Emergency Episode - Roe to be Overturned

Transcript

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

0:00:00 Thomas: Welp, how's it going, Andrew, how do you start, yeah, I don't know how to start the show, just mid-emotional breakdown, trying to record a show, well,

0:00:06 Andrew: Not great, Thomas. How's going for you? Yeah, I am flying out tomorrow to visit my sister because it's her birthday and I'm going to surprise her. And yeah, she won't

0:00:25 Thomas: She doesn't listen to the show does she, because, okay, okay.

0:00:28 Andrew: Listen to this tonight. She'll be a little busy. So she does listen to the show, but yeah, yeah, right.

0:00:33 Thomas: Well, this is one hell of way to spoil the surprise if it does happen, but anyway,

0:00:37 Andrew: She has other things on her mind right now, I think. So and

0:00:38 Thomas: You know, no matter how much I 100% knew this was coming, it still is, it's worse than I thought. I thought I'd be like emotionally. I've been emotionally preparing myself for this for, I don't know, years. How long has it been that we knew this was happening? And it didn't matter.

0:00:58 Andrew: And in and in particular, the the the ways that we flagged on opening arguments, right, that this would not just be a simple reversal of Roe versus Wade. So for our listening audience that maybe has been living under a rock or healthfully is not on social media, Politico has obtained a what is marked as a first draft majority opinion written by Samuel Alito overruling Roe versus Wade and Planned Parenthood versus Casey. Casey I have read the opinion I

0:01:05 Thomas: Yeah, this Is nuts.

0:01:37 Andrew: Want

0:01:37 Thomas: Nuts. Can I just say meta thing? You know, as you emphasized, you had already taken down your recording setup. You're on your way out. We've recorded 57 opening arguments in the last three days, seemingly. And yet still, it's like we have to record something on this. All the way I said to you was like every emergency recording we've ever done is not.

0:01:38 Andrew: It sure if it has led up to this one yeah

0:02:02 Thomas: Yeah, like it's not, it's less important than this. Like, seriously, like everything we've never done an emergency recording on was because of this. Like, this is the thing. One of the biggest things that we, that any of this is for, that Opening Arguments is for, that our coverage of stuff like when RBG died or, you know, just any of these big news stories stories in the background was always because this could happen, you know, like that that's like so I, and and this is not directed at you, Andrew, I just, I'm emphasizing like kind of for the listenership, I mean, this is, so we're just like, yeah, we we have to get on the air and talk, and we, you know, you've already read through the opinion, we've got some thoughts, but like, I, this is monument, I can't get over, I, I, I can't get over, this is 50 years of old, this decision, and we're going back, we are now going, this isn't important, but some people say post row but it's almost like we're coming back to pre-row, I get, we've just backdated yeah 50 years sorry

0:03:01 Andrew: We are there is absolutely there is no such thing as post row so no

0:03:07 Thomas: Go ahead, I just, yeah while

0:03:08 Andrew: No, no this is going to have our reactions. I mean, we are, this draft opinion, go ahead.

0:03:16 Thomas: We're reacting while reacting I'm sorry, I just gotta get this out and then we'll do all the law stuff, but like, one of the reasons it's taking taking me so hard is that, like, one of the key things that you want to do as a parent is give, is give your kids a better world than, than you're in, you know? And to, to be raising kids, to Be Raising a Daughter in this day and age and just say, well, sorry, we just turned the clock back 50 years for you. I don't know. It's, it's unbelievable.

0:03:19 Andrew: Yeah, yeah, yep, yeah.

0:03:48 Andrew: I'm glad to have that

0:03:50 Thomas: There's nothing to be said. It's, it's just, it's unbefucking fucking leaveable. Oh, sorry.

0:03:51 Andrew: Voice. Yeah, and I don't know, share

0:03:58 Thomas: It's okay. Just move on. Just go. Is.

0:03:59 Andrew: Away. No, share and interrupt because look, look, the reality of the situation is that this opinion has two implications, right? The first is its implications on the real world, the real-world lives of women, of those who get pregnant. And it will be devastating and disastrous, asterisk, and that's not what this show is about and that is not what this show can be about right, like for a lot of reasons, right, like, not the least of which is neither you nor I have a uterus, right? So I love you sharing that voice from your perspective because that is, you know, to call it the elephant in the room is ridiculous. Go ahead, ahead, go ahead, yeah.

0:04:56 Thomas: Well, here's the other thing. While this is absolutely true and you can't separate this, obviously, this is quote unquote like a women's issue historically. This is a thing that feminists, that women's movements, that like this has been a focus. But like abortion rights are human rights. They are important for everybody. If women don't or pregnant people don't have the right to control over the bodies, then none of us really do and none of us really have the control we deserve over our lives, you know? I, this, uh, I cut this from a recent show, Andrew, and I can't remember if I've talked about it. I honestly don't.

It's just been, it's been a hellish two years, but like, Lydia and I miscarried, um, earlier, I don't fucking know, that's some time, a year, sometime between now and a year ago, I don't know, and actually you could probably tell me when it was because it was right around the first coverage of the Texas abortion ban, and it was eerie, and this is why I don't know if I talked about it or not, but it was eerie to go through something where we were, it was touch and go, like we weren't sure for a while, like there, there might have been a heartbeat, might have not, while meanwhile the heartbeat bill is happening, you know, like literally

0:05:28 Andrew: And Yeah. Yeah. Yeah.

0:06:07 Thomas: When that was in the news, and we had to just sit there and just, just be like, you know, like, good thing we have the privilege to live in California, you know, and like, look, this is about everybody. This is I would rather die than have my wife die because she can't get an abortion like this. You know, this affects everybody. It's not this is not to downplay that it affects some people more than others. Of course it does. But like, if you're out there thinking this doesn't affect you, it does, that's all I mean to say by this.

0:06:36 Andrew: I I think that actually is a really great transition to what I want to emphasize from the legal perspective of this opinion, right? Because you can't compare between the two, but I will tell you, as a legal opinion, this amounts to jurisprudential gaslighting of America, gaslighting the American people about their history, about their law. And a huge chunk of lawyers are about to be complicit in actively misrepresenting the immediate past because it comports with their religious or personal philosophical beliefs.

0:07:03 Thomas: Yeah.

0:07:24 Andrew: I'm going to break this down in a couple of different ways. Um, and, and I guess before I get to that, I, I want to address something that that I know folks are going to ask about, um, and that is, uh, as somebody who was not a Supreme Court clerk, I applied, but I was, I was politely told that they, they had better options, um, but I

0:07:41 Thomas: Yeah. Are you going to answer why do we even have this opinion?

0:07:49 Andrew: I, I had friends who, who were slightly smarter than I am, and they were Supreme Court clerks. Number one, this has all the indicia of being a draft Supreme Court opinion.

0:08:05 Andrew: There's no reason to believe that this is not authentic. Okay. So I've seen that already. It is unmistakably Samuel Alito's particularly cruel brand of writing, um, it's, this is real. Number two, number two, we should not have a copy of this document, we should never have it.

0:08:09 Thomas: Yeah. Yeah. Yeah. There's no way it's not. Yeah, I agree. Right. Trying to put back on my OA hat, Andrew. I mean, has this ever happened?

0:08:32 Andrew: Never, in, in as far as I can tell, right, in the modern era, this has never happened. I have never seen it. Um, I have, you know, asked Supreme Court. And, you know, in an era of email and Internet and electronic communications, and the idea that a Supreme Court clerk would send their buddy a copy of a draft opinion before it has been circulated and agreed and finalized among the justices is, I lack reference for it. It would not happen. It doesn't happen. Go ahead.

0:09:11 Thomas: And it's interesting. I find that very interesting. And find it very interesting that you and I had opposite reactions to this. And I have no idea who's right. Why don't you tell people what your reaction to the fact that we even have this was?

0:09:22 Andrew: Yeah. OK. I mean, it is it is just rank speculation. But we know from the one six committee that Jenny Thomas is active in conservative right wing nut job pro Trump conspiratorial politics. We know that that Clarence Thomas was the only person to vote to to dissent from the in the National Archives case in terms of releasing records because they could embarrass Trump. And we know and this is the weirdest part. I've got a special on impeaching Clarence Thomas on the whiteboard, as you know,

0:09:31 Thomas: No, I think it's worth talking about. Yeah.

0:10:04 Thomas: Oh,

0:10:04 Andrew: Thomas, but our listeners don't. Ginny Thomas sent out multiple emails to her husband's clerk lists. Right. And again, that's a gross and awful and just you just don't do that. Right? Right. And and and so that was where my head went when I saw this, that she would have distributed it like, hey, keep this under your hat. But, you know, we're about to gain a great

0:10:04 Thomas: God. Yeah. Wow. That she might have leaked it somehow. So

0:10:37 Andrew: Victory for. Yeah.

0:10:37 Thomas: Interesting. And I have, again, no idea which explanation is true. But just to talk about it, my reaction was the exact opposite, where I thought, this is such an egregious thing. This is almost like the canary in the coal mine. Like some, maybe one of the liberals or liberal clerks leaked this as like, I can't fucking believe this is happening.

0:10:52 Andrew: Well, I can't. So I'm sorry. I didn't mean to interrupt. Please go ahead.

0:11:00 Thomas: And no, no, it's okay. We are interrupting. This is unedited. We're getting this out. We're interrupting each other. There's always a Skype delay in our recording. It's how it goes. It's, it'S how it is. And absolutely interrupt. But yeah, I, that's how I feel. But like, again, these are both just feelings we don't know. We'll, we, I wonder if we'll ever find out. I mean, much of the online world right now is talking about the real tragedy in all this, Andrew, is that it was leaked. You know, like that's the real story here, which has some incredible Watergate type energy, but that's okay. Okay.

0:11:02 Andrew: Yeah, yeah.

0:11:19 Andrew: Yeah, so let's yeah, It Does in the sense that right when you will we ever find out, like we found out who Deep Throat was, right, like it, this will be the person who leaked this. And the political, the Politico reporter to whom it was leaked, have a pretty amazing story to tell. And I certainly could see

0:11:51 Thomas: Yeah. Well, I'm sorry. I can't resist asking the question. To whoever leaked it, if they were found out right now, what's the consequences? Is this a crime? Is this jail-y thing? Is this like, whoa?

0:11:53 Andrew: Yeah, now,

0:12:01 Thomas: No? Okay.

0:12:01 Andrew: I Yeah.

0:12:03 Thomas: I just am curious. So, like, maybe we will find out. If it's, if it is just like an ethical norms type thing. And the other reason I want to mention this part of the story is someone, I think, on coming from the right, or maybe it might have been the SCOTUS blog. Anyway, somebody had a tweet that was essentially like, "This leak undermines the legitimacy of the court." And I thought, you know what? Yeah. Yeah. OK, good. Like, that's another reason that someone on the left should have done this. Make clear how illegitimate this court is.

Like, honestly, that that kind of drove me more to what I was already thinking, like, like someone it strikes me that someone could be in there, some clerk or who knows one of the justices could be there like this is a fucking joke. Like we can't. This is a joke. Probably not one of the justices, but one of the clerks maybe could have been like, this is not real. This is not a real thing we're doing. I have to get the word out. But anyway, OK, we should move on from that conversation unless I unless

0:12:39 Andrew: Yeah, probably.

0:13:00 Andrew: Yep.

0:13:01 Thomas: I interrupted you.

0:13:01 Andrew: No, no, no. Again, as you point out, we are reacting. But I have been through this opinion. And when I call it out as gaslighting, I mean that this is, I can't call it the culmination because the court is continually active in terms of advancing a far, To call it a far right, a radical right agenda is to do disservice to those words. It is astonishing the degree of embarrassment. And I will be curious whether this opinion gets Chief Justice Roberts to sign on to it.

0:13:01 Thomas: Yeah.

0:13:24 Thomas: I'm Very curious about that as well, um,

0:13:52 Andrew: Because Again, This is somebody who has a lifetime of belief that Roe v. Wade was wrongly decided, right? And, and I think That it is possible, uh, given how, how brazen, how obvious this is, a rewriting of American history and the sacred principles, I, I mean, that I have devoted My life to studying the law. I am an atheist, so the closest thing that I have to something that I view as sacred is what I have called the ordinary norms of jurisprudence, the principles that animate the Bill of Rights. So I want to start with that, just for one second, because this, this opinion is more insidious than I thought, than I thought it would be when I saw the, yeah, which is saying something, okay?

0:13:53 Thomas: Yeah. Yeah. Yeah. Yeah.

0:14:52 Thomas: Which is saying Something, I mean, yeah. Uh,

0:14:58 Andrew: And so I want to start off with the most famous footnote in U.S. constitutional law, okay, and this is something that you, you actually learn, uh, as a law student, um, in, in your con law class, like typically on, on day one, day two, right. Um, it is a case called United States versus Caroline Products from 1938. And it is one of the cases that marks the shift away from the Lochner era of protecting, protecting property rights, which is widely considered, by the way, for our libertarian Listeners, uh, the lowest point in the Supreme Court's history. It's knowledge that it is Made fun of.

0:15:47 Thomas: Previous Previous Lowest point in The court's History, yeah.

0:15:49 Andrew: Yeah. Right. Right. Prior to now, uh, it is in fact used as a boogeyman in this opinion, right? Like, oh well, you know, we couldn't have The Lochner era again. Okay, so every lawyer, left, right, center, agrees the Lochner era was the disastrous low point of the U.S. Supreme Court. And so I think it's instructive the case that moved away from that, that is celebrated, cherished, dare I say sacred in law schools, begins with Caroline Products and Footnote 4. And in that they are, are talking about striking down legislation and the presumption of constitutionality in favor of acts of Congress.

And the footnote says, there may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, Such as those of the first 10 amendments, which are deemed equally specific when held to be embraced within the 14th, again, 1938 opinions, a little bit of old timey language here, it is unnecessary to consider now in this case whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendment than are most other types of legislation, legislation

0:15:58 Thomas: Wow.

0:17:20 Andrew: On. Yeah. This

0:17:20 Thomas: Can You translate That For me, I'm a little straight

0:17:22 Andrew: Is not, this is not important, right, On Restrictions on the right to vote, on restraints on the dissemination of information, on interferences with political organizations, and as to the prohibition of peaceable assembly, okay, they don't have to think about those hard cases because this was an easier case, this was just an economic liberty case. And then we get to the meat, nor we, nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious or national or racial minorities, whether prejudice against discrete and insular minorities may be a special condition which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities and which may call for a correspondingly more searching judicial inquiry.

0:17:24 Thomas: Okay. Yeah.

0:18:13 Andrew: So I'm going to translate that But I think you got the gist of it. The idea is, hey, the way that our Constitution works is when it comes to things like figuring out whether you should regulate business or not, we leave that to the people. We have a presumption of constitutionality of legislation and we let people figure it out. That's the beauty of the democratic process. But it doesn't come up in this case, but we want to flag, because we're the Supreme Court and we think about things like this, that there may be times when the ordinary processes of democracy fail to work, such as when you have, and this was the first appearance in Supreme Court jurisprudence, discrete and insular minorities, right?

And By that, they meant women and black, black people, right, and the idea was the, the, the founding fathers, the initial, right, Federalist Papers, Federalist 73, kind of view of majorities was, look, majorities are shifting and they're fickle and, you know, sometimes the winds blow this way and sometimes they blow that way, and you're in the majority today but you might be in the minority tomorrow, so you're not going to come down too hard on that. And that works great when your electorate is only white men, right, when

0:18:54 Thomas: Yeah. Right. Yeah.

0:19:34 Andrew: You expand that electorate, you could have perennial, permanent discrete and insular minorities. And this was the first indication, it took a while for it to come into practice, that the Supreme Court has a special job, that the Constitution enshrines a special role for the supreme Supreme Court to care about people who are left out of the political process or who are perpetually at the bottom of the political process, right? And that in those cases, we should look at it, particularly when they are curtailing their individual liberties of groups that we think tend to be outside the mainstream, right, that the Supreme Court's unique job is to have, as they put it in footnote four, to call for a correspondingly more searching judicial inquiry, to look harder and to think about it.

And for my adult life, that has been the standard that the Supreme Court has used. It's been articulated in lots of different ways and lots of different cases, but this spirit animates the Constitution and the Bill of Rights. And before you get into the language that's in this opinion, every lawyer who would not lie to you, every employer who is honest, if you got a member of the Federalist Society and subjected them to actual truth serum that actually worked, they would be compelled to tell you like, yeah, the Bill of Rights enshrines principles.

0:20:21 Thomas: Yeah.

0:21:18 Andrew: And those one of those principles is footnote four from Carol products.

0:21:26 Andrew: So I want you to keep that in mind as we as we go through this opinion, because this opinion radically rewrites American jurisprudence on what counts as liberty. It it is designed to reinforce the conservative program that redefines what it means to be a democracy. Right. And as we have been flagging for you, it explicitly brings the Janus versus Askey test that we may be the only podcast on Earth that, you know, when you say what's the worst Supreme Court decision of the past 10 years? You know, would have Janus versus Askey on the list.

0:22:12 Andrew: I told you that that was going to be the vehicle that the conservative Supreme Court used to radically redefine the principle of stare decisis. And they have now done so explicitly. Justice Alito has done so. That's part three of the opinion. So with that in mind, let's tackle part one A. And I'm going to read a large passage of this to you, uh, and I am going to tell you, this is, this is 2A, uh, number one, beginning on page nine of the slip opinion, and I'm going to telling you that in the entirety of what I read, other than making fun of Roe v. Wade and citations therefore to Roe vs. Wade, there is not a single case cited.

0:23:00 Andrew: Nothing, zero, none. This is 100% an invention of Samuel Alito. So again, when you are dealing with Uncle Frank talking about how Roe v. Wade wasn't in the Constitution, these principles are found nowhere in the Supreme Court's prior jurisprudence. They are the opinions of Samuel and nothing further, they are backed by citation to no authority, and I, I, I cannot believe it begins by validating the dumbest, most craven argument that, that, you know, we've been swatting aside since the show began. Let's start out, the Constitution makes no express reference to a right to obtain an abortion, and Therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text, okay, at least give him credit for the second half of that clause, right? It's, so now how do we show that the right is implicit in constitutional text?

Prior to this decision, what you would ask is, is this consistent with the conception of the rights of ordered liberty, and you would look at the history leading up to now and say, hey, in a free society, do we generally care about what people do in their bedrooms, or do we usually let them be free to do what they want? Oh, we let them be free to do what they want, great, then that's part of the right to privacy.

And if you haven't heard our breakdown on Griswold v. Connecticut, it's a two-parter, go back and listen to that, because that's essentially what the jurisprudence says. I'm paraphrasing, but not by much. Alito begins,

0:23:49 Thomas: Yeah.

0:24:38 Andrew: And again, this is 98 pages of gaslighting. Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution. Again, that's not the test, right? Marriage isn't mentioned in the Constitution. Contraception isn't mentioned in the Constitution. Anyway, is part of a right to privacy, which is also not mentioned. And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions, the first, fourth, fifth, ninth, and 14th Amendments. Now, again, this is not a strange result. And the idea that the Fifth and the Fourteenth Amendments overlap considerably is mainstream jurisprudence, right? The idea that the First and Fourth Amendment overlap is mainstream jurisprudent.

So putting it all together and saying like, yeah, as the court did in Griswold and saying, you know, there isn't a single place that refers to a right to privacy in the Constitution. And by privacy, they meant the right to make personal intimate decisions such as whom to marry and whom to have sex with, right, um, not, you know, privacy in the sense that we typically use it today, um, the

0:24:54 Thomas: Yeah. Yeah. Right.

0:25:55 Andrew: Fact that it it flows from, you know, the penumbra or from multiple sources, is it should not be strange. And there is, I will point out, zero citation here that that is is strange, that there's anything wrong with saying that a right comes from multiple overlapping places within the Constitution. If that were a problem, then the right's most beloved cases, right, McDonald versus Chicago, would require, in extending the Second Amendment protection out through via the incorporation doctrine to the states, required multiple amendments, right? Right. The Second Amendment isn't good. It's good enough for D.C. v. Heller because D.C. is a is a federal jurisdiction. But you can't strike down a state law without incorporating the Second Amendment, and zero cases had incorporated the Second Amendments. So, you know, you could replace that with, how, where, where does this fiction come from that overlaps the Second and 14th Amendments? That's crazy. Yeah.

0:26:43 Thomas: Right, right, so part of the gaslighting is him stating that as though it's self-evidently stupid that it comes from multiple amendments. Gotcha. He

0:27:05 Andrew: Right and it is not. There is no case that says that, um, and nope

0:27:11 Thomas: Didn't even said, did even, like, quote Row in in, I thought he just characterized what Roe said, okay but he died well

0:27:14 Andrew: He he quotes Roe, that's it. There there are, uh, let me see if there is a direct. Yes, one possibility is that the right was founded in the Ninth Amendment's reservation of rights to the people. Another was that the right was rooted in the First, Fourth, or Fifth Amendment, or in some combination of those. And that this had been, quote, incorporated into the due process clause of the 14th Amendment, just as many other Bill of Rights provisions had been incorporated. So, yeah, that there is, yeah. There is a direct quotation as well as a bunch of, you know, sort of scare sites.

So, with that in mind, the wholesale rewriting that takes place now takes place in Section 2, in which Alito says, in deciding whether a right falls into these categories, right, that is, rights that are part of a fundamental set of rights that are not explicitly mentioned in the Constitution, the court has long asked, put a pin in that one, whether the right is deeply rooted in our history and tradition, and whether it is essential to our nation's scheme of ordered liberty.

Now, again, those two statements are in conflict. Being essential to a scheme of order liberty is not the same as being deeply rooted in history and tradition, okay. And, and in the footnote,

0:27:46 Thomas: Anyway way, right

0:28:41 Andrew: Okay, this is footnote 19, and I know I'm kind of in the weeds even on a first read, but the foot note tries to cite to earlier cases because, spoiler alert, the text of this cites only to cases from 1990s and beyond, right? Right. Like every single one of Justice Alito's arguments about what's deeply rooted in our history and practice can look to no earlier source than when the Supreme Court started drifting to the right, starting under the Reagan administration. There were zero pre-Scalia cases cited in the text of this opinion that I have seen for a substantive proposition. I mean, you want to find, you know, there are a handful here and there that that are that are not crucial to the argument. So in order to do that, he drops a footnote and says, see also EG, which is not how you should do that sign.

Duncan v. Louisiana, 1968 case, asking whether right is among those fundamental principles of liberty and justice which lie at the base of our civil and political institutions. Well, that's a different test, isn't it? Palco v. Connecticut, 1937, requiring a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental, quoting Snyder v. Massachusetts from 1934. So we have a smattering of these old cases that are attempting to shoehorn together, ranked as fundamental, lie at the base of our civil and political institutions, which, as I already explained from the Caroline Products footnote, the court has always understood, at the base of her civil and and political institutions, as carving out a special role for people who have been excluded from the political process, right, with

0:29:12 Thomas: Yeah huh yeah is

0:30:28 Andrew: Now it's just, up, is it fundamental to our scheme of ordered liberty, and yeah

0:30:34 Thomas: There a sentence in the Constitution that literally directly says it, apparently oh

0:30:37 Andrew: And then, I, I wish I could say I was making this up, I honestly do. That was two a A, 1, and 2. 2B then says, well, if the test for whether something is essential to ordered liberty is, is it deeply rooted in our historical traditions, all we have to ask is, were there laws against this historically? And if there were laws against it, it's obviously not deeply rooted in our nation's history and tradition. Now, the logical fallacy there is so obvious as to almost not be worth stating, right.

If something is, if something is capable of being redressed by the political process, you don't need it to be a right, right, that rights exist to protect you when you lose, when they pass the law prohibiting you from doing the thing. If the only question was do we pass laws, then you would not need a bill of rights. It would just be, oh, well, did, did you win, or did you lose? Um, I, and so beginning on page 15, and again, I, I want to say this passage goes for a page and a half before citing a single authority, uh, and that authority is just meant for kind of a

0:31:06 Thomas: God right yeah

0:32:04 Andrew: Offhanded comment, and then it cites a bunch of, you know, 19th century codes. But all this beginning part is just, again, Scalia's... Alito's — nice Freudian slip, don't edit that one out — is just Alito's opinion there we go, please do

0:32:15 Thomas: I'm not editing anything out, so what, let me take a second on that, um because it just occurred to me that the whole, what we thought was the whole dastardly plan, or at least some people did, was that Amy Coney Barrett was going to pen this decision. And that it would be a woman striking down Roe v.

0:32:34 Thomas: Wade. That's interesting. Wasn't that the prevailing wisdom out there?

0:32:34 Andrew: I there that certainly was circulated, um, I, yep and that's because this opinion does more than just overrule Roe v. Wade. It explicitly overrules Roe vs. Wade in Parenthood versus Casey. I suppose I should have said that at the beginning. It does so much more. And this is part of what I'm trying to expose here. So B1 says, until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero, none. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized much of the right. Articles are not reticent about advocating new rights. The earliest article proposing a constitutional right to an abortion has that has come to our attention was published only a few years before Rome. All right, that's the argument. And then, I, I'm not going to go through because it's gross, uh, the pages and pages of laws

0:32:42 Thomas: But instead, we get Alito in control of this whole thing, authoring this opinion. Wow. Wow. Well,

0:33:46 Andrew: Against abortion from the 16th century, the 17th century. Right.

0:33:54 Andrew: Because the honest answer to that is who the fuck cares. Right. Yes. There were lots of laws prohibiting abortions in our nation's history, in Anglo-American history. Go ahead. I'm sorry. Well,

0:34:01 Thomas: No, no. I mean, I guess, well, maybe that kind of disproves the point I was making, but I would assume historically that the response, like you don't out of nowhere just proactively be like, hey, even though no one's restricting abortion, here's right to an abortion. Like I would presume that some of these things he's citing that are like, nobody tried to protect it until such and such year would be, yeah, you would do that once it's under attack, hack, wouldn't you?

0:34:38 Andrew: I think that's true probably as a general principle. I think in light of how short the women's rights movement was, you know, at this time, I we're really talking about 30 years out from women having the right to vote. Right. Right. So, you know, the I think the arguments were not well developed that applying the basic principles inherent in the Constitution ought to protect women. Right. And saying there are lots of laws restricting women is is proof of the point. And and here's where I'm going to go.

0:34:56 Thomas: Right. Oh, right.

0:35:18 Thomas: Okay. Sorry. Let me just make, so I, I get the point. And again, we're, we are reacting, we were doing this live, but so I guess another way of putting that is the men who were basically in control of everything, weren't writing a lot of laws protecting abortion for women and possibly were writing laws restricting abortion for women early on.

0:35:19 Andrew: Yeah. Yeah, yeah, yeah.

0:35:37 Andrew: We're writing laws restricting abortion for women, and we're not writing law review articles suggesting that the right to abortion would be found in the penumbra of the first, fourth and 14th amendments.

0:35:45 Thomas: Right. Gotcha.

0:35:50 Andrew: Right. Right. That was a new development. And again, remember, new means inherently suspect. If you are Samuel Alito, does it mean inherently suspect if you're the Constitution? Absolutely not. Right. I want you to keep going back to Caroline Products and footnote four. That is 1938. That is not the wokest time in our nation's history. And that is the Supreme Court saying, yeah, we just want to flag for us for the future that these are the questions that deserve a little extra scrutiny. And now, you know, Samuel Lito thinks they deserve the least amount of scrutiny. Now, I do not have to tell you that this opinion explicitly will be used, and the cases are being teed up immediately to overturn the right to contraception in Griswold versus Connecticut.

0:36:39 Andrew: We've already had contraception litigated at the Supreme Court as religious freedom questions in connection with Obamacare. That's coming. And if you think that's not coming, I don't know what to say. I want to tell you that this decision explicitly takes aim at and undermines the rationale for the Supreme Court's decision in Loving versus Virginia, 388 US-1, 1967. That is the Supreme Court decision that says states cannot have laws that prohibit interracial marriage. You can read this entire section, and if you replace abortion with interracial marriage, you will reach the same result, doesn't

0:37:23 Thomas: Yeah. Well, sorry. Does it say in the constitution that interracial marriage is a guarantee? It doesn't have the literal words you have the right to an interracial marriage in the Constitution.

0:37:32 Andrew: Say marriage, it doesn't have the the right, you don't have the right to marriage in the Constitution, so uh

0:37:38 Thomas: Wow. Weird. Oh boy. That's bizarre. I we got to get rid of that then. No marriage.

0:37:43 Andrew: And I'm going to, I'm

0:37:44 Thomas: They're probably going to strike down all of marriage next, I assume.

0:37:45 Andrew: Going to uh I think they will likely only strike down Obergefell, but, uh, we'll get there. Um, I don't know if you're going to do show notes. If you don't, um, if you do, I've sent you, uh, the uh two resources on miscegenation laws. And this data is compiled from a May 14th, 2012 Huffington Post article entitled "Interracial Marriage Statistics. Pew Report Finds Mixed Race Marriage Rates Rising." And then I also included a 1951 Duke Law Review article because, since, you know, Alito thinks law review articles are important. This is what the status of the question of interracial marriage looked like a few years before Loving v. Virginia.

0:38:40 Andrew: 41 states had laws throughout their history prohibiting interracial marriage. Only nine never had any laws of this type. But don't go thinking that is a bastion of tolerance. As the Duke Law Review article points out, in many of those cases, it is the fact that the states were entirely white that there was no real reason to consider those kinds of laws. So the nine states that have never had laws prohibiting interracial marriage are Alaska, Connecticut, Hawaii, Minnesota, New Hampshire, New Jersey, New York, Vermont, and Wisconsin.

0:38:47 Thomas: Wow. Right, right. Yeah.

0:39:22 Andrew: OK, a couple of those. Right. So New York probably fairly progressive there. New Jersey. Right, but But that's a lot of not racial diversity in those states. Um,

0:39:30 Thomas: Yeah, yeah. We're 40 minutes in. We got to get moving on this. But the point is, if you analogize to Loving versus Virginia, there's nothing in your mind reading this, there is nothing in this that wouldn't apply to striking down Loving versus Virginia. Is that, yeah, everything

0:39:36 Andrew: Yeah, yeah, I know that that that is, that is the point that if if what you were saying, if you read this section all the way up through the conclusion on page 24, so it's nine pages, 15 to 24, where he says the inescapable conclusion is that a right to abortion is not deeply rooted in the nation's history and traditions, you control left, replace abortion with marriage or interracial marriage, uh, you will get the exact same result

0:40:15 Thomas: Applies. If not more so, based on those numbers of laws you just said, it sounds like it's even more in our history and traditions that we should not have a right to interracial marriage. Oh my God.

0:40:26 Andrew: One could certainly make that argument. So um, even Samuel Alito is aware that uh, this argument is kind of front and center, um, and so uh, he tries to ridicule. This is subsection C, beginning on page 30, in which he sneeringly remarks, "Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the adoption right is an integral part of a broader entrenched right." Roe termed this a right to privacy, and Casey described it as "the freedom to make intimate and personal choices that are central to personal dignity and autonomy." "The court did not claim that this broadly framed right is absolute, and no such claim will be plausible. While individuals are certainly free to think and to say what they wish about existence, meaning the universe, and the mystery of human life, they're not always free to act in accordance with those thoughts."

0:41:23 Andrew: All right. So, having having kind of poo pooed the the argument, uh, the court then devotes two paragraphs, uh, to Loving versus Virginia. Here is what it says: "Nor does the right to obtain an abortion have a sound basis in precedent" that's kind of a shocker to me and to every other lawyer in America, if you're being honest "Casey relied on cases involving the right-to-marry a person of a different race," Vice, Loving v. Virginia, "and then the right to marry while in prison, the right to obtain contraception," Griswold, right, "the right to reside with relatives, the right to make decisions about the education of one's children, the right not to be sterilized without consent, the right in certain circumstances to not undergo involuntary surgery," etc., etc.

0:42:14 Andrew: Okay. These attempts to justify abortion through appeals to a broader right to autonomy and to define one's concept of existence prove too much. Okay. Citation to Casey. Those criteria at a high level of generality could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history. Okay, so yeah, you can't have a general right to autonomy because then you could use drugs and have prostitution which, you know, We probably ought to have those rights. But in any event, and they're not deeply rooted in history, which we've already talked about, this paragraph, I am not kidding, is the sole argument to distinguish Loving v. Virginia. I'm going to read it to you word for word.

0:43:05 Thomas: Oh yeah. Let's get this. This is going to have to do a lot of work.

0:43:06 Andrew: And yeah, What sharply distinguishes the abortion right from the rights recognized in those cases on which Roe And Casey rely is something that both those decisions acknowledged, acknowledged. Abortion destroys what those decisions call potential life, and what the law at issue in this case regards as the life of an unborn human being. None of the other decisions cited by Roe and Casey involve the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way. Period.

0:43:12 Thomas: Okay. Here we go. Getting out my pencil. Yeah.

0:43:50 Thomas: Holy crap. This might take a man of your intellectual caliber to even explain what he was going for there. So that just doesn't that just beg the question of abortion itself? Like, well, some might say that, but abortion is murder. So no

0:44:05 Andrew: That is an effort, right? So we just spent 20 minutes explaining how the test that Alito invents here, right, this must be deeply rooted in our nation's tradition and history. Oh, look, long history of laws against it, therefore you're out. How that would also apply to interracial marriage. And then Alito's defense of that is, right. Right. But when you get married, you don't kill a baby. I am not kidding. If you ask, are there any citations of this paragraph? I think you know what the answer to that question is. Of course not. If you asked if a first year law student attempted to distinguish these two cases, right, because learning how to distinguish cases.

0:44:34 Thomas: One dies.

0:44:52 Thomas: And they distinguished in this

0:44:54 Andrew: It, yeah.

0:44:55 Thomas: One. A baby is murdered. That wouldn't fly in law school.

0:44:58 Andrew: It It No, because notice even with this court, and and and I know, even with the court, you cannot say a fetus is a baby and is a human being under the 14th amendment yet, uh, and so he has to smuggle in that kind of argument unsupported by any citation to say, well, well, see, that's what makes all those marriage cases so very, very different, because they're not murdering a baby of

0:45:07 Thomas: Well, yet I know what you're going to say. Yet, yet. Yet.

0:45:35 Thomas: That's just a non sequitur. That doesn't

0:45:38 Andrew: It is deliberate, right?

0:45:39 Thomas: Work. That just like, boy, I, Sam Alito, I've sure written myself into a corner by presenting the obvious knockdown argument against my case. What am I going to write? However, forget all that because babies get murdered.

0:45:59 Andrew: Because it doesn't murder a baby. Yeah, that is, again, if you think I am being I mean, I read it to you word for word. Yeah.

0:46:05 Thomas: Why? Look, skip all that shit next time. Just say abortion is baby murder. Just just fucking save us some time, Alito. We don't have to read through your opinion for all this time. Just say it. That's all that mattered in this to you.

0:46:07 Andrew: Yeah. Just say, yeah. Yeah. Yeah. In addition to paving the way for restrictions on contraception and being at odds with it. And by the way, I mean, this this court, I you cannot sign on to this opinion and also not sign on to an opinion reversing Obergefell. Right. It's the exact same question. Right? So contraceptive, gay marriage again, as I point out, uh, I don't know yet that there is a huge appetite for, uh, reversing law. Again, let's use Alito's land, let's leave it up to the states, right? That's what he said, that's the compromise on abortion, let's leave it up to the states. Right, I'll leave it up to the states means it's not a right, right?

0:46:39 Thomas: Yeah. Yep. Yep, yep. And they, and they will apply that if they want to. The only limiting factor right now is if they feel like it, they, they could easily overturn Obergefell, which you predicted a long time ago, and they could easy overturn whatever else, that they could overturn the contraceptions on this logic, I mean hypothetically they could overturn interracial marriage, but like I don't think they would ever do that, that doesn't make a whole lot of sense logically speaking, there's no difference, yeah I

0:47:01 Andrew: Yeah yeah so but there's no, there's, know, you cannot square that circle. So you, you might ask, and in fact, I, I think you were ready to ask, but but but, what about stare decisis, right? So

0:47:35 Thomas: Would never ask such a pointless question. Why would I know the answer to that? The court doesn't give a shit about stare decisis.

0:47:42 Andrew: But you have to formally get rid of stare decisus in order to make this opinion count. And when I say get rid off, again, I want to go back to, uh, a Sandra Day O'Connor an Anthony Kennedy opinion from 1992, this is Planned Parenthood versus Casey, right? That begins, section one says, liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding, that is only 20 years back then, wow, that the Constitution protects a woman's right to terminate her pregnancy in its early stages, that definition of liberty is still questioned.

And the fundamental takeaway from Planned Parenthood versus Casey was that it is that that stare decisis is central to what the Supreme Court does, because if everything is up for grabs every time a new president comes in and changes the alignment of the court, that undermines not just the court's legitimacy. You know, which Roberts loves talking about now. It undermines the rule of law. It underlines the value of having rights itself. Right. Because if they if they could change when the next administration comes in, then, you know, how secure are those? And so the idea, again, the obligation, I'm quoting from Casey, the obligation to follow precedent begins with necessity. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. Indeed,

0:47:42 Thomas: Right yeah

0:49:21 Andrew: The very concept of the rule of law underlying our own constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. Okay, so can we overrule existing precedent? And and Casey says, yeah, of course, occasionally you have to because we get it wrong. But when you do, right, the the the fundamental question is, um, when. And let's just just read from from Casey, when this court re-examines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law and gauge the respective costs of reaffirming and overruling a prior case.

0:50:18 Andrew: This is a refreshingly honest description of, until now, what stare decisis meant, right? It's a practical doctrine and the practical doctrine is rooted in an important fundamental principle, the idea that you shouldn't change laws willy-nilly. Do you have to change them sometimes? Sure, when they are unworkable.

0:50:37 Thomas: Unworkable, that was the wording I remembered from Casey.

0:50:38 Andrew: Right. Whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation. Whether related principles of law have so far developed as to have left the old rule rule no more than a remnant of an abandoned doctrine, or whether the facts have so changed or so come to be seen so differently as to have robbed the old rule of significant application or justification. I, in some sense, I have, I have taught you that test from Casey, uh, as history

0:51:13 Thomas: Yep. I don't know why, because it doesn't matter. But Andrew, I'm mad at all the things you've made me memorize that don't matter anymore. But sure. Yeah.

0:51:16 Andrew: Yeah, it it has now been explicitly overruled. And I'm going to tell you, oh,

0:51:26 Thomas: Really? So he's even okay. So my prediction was going to be that Alito would just, I don't know, reference their own bullshit, like dissents and stuff like decisions from the last, I dunno, 10 years and be like, look at this precedent that is overwhelmingly telling us ourselves. We're telling ourselves to overturn this thing. But you're saying he's actually over, like explicitly overturning the sort of, the stare decisis sort of test from Planned Parenthood v. Casey.

0:51:39 Andrew: They do that, too.

0:51:56 Andrew: Yep. And has replaced it with a five part test drawn largely from the equal parts from his ass and the Janice versus ask me decision. So, yeah, those five parts are now a the nature of the court's error. An erroneous interpretation of the Constitution is always important, but some are more dangerous than others. This is where he says Roe was egregiously wrong and deeply damaging for reasons already explained. Lane rose constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional

0:52:02 Thomas: His ass. Same thing.

0:52:37 Thomas: Far

0:52:37 Andrew: Provisions. Seven two decision, right? This is this is Sam Alito saying seven sitting justices on the Supreme court were fucking idiots. Yeah, yeah.

0:52:37 Thomas: Outside the bounds. Oh yeah. Well, and Andrew, those seven justices were Karl Marx, landmarks, AOC, Bernie Sanders. I'm trying to think of a, like, this was a, relatively speaking, you know, like this is a court in the 70s. These are not, right? I mean, this is, yeah.

0:52:50 Andrew: Yeah, There were there were appointees on the court. Yes, exactly, yeah. Um, so, so, a is, and again, if you want to ask what does the nature of the court's error mean, there are again zero you

0:53:06 Thomas: Yeah. God.

0:53:17 Thomas: Again, that's his feelings of abortion is such a bad thingy that I am saying it's such a, it's the nature of the mistake is so vile that I can overturn it because I feel like it.

0:53:29 Andrew: You think that you are being slightly facetious.

0:53:32 Thomas: No. I'm actually not. That was meant straightforward. Sorry, yeah.

0:53:33 Andrew: Yeah, uh, Follow along on page 39 to 40, the infamous decision in Plessy v. Ferguson was one such decision. It betrayed our commitment to equality under law. It was egregiously wrong, that's the quote, on the day it was decided, see Ramos, supra. Okay, and the solicitor general agreed at oral argument it should have been overruled at the earliest opportunity. So that's the test here. Does Sam Alito think a prior decision is, quote, egregiously wrong? That's why he says Roe was also egregially wrong. So first test, does Sam Alito think it's egregiously wrong, wrong? Second test, the quality of the reasoning. If you're thinking, boy, that sounds an awful lot like duplicative of the first one, it is, in fact, duplicative of the first one.

And this is the section where Alito quotes nothing more than his own conservative side, uh, arguing that, uh, that, that Roe v. Wade was wrongly decided, um, Yeah, over and over again to say, uh, that, you know, that's, uh, that's egregious, that that the quality of the reasoning is also bad. So, so how that, how that depends, how that interacts with, um, the, the first test, again, it's just a subjective. How much do we hate the thing that we are trying to overturn? Again, I have gone at great length in our breakdown on Roe and our breakdown of Planned Parenthood versus Casey in defending the trimester system that the court came up with in Roe.

0:54:39 Thomas: Yeah yeah

0:55:16 Andrew: And the argument that it was, it was weak, uh, and then revised by Casey and made weaker, um, does in fact describe that the second part does in effect describe, like, Casey absolutely made that doctrine weaker, um, but that doesn't really seem to be the fault of the original Roe v. Wade, right? A more conservative court tried to read a precedent they didn't like in a way that was more constraining. So yeah, like that's what happens.

0:55:49 Thomas: So they They basically poisoned the well on, on, on that one, right? I mean, they kind of undermined Row in a way that now they're pointing to now, is being like, look at how undermined we'd made it, workability.

0:55:53 Andrew: A hundred percent, and If you, if you really want to, to the blood to boil, uh, remember the, what was the one word you remembered from, uh, from Casey's stare decisis test? Workability, right? Yep. So

0:56:15 Thomas: Yeah is It has. Has it become unworkable?

0:56:17 Andrew: Right So prong number three now, C is our precedence council. That another important decision consideration in deciding whether precedent should be overruled is whether the rule it imposes is workable, that is, whether it can be understood and applied in a consistent and predictable manner. So again, notice that that completely rewrites what Casey actually says, right? Casey does not say it's a question of how workable is it, no question, Casey says if it has become unworkable, if it is so thoroughly discredited as to be impossible to put into practice, right? But so we've redefined that, and then the argument that Roe is unworkable is not at all an argument that Row is unwerkable, it is an argument that the compromise reached in Casey, the you cannot place an undue burden on a woman's right to an abortion uh within the first trimester, that that's unworkability, and you know what, that is pretty vague.

0:56:40 Thomas: Yeah. Yeah.

0:57:18 Andrew: It absolutely is is has problems with its workability because Casey unnecessarily restricted the very clear rules of Roe in a way that was necessary to get Sandra Day O'Connor's vote, right? Sandra Day-O'Conner was a huge fan of balancing tests. And so that was what was sort of come up with here. And then the right has spent 30 years trying to cram in every possible restriction and argue that those are not undue restrictions. And so the fact that they've done so is now used as evidence that

0:57:18 Thomas: That row

0:57:54 Andrew: That row itself is unworkable. D.

0:57:54 Thomas: Itself was unworkability. Yeah. No, maybe just repeal all the bullshit you've done over the years that has made it unworked. Repeal all that shit. Leave us with row.

0:58:02 Andrew: Maybe. Yeah.

0:58:05 Thomas: That would be a good way to do it.

0:58:06 Andrew: D is effects on other areas of the law. And this is just, it's two pages long, and it is entirely a list of dissents. O'Connor's dissent, Scalia's dissent, Thomas's dissent, Kavanaugh's dissent, Gorsuch's dissent, Thomas' dissent saying, "Hey, looks like abortion gets special treatment in our law." All none of these were opinions, none of those were majority, none of them managed to get a majority of votes, in 2022, in 1994, in, yeah.

0:58:32 Thomas: Wow.

0:58:44 Andrew: Yeah, he

0:58:44 Thomas: Well, and Alito is making this up as he goes along. He's coming up with his own rules for why this should be overturned. And he can't come up with a better set of rules than look at all these dissents that didn't win.

0:58:54 Andrew: Can't yeah right That is, that is the D section, right? Effect on other areas of the law. It says, "Members of this court have repeatedly lamented that no legal rule or doctrine is safe from ad hoc nullification by the court when an occasion for its application arises in a case involving state regulation of abortion." Yeah, so the fact that conservative dissenters have not liked the court's abortion jurisprudence is the basis for prong D, yeah.

0:59:25 Thomas: Best you could do, huh? Okay.

0:59:27 Andrew: And then prong E, reliance interests. You would think, about this, is this going to be a hard one because uh you're about to upend laws in about 20 different states. Um, Alito doesn't see it that way. He says, "Traditional reliance interests arise when advanced planning of great precision is most obviously a necessity. In Casey, the controlling opinion conceded that those traditional reliance interests were not implicated because getting an abortion is generally unplanned activity, and reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions. For that reason, we agree with the Casey plurality that the conventional, concrete reliance interests are not present here." Um, whatever the status of the law was in 1992, the status law in 2022, uh, makes it abundantly clear that abortion is not an unplanned activity.

0:59:33 Thomas: Yeah, yeah, yeah.

1:00:24 Andrew: It's not a thing that you can just do by a crazy random happenstance. And indeed, it has gotten there because of the undue burdens that have been placed upon women and those who get pregnant in typically southern states. So waiting periods, multiple appointments that are required. The fact that your abortion center has to have a level five NICU with a private helicopter and all of those things render that utterly false. So Alito continues, "Unable to find reliance in the conventional sense, the controlling opinion in case he perceived a more intangible form of reliance." Again, just oozing with, with disrespect and sarcasm, it wrote that "people had organized intimate relationships and made choices that define their views of themselves and their places in society in reliance on the availability of abortion in the event that contraception should fail."

That's a hundred percent true, Samuel Alito. "And that the ability of women to participate equally in economic and social life of the nation has been facilitated by their ability to control their reproductive lives." 100% true, but of course, "This court is ill-equipped to assess generalized assertions about the national psyche. Casey's notion of reliance thus finds little support in our cases, which instead develop very concrete reliance interests like those that develop in cases involving property and contract rights." So, uh, yeah, if it, uh, involves property and contract rights, uh, then, you know, that's, that's a real thing that people rely on, but, you know, being

1:01:41 Thomas: National psyche.

1:02:03 Thomas: Yeah, life decisions.

1:02:04 Andrew: Being being forced to bear a child, a thing that Samuel Alito could not possibly imagine, right? That that's not a, that's not, that's not a thing. Um, it ends inexplicably, uh, "If women are not without electoral or political power, it is noteworthy the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do, who do so. In the last election, in November 2020, women, who make up around 51.5% of the population of Mississippi, constituted 55%, 55.5%, of the, the voter, voters who cast ballots." We do not have time, we are at an hour, but, um, the, the third area that, uh, that this case, uh, gaslights America on is

1:02:04 Thomas: Who cares?

1:02:53 Andrew: The right wing's rewriting of what it means to be a democracy, that repeated, and you have seen, this is the culmination of their cases involving, involving making gerrymandering a non-justiciable political question, of allowing billionaires to pump whatever funds they want into whatever races they want under the guise of free speech, of taking an entirely hands-off approach to gerryandering, are designed to replicate the Republican Party's efforts to stay in power despite commanding only a minority of the citizenry. And so it is galling to see that juxtaposed with, well, look, like women voted for this. So, you know, if they want abortions, like they can just vote themselves abortions.

1:03:50 Thomas: Right, so like if you cared about your abortion rights so much, why didn't you not get gerrymandered into not being able to vote for that? And also, yeah why didn'T you defeat Trump by 3 million popular votes in 2016? If he cared so much about it, why

1:03:56 Andrew: Yeah. Yeah. Why didn't you vote in Mississippi? Right, exactly.

1:04:06 Andrew: Yeah. There is a rather lengthy section on, you know, the the political implications. It's I think we've.

1:04:26 Thomas: Would the, why would the Supreme, why did Alito be talking about the political implications in his decision? Is that normal? What is, what is he talking about?

1:04:32 Andrew: Oh. Well, because having shown the traditional stare decisis factors do not weigh in favor of retaining Row or Casey, we must address one final argument that featured prominently in the Casey plurality, the argument.

1:04:43 Thomas: So we're still on the

1:04:44 Andrew: Well, Stare decisus, he now says, okay, so stare decisius strongly weighs against us having to keep Row and Casey around.

1:04:44 Thomas: Stare decisis test or.

1:04:53 Andrew: And, So then he says, let's look at, uh, the rule of, of law question. So it says, the argument was cast in different terms, but stated simply, it was essentially as follows: the American people's belief in the rule of law would be shaken if they lost respect for this court as an institution that decides important cases based on principle, not social and political pressures, citation to Casey. Now, again, notice how that gaslights what Casey actually said. You know this because I read movingly from a page of Casey to you. It is not, not just about, like, does the court rule social and political in an opinion that is responsive to the social and political factors of the day? That's unavoidable. Right. And the, and the, and the writers of Casey knew that they weren't saying that idiotic straw man of a test. They were saying the rule of law is more fundamental than that. The rule of law is about the idea that our basic principles are not up for grabs every time there's an election.

1:04:53 Thomas: Oh, wow. Okay. Oh

1:05:52 Andrew: Alito, unsurprisingly, does not grapple with that. Instead, he says, there is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the court overrules a controversial watershed decision such as Roe. A decision overruling Roe would be perceived as having been made under fire and as a surrender to political pressure. This is, again, this is just grossly quote mining from Casey. And therefore, the preservation of public approval of the court weighs heavily in favor of retaining Roe. This analysis starts out on the right foot. Now we get what Alito actually says, but ultimately veers off course. The Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach, but we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences, influences such as concern about the public's reaction to our work.

1:06:52 Andrew: That is both true when we initially decide a constitutional issue and when we consider whether to overrule a prior decision. The Casey plurality called the contending sides of a national controversy to end their national division and claimed the authority to impose a permanent settlement of the issue of a constitutional abortion right simply by saying that the matter was closed. That unprecedented claim exceeded the, the power vested in us by the Constitution. As Hamilton famously put it, the Constitution gives the judiciary neither force nor will, our sole authorities to exercise judgment, which is to say the authority to judge what the law means and how it should apply to the case at hand. The court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles, a precedent of this court is subject to the usual principles of stare decisis, under which adherence to precedent is the norm but not, not an inexorable command. If the rule were otherwise, Plessy and Lochner would still be the law. So, there you go. He is on the side of progressivity.

1:07:48 Thomas: Yeah. Well, he did us a favor. Yeah. Thanks Alito. Wow. Hats off to you. Well, uh, yeah, this is, uh. Probably as long as we should go in, in one of these, um, I can't believe you already read and digested that leaked opinion in five minutes flat, I don't know how you do it, Andrew, that's incredible. Um, I think we should probably take these few days before we record again, and, you know, we're gonna, we're going to collect ourselves and I think we should think about what, what we do, what we next, you know, I can't say that, uh, makes me even more proud of the work, uh, you and uh and a few others did at American Atheist Convention raising money for people in the South to get abortions who don't have access to it.

And I think that should be the focus of our fundraising that we do this year, you know, is that very thing. So we're gonna, we're going to be thinking about that, I'm sure. We're gonna have thoughts about what to do next. I think we already know that the answer is you have to put in enough people in the Senate who agree with A, getting rid of the filibuster, and B, using that power to reform the court in some way. That's really the only option,

1:07:52 Andrew: Yeah. Yeah, yeah, yeah.

1:08:41 Andrew: I agree with that.

1:09:02 Thomas: But we'll see. Maybe there'll be other thoughts.

1:09:02 Andrew: Can I? And I know you've thought about this, but I just want to shock the conscience of somebody maybe that hasn't. We're one vote away from the Senate imposing a national ban on abortions, right? It it's not just yeah, it's not just like get rid of the filibuster, it is, we are one vote away from there being 51 votes in the Senate because, you know, I mean, we're gonna have I mean you

1:09:20 Thomas: Yeah. Holy crap. Yeah, you're right. Right. I mean, once Trump is back in office, yeah. You need a president to sign it in the House.

1:09:35 Andrew: Need it. You need a president to sign it, uh, but but when you think about. Could could the question is, what do you want a Democratic administration to do? Right. My point is, if historical trends continue, if the results go forward from where we are right now, which is Joe Biden polling in the low 40s, we're going to be left with not only the question of breaking the filibuster, but a Senate that is actively ready to to ban abortion nationwide, setting up for

1:09:38 Thomas: This is not far-fetched in any way.

1:10:12 Thomas: Wow.

1:10:12 Andrew: Two years from now that happening.

1:10:14 Thomas: That being signed.

1:10:15 Andrew: Yeah. And if you don't want to see that happen.

1:10:16 Thomas: Wow, I've said it related to something else, Andrew, but it actually is enough to just not be a Republican. It is enough. That's the world. When you live in a world where one side is this fucking horrible, It is actually enough to just be the side that's like, well, we're not going to do that for one. You know, like that's just that's the world we live in. I'm sorry that things are that shitty. I would love if we got on a good enough progressive footing in this country to where we we were able to like say, no, it isn't good enough to just not be the other side. But we have a lot of work to do until we get to that point. That's just the nature of the game. I don't want to hear your shit about the DNC or how the party blah, blah, blah candidates aren't with. I don't care. One side is doing is overturned Row, this has been precedent for longer than even someone as old as Andrew has been alive, I believe this is crazy,

1:10:20 Andrew: Yeah. Yeah, we do. Just what I was feeling good about you, Thomas. No, it's OK.

1:11:13 Thomas: I know, sorry, long before since long before Andrew was born, this has been present precedent, I mean, this is, this is insane, people in the 70s did this for us, they won this battle for us, people in the 70s, think of how not woke those people were, and and they did better than us. I mean, this is, oh my God. All right.

1:11:17 Andrew: There we go.

1:11:34 Thomas: I'm going to go further, have an aneurysm and break down emotionally.

1:11:32 Andrew: Yeah. I think we we both are, I think this is really I'm, I'm obviously not glad the circumstances that we're here, but I'm glad we got to sit down and and and talk through this, um, doesn't make me any less angry, um, it's helped kind of crystallize that into, you know, anger isn't enough now. It's time to get to work, yeah.

1:11:55 Thomas: Yeah. Well, I'm just glad for this community. I mean we have each other in this OA community for this very, this is, this isthe show. This is the purpose of the show. I said it leading off why we need to be here today. This very legal battle is, is the, this is, I can't think of something more fundamental that we've been fighting for these past five, six years of the show than protecting this right.

1:12:01 Andrew: Yeah well well let's get it out there then.

1:12:21 Thomas: All right. Thanks so much for listening, everybody. And holy shit. Take care of yourselves out there.

1:12:27 Andrew: Yeah please do, if you need to talk to somebody, right, get, get, yeah

1:12:32 Thomas: If you need assistance getting an abortion, like literally email us. I'm not even joking. We will. Yeah, absolutely. All right, thanks, everybody, thanks Andrew for getting on that so fast and take care. We'll see you very soon.

1:12:36 Andrew: Yeah yeah