overturned whatever the past case was on that. Miranda rights, those aren't in the Constitution. The only I ones that are is like, you know, free speech, I guess the guns maybe, according to them.

0:49:15 Andrew: Yep, yeah. Nope.

0:49:55 Andrew: Not

0:49:55 Thomas: But like, yeah, yeah.

0:49:56 Andrew: According to them, but not according to the text. But but yeah, here's here's how Kavanaugh asked the softball question of Stewart on behalf of Mississippi said, and as I understand it, you're arguing that the Constitution is silent and therefore neutral on the question of abortion. In other words, the Constitution is neither pro-life nor pro-choice on the Question, but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process. Is that accurate? And then Stewart says, yes, absolutely. I'm going to nod up and down, right? Replace abortion with, I don't know, you marriage contraception right, anything that is uh Yeah, you there is absolutely no ground.

If it is not, the Constitution is neither pro-marriage nor anti-maruage and leaves it up to the people. So, You know, if you want to, you want a pass a law saying that white people can only marry white people, well, you know, uh, there, that, that is Opening Arguments 533, 535, we go, go through. The next domino is contraception. And right, if you don't think that, I said this on Twitter, if you don't think that, like, where were you? For the Burwell versus Hobby Lobby case, right? Like, it is very, very clear, right, though, right wing is opposed to contraceptive.

They, they fought it all the way to the Supreme Court and one for the right of your crap store to not have to cover contraceptives in their healthcare plan. So if you think they're not going to come back and pass laws banning the kind of contraception that they think is just as much murder as abortion, right?

0:50:15 Thomas: Yeah.

0:50:29 Thomas: Anything. Yeah. Interracial marriage. Marriage?

0:50:44 Thomas: Unbelievable.

0:51:30 Andrew: And that includes IUDs, people. You think that that's the case, then you're way more optimistic than I am.

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0:54:58 Andrew: I've hinted a little bit at where the rubber meets the road. Here's what will happen this decision, if this decision overrules Roe versus Wade. States have laws on the books prohibiting abortion. Those laws are unenforced because of Roe vs. Wade. They will presumably become enforceable again the second that this case is decided. Those are Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, West Virginia and Wisconsin. Nine more, there's... there's three more in overlap, but nine more states that don't have other statutes have springing statutes like they have in Mississippi. Right. So, you know, Mississippi has triply covered its barriers here. But nine more states distinctly have springing statutes.

0:55:46 Andrew: Idaho, Kentucky, Louisiana, Missouri, North Dakota, South Dakota, Tennessee, Texas, and Utah. Two more have passed law. And again, seven more states, because this was a model ALEC legislation. But two more distinct states have passed statutes, quote, "expressing the intent to restrict the right to legal abortion to the maximum extent permitted by the Supreme Court." OK, so we will regulate as much as the Supreme Courts as we can. So that becomes 100 percent when this decision comes down. Those states are Kansas and Ohio, and three more states, again, with some overlap, have anti-abortion statutes that have been enjoined by court order because of Roe as unconstitutional, that you could just go back to court and get those injunctions lifted. Georgia, Iowa, South Carolina, that is 22 states where if you're pregnant, you can be immediately charged with a crime if you seek an abortion after this decision comes down. Thomas, how many states do you think go the other way? And

0:56:45 Thomas: Well, that's a tricky question because I don't know. It may be looked at as redundant in some ways. So I don'T know. 10.

0:56:53 Andrew: So it's a split trick question. The small answer is three. Oregon, Vermont, and the District of Columbia are the only three jurisdictions that's that project abortion uh throughout the pregnancy. 12 more protected pre-viability, that is, to the extent of Casey, California, right, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, uh, New York, Rhode Island, and Washington, leaves states like Colorado, Minnesota, New Hampshire, New Jersey, New Mexico, Pennsylvania, Virginia, Wisconsin, reliably deep blue Democratic states, all of them with no protection whatsoever. It leaves Purple State. Again, Michigan has a preexisting abortion ban, do Arizona and Georgia, which were purple states in the 2020 election. And North Carolina has has no similar protection. So these are if you want to talk about the will of the public, you would have absolutely no protection in a lot of states where an awful lot of Biden voters live. And as you point out, you got money. Yeah, you those people will still get abortions just fine because abortion is legal in Canada, basically all of Europe and Asia. So, yeah, we're we're about to have more restrictive abortion laws than Russia and the former Soviet bloc. That's freedom. America.

0:58:16 Thomas: Do you want to hear for fun? Cheers up. John Roberts getting publicly owned, despite being probably against socialism as the meme goes all the time about that very topic here. Just for fun.

0:58:23 Andrew: Yes. Yes.

0:58:25 Clip: It is the standard that the vast majority of other countries have. When we get to the viability standard, we share that standard with the People's Republic of China and North Korea. And I don't think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those are your to share that particular time period. I think there's two questions there, Your Honor, if I may. First, that is not correct about international law. In fact, the majority of countries that permit legal access to abortion allow access right up until liability, even if they have nominal lines earlier. So, for example, Canada, Great Britain, and most of Europe allows access to abortions right up into liability, and it also doesn't have the same barriers in place.

0:59:14 Clip: Even if they have nominal lines earlier? Some countries, Your Honor, have a nominal line of 12 weeks or 18 weeks, but they permit legal access to abortion after that point for broad social reasons, health reasons, socioeconomic reasons, so their regimes really aren't comparable. And they also don't have the same types of barriers that we have here. So if the court were to move the line substantially backwards, And 15 weeks is nine weeks before viability honor. It's quite a bit backwards. It may need to reconsider the rules around regulations because if it's cutting the time period to obtain an abortion roughly in half, then those barriers are going to be much more important.

0:59:37 Thomas: Yeah.

0:59:55 Thomas: Oh boy, I love that, though. That's my favorite, um, yeah. A couple things. First, uh, you're totally full of shit with what you just said. Just-

1:00:04 Andrew: That is masterful. I mean, it is very, very difficult to tell a Supreme Court justice to tell the chief justice of the Supreme Court. And again, John Roberts, no dummy. Right. To tell him like that, that's just not true as a as a matter of law.

1:00:20 Thomas: But- Yeah. No. Dummy, but they are steeped in some- of them and we didn't really have time to talk about, uh, Thomas as well, but some of them are seem to be steeped the really silly, like, sophomoric right-wing arguments about abortion. So, So sure, no dummy, but like, yeah, he tried, I guess we, you know, we're out of time, but I would play it, but his whole thing, I think three times, if I remember correctly, Andrew was like, but what about this gotcha? You know, essentially like the watchmaker argument for religion debates or something. Hold on. But what if, how could it be, Justice Thomas says over and over, how can it be that we We say a woman who's pregnant can't do coke, you for fear of risking the baby's health. How could we say that if you know if we can say that the woman could also just kill that baby, you know, with abortion? And several times these very brilliant interlocutors had to be like, well, that's a regulation. And you've said in the past that the court like it's consistent. There's a a million ways to respond.

1:00:35 Andrew: Yeah, Clarence Thomas is. But yeah, it

1:01:23 Thomas: But for one, we've already said, like, it's okay to regulate. Casey We've says it's OK to regulate, just not ban. And two, I think the obvious thing is it's a balancing of interests, we've as talked about. You know, the state has an interest in, I guess protecting life, if you want to say that. And the pregnant person has an interest in bodily autonomy. And you could make the argument that, like the interest interest flips depending on where we are and what we're talking about. And the interest in doing an illegal drug, I would think, would be an easy one to say, well, I'm going to balance that against the state's interest in the unborn life and let the state come out on top in that instance, right? And they answered this perfectly two to three times. Probably two, I guess, because there's two people. This was the credit senior director for the Center of Reproductive Rights, Julie Reichelman, who was just talking earlier. Two very good answers to that question. And Thomas was still not satisfied.

1:02:01 Andrew: Yeah, That's because Clarence Thomas does not view Casey the way the rest of the legal world does, which was a radical and dramatic restriction of the right to an abortion. In this country, right? The test that Casey set up was, does it constitute an undue burden pre-viability? Post-viabilty, anything is fair game. Pre-viablility, now the question is, is it an undrue burden? And the last 30 years have been spent by right-wing courts arguing that, you know, eliminating, you know—zoning regulations that mean there are only seven abortion clinics in the entire state of Texas.

1:02:57 Andrew: That's not really—that's a burden, but that burden isn't undue.

1:02:32 Thomas: Yeah. Yeah, somehow not an undue burden. What is the burden and how much is undue to badly paraphrase the whatever. If we're not mad enough, I got to play the most enraging quote.

1:03:01 Andrew: Right. Right. I I want you to play, but I want to, I want to compliment you first though that like that is the the answer to that question, right? Which is, yeah, well, that's not an undue burden under a hundred years worth of history and tradition. So yeah.

1:03:23 Thomas: I think I was trying to say what is a burden and how how much of it are we undo? Uh, I love making really niche legal jokes that I don't know if anyone finds funny, but if they do, it's like one person in my perfect, uh, Venn diagram. Uh, okay. Are you ready to everybody? I would suggest, um, you get all the sharp objects out of your immediate reach.

1:03:27 Andrew: I love. Love it.

1:03:44 Clip: Have a question about the safe haven laws. So petitioner points out that in all 50 states you can terminate parental rights by relinquishing a child after abortion, and I think the shortest period might have been 48 hours if I'm remembering the data correctly.

So it seems to me, seen in that light, both Roe and Casey emphasized the burdens of parenting, and insofar as you and many of your amici focus on the ways in which the forced parenting, forced motherhood would hinder women's access to the workplace and to equal opportunities, it's also focused on the consequences of parenting in the obligations of motherhood that flow from pregnancy. Why don't the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly.

There is, without question, an infringement on bodily autonomy, which we have in other contexts like vaccines. It doesn't seem to me to follow that pregnancy and then parenthood are all part of the same burden, and so, so it seems to me that the choice more focused would be between, say, the ability to get an abortion at 23 weeks or the state requiring a woman to go 15, 16 weeks more and then terminate parental rights at the conclusion. Why didn't you address the safe haven laws and why don't they matter?

1:05:04 Thomas: We could do a whole nother episode on the stupidity of this one question, Andrew. I mean, it's all tied in. First off, yes, I forgot. There are two things to yell about here. One is, hey, doesn't this solve the problem? The fact that we allow, I guess, people to like drop off their infant at the fire station, that solves the burden here, a forced birth, a force, it's okay, it's a tie, Andrew. I forced someone to give birth to a child through their body, like one of the most traumatic things I, by the way, my sister just had a really traumatic, actually just gave birth to child uh today, uh, congrats to my sister, um, very traumatic.

She was, was making every, every effort to avoid a C-section, uh, because she had to have one for her first child. She made every effort to avoid it, but fate, you uh not, decided that wasn't going to happen. The baby was, uh, know, sunny side up or whatever. They say really traumatic, a danger to your health, a major, major thing. I know I don't need to tell anyone this, but like, come on, a major thing, not just that. Imagine the emotional, emotional toll,

1:05:44 Andrew: It oh, congratulations. Yeah. It it

1:06:10 Thomas: Of like, oh, I'm giving birth to a child as who knows of what a 17 year old could be anybody if the law were this way. It's OK, though, because I can drop my infant that I just gave birth to that I've had to feed from my body. Possibly I can drop them into a box at a fire station. It's OK. It's fucking water under the bridge, Andrew. It's all fine. I'll go off to college now. Everything will be fine in Amy Coney Barrett's world. That's feminism. You can, you can have it all.

1:06:37 Andrew: So I want to, I'm going to say a couple of things here. That the first is, again, you know, this has been an angry and yelly episode for for both of us, and and rightfully so, um, but it underscores the the lack of sarcasm, right? When you know you introduced us with the the version of the United States as as the Handmaid's Tale, um, supreme court justice argued, why isn't it, uh, part of your brief that, uh, the United States can constitutionally demand, uh, that pregnant individuals forcibly give birth throughout the entirety of term? And and if that isn't the plot of the Hand Maids Tale, then I've read the wrong book and watched the wrong show. So, yeah, I mean, it's all credit in the world to Julie Reichelman for not just staring dumbfoundedly at Amy Coney Barrett and saying, are you kidding me? She did say the of giving birth are alarmingly high in Mississippi, 75 times more dangerous to give birth than to have a pre-viability abortion.

1:07:24 Thomas: Yeah. Yeah, yeah. She had a great answer, by the way. Why don't just play her answer? It was really good. And it's not that long.

1:07:40 Andrew: Yeah. Yeah. Yeah.

1:07:43 Clip: For a couple of reasons, Your Honor. Are first. Even if some of those laws are new since Casey, the idea that a woman could place a child up for adoption has, of course, been true since Roe. So it's a consideration that the court already had before it when it decided those cases and adhered to the viability line. But in addition, we don't just focus on the burdens of parenting, and neither did Roe and Casey. Instead, pregnancy itself is unique. It imposes unique physical demands and risks on women, and in fact has impact on all of their lives and their ability to care for other children, other family members, and their ability to work. And in particular in Mississippi, those risks are alarmingly high. It's 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion, and those risks are disproportionately threatening the lives of women of color.

1:07:56 Thomas: Yeah yeah.

1:08:36 Thomas: A brilliant answer. And we didn't, nobody, I think because it was truly too stupid to even address. I don't think anybody ever picked up the vaccination thread, but just in case, Nice. I'm going to try not to yell, Andrew. I'll try really hard. Likening, forcing someone to go through nine plus months of pregnancy and to have a child, to give birth to a child. Putting that in anywhere in the same ballpark as vaccination in terms of quote unquote bodily autonomy. I mean, this is the kind of stupid crap that I would think any lawyer would be ashamed to make make this comparison. I mean, obviously there are differences in terms of degree. Andrew, if I make you stop at a stop sign, I have violated your bodily autonomy.

1:09:25 Thomas: I've stopped your movement. You're not able to move your body past the stop sign for temporarily. That's the same as forcing nine months of pregnancy and giving birth. The same, apparently a little prick in your shoulder that gives you life-saving medicine. Same, same burden, but I violated that That all goes in the same exact heading of violating your bodily autonomy. I cannot believe she would say that. Well, okay, I can believe she Would say that, but I can't believe a lawyer would make that argument.

1:09:53 Andrew: It is preposterous that we are in a situation where that argument is being made from the most prestigious bench in this country. Uh, the argument is, um, sophomoric and stupid and, uh, so embarrassingly bad that not even Clarence Thomas tries to bail her out on this. Um, but at the same time, like, this is what, you know, I said on Twitter, like, Amy, Amy Coney Barratt was grown in a test tube, uh, and Genetically engineered for the purpose of overturning Roe versus Wade. That's why she's here. It literally is her sole criterion for why she was added to the bench. And so we shouldn't be surprised. I read her past jurisprudence. I read, uh, her positions. I have seen, uh. What her, uh, extreme cult sect of Catholicism, uh, believes about condoms, uh, about the IUD. Um, and so, you know, none of this is, uh, surprising from, uh, an Amy Coney Barrett perspective. Um, it, is surprising that somebody with that level of incompetence is on the Supreme Court, but that sort of gets back to the overarching theme of the episode.

1:10:20 Thomas: God, yeah.

1:11:02 Thomas: To say, I know we're out of time, to say nothing, by the way, of the fact that like, I wish Justice Thomas would have started every one of his questions with, hey, bytheway, I sexually harass like everyone in my workplace, butI get to decide the women's rights case for the entire country. Just FYI, just reminding everyone of that. Real. And then Kavanaugh, too. Like, possibly committed a sexual assault also gets to be part of deciding reproductive rights for the entire country. Country, it's outrageous. Andrew, we could have gone on forever on these oral arguments. There's so much that's still that we didn't even talk about. But I think we covered a lot here. And again, just to reemphasize your prediction, we have to wait till, know, like late June or so, right, to our rights taken away. Yeah.

1:11:02 Andrew: Yep.

1:11:40 Andrew: As, will happen with every term, um, John Roberts is going to delay, uh, as long as possible, uh, the verdict in this case, um, because, uh, he's well aware of the political implications. Um, and all I can say is, you, you're as mad as we are, uh,

1:11:55 Thomas: Do everything you can to elect Democrats in office. It's literally the only thing we can do.

1:11:59 Andrew: That's Only, that's the only thing you can do if Every Other thing that you can, uh, is uh either, you know, ineffectual, uh, or worthless, right? Like, it, it will not help, uh, to write us emails, to comment on message boards, to do internet petitions, to like, what, what will help is sending money to, donating time to, and voting for Democratic candidates. That's what you got.

1:12:01 Thomas: Yeah, but Andrew, what are you just a partisan hack Hack for Democrats. Yes, yes, literally. Yes. It's the only way. Yes, I'm a partisan hack for electing the only people who are possibly ever going to stand in the way of Amy Coney Barrett deciding that the the entire country has to be, if they're pregnant, has to be forced to carry out that pregnancy because you know you could drop the baby off at a fire station. That's so it's so it's a tie. So it's even. Yes, I am party. I am a partisan and hack for the party that's the opposite of that. I don't give a shit about your bad examples of bad Democrats. Yeah, okay, fine. Yeah, there are bad Democrats, cool. Let's elect Democrats, the only answer. The it's only answer to bad science is good science. It's the same thing. The only answered to your examples are the people you don't like who are Democrats who might get an office because we're trying to elect Democrats is, okay, good, primary them with better Democrats.

1:12:24 Andrew: Yes.

1:13:11 Thomas: It's only option. The option isn't, okay. Allow Republicans to take control and to put Amy's, Coney's, Barrett's in the highest court in the land. That's just not a viable solution to the problem. It's not. Oh, my God. Sorry. All right. Happy news. We promised happy news, Andrew. We're going to squeeze this. This long edit, but I don't care. We will squeeze it in.

1:13:25 Andrew: Yeah. Two things that are just making all of this worthwhile and help me smile and improve my mood after that. And they're really one thing. And that is our amazing listeners and fans. So, um, the first is, uh, there's a thing going around that I think it's a Spotify that's like shows you a graph of your top five podcasts and, um, if you're on social media, if you're Facebook, if you're on Twitter, uh, and OA is your top podcast, said that to us, we'll retweet you out, like, it just it it makes my day. And, and the number of people who have who've you listened to every minute of every episode of the 93 that we've put out this year, uh, I love you guys for it. Um, the second, uh, you saw that, uh, and oh, I, I wish I could just disseminate that error. We have, uh, our first, uh, listener Opening Arguments tattoo. Um, the absolutely amazing, she runs our live shows, Theresa Gomez, you know her, uh, she

1:13:46 Thomas: Yeah, it's Spotify.

1:14:23 Andrew: She runs the OA wiki, she is absolutely 100 the best. Um, and her forearm tattoo of, uh, Opening Arguments in ancient Autobot and ancient Decepticon is just, uh, I sent it, my brother-in-law is a big tattoo guy, he's, uh, he's full-sleeved, he's, you know, uh, he's got a lot of tattoos, that's his happy place, and, uh, I sent to him and was like, um, we got one, so oh I did it

1:14:23 Thomas: She's the best.

1:14:44 Thomas: Unbelievable. Yeah. It's so cool. It's a great tattoo as well. Go on the Facebook group, everybody. Yodel Mountain Facebook group if you'd like to be able to see. Pictures of Teresa's fantastic tattoo, including some Breath of the Wild integration into that tattoo as well, which I love that game so much. I would almost get a tattoo involving that game because it's so good. It's a fantastic game.

1:14:48 Andrew: Oh man man. Yeah.

1:15:04 Andrew: Wow. I, I haven't, I haven't played it. So I don't, uh,

1:15:09 Thomas: That's okay. Reason we all listen to you, Andrew, is because you're the kind of person who doesn't have time to spend countless hours playing Breath of The Wild. You're in there analyzing documents and giving us actual the actual information on that. But yeah, thanks so much for sharing that, Teresa. A good news to cheer us up a little bit.

1:15:27 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:15:33 Thomas: And now it's time for Thomas takes the bar exam. Maybe the fact that I listened to hours of oral arguments, maybe it will have improved my legal knowledge. Well, no, or maybe it got worse. I don't know. It could go either way.

1:15:44 Andrew: Yeah, there's that osmosis is a powerful thing, but, uh.

1:15:48 Thomas: Yeah. You don't want to osmose uh Justice Alito that That's that's bad for you.

1:15:52 Andrew: No. All right. Thomas, a man was building a home on a vacant piece of land. The man wanted to remove tree roots that stretched from a tree stump in the neighbor's yard to his own yard. The man decided to dig beneath the neighbor's yard and remove the tree roots. The digging caused no impact on the neighbor's land and did not interfere with the neighbor'S use or enjoyment of his land. Nevertheless, the neighbor sued the man for trespass. Who is likely to prevail? A, the man, because his decision to remove tree stump roots was reasonable. B, the man, because he did not interfere with the use and enjoyment of the neighbor's property. C, the neighbor, because the man intentionally entered the neighbor's property without permission or D the neighbor, because the man did not give reasonable notice to the neighbor of his intent to drip, to dig up the tree roots.

1:15:56 Thomas: Yeah.

1:16:41 Thomas: We did have that one a while ago. That was like, the it was really tricky about the trees and the trimming or whatever, cut him down. And the fact that the property hadn't been like used yet was, or, you know, so I thought it was going down that road, but I guess not. Building a home on a vacant piece of land, he wanted to remove tree roots that stretch from a tree stump in the neighbor's yard to his own yard. Okay. But it says the man decided to dig beneath the neighbor's yard and remove the tree roots. I don't really understand that. So the tree routes stretch his yard. I don't get why he didn't just remove those ones. I don't understand. It sounded like it was that like, oh, they're reaching into my yard. So I'll remove those like kind of at the property line. But I guess it's saying he decided to dig beneath the neighbor's yard.

1:17:27 Thomas: So he kind of like tunneled a little bit and remove, remove them more, I guess. So the digging caused no impact and it didn't interfere with the neighbor's use or enjoyment of his land. Nevertheless, the neighbor sued for trespass. Well, let's see. Just going off of what feels reasonable, I think that if we're talking about trespass, this strikes me as just, just thinking prima facie, this seems trespassy. I mean, you did something to your neighbor's yard without permission, seems, you see, inarguably, you dug under your neighbor's yard, so it seems trespassing to me. I think so, that's that's what I'm leaning toward and and we'll see. So A, who will prevail? So it's the man because the decision to remove the tree stump roots was reasonable. I, I'm going to eliminate that. If it's that, then I'm whatever.

1:18:14 Thomas: I just don't think that's going to be it. It could be, I guess, but who decides what's reasonable to remove the roots? It doesn't, you know, like it could be reasonable, could be not. I don't know. Maybe, whatever. So, I'm eliminating it. I'm just not going with that one. B, the man because he did not interfere with the use and enjoyment of the neighbor's property. So I think that is actually the language for something else if I remember right. I think, oh gosh, I think that's not trespass. I don't think that is because like the problem with trespassing is not that you interfere with the use and enjoyment, I do not think. I thin the use of enjoyment has been cases where it is like you are dumping toxic sludge and it is flowing down into your neighbor's yard kind of thing. Stuff like that. Like there is a cloud out of smoke coming out of your property and it's making, and I don't think that's, shoot, or is that trespass?

1:19:08 Thomas: Man, I thought that was some other tort, but maybe it is trespass. So it could be B, but I'm not, I don't know. C, the neighbor because the man intentionally entered the neighbor's property without permission. Okay. I like that because it's just clean cut. Like yes, trespass, done. D, the neighbour because the men did not give Give reasonable notice to the neighbor of his intent to dig up the tree roots. That's hard. It'd be hard to say between C and D what the problem is there. No, I don't think it's D because. Yeah, no, I'm going to eliminate D because I giving notice doesn't that doesn't That would imply that like, it's totally fine to do it. You don't need permission. You just have to give notice to your neighbor. And that doesn't seem right. Like, oh, hi, let me just give you notice that I'm going to trespass onto your land.

1:19:53 Thomas: There's nothing in there about like the consent of the neighbor, I don't think, or the permission as is with C. So I'm eliminating D. I think that's an attractive distractor. I'm between B and C. So B, because he did not interfere with the use and enjoyment of the neighbors property. Property. And it says in the facts, it's not like we can say, oh, but what if the tree falls down and whatever. It says in The Fact Pattern, the digging caused no impact on the neighbor's land or C, the neighbor, because the man intentionally entered the neighbor'S property without permission. I'm going to go with C. You know, I just think that, you know, that's a decision that I think you would, you need permission to do. I don't think you can just take out some roots on someone else's land. I won't be at all surprised if there's some 13th century Saxony tree law, you know, like root tree root law that makes this B. I think it easily could be B, but I'm going with C. Final answer.

1:20:45 Andrew: I'm, I'm an expert in tree law. It's no bird law, but you know, um, all right, well, uh, if you want to play along with Thomas, us, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guests, your reasons therefore. We will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortunate not guaranteed.

1:21:04 Clip: And thank you, Let's go!

1:21:05 Thomas: And now it's time to thank our new patrons at patreon.com/law. Hope you're enjoying the goodies, the ad free episodes, the Q and A, by the way, that was a ton of fun. Great Q and a that's on the feed. The audio is on the feet. It's also on our YouTube channel for normies. But for patrons, I put that high quality audio in the feed. The voting on the questions and the asking the questions is something only patrons could do. So I hope you enjoyed it. And Andrew, we're coming up a couple of weeks, we'll have another Law'd Awful Movies for you. So that's all great reasons to pledge over on Patreon dot com slash law. Let's thank the new pledgers. And I'll start us off. Thank you to Daniel Thomas, TaineAH, Sarah Knudsen, Max Rybarczyk, Leisa Bilyeu, I should've given you these ones, these are some, some tough ones, Marian Magda, and Melanie Harari, your turn. And

1:21:52 Andrew: Thank you to Kaleb Nichols, Kaetrin Allen, Zac Bange, Sean A Watson, Dr. Bitch the Bitch Doctor, I love that, hey, we will read it, and Kate Kiarsis. Thank you all so much for supporting the show.

1:22:12 Thomas: That's our show. Oh boy. I apologize to anyone who's not a fan of yelling, but I feel like it's justified when the court is going to strike down a 50-year-old president guaranteeing people's rights to reproduction?

1:22:22 Andrew: But Thomas, you don't understand It was wrongly decided. Kind

1:22:25 Thomas: Yeah. Okay. So you're allowed to do that. A tough one. This is one of those tough ones, Andrew, in the pantheon of our tough one episodes. This is a particularly tough one. Up there with after Trump was elected and that sort of thing. This This is the reason we were so upset when Trump was elected. One of the many reasons.

1:22:43 Thomas: So maybe consider that in the future and do everything you can to, as I've said before from Ezra Klein, be a moral contagion for good. You know, like it's not just about your vote. It's about your attitude you're putting into the world. And if the attitude you are putting into world is constantly undermining Democrats, even though it might be for what you think are legitimate reasons, maybe the end result of what you're doing is not a good. Good. Maybe it's not a good thing. Maybe it's overall, it's It's a bad thing for the world. Consider that, please.

1:22:42 Andrew: I Can I just want to say, 15 seconds, because I get this question and we're going to get emails from this episode and people say, well, isn't it the Trump supporters' fault? Yes, of course it is. The fact that 46 percent of the country is happy, voted for voting for an unreconstructed, racist, incompetent buffoon X game show host. You know, like, I don't know how much more clear we can make it. It's their fault. You know who doesn't listen to our show? Trumpers.

1:23:21 Thomas: Yeah. Yeah. Yeah.

1:23:40 Andrew: So the people that we can influence are people like you. That is you, Mr. On the left. And like us, kind of annoyed that Joe Biden didn't, you flex his hands and, you know, wrap some knuckles and challenge Joe Manchin to a duel and repeal the filibuster and pack the Supreme Court. Yes, we're with you. We're disappointed. The question is, what do you do? I love the Ezra Klein moral contagion. Like what What we're trying to do is do the very best we can to get this country back on the right track, So, you yeah, never, never think for a second that we think you, Mr. 2016 Jill Stein voter are the source of the problem. You're not. The question is, how do you help us fight the problem? And that's what we're try to do.

1:23:41 Thomas: All right.

1:24:32 Thomas: Thanks so much for listening. We'll see you next time.

1:24:34 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:25:08 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.