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00:00:03 Sacks
You let your winners live.
00:00:06 JCal
Reignman Davidson.
00:00:10 Sacks
And instead we open source looks.
00:00:12 Sacks
To the fans and they just got.
00:00:14 Speaker 3
Blocked when I see Queen of quinoa.
00:00:18 JCal
There was a lot of big news, obviously, this past week when a leaked draft of the Supreme Court’s Roe V Wade.
00:00:26 JCal
Decision was published by Politico.
00:00:32 JCal
The draft opinion, written by Justice Alito, would turn Roe V Wade from a federal issue to a state issue.
00:00:37 JCal
Now this is a bit above all of our.
00:00:40 JCal
Pay grades so.
00:00:41 JCal
Thomas had a really great idea to tap some people who are actual experts and in the Supreme Court.
00:00:48 JCal
Trimbach, maybe you could introduce our guests.
00:00:50 JCal
I will include this up for us.
00:00:51 JCal
Thank you.
00:00:52 Chamath
Great. So first I’d like to introduce Amy. How come Amy, until 2016, served as the edit?
00:01:00 Chamath
And a reporter for SCOTUS Blog, which is the.
00:01:03 Chamath
The premier blog that covers the Supreme Court.
00:01:06 Chamath
She continues to serve as an independent contractor and reporter for SCOTUS blog.
00:01:10 Chamath
She also writes for her blog called How on the Court and before turning to full time blogging, she was a council in over two dozen merits cases at the Supreme Court and argued 2 cases there from 2004.
00:01:23 Chamath
Till 2011, she Co taught Supreme Court litigation at Stanford Law School, and from 05 to 13, 2013, she Co taught a similar class at Harvard Law School.
00:01:35 Chamath
And I’d also like to introduce her partner in SCOTUS and also her partner in life.
00:01:40 Chamath
Tom Goldstein, another dear friend of mine. Over the past 15 years, Tom has served as one of the lawyers for one of the parties in just under 10% of all the cases argued before the Supreme Court.
00:01:51 Chamath
He has argued 43 cases himself, and two that I think are probably a little bit near and dear to all of our hearts. In 2000, Tom served as second chair.
00:02:01 Chamath
For Laurence Tribe and David Boies, on behalf of VICE President Al Gore.
00:02:04 Chamath
And Bush V gore.
00:02:06 Chamath
And most recently, he represented Google in a fair use copyright infringement case. Google versus Oracle about the use of Java API’s. And so, Tom and Amy, thank you guys for giving us your precious time. Welcome to the pod.
00:02:22 Tom Goldstein
Thanks for having.
00:02:23 Amy Howe
Us thanks for having us a little nervous about what the introduction.
00:02:26 Amy Howe
Was going to be like so.
00:02:27 Amy Howe
Thank you.
00:02:27 Chamath
So guys, there’s a, there’s a million questions to start with or that we can go, but maybe just to frame the.
00:02:35 Chamath
Issue can you guys just first walk us through the original Roe V Wade decision, how it was made, and the rights that it conferred?
00:02:47 Chamath
And then maybe we can go from there and talk about what has happened as a result of the way it was written and the and and the the.
00:02:55 Chamath
The judgment as it as it stood.
00:02:56 Amy Howe
Sure, Roe V Wade.
00:02:58 Amy Howe
Back in the early 1970s was a decision by Justice Harry Blackmun, in which the court held for the first time that there is a constitutional.
00:03:08 Amy Howe
Right to an abortion and at that point the court ruled that it was regulated by time up through the trimesters.
00:03:18 Amy Howe
Am I getting?
00:03:18 Amy Howe
This right, Tom? Yeah. And.
00:03:20 Amy Howe
Then in 1992, in a case called Planned Parenthood versus Casey, that was an earlier effort to overrule Roe versus Wade. Because.
00:03:29 Amy Howe
Abortion opponents started.
00:03:31 Amy Howe
Pretty quickly trying to overturn Roe versus Wade. And so in 1992 in a case called Planned Parenthood versus.
00:03:38 Amy Howe
Casey the Supreme Court did not a global Rd Roe, in fact reaffirmed it, but switched the test a little bit.
00:03:45 Amy Howe
The constitutional test to decide whether other abortion restrictions can stand and.
00:03:51 Amy Howe
This was a decision by Justice David Souter, Anthony Kennedy and Sandra Day O’Connor, who were all appointed by Republican presidents.
00:04:00 Amy Howe
And they said there’s a constitutional right to an abortion.
00:04:03 Amy Howe
Up until the point at which the fetus becomes viable, which these days is somewhere around 20 for the 24th week of pregnancy.
00:04:10 Amy Howe
But states can regulate abortions as long as they don’t impose an undue burden on the woman’s right to an abortion.
00:04:18 Tom Goldstein
I was just going to tack on like what’s sitting underneath row, because that ends up being a big deal these days.
00:04:24 Tom Goldstein
You know?
00:04:25 Tom Goldstein
Where did it come?
00:04:25 Tom Goldstein
Run 7 justices and run raids say there is this constitutional right to an abortion up to a point.
00:04:33 Tom Goldstein
And of course, there’s no textual reference to abortion in the Constitution.
00:04:38 Tom Goldstein
Instead, the Supreme Court drew on earlier decisions involving what it was called the constitutional right to privacy, essentially a kind of badly.
00:04:45 Tom Goldstein
Autonomy, right.
00:04:46 Tom Goldstein
An individual level view principle that you’re going.
00:04:48 Tom Goldstein
To control your own.
00:04:49 Tom Goldstein
Destiny and your own body.
00:04:51 Tom Goldstein
Drawing on cases involving contraception, for example, for both married and unmarried couples.
00:04:58 Tom Goldstein
And that really is the doctrinal, the Jewish credential piece of this thing that conservatives have been after so hard.
00:05:06 Tom Goldstein
You’ve got kind of two branches of conservatism in play.
00:05:08 Tom Goldstein
One is look.
00:05:12 Tom Goldstein
Kind of religious and social conservatism that abortion is evil.
00:05:16 Tom Goldstein
And then you have a jurisprudential lawyers kind of thing, like you made this up, it’s not in the Constitution.
00:05:23 Tom Goldstein
And those two threads have come together and have been at the root of this 50 year battle over.
00:05:28 Chamath
In fact, before we unpack that, maybe you want to just define for people as I understood as I’ve been learning.
00:05:33 Chamath
About this.
00:05:33 Chamath
This week there’s this.
00:05:35 Chamath
One sort of moral spectrum between liberalism and conservatism.
00:05:39 Chamath
But then there’s this orthogonal form of, like, originalism, I guess, is what folks call it.
00:05:44 Chamath
Can you just define those terms so everybody understands what we’re talking about?
00:05:48 Tom Goldstein
So, you know, in ordinary politics we do think of conservativism and then kind of more libertarianism.
00:05:54 Tom Goldstein
The kind of Peter Thiel get the government out of my life and conservatives do believe that the government.
00:06:00 Tom Goldstein
Has an important role.
00:06:01 Tom Goldstein
Frequently, conservatives believe this one important role in regulating abortion and prohibiting abortion, whereas the libertarian be more likely to say, you know, this is my body, my choice, for example.
00:06:10 Tom Goldstein
And so that’s kind of along the political spectrum.
00:06:12 Tom Goldstein
In the legal spectrum you have this sense of people, there are a set of conservatives in particular, principally who think that the Constitution.
00:06:22 Tom Goldstein
Should be interpreted today the way that it would have been understood the day that it was enacted, or that an amendment to the Constitution was.
00:06:28 Tom Goldstein
Enacted so that the 14th amendment to the Constitution, for example, prohibits depriving someone of liberty or property without due process of law.
00:06:37 Tom Goldstein
And they would say, well, what was due process of law at that time?
00:06:41 Tom Goldstein
What was liberty at that time, whereas a more progressive constitutionalist, somebody more on the left would say, look.
00:06:48 Tom Goldstein
You know, there are lots of things that aren’t enumerated in the Constitution.
00:06:51 Tom Goldstein
Including, you know.
00:06:52 Tom Goldstein
A right to bodily autonomy at all.
00:06:55 Tom Goldstein
The right to contraception.
00:06:56 Tom Goldstein
The right even rights.
00:06:58 Tom Goldstein
Even conservatives there about the right to educate your child in.
00:07:01 Tom Goldstein
The way that you see fit.
00:07:02 Tom Goldstein
And the Constitution in particular has to be able to adapt to modern circumstances.
00:07:06 Tom Goldstein
And that’s why actually our Constitution is so vague.
00:07:10 Tom Goldstein
There are also more modern constitutions take the South African Constitution build up.
00:07:13 Tom Goldstein
Lots and lots and lots and lots of detailed provisions tackling all kinds of problems, including modern problems.
00:07:18 Tom Goldstein
But the view of.
00:07:20 Tom Goldstein
Progressive constitutionalists is that look when the country was founded and they wrote the Constitution, they knew the country is going to be around for centuries and they didn’t intend to capture every kind of.
00:07:32 Tom Goldstein
Social circumstance that intend to capture every modern problem which couldn’t even be contemplated.
00:07:37 Tom Goldstein
So yeah, that’s the those are the two different kinds of conservatism we’re talking about.
00:07:42 Tom Goldstein
But both originalists say, look, there’s no right to abortion in the Constitution.
00:07:48 Tom Goldstein
The founders of the country would have never imagined that we would.
00:07:52 Tom Goldstein
Strike down bans on abortion and then social conservatives are like, well, this is a really, really important role of government.
00:07:58 Tom Goldstein
We’re protecting unborn life.
00:07:59 Chamath
Amy, I don’t know if you’ve had a chance to read Alito’s draft opinion, but can you sort of walk us through his legal framework for coming to his conclusion that that this thing needs to be struck down and what, why he’s saying what he’s saying?
00:08:14 Amy Howe
Yes, it is a 67 page opinion with another 30 pages or so in the appendix and what he tackles it in two ways.
00:08:24 Amy Howe
The first is kind of from this originalist perspective, he looks at the idea of whether or not the right to an abortion is something that.
00:08:34 Amy Howe
Is deeply rooted in our country’s history, and he concludes that it is not that. Not only was there no right to an abortion, he said until the late 20th century went right around the time.
00:08:47 Amy Howe
With the court.
00:08:49 Amy Howe
Issued its decision in Roe.
00:08:51 Amy Howe
But in fact, abortion was a crime in many places.
00:08:55 Amy Howe
And so, you know, he starts from that premise that there is no deeply rooted tradition of abortion being a right in under the Constitution.
00:09:04 Amy Howe
And that goes to the idea of what did the Framers intend?
00:09:08 Amy Howe
Does it fall within?
00:09:11 Amy Howe
Fundamental right that would be protected by the Constitution, even if it is not specifically enumerated in the Constitution.
00:09:19 Amy Howe
But then he also has to look at Roe and Casey because those laws have been in effect, that those cases have been in effect for 50 years now that the court issued decision in Roe in the early 70s.
00:09:32 Amy Howe
And then reaffirmed it in KC.
00:09:34 Amy Howe
In 1992.
00:09:36 Amy Howe
Because the Supreme Court and courts generally have a print principle called starry decisis that says that.
00:09:44 Amy Howe
Courts should not overturn their decisions just because they think the earlier decisions are wrong.
00:09:50 Amy Howe
That there needs to be a good reason to do that.
00:09:53 Amy Howe
And the court has never said specifically exactly what you need to do to overrule a decision, but over the years they have outlined some factors that you can look at.
00:10:04 Amy Howe
To decide whether or not you should do so.
00:10:06 Amy Howe
So and so he walks through those factors, the idea that Roe and Casey were simply wrong when they were decided for the reasons that the Thomas has just discussed and that a leader discusses at great length that there’s no deeply rooted tradition of abortion being a right the idea.
00:10:28 Amy Howe
Another thing that courts often look at is whether or not people have relied on the courts decisions here in row.
00:10:34 Amy Howe
And Casey, and he said that even in Casey there wasn’t this idea that people arranged their personal lives, you know, in the short term around the idea that they have a right to an abortion.
00:10:46 Amy Howe
They’ve looked at it in Casey and sort of.
00:10:48 Amy Howe
And people since then in sort of the broader sense.
00:10:51 Amy Howe
That women have made decisions about their lives, so the idea that they will have reproductive freedom.
00:10:59 Amy Howe
And he says that’s really not the right way to look at the issue of reliance.
00:11:03 Amy Howe
He looks.
00:11:04 Amy Howe
At whether or not.
00:11:05 Amy Howe
The test that the Supreme Court has and other courts have been using to review restrictions on abortion, this undue burden standard is what’s what he calls workable.
00:11:17 Amy Howe
And he concludes that it’s not workable because he says this idea of an undue burden test is so amorphous that courts have reached all kinds of different decisions.
00:11:27 Amy Howe
On various abortion restrictions.
00:11:29 Amy Howe
And so for those reasons, he says, the abortion is a profound moral question, he says.
00:11:35 Amy Howe
But it’s not warm and protected by the Constitution.
00:11:38 Amy Howe
It’s a question that these should be decided by the people and their representatives and should go back to the states.
00:11:45 Sacks
Can I just follow up on that point?
00:11:46 Sacks
So I think a lot of people, when they read a headline like Roe V Wade overturned, they think that this record is directly legislating on the issue of abortion and it means abortion ban nationwide.
00:11:59 Sacks
I I think that maybe even the popular conception of what of what just happened.
00:12:05 Sacks
Can you just explain that a little bit more that you know what exactly is this from court deciding on this issue and specifically what the stream court is doing here is more deciding who gets to decide rather than issuing policy themselves.
00:12:18 Sacks
Could you just explain that?
00:12:19 Sacks
For previewers.
00:12:20 Friedberg
And as you do that, maybe you could just highlight the role the Supreme Court is meant to have in our system of government, just as a basic kind of concept, which I’m not sure is.
00:12:29 Friedberg
Like as clearly understood here.
00:12:32 Amy Howe
So, you know, there are the three branches of government, the president, the executive branch, the legislative branch, which is Congress and the Supreme Court.
00:12:40 Amy Howe
And the Supreme Court’s.
00:12:41 Amy Howe
Job is to, in this case, interpret the Constitution.
00:12:46 Amy Howe
Now, some of the cases that come to the Supreme Court are technical.
00:12:50 Amy Howe
They don’t even involve the Constitution now.
00:12:51 Amy Howe
What did Congress mean to say when it enacted this law about bankruptcy?
00:12:56 Amy Howe
But then it also gets these really momentous cases, like abortion.
00:13:00 Amy Howe
And this case is a challenge.
00:13:02 Amy Howe
It came that the actual case that came to the Supreme Court.
00:13:05 Amy Howe
Is a challenge to a Mississippi law that was passed with the idea that it could go to the Supreme Court and challenge Roe and Casey, but a Mississippi law that was passed a couple of years ago that would ban virtually all abortions after the 15th week of pregnancy and so abortion.
00:13:25 Amy Howe
Providers in Mississippi went to court and said under the Supreme Court’s jurisprudence, these decisions in Roe and Casey this law.
00:13:34 Amy Howe
It is unconstitutional because women air as the law currently stands, have a right to an abortion up until the point at which the fetus becomes viable, which is around 24 weeks, but certainly.
00:13:47 Amy Howe
Well, after this, the 15th week of pregnancy.
00:13:50 Amy Howe
So the case made its way up there as a challenge to this Mississippi.
00:13:54 Amy Howe
But the state of Mississippi, in defending the law, specifically asked the court to overrule Roe and Casey, and So what that means is specific ways deciding whether or not this law is unconstitutional.
00:14:08 Amy Howe
If the Supreme Court, as the draft opinion suggests, holds that.
00:14:13 Amy Howe
The laws counts.
00:14:14 Amy Howe
It’s constitutional that growing cases should be overruled.
00:14:18 Amy Howe
Then the issue does go back to the states is the way that most people think of it.
00:14:25 Amy Howe
In each state, whether it’s Mississippi or Texas or Oklahoma or California, can decide for itself whether or not.
00:14:33 Amy Howe
They want to allow.
00:14:34 Amy Howe
Abortions and if so, on what terms?
00:14:38 Amy Howe
Yeah, I think it’s a little bit, you know, it does go back to the states that people can decide, but defenders of Roe in case.
00:14:46 Amy Howe
See, supporters of abortion rights say that part of the Supreme Court’s job is to say what the Constitution means, and that.
00:14:53 Amy Howe
There are some.
00:14:54 Amy Howe
Rights like freedom of speech, you know?
00:14:57 Amy Howe
The Second Amendment the right to bear arms that are that are. If they’re in the Constitution, then the states shouldn’t be allowed to decide that the Supreme Court’s job is to protect them.
00:15:05 Friedberg
So if they strike this down, basically all the state legislatures will start to pass their own laws that govern what happens in that state, and the federal government will not have a role or a say ultimately in state abortion laws.
00:15:19 Friedberg
Is that is that fair?
00:15:21 Friedberg
Is that what’s going to happen next?
00:15:22 Friedberg
If this gets struck down.
00:15:23 Amy Howe
Yeah, we never already.
00:15:25
You know.
00:15:26 Amy Howe
At least a dozen, if not more states that have what’s called trigger laws that have already been passed by the state legislature with an eye towards this decision or some other decision by the Supreme Court over ruling Roe and Casey.
00:15:40 Amy Howe
So those states didn’t even have to pass new laws.
00:15:42 Amy Howe
Those laws restricting abortion would go into effect.
00:15:47 Friedberg
And can I just ask maybe for sax too?
00:15:50 Friedberg
Like, why isn’t there a constitutional amendment if this is?
00:15:55 Friedberg
An issue that folks feel, you know, should be kind of indoctrinated as an amendment to the Constitution.
00:16:01 Friedberg
Why has that not happened?
00:16:03 Friedberg
And you know why do these cases kind?
00:16:06 Friedberg
Of keep recycling and the decision making kind of keeps going back to the States and they.
00:16:09 Friedberg
Keep getting litigated.
00:16:11 Friedberg
Why don’t constitutional amendments get passed anymore?
00:16:14 Amy Howe
It’s really difficult to pass a constitutional amendment, Tommy, I said.
00:16:18 Amy Howe
Go ahead.
00:16:19 Tom Goldstein
I know I was going to say, yeah, let me just step back first on this question of states versus the Fed.
00:16:24 Tom Goldstein
Government so when the.
00:16:25 Tom Goldstein
Supreme Court says the constitution doesn’t give.
00:16:27 Tom Goldstein
You any right?
00:16:28 Tom Goldstein
To an abortion, they aren’t technically saying.
00:16:30 Tom Goldstein
OK, now it’ll be up to the state legislatures.
00:16:32 Tom Goldstein
They’re saying it’ll be up to legislatures, so you have to pause on the fact that it is at this point possible that you could have a federal protection for abortion or a federal ban on abortion.
00:16:36 Speaker 3
Right.
00:16:43 Tom Goldstein
Then the question would be.
00:16:44 Tom Goldstein
Is that constitutional?
00:16:46 Tom Goldstein
Or is this a states rights issue where only?
00:16:48 Tom Goldstein
The states can regulate it.
00:16:49 Tom Goldstein
But there is a big, big big.
00:16:51 Tom Goldstein
Fight looming in Congress on both sides.
00:16:53 Tom Goldstein
The only reason?
00:16:54 Tom Goldstein
Then that you’re not getting a federal statute when you have uh Democrats and controlled the Senate, the House and the Presidency.
00:17:01 Tom Goldstein
The only reason you’re not getting a a federal statute for protecting a right to an abortion is the filibuster, essentially, and the fact.
00:17:08 Friedberg
Right.
00:17:10 Friedberg
Just sorry, just just just just to sorry to interrupt, but a statute is a law, not a constitutional amendment, right.
00:17:15 Friedberg
Can you just distinguish between this?
00:17:16 Tom Goldstein
That’s right.
00:17:16 Tom Goldstein
So the the Constitution is our founding foundational doctrine document.
00:17:21 Tom Goldstein
It’s what creates the Congress and gives Congress the power to regulate sort of things.
00:17:26 Tom Goldstein
It creates the Presidency and it creates the Supreme Court.
00:17:29 Tom Goldstein
And so it’s the most important thing.
00:17:30 Tom Goldstein
You can’t do something that violates the Constitution.
00:17:33 Tom Goldstein
Then Congress can pass laws, and states can’t do anything that is contrary to either the federal constitution or a federal statute.
00:17:42 Tom Goldstein
Unless the Constitution says only the states can handle this question.
00:17:46 Tom Goldstein
So there would be a big fight over whether abortion is strictly the regime and strictly the purview of.
00:17:52 Tom Goldstein
The states to deal.
00:17:54 Tom Goldstein
Then you say, OK, well, the Constitution stands above everything else Uber alles.
00:17:57 Tom Goldstein
Why don’t we just amend the Constitution?
00:17:59 Tom Goldstein
And as you suggest, we’re just not in the.
00:18:00 Tom Goldstein
Business of doing.
00:18:01 Tom Goldstein
That anymore there we have very few constitutional amendments, and we haven’t done it in a long time.
00:18:08 Tom Goldstein
The Constitution imposes all kinds of hurdles in terms of congressional authorization.
00:18:14 Tom Goldstein
It’s why the equal Rights amendment was never passed.
00:18:17 Tom Goldstein
It’s just incredibly hard to get the kind of supermajority in the country that you need to amend the Constitution and our kind of foundational rights.
00:18:25 Tom Goldstein
And that’s what’s made the Supreme Court so.
00:18:27 Tom Goldstein
Important by the way and that.
00:18:28 Tom Goldstein
Is we have something like the equal protection clause, we have.
00:18:31 Tom Goldstein
A right to freeze.
00:18:32 Tom Goldstein
Speech we have a right to the free exercise of religion, and those are big, capacious raises that nobody can objectively tell you what they mean.
00:18:40 Tom Goldstein
They mean what 5 justices of the Supreme Court say they mean, and that’s why there are all these fights over Supreme Court appointments, because the justices have an enormous power by 5.
00:18:50 Tom Goldstein
Four majority is to fundamentally change the course.
00:18:52 Tom Goldstein
The American life, and it can be in a conservative direction or a more liberal direction.
00:18:56 Tom Goldstein
Remember, the most famous thing the Supreme Court has done recently before this decision is recognizing a right to gay marriage.
00:19:02 Chamath
I want to go there, but just before I go there I want to go back to something that Amy mentioned, which is very diseases, this idea of precedent.
00:19:10 Chamath
My understanding is that when Supreme Court nominees go through the confirmation process, this is a really important part of what they’re asked right through their confirmation process.
00:19:21 Chamath
What are your views on story diseases?
00:19:23 Chamath
What are your views on Roe?
00:19:25 Chamath
And there’s a lot of discussion right now about whether you know specifically Gorsuch.
00:19:31 Chamath
And Kavanaugh, who signed up to this Alito draft, at least.
00:19:35 Chamath
May have lied to Congress in the way that they answered their questions.
00:19:39 Chamath
I don’t know if you guys can sort of talk us through that and and whether you have an opinion on on on that and their actual congressional testimony to get confirmed.
00:19:48 Amy Howe
So what they said, and I went back, actually looked at someone, not all of Justice Kavanaugh’s confirmation hearings today.
00:19:56 Amy Howe
You know, what they had said at their confirmation hearings was that Roe and Casey were settled law.
00:20:03 Amy Howe
That row has been in effect for 50 years.
00:20:06 Amy Howe
And then Casey came along and they affirmed it.
00:20:08 Amy Howe
So I think Justice Kavanaugh called it precedent on top of precedent.
00:20:13 Chamath
That seems like story deceases is just said in different words.
00:20:16 Chamath
Or no.
00:20:17 Tom Goldstein
Oh yeah, there’s no question that that.
00:20:19 Tom Goldstein
All of the nominees that have gone through.
00:20:22 Tom Goldstein
Have acknowledged, because there’s not just two cases, there are 10 abortion cases. You know, this is found in front of the Supreme Court ever since 73 over and over and over again in case he adopted this framework.
00:20:32 Tom Goldstein
And it’s been reaffirmed.
00:20:33 Tom Goldstein
Over and over and over, and the court has been moving in a conservative direction, upholding more abortion restrictions.
00:20:38 Tom Goldstein
But the foundation, the Grove Rd, has been there.
00:20:41 Tom Goldstein
But the issue is.
00:20:42 Tom Goldstein
This when someone says this is a precedent in the Super precedent they are not.
00:20:46 Tom Goldstein
Saying it cannot be over.
00:20:47 Tom Goldstein
Everything can be overruled.
00:20:49 Tom Goldstein
And so that’s why a ludos draft is so strong.
00:20:52 Tom Goldstein
It is.
00:20:52 Tom Goldstein
It uses a formulation that Kavanaugh is used, which is egregiously wrong from the start, so that if something is just outrageously, totally wrong now, pause to the fact that a supermajority of Supreme Court justices have thought it was correct, including a bunch of.
00:21:07 Tom Goldstein
Republican appointees, yeah, right.
00:21:07 Chamath
For 50 years, for 50 years, yeah.
00:21:10 Tom Goldstein
And you know, including the court that first adopted it, the.
00:21:13 Tom Goldstein
But this majority has come up in a kind of.
00:21:17 Tom Goldstein
Jurisprudential, with a jurisprudential vision that’s sufficiently conservative to say.
00:21:22 Tom Goldstein
This is essentially the most outrageous thing the Supreme Court has ever done is row, because it interjected itself without any textual basis, into one of the foundational moral debates of our time, which is what legislatures should be handling.
00:21:35 Tom Goldstein
So now some of the.
00:21:38 Tom Goldstein
You know, moderate Republicans Susan Collins and Senator Makowski have said they’re quite upset about this ’cause they feel misled.
00:21:46 Tom Goldstein
But I think the defenders of the justices would say, well, I mean they did say it was pressing on president, but they didn’t say.
00:21:52 Tom Goldstein
It was immune from being overruled and hear you.
00:21:55 Amy Howe
Just to add in one tiny little detail, in the draft opinions by Justice Alito is that one of the things he talks about when he’s outlining the principle of starry decisis, he says that this principle is actually at its weakest in cases like this one involving the interpretation of the Constitution.
00:22:16 Amy Howe
Because only the Supreme Court gets to say what the Constitution means, and at some point you don’t want to sort of trundle along with an interpretation of the Constitution that is, as Tom suggested, egregiously wrong, he said.
00:22:31 Amy Howe
If you’re talking about a Supreme Court decision interpreting.
00:22:34 Amy Howe
A law that was passed by Congress.
00:22:37 Amy Howe
If the Congress doesn’t like that decision, they can get together and pass any law.
00:22:43 Amy Howe
But only the Supreme Court can say what the law is, so I’m not.
00:22:46 Amy Howe
Yeah, obviously I’m not defending the aleader opinion.
00:22:49 Amy Howe
It’s not my job as a reporter.
00:22:51 Amy Howe
But that is, I think, one of the one of the points.
00:22:55 Amy Howe
That someone would make in explaining why.
00:23:00 Amy Howe
This despite the what they said at their confirmation hearings if they voted to overrule Brown Casey.
00:23:06 JCal
I have a call I’d like to ask a question first month, which is, I think this is really fascinating, like the history of it.
00:23:12 JCal
It’s amazing for you to really unpack it for us.
00:23:15 JCal
I want to ask a human question here and maybe ’cause.
00:23:18 JCal
These judges are humans and there’s like a sentiment here where the majority of the country does not want to do this.
00:23:27 JCal
It’s been the law for generations of women who have this protection.
00:23:31 JCal
It’s been 50 years.
00:23:32 JCal
So I think the question a lot of us have watching all This is why is this happening right now?
00:23:38 JCal
And is this some, you know, strategy that’s been played out to overturn this because it feels profoundly unfair?
00:23:46 JCal
To take a right away from these generations of women, and there’s this anger that’s built up of how on Earth could this happen?
00:23:54 JCal
So maybe you could tell us about the humans who are in these positions of power and why they made this decision.
00:24:00 JCal
’cause we can look at all these flaws and the precedent, but there is also the reality that.
00:24:05 JCal
The deck has been stacked with this court, it seems quite strategically and this feels like a rug poll to a lot of the people who voted these people on.
00:24:15 JCal
And now you have a large group of the country who feels like this is exactly the opposite of what the majority of us want.
00:24:21 JCal
So can you explain that to us?
00:24:22 JCal
What’s going on here with these humans who have these positions?
00:24:27 Tom Goldstein
Party, yeah. I think that’s a fair characterization of what is the majority of the country that is, to varying degrees, pro-choice.
00:24:34 Tom Goldstein
Now we ought to pause and recognize that there is another significant part of the country for whom this is, you know, an incredibly important positive moment.
00:24:44 Tom Goldstein
The country is divided on this question.
00:24:46 Tom Goldstein
There are passionate.
00:24:47 Tom Goldstein
Who’s on both sides?
00:24:49 Tom Goldstein
The women who are directly affected, many of them will feel no doubt incredibly impassioned, views strongly that this is an outrage.
00:24:57 Tom Goldstein
But there there are activists on on both sides.
00:25:01 Tom Goldstein
And yes, from.
00:25:02 Tom Goldstein
The day that.
00:25:03 Tom Goldstein
Roe was decided.
00:25:05 Tom Goldstein
There has been an unflinching commitment.
00:25:09 Tom Goldstein
Among conservatives to undo.
00:25:11 Tom Goldstein
Do it and it has taken them 5 decades to do it, but they have marched forward from that position where they were losing seven to two in the Supreme Court to June of this year where they will likely win five to four, and they have worked tirelessly to put justices.
00:25:31 Tom Goldstein
On the Supreme Court, who would be willing to take this step?
00:25:34 Tom Goldstein
They thought that John Roberts would, and it appears that he’s very likely willing to cut back on road, but not overruled entirely.
00:25:41 Tom Goldstein
But at the other Conservatives, whether it’s someone who’s been on for a while like Justice Thomas or or instead much more recent appointments, which is the and in Gorsuch, Kavanaugh and in Barrett and Justice Alito having been on the court for a while, those people, this is the number one agenda item for what they believe is correcting.
00:26:00 Tom Goldstein
The course of the Supreme Court’s interpretation of the Constitution. But this was the one that was most.
00:26:05 Tom Goldstein
Out of bounds.
00:26:07 Tom Goldstein
Because it was the most made.
00:26:08 Tom Goldstein
Up in their mind.
00:26:10 Tom Goldstein
Now we should talk a little bit about what it’s going to mean for other areas, though, like gay rights.
00:26:14 Tom Goldstein
And that sort of thing.
00:26:15 Tom Goldstein
But in in a very human sense, there has been an utter human commitment by pro-life forces.
00:26:23 Tom Goldstein
The stop with David Guard is the.
00:26:24 Tom Goldstein
Murder of you know.
00:26:25 Tom Goldstein
Millions of unborn children and an unbelievable commitment on the.
00:26:30 Tom Goldstein
Among pro-choice forces to maintain what is, you know, basic individual liberty.
00:26:34 Amy Howe
Yeah. I just wanted to add, I mean, I think I, I agree with everything that Tom said and I think in particular you have to look at, you know, go back to 2015 and then in particular the 2016 election with Donald.
00:26:48 Amy Howe
Trump was elected.
00:26:51 Amy Howe
You know in.
00:26:51 Amy Howe
No small part because he pledged to put justices on the court who would overrule Roe and Casey.
00:27:00 Amy Howe
You know, you had conservatives who weren’t quite sure about him, but felt so feel, felt so strongly about this issue that they were willing to.
00:27:09 Amy Howe
Go to the ballot box.
00:27:11 Amy Howe
And vote for him because they trusted him based on including like a list of Supreme Court potential nominees that he would at least before the 2016 election, which was something that nobody had done before, but I think worked out very well for him, you know, and then, you know, sort of compare that with if people.
00:27:30 Amy Howe
This sounds better on this issue. People who oppose abortion were often single issue voters. You know, in the 2016 elections you had, you know, the the buttery males crowd who weren’t necessarily going to go to the polls for Hillary Clinton even though they likely.
00:27:49 Amy Howe
Would be abortion rights supporters and, you know, often just like not.
00:27:54 Amy Howe
I think there was probably an element of disbelief, the idea that this right was so solidly enshrined in American constitutional law that that it would stand despite.
00:28:06 Amy Howe
Who might be on the court?
00:28:07 Chamath
So Amy, I want to ask a jump question from here.
00:28:12 Chamath
Then this is an issue that’s close to all of us.
00:28:14 Chamath
When we read Roe V Wade, we were, I think we were all like a little shock, like, wow.
00:28:18 Chamath
This is happening.
00:28:18 Chamath
And then the second wave of news was how this created potential to undo.
00:28:25 Chamath
Whole birgfeld, right? So the gay rights law or even, like interracial marriage, you know, Jason’s in an interracial marriage.
00:28:31 Chamath
I am.
00:28:31 Chamath
You know, many of our friends are are gay and married.
00:28:34 Chamath
How are we supposed to think about?
00:28:37 Chamath
What this does presidentially.
00:28:40 Chamath
And does it create risk that all those rights could be taken away from us or or our or people that we care about?
00:28:47 Chamath
Like is that something that’s possible here?
00:28:50 Amy Howe
I mean, I do think those a lot of those rights are going to be challenged.
00:28:54 Amy Howe
Justice Alito, in this draft opinion, says no.
00:28:59 Amy Howe
Those rights are different yet, because only abortion rests on the purposeful termination.
00:29:06 Amy Howe
Of a human life.
00:29:07 Amy Howe
But if you go back to what Tom talked about earlier, yeah, those rights rests are also not in the Constitution, rests on this same sort of principle called your substantive, substantive due process, and rests on a right to privacy.
00:29:23 Amy Howe
And there were definitely.
00:29:25 Amy Howe
Arguments made in the Supreme Court in the Mississippi case, not by Mississippi, but by groups supporting Mississippi, that if you overrule Roe and Casey, you do have to go back and.
00:29:36 Amy Howe
Look at these other rights.
00:29:38 Tom Goldstein
The reasoning?
00:29:39 Tom Goldstein
Forever Willing, row is by and large the same reason.
00:29:44 Tom Goldstein
That you would ever.
00:29:45 Tom Goldstein
Willowbrook are found.
00:29:48 Tom Goldstein
A burger filed is a much less well settled precedent.
00:29:50 Tom Goldstein
You know it.
00:29:52 Tom Goldstein
It hasn’t been reaffirmed by the Supreme Court was supposed to grow many, many, many times it.
00:29:58 Tom Goldstein
You can just as easily say it’s an issue for the States and when you see injustice selitos, what you see is 2 things in justice Alito’s opinion.
00:30:08 Tom Goldstein
A bunch of reasoning that would be used to strike down a bunch of other rights go all the way back to where do we think we found the right to contraception?
00:30:15 Tom Goldstein
But where is that and the Supreme Court, both with respect to Maryland and married couples who said there’s a right to?
00:30:20 Tom Goldstein
Contraception, but it’s not.
00:30:21 Tom Goldstein
In the text of the Constitution, and there’s a bunch of stuff that’s not in the Texas Constitution.
00:30:25 Tom Goldstein
As I said, the Constitution Super Bay.
00:30:28 Tom Goldstein
So you have a bunch of stuff in Alito’s?
00:30:30 Tom Goldstein
Opinion that says all.
00:30:33 Tom Goldstein
Of the reasoning that’s in those cases essentially is.
00:30:36 Chamath
Wrong, and then you have a.
00:30:38 Tom Goldstein
Paragraph that says but, but but by the way, this is just about abortion.
00:30:42 Tom Goldstein
Because it is.
00:30:44 Tom Goldstein
And the difficulty is that in a later case, it’s much, much, much easier to apply all the thinking then the truism that this is just about abortion, because this case just is about abortion.
00:30:56 Tom Goldstein
But I think what’s very likely is, you know.
00:30:58 Chamath
I’m all legal.
00:30:59 Tom Goldstein
Realism, that is, I think that the justices decide what they want to do and then they write the.
00:31:02 Tom Goldstein
Opinion that gets there is.
00:31:03 Tom Goldstein
When the court voted to overrule.
00:31:06 Tom Goldstein
Roe when five justices did that after the world argument in the Psalms case.
00:31:10 Tom Goldstein
One or more of the addresses this bad.
00:31:12 Tom Goldstein
OK, I’ll join an opinion over ruling Roe if it is absolutely clear that it will not lead to the over ruling of these other things.
00:31:19 Tom Goldstein
And so justice Alito put that in there.
00:31:21 Tom Goldstein
He doesn’t believe it for a second that those decisions are rightly that those rulings should necessarily stand, but it appears that they don’t have five votes for that.
00:31:30 Tom Goldstein
Do. But look, they didn’t.
00:31:32 Tom Goldstein
Have five votes for over ruling Roe until very, very recently and you could put another conservative.
00:31:36 Tom Goldstein
The court where you know these five.
00:31:39 Tom Goldstein
Could end up doing it.
00:31:40 Tom Goldstein
It it is.
00:31:41 Tom Goldstein
Very much in play that at the very least, you have to acknowledge that a lot of things that people thought were kind of foundational bases for how we order our lives because they were protected by the Constitution.
00:31:56 Tom Goldstein
They will not be anymore.
00:31:58 Chamath
But I mean, I I just like, isn’t there like an element of compassion that has to be a part of how they’re supposed to do their job?
00:32:05 Chamath
I mean.
00:32:05 Chamath
Five people.
00:32:06 Tom Goldstein
Who disagree with you?
00:32:08 Tom Goldstein
If this so happens that their.
00:32:09 Tom Goldstein
Majority of the service works.
00:32:10 Sacks
Let me ask you a question.
00:32:11 Sacks
Let me ask question about this sort of parade of horrible.
00:32:13 Sacks
So, so, Tom, I understand what you’re saying that.
00:32:16 Sacks
That overturning Roe would implicate these other cases.
00:32:20 Sacks
On the other.
00:32:20 Sacks
Hand and as you mentioned, Alito specifically says, but presumably it’s Alito in this Dobbs decision, those cases are not affected.
00:32:28 Sacks
So he does carve.
00:32:29 Sacks
About this case specifically but this but separate from that, this stream court just two years ago in Bostic, Clayton County Red you know LGBTQ rights into Title 7 and that opinion was written by Gorsuch with Roberts joining him. You know I think was that that was A6 four or six three majority.
00:32:50 Sacks
So the idea?
00:32:50 Sacks
That this record would overturn, you know, marriage equality in Obergefell, which was just written.
00:32:57 Sacks
By Kennedy in 2015.
00:32:59 Sacks
I understand that you’re saying it’s possible, but isn’t.
00:33:02 Sacks
It really likely hello.
00:33:03 Tom Goldstein
Look, basic is totally different.
00:33:05 Tom Goldstein
It’s interpreting a federal statute, a law that Congress passed.
00:33:07 Tom Goldstein
That’s their point.
00:33:09 Tom Goldstein
The Conservatives view is like, OK, Congress passes a law to protect, you know, same sex marriage.
00:33:14 Tom Goldstein
Have at it.
00:33:15 Tom Goldstein
And if it is passed Title 7 to prohibit discrimination on the basis of sexual orientation, fine.
00:33:21 Tom Goldstein
We don’t have a problem with that, but it’s that our problem is interpreting the Constitution to strike down those laws.
00:33:27 Tom Goldstein
Do you say is it likely the?
00:33:29
You know the.
00:33:30 Tom Goldstein
It is a it.
00:33:31 Tom Goldstein
Is a bizarre circumstance because doctrinally when we think as lawyers, when we think as judges, it should be much harder to overturn Roe versus Wade because we do have this is a lot of water under a lot of bridges, whereas with same sex marriage it’s a pretty new thing that we’ve recognized in the Constitution.
00:33:47 Tom Goldstein
And if you say, look, we’re going to talk about the founders of the Constitution, we’re going to talk about originalism, I’m going to give you 2 propositions.
00:33:53 Tom Goldstein
You tell me which one is more likely.
00:33:55 Tom Goldstein
And that is in.
00:33:55 Tom Goldstein
The year 1800 someone?
00:33:58 Tom Goldstein
Said I’ve given the choice.
00:34:00 Tom Goldstein
Do we protect a woman’s right to have an abortion saying instance of rape or incest or something like that?
00:34:06 Tom Goldstein
Or we’re going to say that is there’s a constitutional.
00:34:09 Tom Goldstein
Right for two men to marry each other.
00:34:11 Tom Goldstein
This is not close.
00:34:13 Tom Goldstein
It is just not close.
00:34:14 Tom Goldstein
Now, I believe in both of those rights, but nobody seriously would say that the founders of the country.
00:34:20 Tom Goldstein
In enacting and adopting the Constitution.
00:34:22 Tom Goldstein
Thought that they were protecting same sex marriage and if you want to look at it from that perspective and this opinion does, then a burger file is just an easy target to be honest.
00:34:31 Sacks
In order for the sort of the parade of horrible’s.
00:34:34 Sacks
To happen, though, there’s.
00:34:35 Sacks
A two step process, right?
00:34:37 Sacks
The first step is the Supreme Court throws it back to the legislature.
00:34:41 Sacks
Then the legislature has to do something that you think is appalling and ultimately the.
00:34:48 Sacks
You know the marriage equality is not popular as a position in both parties, right?
00:34:53 Sacks
So the idea of that.
00:34:56 Sacks
Even if that decision was overturned, that all the sudden.
00:35:00 Sacks
You would have a change in that law.
00:35:02 Sacks
Seems unlikely right now.
00:35:03 Tom Goldstein
No, no, because all the next to happen is that a court clerk in rural Texas says I refuse to sign this marriage certificate.
00:35:05 Sacks
So how do you get there?
00:35:13 Tom Goldstein
Remember, a lot of these statutes haven’t formally been withdrawn. They haven’t been. They’re they’re sitting on the books. They’re just invalid SO2 Withrow. There are a bunch of statutes on the books.
00:35:23 Tom Goldstein
That our abortion restrictions that everybody knows are unconstitutional, they’re not in fourth.
00:35:26 JCal
Those are in states you’re saying.
00:35:28 Tom Goldstein
Yeah, exactly.
00:35:29 Tom Goldstein
And so too, with respect to gay marriage and all other kinds, lots and lots of other were there.
00:35:36 Tom Goldstein
Hundreds, maybe thousands of statutes that discriminated against gay couples and gay individuals and the LGBTQ community.
00:35:44 Tom Goldstein
And there’s bunches of that stuff still on the books.
00:35:46 Tom Goldstein
And all it takes is for one conservative to say, look, I’m going to apply those laws.
00:35:51 Tom Goldstein
Let’s go and I’ll give you an example.
00:35:54 Tom Goldstein
The Attorney General of Texas.
00:35:56 Tom Goldstein
Has thread look, I’m now say I heard what’s gonna happen with Roe.
00:35:59 Tom Goldstein
I’m now looking at Tyler versus Doe.
00:36:01 Tom Goldstein
That’s the, that’s the constitutional decision that says states have to.
00:36:06 Tom Goldstein
Educate children, no matter whether or not they’re lawfully in the.
00:36:10 Tom Goldstein
Country or not, I mean.
00:36:11 Tom Goldstein
A whole this is going to be extremely motivating and extremely animating to conservative legislatures, to conservative attorneys general.
00:36:21 Tom Goldstein
In the states.
00:36:22 Tom Goldstein
Everything is now in play.
00:36:23 Tom Goldstein
It’s let’s go, let’s give it a shot.
00:36:26 Tom Goldstein
Let’s take it up to the Supreme Court.
00:36:28 Tom Goldstein
It can get worse from the conservative perspective they’ve already lost on some of.
00:36:31 Tom Goldstein
These issues, and so it’s going to.
00:36:33 Tom Goldstein
Be a scary quarter century.
00:36:36 JCal
It seems to me the we grew up up Gen X51 years old with this profound respect for the Supreme Court, that it felt fair.
00:36:45 JCal
It felt just it felt like the one institution that was above politics and now it feels because of flipping A50.
00:36:54 JCal
Year old.
00:36:54 JCal
Law as if it’s.
00:36:56 JCal
And these, you know, sort of.
00:36:59 JCal
You know, the interview process when they were being confirmed and maybe the rug pulling there that we can’t trust it.
00:37:04 JCal
And then this leak happens.
00:37:06 JCal
So now it all feels like this institution is not trustworthy, is biased, is political.
00:37:11 JCal
So were we living under a mirage that it wasn’t, or has something fundamentally changed?
00:37:18 JCal
When we look at the Supreme Court and how they’re behaving now, that’s one of the things I’m struggling with is, was I just, you know, living under a false vision of this institution and now I’m seeing reality, or has something actually changed with the court and should we as a country be looking?
00:37:34 JCal
At the court different.
00:37:36 Amy Howe
I mean, I think at least one thing that has changed is that right up until the point, you know, in the last 10 years when Justices David Souter and John Paul Stevens retired and then Justice Anthony Kennedy in 2018, you.
00:37:51 Amy Howe
Not people who were sitting on the Supreme Court.
00:37:54 Amy Howe
You didn’t always, you know, people did not always have the sense that they were voting.
00:37:59 Amy Howe
In the same way as the party that put them on the court in Justices Souter and Stevens, it really had become a solid part of the cords.
00:38:09 Amy Howe
Of liberal wing.
00:38:10 Amy Howe
By the time they retired, Justice Anthony Kennedy was still a conservative, but he was a conservative who provided the key votes.
00:38:19 Amy Howe
Things like same sex marriage and whether or not there is a right to be intimate with somebody of the same the same gender.
00:38:27 Amy Howe
And so you just didn’t, I think people looked at the court and didn’t think those decisions are political.
00:38:33 Amy Howe
You know, they’re not always dividing five to four on sort of so-called.
00:38:37 Amy Howe
Party lines, I think that has changed and I think some of the confirmation hearings I think in particular.
00:38:45 Amy Howe
Democrats and progressives feel that at least one of the seats, either Justice Gorsuch or Justice Amy Coney Barrett, was was stolen in effect because.
00:38:56 Amy Howe
Justice Scalia died in February of 2016.
00:39:00 Amy Howe
Senator Senate Majority Leader Mitch McConnell refused to have hearings for the President Obama’s nominee, saying the next president had.
00:39:07 Amy Howe
Just has to decide. You know, you can agree with that. You could disagree with that. But then Justice Ginsburg dies in September 2020 and the Republicans rush to put someone justice. Justice Barrett.
00:39:19 Amy Howe
On the court.
00:39:20 Amy Howe
Before the presidential election, and so I think people do just, I think there is a general sense that it is more political than it used to be.
00:39:29 JCal
What about the league, Tom, you just wrote.
00:39:30 Tom Goldstein
About that, yeah, yeah.
00:39:31 Tom Goldstein
Well, can I just say one other thing was having Jason that was you were.
00:39:35 Tom Goldstein
I mean, people think the Supreme Court is political when they don’t like what it’s doing.
00:39:38 Tom Goldstein
And so when there was a right to an abortion, when the Affordable Care Act is being upheld, when Obergefell was being decided in favor of same sex marriage, you and me tend to think of that as, oh, that’s that’s just the way the Constitution should be.
00:39:51 Tom Goldstein
We’ve got an objective, sensible set of justices.
00:39:54 Tom Goldstein
And then we start losing.
00:39:56 Tom Goldstein
And we get the perspective that the other side ideologically has had. They think the Supreme Court’s been super political in row in KC and Obergefell and in the ACA because they think the Constitution means the opposite.
00:40:09 Tom Goldstein
And so they think they’ve got a bunch of that.
00:40:11 Tom Goldstein
The court has been way too liberal and way too or ends oriented because there’s no objective answer with respect to most constitutional questions.
00:40:17 Tom Goldstein
Because the documents so vague, we have this notion of what’s judicial activism.
00:40:21 Tom Goldstein
Well, judicial activism.
00:40:23 Tom Goldstein
Is is low?
00:40:24 Tom Goldstein
Losing because if you win, then obviously it’s what the Constitution was meant to be from the beginning.
00:40:30 Tom Goldstein
And so we do have.
00:40:31 Tom Goldstein
This the IT it.
00:40:32 Tom Goldstein
The the perception of any individual about the Supreme Court, and whether it’s neutral and objective or instead political and biased, tends to be rooted 95% of whether you like what it’s doing or not.
00:40:44 Chamath
I’d love to hear from you.
00:40:44 Sacks
So I I think it’s a very fair observation.
00:40:46 Sacks
I mean, even if it’s fans would admit the Warren Court was a highly activist court.
00:40:51 Sacks
So I think you tend to think of the court.
00:40:53 Sacks
As being active as to the extent that you.
00:40:55 Sacks
Don’t like the?
00:40:55 Sacks
Results, yeah, although obviously.
00:40:58 Sacks
There are more or less incremental approaches that one could take, actually, in this decision.
00:41:04 Sacks
It looks like Roberts was angling for the incrementalist approach here, which was to.
00:41:09 JCal
What incrementalist yet means in this context, yeah.
00:41:12 Amy Howe
And I think incremental there was I I’m not sure.
00:41:14 Amy Howe
I guess it just.
00:41:15 Amy Howe
You can call it whatever you want.
00:41:17 Amy Howe
So at the oral argument in December 1 of the alternative grounds that Mississippi had offered was to.
00:41:26 Amy Howe
Still uphold their law, but not formally overruled.
00:41:30 Amy Howe
Redwood, Casey and at.
00:41:31 Amy Howe
The oral argument.
00:41:32 Amy Howe
Roberts seemed to be the only person who was interested in that alternative ground.
00:41:39 Amy Howe
And so that would still be a major shift in abortion rights laws, but it would not formally over, well, Brown, Casey.
00:41:47 Chamath
In that moment, then, please correct me if I’m wrong.
00:41:49 Chamath
The Biden administration also said they don’t want that nuanced decision.
00:41:54 Chamath
They wanted Roe voted up or down in its entirety.
00:41:57 Chamath
Is that right?
00:41:58 Amy Howe
You know, I’m not I I’m pretty sure that that nobody including the.
00:42:02 Amy Howe
The lawyers like.
00:42:04 Amy Howe
Like the the Alternative ground, I think that is.
00:42:06 JCal
Right.
00:42:07 Tom Goldstein
Because it’s an optical illusion, the chief is a sophisticated guy who is very aware of all these issues related to public opinion and the court he.
00:42:17 Tom Goldstein
Knows how strident the reaction would be and will be if Roe versus Wade is overruled.
00:42:23 Tom Goldstein
And so he’d rather take this step by.
00:42:25 Tom Goldstein
Step and kind of like turn up the.
00:42:27 Tom Goldstein
Temperature of the water to a slow.
00:42:28 Tom Goldstein
Or boil so that it’s less of a surprise if in Roe versus Wade is overruled 5 years from now because he doesn’t have to go that far today.
00:42:36 Tom Goldstein
On the other hand, you know, movement conservatives realize, look, you know, Justice Scalia died.
00:42:41 Tom Goldstein
A lot can change.
00:42:42 Tom Goldstein
We’ve got our shot.
00:42:43 Tom Goldstein
Let’s take it right now.
00:42:45 Tom Goldstein
And are at least the the initial vote.
00:42:48 Tom Goldstein
We’re willing to be super aggressive and that apparent, that seems to be the debate that’s playing out now in in these leaks is you know what will happen with Kavanaugh and Barrett and will they go with the cheaper instead with the leaders stronger opinion.
00:42:50 Friedberg
OK.
00:43:00 Friedberg
Exactly so this is what I.
00:43:01 Chamath
Wanted to ask both of you.
00:43:03 Chamath
How does this play out from here inside the court itself, then?
00:43:08 Chamath
Is there a chance that this draft isn’t the ultimate decision?
00:43:12 Chamath
Is there a way that there can be a middle ground path like what happens from here?
00:43:16 Chamath
Or is this basically affected completely as as as?
00:43:20 Chamath
Written right now.
00:43:21 Amy Howe
So I’ll let Tom talk about the leak, and he’s got some theories about what might have happened.
00:43:27 Amy Howe
It is.
00:43:28 Amy Howe
This is the first draft.
00:43:30 Amy Howe
You can see that on the copy that Politico published and it is from apparently from back in February that the argument was in December.
00:43:41 Amy Howe
Yep, nobody expected to get the decision in this case, all likelihood until late June.
00:43:46 Amy Howe
And so, you know, I do think that there is a chance that the opinion could change in some way.
00:43:53 Amy Howe
It might not have quite as strong a tone or it, you know, it’s possible that what’s going on behind the scenes and we just don’t know it.
00:44:01 Amy Howe
Is some sort of effort to move justices away from his opinion to this alternative ground that the chief was.
00:44:12 Amy Howe
Advocating for after oral argument in December, I, you know, I’ll let Tom talk about some of the theories that he has, but one of the things that somebody who actually gets to go.
00:44:21 Amy Howe
To the oral arguments right now, when you are at the oral arguments in any case, but in particular this case, you know the justices.
00:44:31 Amy Howe
Are talking to lawyers, asking those questions, trying to flesh out what their positions are.
00:44:36 Amy Howe
You know what the possible resolution of the case may be.
00:44:39 Amy Howe
The justices are also talking to each other.
00:44:42 Amy Howe
And so one thing that was not a leak, but was really interesting at an oral argument on April 20th, a couple of days before the this Wall Street Journal editorial that Tom is going.
00:44:53 Amy Howe
To talk about.
00:44:54 Amy Howe
And then, a couple of weeks before political leaked, there was a discussion in a case involving the Miranda rights.
00:45:02 Amy Howe
You know you have the right to remain silent while the law and order thing.
00:45:05 Amy Howe
And the question was whether or not you can bring a lawsuit, a federal civil rights claim.
00:45:11 Amy Howe
If your Miranda right has been violated.
00:45:14 Amy Howe
And so, not anything to do with abortion.
00:45:17 Amy Howe
But after oral argument, Justice Kagan starts talking to the lawyer who’s arguing the case about the.
00:45:25 Amy Howe
Miranda decision and there was a marine decision in 2000 at which the Supreme Court by voters 72 held that Congress cannot overrule Miranda.
00:45:35 Amy Howe
And she said, you know, Justice 2 Justice Wayne rank list, the Chief Justice at the time wrote the decision.
00:45:42 Amy Howe
And he was someone who made clear that he had not been.
00:45:46 Amy Howe
He thought that Miranda was wrong, but nonetheless voted to uphold it because he knew what an effect over willing something that everyone believes.
00:45:55 Amy Howe
It is part of our constitutional landscape, so to speak, would have on the courts legitimacy and you really had the sense at that point that she wasn’t talking about Miranda, that she she was talking about Roe versus Wade and Planned Parenthood versus Casey in this case.
00:46:11 Amy Howe
Is this was something that this is an issue that?
00:46:13 Amy Howe
Justice Kavanaugh had raised.
00:46:15 Amy Howe
At his confirmation hearings, talking about Rehnquist and Miranda.
00:46:19 Amy Howe
And so you have the sense that that maybe things.
00:46:22 Amy Howe
Still are in play.
00:46:24 Amy Howe
Behind the scenes at the Supreme Court.
00:46:25 Amy Howe
As recently as you know, a couple of weeks ago, she wouldn’t have been necessarily trying to make this point.
00:46:31 Amy Howe
If she thought it was set in stone.
00:46:33 Tom Goldstein
Yeah, so a couple of weeks ago, somebody leaked to the Wall Street Journal editorial board, and this has happened before.
00:46:40 Tom Goldstein
A couple of times over the past, you know, decade ish that five justices have voted overrule Roe.
00:46:47 Tom Goldstein
But it was inflamed that the Chief Justice was trying to pull along to a more moderate position, Justices Kavanaugh and Barrett.
00:46:55 Tom Goldstein
And it wasn’t styled as a leak, but we now know it was a leak, including just the Wall Street Journal editorial board.
00:47:00 Tom Goldstein
And we think Justice Alito was writing the opinion out of nowhere, like nobody in the world would go on the record saying that was true unless they knew it.
00:47:08 Tom Goldstein
So they they knew what was going on and that that’s a very strong indication that things are still in.
00:47:14 Tom Goldstein
Play then with respect to.
00:47:16 Tom Goldstein
Let it go.
00:47:16 Tom Goldstein
Politico was told that five justices had voted to overturn Roe and that was the current vote, but did not say that five justices were signed on to this opinion.
00:47:26 Tom Goldstein
And that’s what happened.
00:47:27 Tom Goldstein
So justice will be.
00:47:28 Tom Goldstein
To circulate this.
00:47:29 Tom Goldstein
Opinion February.
00:47:30 Tom Goldstein
And then he’s supposed to get memos back from his majority saying, hey Sam, if you make these five changes, I’ll join.
00:47:36 Tom Goldstein
Your opinion and boom, then you’ve got an actual majority for the court, but all that you see from February 10th is this is family to view and it is the outcome that five people voted for at at the Conference of the Justices.
00:47:49 Tom Goldstein
And so there’s a bunch missing between February and now in terms of actually getting to a majority.
00:47:54 Tom Goldstein
So the most likely scenario right now is that it is in play now.
00:47:59 Tom Goldstein
What does it mean to be in play and use it as I said?
00:48:02 Tom Goldstein
An optical illusion?
00:48:03 Tom Goldstein
Well, it is.
00:48:04 Tom Goldstein
Not in play.
00:48:05 Tom Goldstein
Whether this statute is going to be upheld, its in its in between play is.
00:48:09 Tom Goldstein
Are they going to admit to over ruling Roe? And how far are they going to go in upholding doing something that would, for example, uphold A6 week ban like those states with 60 week bands? What about statutes that our total abortion bans are those now konst?
00:48:24 Tom Goldstein
Traditional, so you know, are we going to go step by step and is this going to be a 5 year process?
00:48:28 Tom Goldstein
Or is it going to?
00:48:28 Tom Goldstein
Happen on the last day of June of this year.
00:48:32 Tom Goldstein
That might be implied, but people ought not be misled into thinking like there’s a real, real debate about what’s going on in abortion and the Supreme Court.
00:48:40 Tom Goldstein
Roe is is on life support.
00:48:43 Tom Goldstein
Best case.
00:48:44 JCal
Is there anything because the person who leaked this?
00:48:49 JCal
We would assume is hoping to make some change and send this out as a warning sign to the country and the people who want to preserve Roe.
00:48:57 JCal
Would we?
00:48:58 JCal
Agree on that.
00:48:59 Tom Goldstein
Some people think that’s.
00:49:00 Tom Goldstein
I think that’s true.
00:49:01 Tom Goldstein
Others think that this was an effort to get Kavanaugh on record as having voted to overturn Roe and to hold his feet to the fire.
00:49:11 Tom Goldstein
That’s certainly how I interpret the leak to the last reader edit Wall Street Journal editorial board.
00:49:16 Tom Goldstein
I think for release of the opinion.
00:49:18 Tom Goldstein
However, the distinct like this piece of paper is intended.
00:49:21 Tom Goldstein
To do what it.
00:49:22 Tom Goldstein
Did, which is to motivate progressive forces and say, wake up like this is really happening.
00:49:28 Tom Goldstein
We’re not kidding.
00:49:29 Tom Goldstein
You’ve been hearing that there’s room for it’s getting more and more conservative.
00:49:32 Tom Goldstein
But I’m telling you, in eight weeks, you don’t have a right to an abortion anymore.
00:49:36 Tom Goldstein
You better get your act together.
00:49:37 JCal
But then the second question is, is there any chance that public sentiment could make a change in the thinking of the Supreme Court?
00:49:37 Tom Goldstein
So I I think that’s what happened.
00:49:44 JCal
Is that farcical for us to think, or are they humans and they see this?
00:49:48 JCal
And say, you know, we gotta dial this back or we gotta, you know, you know in somehow maybe dampen the blow of this if we are going to overturn it could protest mass protests and sentiment.
00:50:01 JCal
Actually change their thinking in.
00:50:03 Amy Howe
It’s so hard to say.
00:50:04 Amy Howe
I mean, I really do think it’s probably, you’re probably talking about.
00:50:08 Amy Howe
Just one or two justices rather than all of the justices as a whole, you know, because I do think that there is probably a sense amongst some of the more conservative justices who would have signed on to this opinion that we are not going to be, we’re not going.
00:50:25 Amy Howe
To you know.
00:50:26 Amy Howe
Step off the path.
00:50:28 Amy Howe
Because somebody leaks this document and people.
00:50:32 Amy Howe
Aren’t going to like it.
00:50:33 Amy Howe
We’re going to stay the course, but, you know, I think you’re talking about, you know, in all likelihood one or two justices whether they will be affected by this.
00:50:41 Amy Howe
I think it’s just it’s so hard to know and so much depends on what the leaker was trying to accomplish, which we don’t know.
00:50:48 Tom Goldstein
Institutionally there and.
00:50:50 Tom Goldstein
How they bind, you know right now.
00:50:53 Tom Goldstein
We know that there was this initial vote.
00:50:55 Tom Goldstein
Now let’s say that the ultimate opinion doesn’t overrule Roe, and Justice Kavanaugh joins the Chief Justice to do something.
00:51:01 Tom Goldstein
Less aggressive institutionally, that sets an unbelievably bad precedent if it creates the impression that leaking documents to the public leading to protests, causes the Supreme Court to change its mind.
00:51:14 Tom Goldstein
So that’s a horrible place for the the justices to be in, to be perceived as reacting.
00:51:19 Tom Goldstein
To the leak in a way that the.
00:51:22 Tom Goldstein
Speaker intended.
00:51:23 Tom Goldstein
What that invites later generations of court staff to do is is no bueno.
00:51:29 Chamath
It seemed like Alito almost thought it was going to happen because there’s a section in his thing that actually speaks.
00:51:34 Chamath
I mean, you mentioned it about being almost oblivious.
00:51:37 Chamath
Maybe is the right word to what happens on the outside that they needed to do what’s right almost in in a way, almost forecasting this.
00:51:45 Chamath
I have a question for both of you, which is more general in nature, which is should we have age limits for Supreme Court justices?
00:51:53 Chamath
So one of the things.
00:51:55 Chamath
And I don’t mean to, you know, I don’t mean to sound morbid when I.
00:51:58 Chamath
Say this, but you know these folks literally are in the chair until they die.
00:52:02 Chamath
And this is what I think creates some of this, some of these issues, right.
00:52:07 Chamath
So rarbg, you know, there could be a claim now that if if Ruth Bader Ginsburg had actually stepped down.
00:52:14 Chamath
Or try to hold on, you know, it would have been a different outcome.
00:52:17 Chamath
There could have been a different purse.
00:52:18 Chamath
Then what do you guys think about this age limit concept for Supreme Court justices and dealing with that in that way versus making these lifetime appointments?
00:52:27 Tom Goldstein
I’m personally strongly in favor of this, but you have to recognize that it would require changing the Constitution.
00:52:33 Tom Goldstein
There are all kinds of attempted work arounds, but.
00:52:36 Tom Goldstein
I’m telling you.
00:52:36 Tom Goldstein
That the people who decide the constitutionality.
00:52:38 Tom Goldstein
Of the work arounds are the justices themselves and they would have no interest in accepting any limitation on their life tenure.
00:52:48 Tom Goldstein
So you you have to expect with that we’re talking about something that’s kind of pie in the sky, because we’re not going to amend the Constitution to do this until we end up with the justice.
00:52:56 Tom Goldstein
Who’s senile?
00:52:57 Tom Goldstein
And you can’t do the job, and the Supreme Court turns into a laughing stock, and at that point, the country will react.
00:53:02 Tom Goldstein
But we’re just not good as a country at seeing this problem coming we.
00:53:06 Tom Goldstein
Fundamentally, what happens is we’re now.
00:53:08 Tom Goldstein
Incentivize to put people on the Supreme Court when they’re in their late teens and just get them on there as soon as you can and keep them there for 70 years.
00:53:16 Tom Goldstein
And it’s not gotten terrible.
00:53:17 Tom Goldstein
And, you know, Justice Thomas was extremely young, but we seemed to have settled around 50 years old.
00:53:23 Tom Goldstein
And there’s nothing intrinsically wrong with having somebody.
00:53:25 Tom Goldstein
On the court for.
00:53:27 Tom Goldstein
30 years or 40 years at age 50.
00:53:29 Tom Goldstein
We’ve been super.
00:53:30 Tom Goldstein
Lucky when it’s come to the fact that we’ve everybody been pretty compass mensus we’ve.
00:53:36 Tom Goldstein
We’ve gotten we’ve run good.
00:53:38 Tom Goldstein
And we could run much worse than we have.
00:53:42 Tom Goldstein
We, you know, we see this in the Senate right now, that we have some problems and it could happen with this Supreme Court Justice, but the difficulty is even assuming with some.
00:53:48 JCal
Are you referring to maybe they become senile?
00:53:51 Tom Goldstein
Yeah, exactly right.
00:53:51 JCal
They’re not all there.
00:53:52 JCal
They could have Alzheimer’s, Parkinson’s, whatever.
00:53:53 Tom Goldstein
And the problem is, yeah, and then what do you do?
00:53:56 Tom Goldstein
Because you can’t.
00:53:56 Tom Goldstein
You know you.
00:53:58 Speaker 3
You’re going to impeach them.
00:53:59 Tom Goldstein
People who like the outcomes are going.
00:53:59 Chamath
Cognitive tasks.
00:54:01 Tom Goldstein
To but what like the?
00:54:02 Tom Goldstein
Only the justices themselves can decide whether they’re going to.
00:54:04 Tom Goldstein
We’ve so the the but the problem is this we’re we’re we’re getting we have a huge incentive now to put on somebody who’s very young and the the lead time effect of 1 presidency of the Trump presidency for example.
00:54:18 Tom Goldstein
Now we’ll span you know 4 decades and that I don’t think the Framers intended.
00:54:24 Tom Goldstein
Some of the you.
00:54:25 Tom Goldstein
Know the average life expectancy at the time of the Constitution screaming when we said life tenure was decades shorter.
00:54:31 Tom Goldstein
Even for people who liked Supreme Court Justice and.
00:54:33 Tom Goldstein
Back then who had very good.
00:54:34 Tom Goldstein
Health care and so this.
00:54:36 Tom Goldstein
Nobody contemplated this when we originally said life sentence.
00:54:39 Sacks
There is a proposal on this that there were a few members of the House I think including RO Khanna and receipt Flabebe and some other folks, but also some conservatives supported to for an 18 year term limit for Supreme Court justices.
00:54:55 Sacks
And I think the way it works is basically each president would get to name.
00:54:59 Sacks
To adjust this, so basically every two years you get someone rolls off and then the new president gets to choose a pick, and so every president.
00:55:09 Sacks
And so, yeah, basically if you think there’s there’s nine justices on the court, so it takes 18 years for a full cycle for it to roll over.
00:55:16 Sacks
I think it’s pretty interesting ’cause it would.
00:55:17 Sacks
Take a lot.
00:55:18 Sacks
Of the heat out of all these sort of Supreme Court nomination battles where, you know, somebody dies and now it’s a nomination fight and both sides are playing for all the marbles.
00:55:29 Sacks
If you knew that every presidential election, every president met two votes on the Supreme Court, it was sort of normalized things.
00:55:36 Tom Goldstein
I agree.
00:55:36 Sacks
Don’t know I.
00:55:37 Sacks
Mean just actually?
00:55:37 Tom Goldstein
I think it’s not what the Constitution says.
00:55:39 Sacks
Right. No, I know, I.
00:55:40
Right.
00:55:40 Sacks
I know we need a constitutional amendment, but I.
00:55:42 Sacks
Think it’s a really interesting idea.
00:55:43 Speaker 3
Yeah, I’m.
00:55:44 Amy Howe
Yeah, I mean, I think obviously there would still occasionally be openings that would be created if someone had to step down or would it pass away?
00:55:52 Amy Howe
But you’re right that it would people would be able to plan we.
00:55:57 Amy Howe
Would know when.
00:55:57 Amy Howe
People were going to be rolling on and.
00:55:59 Amy Howe
Rolling off, I do think it is.
00:56:01 Amy Howe
You know, it’s always.
00:56:01 Amy Howe
Struck me as.
00:56:02 Amy Howe
Kind of ironic that it is.
00:56:04 Amy Howe
At least from a constitutional perspective.
00:56:07 Amy Howe
It’s easier to add justices to the court than to impose term limits, for which there seems to be a fair amount of amount.
00:56:14 Amy Howe
Of support.
00:56:15 JCal
Tom and Amy, you have been unbelievably generous with your time and your knowledge.
00:56:19 JCal
We truly appreciate you coming here and explaining it to the all in audience.
00:56:23 JCal
We’re all better for the work that you do and and for you.
00:56:26 JCal
Sharing them, you appreciate it.
00:56:27 Tom Goldstein
Now the podcast I’m amazing.
00:56:28 Tom Goldstein
It’s so generous of you.
00:56:29 Tom Goldstein
To have us.
00:56:30 Amy Howe
Thanks for having us.
00:56:31 Amy Howe
It’s great to talk to you guys.
00:56:32 JCal
Alright Jamal, First off thanks for getting those amazing guests.
00:56:35 JCal
There’s a quite an education I I think first you know will recognize it’s 4 four guys talking about abortion and.
00:56:44 JCal
You know, we understand this is not exactly our issue to discuss and opine on.
00:56:48 Chamath
No, but Jason, the take away for me was that this is not just an abortion issue.
00:56:53 JCal
Oh, of course, the downstream serves the area.
00:56:54 Chamath
But this is this is.
00:56:56 Chamath
Gay marriage.
00:56:57 Chamath
This is interracial marriage.
00:56:59 Sacks
Gay marriage point.
00:57:00 Sacks
Let’s go back to that for a second.
00:57:01 Sacks
So look, I think, Tom.
00:57:02 Sacks
Did a nice job laying out.
00:57:05 Sacks
You know, in pretty neutral terms what’s going on here and where he had a point of view, he, you know, expressed it.
00:57:10 Sacks
I I think the idea that this leads to gay marriage being overturned, I I don’t see it.
00:57:17 Sacks
It’s just, you know, it.
00:57:19 Sacks
Maybe it’s not impossible, but I I just don’t buy it.
00:57:22 Sacks
And there’s two reasons.
00:57:24 Sacks
So first.
00:57:25 Sacks
Well, the boss, the case I mentioned, this was a case just two years ago written by Gorsuch, joined by Roberts and the other says 6 three decision in which Gorsuch held that the Civil Rights Act of 1964 protects gay and transgender employees against discrimination.
00:57:43 Sacks
Now, Tom is right that that’s statutory, not constitutional.
00:57:47 Sacks
But Gorsuch shouldn’t have to find in that statute that sex apply to gay people and transgender people.
00:57:55 Sacks
The court decided on its own to do that, to interpret the statute that way.
00:58:00 Sacks
So you’re telling me that a court that?
00:58:02 Sacks
Just two years ago.
00:58:03 Sacks
UM decided that you cannot discriminate against gay employees is now going to allow discrimination against gay marriage.
00:58:11 Sacks
I just don’t buy it.
00:58:12 Sacks
And the second issue, the second reason.
00:58:15 Sacks
Is that marriage equality is broadly popular now in the United States.
00:58:19 Sacks
People minds have really changed on that.
00:58:21 Sacks
Issue and I don’t think the court would want to go back on an issue where again they just ruled on this in 2015 where the where basically the issue is now settled in the country.
00:58:33 Sacks
One of the differences, I think, with abortion is it’s still a very hot issue and it’s not settled in the way that marriage equality or gay marriage is settled.
00:58:43 Sacks
So I just don’t buy this idea that now we’re going to be overturning gay marriage, that we’re going to be overturning, like, for example, example, contraception.
00:58:52 Sacks
I just don’t buy it.
00:58:53 Sacks
Because nobody in the country is arguing for outlawing contraception.
00:58:56 JCal
Well, I guess the the counter argument to that, David, that people would have is, well, we didn’t think they were going to overturn Roe V Wade and they have.
00:59:05 JCal
And so we feel we got rug pulled, Kavanaugh, etc.
00:59:10 JCal
People, you know, when they were being integrity interrogated about their views on these things, they felt like they lied.
00:59:16 JCal
So I guess what would the response be there?
00:59:18 JCal
Because there seems to be a trust issue here that people are not trusting the Supreme Court right now.
00:59:23 JCal
And again, of course, you know.
00:59:24 JCal
Depending on which side you are, you might be thrilled or not thrilled with the outcomes.
00:59:27 JCal
I think that was a very good point in our discussion, but.
00:59:30 JCal
People didn’t think this outcome would happen with Roe V Wade, so it’s kind of hard to believe anything the court says.
00:59:36 Chamath
We did talk about this earlier.
00:59:38 Chamath
I think we we mentioned this when we talked about.
00:59:43 Chamath
Some episodes ago that this case was going to go and we mentioned I think this in the context of this and affirmative action as you know, two things that were going to get challenged and would probably lose.
00:59:54 Chamath
And unfortunately, it turns out we’re right on one and it looks like we we, you know, we may be right on the other as well because I think the affirmative action case.
01:00:01 Chamath
We’ll get we’ll get it.
01:00:02 JCal
Did we think that row was going to get overturned?
01:00:04 JCal
Did you think that?
01:00:05 Friedberg
David, that I thought.
01:00:06 Sacks
Roberts was gonna get his way on this.
01:00:09 Sacks
So I I am a little bit surprised.
01:00:11 Sacks
I still think that in terms of like the the, the, the testimony of these nominees.
01:00:18 Sacks
I mean look, Tom I think nailed the answer to that question.
01:00:21 Sacks
Saying that these decisions are settled law is just a platitude.
01:00:25 Sacks
I mean, yes, it’s settled law.
01:00:26 Sacks
It doesn’t mean it can’t be overturned.
01:00:28 Sacks
Look, I mean, we all know that.
01:00:30 Sacks
And these nomination hearings, the job of every nominee from either party is to basically say.
01:00:35 Sacks
As little as.
01:00:36 Sacks
And describing Rosa Law is doing that.
01:00:40 Sacks
I mean, it’s not, it’s you could still go back and and overturn it.
01:00:44 Sacks
So I had this idea that they lied or whatever.
01:00:46 Sacks
I mean, look, people hear what they want to hear.
01:00:48 Sacks
In these, in these.
01:00:49 JCal
And they all.
01:00:50 Chamath
The Republicans and the Democrats have a perfectly rehearsed answer.
01:00:53 Chamath
When somebody in the Senate confirmation hearing says Will you overturn it?
01:00:57 Chamath
Then they.
01:00:58 Chamath
And they say I could never adjudicate the case without knowing the facts.
01:01:02 Chamath
And I have to, you know, look at every case as a clean slate.
01:01:05 Chamath
It’s like a very well practiced answer to every question, to your point, but it’s a very rehearsed confirmation process.
01:01:11 Sacks
Right, exactly.
01:01:12 Sacks
So this idea that they lied whatever.
01:01:14 Sacks
Look, the only way you you think they lied is if you read.
01:01:17 Sacks
If you read something into an answer that was a platitude, that you.
01:01:20 Sacks
Wanted to hear.
01:01:21 Chamath
My issue my issue with this is the following, which is that I do think that there is a role for compassion in how we’re governed.
01:01:28 Chamath
OK, and I what I what I have an issue with is that.
01:01:34 Chamath
At the sake of this originalism.
01:01:36 Chamath
To go and just be so textual about the Constitution, are you willing to abandon all compassion and an understanding?
01:01:45 Chamath
And, you know, I I that’s where I just struggle.
01:01:48 Chamath
And Jason, I think you asked it, like, where’s the role of, like humanity in doing one job, right?
01:01:54 Chamath
And why is it that?
01:01:56 Chamath
There is a belief that one must so fervently interpret, in a very black and white binary way, a document that is, you know, for all intents and purposes still quite old, right?
01:02:07 Chamath
And everything has the potential for improvement.
01:02:11 Chamath
And so this belief that we got it right the first time and that there there isn’t any room for any dynamic improvement to me, I really struggle with, let me just play devil’s advocate.
01:02:22 Chamath
Your point of view is that the humanity in in in making these decisions.
01:02:27 Friedberg
Is driven by what you consider to be your moral standing here, which is one of pro-choice.
01:02:35 Friedberg
And folks, there are other folks in the.
01:02:38 Friedberg
United States.
01:02:38 Friedberg
Who have the moral standing of pro-life? Which is to say, I I don’t believe that that choice should sit with, with, with an individual, given that it infringes on the life of another and and.
01:02:51 Friedberg
And I think that’s.
01:02:51 Friedberg
Really what this is all about, which is in these circumstances where.
01:02:55 Friedberg
There are different points of view on what morality is, what ethics should be in this case.
01:03:00 Friedberg
That’s where the law and the courts has to play an adjudicating role.
01:03:04 Friedberg
And that’s what makes it so tough, right?
01:03:04 Chamath
Thank you.
01:03:06 Chamath
I hear you.
01:03:07 Chamath
But look, here’s my my perspective on this is that.
01:03:11 Chamath
Yeah, I am fundamentally pro-choice. I don’t think I have the right to say, OK, what a woman can do with her body. That’s absolutely not not not my role or a right that I should have.
01:03:24 Chamath
I understand, however, and this may sound that I’m talking on both sides.
01:03:28 Chamath
I understand when people say this should be a passed law.
01:03:33 Chamath
OK.
01:03:34 Chamath
I think that that’s a very reasonable thing to say.
01:03:36 Chamath
You know, people should be able to vote that law and people should be able to enact that law.
01:03:41 Chamath
I just think that when you have 50 years of oppressive.
01:03:45 Chamath
You know, where there is, as Tom said, so much water under so many bridges.
01:03:50 Chamath
This is why I think, well, why couldn’t you overturn loving Virginia, right?
01:03:55 Chamath
Why couldn’t you overturn Griswold?
01:03:58 Chamath
Why couldn’t you overturn Obergefell?
01:04:01 Chamath
And and this is where I just think, like, are we not just taking a big step back?
01:04:06 Chamath
In society and saying, you know, we’re going to throw out compassion in favor of original textualism and I’m just not sure that that’s a good tradeoff in 2022 America.
01:04:16 JCal
It’s very interesting.
01:04:17 JCal
This is such a.
01:04:18 JCal
Polarizing issue for us and it seems like other societies have.
01:04:22 JCal
Found a A.
01:04:23 JCal
Resolution in a way to move forward.
01:04:25 Chamath
I also think, sorry, just to finish, Jason, I also think like this is where, OK, honestly politicians step up and do.
01:04:32 Chamath
Your job one.
01:04:32 Chamath
Way or the other.
01:04:34 Chamath
You have a responsibility to reflect.
01:04:35 Chamath
The will of the.
01:04:36 Chamath
People and you have a responsibility to collect that nuanced perspective and implement a framework that represent.
01:04:43 Chamath
Is that and instead what I think I see politicians on both sides is just, you know, screaming like crazy.
01:04:50 Chamath
People at each other.
01:04:52 Chamath
And it just doesn’t do anything.
01:04:54 Chamath
So what are we going to do?
01:04:55 Chamath
And we’re going to have the same conversation, guys, about affirmative action, right?
01:04:58 Chamath
We’re going to have that conversation and we’re going to wonder, OK, well, is affirmative action, was it reasonable?
01:05:03 Chamath
Was it good?
01:05:04 Chamath
Was it bad?
01:05:05 Chamath
Well, it’s not a right that’s affirmed in the Constitution and so, you know it’s going.
01:05:08 JCal
To go with, I think, thinking about intellectually, the.
01:05:13 JCal
The way to resolve the issue for the country or pass forward.
01:05:19 JCal
Might be interesting to delve into here.
01:05:21 JCal
Is there a path forward you see, David, because listen, we it, it is 1 brush.
01:05:27 JCal
We paint with you either and, and the language is framed as such. pro-choice or Anti Choice, pro-life or anti life. Obviously these are loaded framings to begin with. And people.
01:05:39
Could be.
01:05:40 JCal
Not want to see abortions occurring in the world, and they could also still be pro-choice, right? This is a very nuanced issue, and then people might have different.
01:05:48 JCal
Feelings that I know this is.
01:05:50 JCal
Graphic and hard to talk about, but people might have different feelings about the second trimester that they’re trapmaster and very different feelings about the first trimester and when an abortion occurs and people who are pro.
01:05:59 JCal
Choice might not.
01:06:00 JCal
Before 3rd trimester abortions they may want to have.
01:06:02 JCal
Some basic rules.
01:06:04 JCal
Around abortion.
01:06:06 JCal
So I’m not putting my own personal beliefs out there right now.
01:06:09 JCal
Just framing a question.
01:06:11 JCal
What were your thoughts in terms of moving forward because this is that could possibly be?
01:06:14 JCal
A state issue in July.
01:06:17 Sacks
Well, so let’s assume that this is the decision and it is, I guess it’ll officially come down in, in June or end of June.
01:06:26 Sacks
So let’s assume that this is the decision.
01:06:27 Sacks
By the way, it’s still possible that Roberts could peel off a vote, and then we would get a scenario in which row is upheld while modifying it to allow, you know, laws like the Mississippi law.
01:06:38 Sacks
But let’s assume that this, this decision that appears to be written by Alito, ends up being the law.
01:06:43 Sacks
What that will mean is that, like Tom said.
01:06:45 Sacks
We’ll have a vote in Congress.
01:06:47 Sacks
The Democrats will see if they can basically uphold Roe by through a law, which Biden would then sign.
01:06:55 Sacks
I think the issue there is they have to get enough votes to break the filibuster, and I don’t.
01:06:58 Sacks
Know if they’re willing to do that.
01:07:00 Sacks
So let’s assume that fails.
01:07:01 Sacks
Then it.
01:07:01 Sacks
Goes to the states, so in states like.
01:07:04 Sacks
California, where we are, there’s going to be no change whatsoever.
01:07:07 Sacks
In fact, you know, news and the Democrats are saying they’re going to enshrine the the current law in the Constitution of the state.
01:07:13 Sacks
That’s really, that doesn’t do anything.
01:07:15 Sacks
Abortion will remain broadly legal in California and in bluespace places like New York, coastal states. So right off the bat, let’s say in about half the states, 25 of them or so.
01:07:26 Sacks
I don’t think there’s gonna be a change in about 12 states, these restrictions that are already on.
01:07:33 Sacks
The books are going.
01:07:34 Sacks
To go into effect and.
01:07:35 Sacks
Then we’re going to have about, you know, 12 or 13 states that become battlegrounds, purple states, basically, and we will have those states through their legislatures and through their elected representatives.
01:07:47 Sacks
Are gonna have to figure out what their.
01:07:48 Sacks
Policy is going to be.
01:07:49 Sacks
And that is going to be a huge issue in those States and I think where this will go is I think politicians who figure out where the center is and figure out where most of the people in their state are, are the ones who are going to benefit.
01:08:04 Sacks
And maybe the the potentially hopeful scenario here is that it will force people to compromise.
01:08:10 Sacks
When they actually have to craft legislation, they’re going to work through those compromises.
01:08:16 Sacks
Until now, the issue has been so fully preempted by this record that everybody.
01:08:21 Sacks
Basically, was making these absolutist rights argument right?
01:08:24 Sacks
Like one side is saying there’s a right to choice, one side saying there’s right to life.
01:08:28 Sacks
These are rights that are being framed in absolutes that brook no compromise.
01:08:31 Sacks
There’s no reason to compromise because there’s nothing legislatively to work through or compromised, right?
01:08:37 Sacks
It would.
01:08:37 Sacks
These were arguments being made to the Supreme Court.
01:08:40 Sacks
So no one had to compromise.
01:08:42 Sacks
And I think when they actually start working on legislation, they start getting working through these questions, Jason, of what you’re saying, which is should abortion be allowed in the third trimester?
01:08:51 Sacks
OK, no. Most people would say no. Should it be allowed in second trimester and so forth. So you have to work through those questions by the same token if the pro-life side.
01:09:00 Sacks
Refuses to make compromises for, say, rape and incest.
01:09:04 Sacks
They’re getting punished by voters in those states.
01:09:06 Sacks
I mean, that is very uncommon.
01:09:07 Sacks
So both sides here, I think we’re gonna have to learn to compromise and it’s going to be a messy process, but the hope would be that at the end of this we do eventually arrive at some sort of resolution to the issue, like we have in every other Western country.
01:09:23 Sacks
You know, in every other Western country, even once, they’re quite religious, this is.
01:09:26 Sacks
Not a culture war issue.
01:09:28 Sacks
And I think you could argue that one of the reasons why it’s become a culture war issue is because the Supreme Court preempted it and stopped the democratic process from working 50 years ago.
01:09:37 Sacks
And so the only way for people to express themselves is to make these, again, absolutely right rights arguments in.
01:09:43 Sacks
Front this record.
01:09:44 Sacks
I think that.
01:09:45 Sacks
When it comes to the messy issue of democracy, when.
01:09:48 Sacks
People actually have to work through these things through their elected representatives who will lose elections.
01:09:52 Sacks
They will lose elections if they take positions that are too extreme.
01:09:57 Sacks
I think maybe we will get to a compromise.
01:10:00 Chamath
I think you’re saying something really important.
01:10:01 Chamath
You’re saying had black men not adjudicated Roe V Wade in 70.
01:10:06 Chamath
It would have been up to Congress at that time they would have passed some set of laws and and over successive iterations of those laws, you’re saying there would be a framework so that a moment like this doesn’t happen.
01:10:19
Yeah, and you.
01:10:19 Sacks
Know what that.
01:10:20 Sacks
Exactly what you just said was written by a Supreme Court Justice in the law review article in 1992.
01:10:28 Sacks
I’m gonna let you guess who that justice was in the second, but I kind of read you a couple of statements from it this justice said that.
01:10:35 Sacks
No measured motion.
01:10:36 Sacks
The road decision left virtually no state with laws fully conforming to the courts.
01:10:40 Sacks
Delineation of abortion regulations still permissible around that extraordinary decision.
01:10:44 Sacks
A well organized and vocal right to life movement rallied and succeeded for a considerable time and turning the legislative tide in the opposite direction, meaning there is already a trend before Roe.
01:10:55 Sacks
Towards liberalizing these abortion laws across various states, even Ronald Reagan and Governor had signed a law liberalizing abortion.
01:11:03 Sacks
California. And that process was halted and stopped by District Court’s decision, which in one decision invalidated every single abortion law in America.
01:11:11 Sacks
And then what this justice said is that Roe halted a political process that was moving in a reformed direction and thereby, I believe, prolonged divisiveness and deferred stable.
01:11:23 Sacks
Settlement of the issue.
01:11:25 Sacks
Do you know who the justice was?
01:11:26 Sacks
Who said that?
01:11:27 Sacks
Ruth Bader Ginsburg.
01:11:29 Sacks
So she obviously was.
01:11:31 Sacks
For the ultimately the holding in in Roe?
01:11:34 Sacks
But what? She said she.
01:11:35 Sacks
Would have done was have a much more incrementalist, narrow decision.
01:11:41 Sacks
That would have maybe invalidated just that Texas law, but threw it back to the legislature so that they could then work out the issue.
01:11:48 Sacks
And instead, she felt like the stream court making such a sweeping decision, it created a backlash.
01:11:54 Sacks
And I think for 50 years we’ve been living with that backlash and there’s been a culture war in this country over it while every other.
01:12:00 Sacks
Western nation has.
01:12:01 Sacks
Gone through the democratic process of working out the messy compromise.
01:12:04 Sacks
Now I think what?
01:12:07 Sacks
Roberts was trying to do is create an incremental approach to putting it back in the hands of the legislature.
01:12:15 Sacks
And I think you could argue, for the same reason that Ruth Bader Ginsburg argues that the incrementalist approach would have been better.
01:12:21 Sacks
I think it was certainly the politically shrewder move right, but not just throw this grenade into.
01:12:27 Sacks
50 state legislatures, but to gradually move the issue back to the states, I think there’s.
01:12:32 Sacks
A lot of.
01:12:32 Sacks
Wisdom in an incrementalist approach, whether it’s Roberts.
01:12:35 Sacks
Or Ruth Bader Ginsburg.
01:12:36 Sacks
They both are basically fair.
01:12:38 Sacks
You called the story decisis approach.
01:12:40 Sacks
You give President, you give weight to President.
01:12:42 Sacks
You don’t just overrule, you know, these 50 year presidents.
01:12:45 Sacks
I think there’s a lot of wisdom in that approach as well, but I think the hope here would be that by letting the legislative process work through this issue, we can hopefully eventually.
01:12:55 Sacks
Get to a stable, sustainable consensus.
01:13:00 JCal
And it will be chaotic.
01:13:03 JCal
But other countries have dealt with this.
01:13:05 JCal
Australia has.
01:13:07 JCal
Basically by the states in Australia.
01:13:09 JCal
They have different weak requirements.
01:13:13 JCal
And Europe has certain weak requirements.
01:13:15 JCal
I read a New York Times article and jalopy you pointed me to some of these resources.
01:13:20 JCal
So a possible outcome is states starting to build their own framework in terms of rape, incest, on demand, you know, on request versus.
01:13:33 JCal
A certain number of weeks, uh.
01:13:35 JCal
And that is just going to be an absolute amount of chaos for some number of years.
01:13:41 JCal
Yeah, look.
01:13:42 Sacks
If if the parties don’t compromise on those, voters will eventually punish them.
01:13:45 Sacks
I mean, I don’t think you’re going to see, you know, Glenn Youngkin like victories by the Republican Party if they book no compromise on, for example, the issue of, you know, rape and incest.
01:13:55 Sacks
By the same token, I think.
01:13:57 Sacks
Democrats will have to.
01:14:00 Sacks
In a lot in purple states, they will have to concede that there is a competing right interest at some point on the part of this.
01:14:07 Sacks
You know other the unborn baby, right?
01:14:09 Sacks
I mean, are you really going to allow abortion into the nine month of pregnancy if the life of the mother is in a stake?
01:14:14 Sacks
So both sides have never had to acknowledge that the other side had anything useful to say?
01:14:20 Sacks
And I think now they will.
01:14:22 Sacks
And if the absolutist and both parties refuse to do.
01:14:25 Sacks
That I think they’re going to lose elections.
01:14:28 JCal
Yeah, it’s so hard to get the proper statistics.
01:14:32 JCal
Here because I.
01:14:32 JCal
Think a lot of the I’ve been looking trying to understand what the country actually thinks and people do not ask.
01:14:40 JCal
Very nuanced questions are do you believe Roe V Wade should be overturned?
01:14:43 JCal
People get asked that question.
01:14:44 JCal
The majority believe it shouldn’t be.
01:14:46 JCal
Do you believe that?
01:14:48 JCal
You know, like.
01:14:48 JCal
But we don’t have all of these nuanced issues by state.
01:14:52 JCal
It doesn’t seem to be a.
01:14:55 JCal
Maybe people haven’t even thought.
01:14:57 JCal
It through right like.
01:14:58 JCal
Do most people who are pro-choice have an opinion on the 3rd trimester?
01:15:02 JCal
On the 2nd trimester, do they do they actually have a an idea of when they feel and and you know, I’ll be honest I I have not given this total vote myself as to how I feel about it.
01:15:13 Speaker 3
Not really.
01:15:13 Chamath
I I learned a lot by reading this.
01:15:15 Chamath
Here’s something that.
01:15:15 Chamath
Was in the opinion that I didn’t know, but it says at the time of enactment of this Mississippi law.
01:15:22 Chamath
Only six countries beside the United States.
01:15:26 Chamath
Permitted non therapeutic or elective abortions on demand after the 20th.
01:15:31 Chamath
Week of gestation.
01:15:33 Chamath
Those other six countries were Canada, China, the Netherlands, North Korea, Singapore and Vietnam that sit.
01:15:43 Chamath
In the whole world.
01:15:44 Chamath
And so, you know, to your point, there’s all these granular details.
01:15:45 Speaker 3
Right.
01:15:48 Chamath
And I think, as David said, a group of politicians need to sit in a room and really think through these things and kind of try to try to get to some kind of basis that doesn’t take back something that’s been in the books for 50 years.
01:15:59 Chamath
That’s something so prompt.
01:16:00 JCal
Yeah, that’s the really tragic part about this is just unequal.
01:16:04 Chamath
Cool thing to do there.
01:16:05 JCal
It’s unfair, so it feels profoundly unfair to take a right away after 50 years.
01:16:09 JCal
I think that’s the Republican Party is going to just pay such a massive price for this.
01:16:14 JCal
Uh, more broadly, I mean, is this a case where, like, the dog catches the car, bites the Fender and it’s now like, Oh my God, ’cause.
01:16:23 JCal
Well, This is why I’m asking, what is the.
01:16:25 Chamath
What is the true prioritization of things as we know how the world works today?
01:16:30 Chamath
Meaning, I understand what it means to be an originalist or textualist.
01:16:36 Chamath
I understand that right, and I respect people.
01:16:41 Chamath
Perspectives that the Constitution should be interpreted verbatim. I understand that, and I respect people’s ability to think that.
01:16:51 Chamath
The thing though, Jason, to your point of like the dog catching the car in the Fender or whatever is OK.
01:16:58 Chamath
Do you do that at the sake of?
01:17:02 Chamath
A lack of compassion or lack of empathy for how the world works today, and should we not?
01:17:11 Chamath
Have a point of view that says irrespective of how we decide.
01:17:15 Chamath
We should factor in.
01:17:18 Chamath
What the moral temperature of the country is in that moment in which something is decided and I like.
01:17:23 JCal
Yeah, some context.
01:17:24 JCal
Like there’s a context here of it being law for 50 years that you cannot.
01:17:29 Chamath
Disregard and that’s why Obergfell took until 2015 to really happen, right?
01:17:34 Chamath
Because by that point it was, uh, it was there was this beginning of a sea change where, you know, I think it’s like 70% I think in a Gallup poll that I saw.
01:17:44 Chamath
Support same sex marriage and I think it was about 80%.
01:17:49 Chamath
It’s not a.
01:17:49 Chamath
100 by the way, 80% support interracial marriage and 92% this is all in the same Gallup poll. 92% support. They don’t think that using contraception as contraceptives is immoral.
01:18:04 Chamath
OK. But that still leaves 30 percent, 20% and 8% that still think something that’s very different, but it’s such a clear majority of America?
01:18:14 Chamath
So my, my hope is that you know as tragic as this ruling is if if this is what comes to pass that it’s narrowly defined so that to your point David, we don’t open the Pandora’s box on all of these other things that we have decided as an agent are are very reasonable things, you know.
01:18:31 Sacks
I don’t think.
01:18:31 Sacks
Over Bergenfield is going to get overturned.
01:18:33 Sacks
I just don’t see it.
01:18:34 Sacks
And the reason is because of the way this spring court handled that issue.
01:18:38 Sacks
You know, again, go back to the early 1990s, the way that that this issue first came up is that a Hawaii court found that there was a right to gay marriage and there was a huge uproar.
01:18:48 Sacks
Stream court did not take up the case.
01:18:50 Sacks
They do not.
01:18:50 Sacks
Take the bait.
01:18:51 Sacks
So what happened then is Congress passed DOMA, the Defense of Marriage Act, which was huge majorities in both parties, and Bill Clinton.
01:18:58 Sacks
Find it. Remember this.
01:18:59 Sacks
Stating that marriage was, you know, one man.
01:19:02 Sacks
One woman.
01:19:03 Sacks
And so if the stream court had basically taken up the issue with them and found a right to gay marriage, we might have a constitutional amendment banning gay marriage by now.
01:19:12 Sacks
And we’d be.
01:19:12 Sacks
Trying to work our way out from under that and figuring out how to get.
01:19:16 Sacks
Rid of that.
01:19:17 Sacks
But instead, the court did.
01:19:18 Sacks
Not take the bait, they stayed.
01:19:19 Sacks
Out of it until 2013, when attitudes.
01:19:22 Sacks
Had changed substantially.
01:19:24
And then they.
01:19:25 Sacks
Invalidated DOMA in 2013 and then Obergefell came along in 2015. So I think the pattern here is that the Court has learned to stay out of these hot button issues until they become a little bit more settled.
01:19:37 Sacks
And then what they?
01:19:38 Sacks
Do is once the public opinion.
01:19:41 Sacks
Has sort of is.
01:19:41 JCal
It’s clear.
01:19:42 Sacks
Clear. Then they enshrine it.
01:19:44 JCal
But isn’t it?
01:19:45 JCal
Clear that people want the right for women to choose.
01:19:48 Sacks
Well, but it created this enormous backlash, that.
01:19:51 Sacks
The the the.
01:19:52 JCal
Slightly better.
01:19:52 Sacks
The roses.
01:19:53 JCal
Enormous backlash the evening amongst the minority.
01:19:55 Sacks
Well, you say that, but it is a.
01:19:57 Sacks
It’s a.
01:19:58 Sacks
Very large group of people.
01:19:59 JCal
But it’s the minority and you just said yourself that the majority in the court wants majority of people to.
01:20:01
But then.
01:20:04 Chamath
Thank you.
01:20:05 JCal
Go for gay marriage.
01:20:06 JCal
So that’s what that’s.
01:20:07 JCal
That’s a.
01:20:07 Sacks
Disconnect I have.
01:20:08 Sacks
Well, but here’s another disconnect, right?
01:20:10 Sacks
Cole is if you believe your position on this is so incredibly popular and has such a supermajority, why are you worried about it being returned to the state legislatures?
01:20:18 Sacks
They will, basically.
01:20:19 Chamath
Because of people.
01:20:19 Sacks
How flaws that you want?
01:20:21 JCal
Well, no, I I believe in some places the minority might be the majority in certain state and then we’ll have women in those states who aren’t able to get an abortion safely.
01:20:31 JCal
That would be my concern.
01:20:33 Sacks
I think that the country is deeply divided on this issue.
01:20:36 Sacks
Look at all different depends on how you define the labels.
01:20:39 Sacks
It is true that most people say they’re pro-choice. However, if you frame the question as should there be no restrictions at all? Most people would say their fair restrictions. Exactly. So my point is, the country is still deeply divided.
01:20:46 JCal
Yeah, different frames.
01:20:48 JCal
Yeah, that’s a totally different frame.
01:20:52 Sacks
Over this and the issue got preempted by the Supreme Court 50 years ago and we’ve never made progress.
01:20:58 Sacks
Since then and I think it’s gonna be.
01:20:58 JCal
Yeah, we.
01:21:00 Sacks
I think it’s been very messy.
01:21:01 JCal
I I think that’s fair and if we if you framed the.
01:21:03 JCal
Question as do you.
01:21:05 JCal
Believe women should have the right to choose in the first trimester, we would probably have the overwhelming majority people say, sure, that’s no problem, then we would be arguing over second trimester.
01:21:13 Chamath
And 3rd trimester.
01:21:14 Chamath
I just posted the Gallup data.
01:21:16 Chamath
They’ve longitudinally tracked attitudes and opinions of abortion.
01:21:21 Chamath
Since 1975.
01:21:23 Chamath
As of today, in 2021-2022, you know, the split between pro-choice and pro-life is very even. It’s, you know, 49% is pro-choice and 47% is pro-life.
01:21:35 Chamath
But if you ask the more nuanced question that David said, 48% consider abortion to be legal only under certain circumstances.
01:21:45 Chamath
32% say it should be legal under any circumstance and 19% said it should be illegal in all circumstances.
01:21:53 Chamath
And so, to your point, the plurality of people, half the path of America, basically wants it as a supported right with some.
01:22:03 Chamath
Boundary conditions. But then there’s 32% of people that want it under all circumstances. So I think the compromise is that there is a 70 plus percent majority of people who can craft a law here, right? Yeah.
01:22:14 JCal
I mean and also the question of do you consider yourself pro-choice or pro-life? That is the personal question, not do you think?
01:22:22 JCal
It should be legal or legal, that’s what do you believe as a human being on planet Earth? Are you pro-choice or your pro-life if you and I guess that would be assumed if you had a baby and but then when you look at the illegal, the illegals under 20% now it’s been 1819%.
01:22:36
Right now.
01:22:36 Chamath
So, well, not to be fair, since in 1975 that line hasn’t moved.
01:22:41 JCal
Right. And that would be highly religious people, I would assume, make up the majority of that 19% that we’re talking.
01:22:48 Chamath
About like what’s what’s really moved is.
01:22:51 Chamath
You know, we’ve doubled the number of people that say it should be legal in all circumstances since Roe.
01:22:59 Chamath
And that’s come from people who thought it should be legal under some circumstances.
01:23:04 JCal
Yeah, 20 to 32, so 50% plus, yeah.
01:23:06 Sacks
Yeah, like this this.
01:23:07 Sacks
Is a fraught issue for the Republican Party because if they only appeal to their base, the 32% who’s but actually no, sorry, it’s 333% say it should always be legal.
01:23:18 Sacks
That’s the Democratic base, but if they appeal to the 19% who say never, as opposed to the 48% who say reasonable restrictions.
01:23:27 Sacks
They could lose some elections here.
01:23:28 Sacks
Look, I think until now the issue has been a little bit performative because both sides, both parties could just appeal to their base because these have been pre empted.
01:23:38 Sacks
There were no laws to vote on.
01:23:40 Sacks
Now there going to be real laws to vote on this material votes and people, if they don’t move to where the majority of the country are, they’re going to pay a political price for that.
01:23:40 Tom Goldstein
Here’s a cut.
01:23:47 JCal
So basically, translated, Republicans are going to have to fall into this bucket of legal under certain.
01:23:54 JCal
And they’re going to not listen to illegal and all because that that means they’ll just be so disconnected from the reality of American life in 2022. They.
01:24:02 Chamath
As promised, even as long as we can have some reasonable voter participation that isn’t about the extreme riches of both parties.
01:24:02 JCal
Will not get office.
01:24:11 Chamath
Again, this is again what we’ve been saying.
01:24:13 Chamath
I think it’s like the more centrists that show up and vote.
01:24:17 Chamath
The more compassionate and rational we can be.
01:24:20 Chamath
And fine.
01:24:20 JCal
Getting to Denmark is what they.
01:24:21 JCal
Call it right like.
01:24:22 JCal
Is it called there’s a term getting to Denmark, which is a term for where the politicians and the people who represent you are In Sync with the beliefs of the majority of the country.
01:24:34 JCal
And if you get to Denmark, you know, the distance between what politicians are doing and what the people want is very short.
01:24:39 JCal
You you have this.
01:24:40 JCal
Consensus or this alignment and we don’t have that alignment right now and this is probably the most pronounced issue.
01:24:43 Tom Goldstein
We do. We can always.
01:24:45 JCal
And gun control, we don’t.
01:24:46 Chamath
We can always hold out hope that, you know, there’s a more temperate, moderate form of a ruling.
01:24:53 Chamath
That’s not what this is.
01:24:55 Chamath
But in the case that this is what it is, I hope, David, that you’re right and that it starts and ends.
01:25:03 Chamath
With Roe and that it it gets the states to be activated to do something, and it doesn’t spill over to other things like gay marriage or even interracial marriage because I just think that I don’t put it past.
01:25:15 Chamath
One law clerk someplace who’s hell bent on proving a point.
01:25:20 Chamath
To use an originalist framing of what they believe the Constitution says to run these cases up the flagpole.
01:25:26 Sacks
Right.
01:25:27 Sacks
But I don’t think Supreme Court is going to overturn those other case sides to be shocked.
01:25:30 Sacks
I don’t even think they will take those challenges.
01:25:33
Right.
01:25:34 Speaker 3
Yeah, I hope you’re right.
01:25:35 JCal
I’m just absolutely devastated.
01:25:38 JCal
Uhm, by this it’s just to take away women’s right to choose is just insane to me. But.
01:25:44 JCal
We’ll see.
01:25:45 JCal
We don’t know exactly what’s going to happen here, so hopefully.
01:25:49 JCal
We’ll get some resolution, but.
01:25:51 Chamath
I really love you guys.
01:25:52 JCal
Love you guys.