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August 07, 2023
Strict Scrutiny
The Dobbs Decision Hasn't Aged Well

In This Episode

It’s been over a year since the Supreme Court overturned the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization. The majority opinion, concurrences, and joint dissent all made a lot of predictions about life without Roe— but how accurate were they? Leah, Kate, and Melissa assemble a star-studded cast to do dramatic readings of the opinions and reflect on how they’ve panned out.

Featuring Jon Lovett as Sam Alito, Elie Mystal as Clarence Thomas, Jon Favreau as Brett Kavanaugh, and the hosts of Betches Sup (Amanda Duberman, Alise Morales, and Milly Tamarez) as the joint dissenters.

  • Listen to our episode from the day Dobbs came out: “Roe is dead. Now what?
  • Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events.

 

TRANSCRIPT

 

[AD].

 

Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Leah Litman Hello and welcome to a special episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Leah Litman.

 

Kate Shaw I’m Kate Shaw.

 

Melissa Murray I’m Melissa Murray.

 

Kate Shaw It’s been a little over a year since the court overruled Roe versus Wade and Planned Parenthood versus Casey. We did a Dobbs retrospective last summer, just a few months out from the decision. But we also wanted to mark this just over one year anniversary since the decision by looking back on some of what has happened since then. It sometimes feels like the country and people have moved past the decision, or at least to overlook and minimize it in conversations about the Supreme Court. Like all of the moderate decision coverage we saw toward the end of this last term. And all of that felt profoundly misguided and actually pretty dangerous to us.

 

Leah Litman So we wanted to look back on the last year since Dobbs and revisit some of what the different opinions in Dobbs said in light of what has happened over the last year. We did want to let you know upfront there will be discussions of pregnancy loss, health care, emergencies and other topics in this episode. And on top of that, this episode is very long. We are not going to apologize for that because there’s a lot to say. Like this decision has had a lot of really profound consequences on people’s lives, this country, our democracy, and we wanted to try and cover as much as we could. So here’s what we’re going to do. We’ve lined up some very special guests to do some cosplaying with us. This episode, some very talented voice actors, will be playing the parts of Samuel Alito, Clarence Thomas, Brett Kavanaugh and the Joint Dissenters. They’ll be reading portions of their opinions in Dobbs. And then we will all reflect on how these opinions and statements and reasoning in them have aged in the year since. So first up, is Samuel Alito.

 

Melissa Murray Here to take one for the team, someone who is here for his first appearance on Strict Scrutiny. But I know it won’t be his last because this individual has an LSAT score that would easily mark him for admission at the most competitive law schools in the nation. I’ll have you know. And so with no further ado, we welcome to Strict Scrutiny for the first time, excluding crossover podcasts, the incomparable Jon Lovett. Welcome, Jon.

 

Jon Lovett Thank you. Thank you. What an introduction. If my LSAT score easily got me into the nation’s best law schools, I’d be a lawyer.

 

Melissa Murray That’s because you’ve decided not to. That’s because you. decided not to.

 

Leah Litman Would you be coconspirator one, two, three, four, or five?

 

Jon Lovett Oh, you know, it’s interesting. As you move down the coconspirator list, you know, there’s been all this speculation about oh are some of them are. They’re trying to get them to flip. That thing is written like Jack Smith wants to line those guys up against a wall. Can I say that?

 

Melissa Murray I don’t know what you mean.

 

Leah Litman Sure. You just did.

 

Melissa Murray Anyway, as listeners will note, we needed someone who had both the range to play Samuel Alito, a.k.a. Justice Betty Freed Alito, while also not making our listeners want to retch and tear their hair out. So congratulations, Jon. You are the lucky one. The only one that we could think of to bring the appropriate heft to this role. So with that, I’m going to ask you to read the first line from the majority opinion.

 

Jon Lovett So we discussed this whether or not to do it in a voice, anything like what is like the Sam Alito energy. And it’s the energy of a landlord who’s furious that your child drew with chalk on the sidewalk. You know.

 

Melissa Murray I like them eviction but.

 

Jon Lovett Yeah, the controlling you know and wants to do for controlling is that. That’s it.

 

Melissa Murray That’s it.

 

Jon Lovett That’s sort of where he’s at. The controlling opinion. And Casey perceived a more intangible form of alliance. It wrote that people had organized intimate relationships and made choices that defined their views of themselves and their choices in society in reliance on the availability of abortion in the event that contraception should fail and the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives. But this court is ill equipped to assess generalized assertions about the national psyche and reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.

 

Leah Litman If you were really Sam Alito, you would be demanding applause for my right. That’s in addition to the like a landlord evicting you energy. It’s the why am I not being celebrated for it?

 

Jon Lovett I have delivered an amazing bit of argument and not any not a single member of the bar is applauding. No one from the bar is coming to the defense of Sam Alito. Where is the bar? Where are they? Where are my many supporters?

 

Melissa Murray This is the role of a lifetime for you. I mean, no notes. Not one

 

Jon Lovett I. I didn’t spend 40 years not making a friend to be treated this way.

 

Melissa Murray Okay. Where to start? Again. Ill equipped to assess generalized assertions about the national psyche. How has that fared over the course of this year?

 

Jon Lovett You just see throughout this opinion how much they want to be pundits and how bad they are. Like you claim, you don’t want to be a pundit, but what coming through this decision throughout it is this idea that, oh, we’re we’re taking this contentious issue off the table. You know, we can evaluate the ramifications of it, nor should it be our job. And of course, now we’re living in the wake of of the decision. And, you know, the country is in in chaos over it. And there’s been so much harm.

 

Melissa Murray And they were told that this harm would happen. So here’s a clip from Solicitor General Elizabeth Prager, who articulated the reliance interest that so many Americans had on Roe and Casey.

 

Clip There are multiple alliance interests here, as I think Casey correctly recognized. Casey pointed to the individual reliance of women and their partners who had been able to organize their lives and make important life decisions against the backdrop of having control over this incredibly consequential decision whether to have a child and people make decisions in reliance on having that kind of reproductive control. Decisions about where to live, what relationships to enter into, what investments to make in their jobs and careers. And so I think on a very individual level, there has been profound reliance. And it’s certainly the case that not every woman in America has needed to exercise this right or has wanted to. But one in four American women have had an abortion. And for those women, the right secured by Roe and Casey has been critical in ensuring that they can control their bodies and control their lives. And then I think there’s a second dimension to it. The Casey also properly recognized, and that’s the societal dimension, that’s that the understanding of our society, even though this has been a controversial decision, that this is a liberty interest of women, it’s the case that not everyone agrees with Roe versus Wade, but just about every person in America knows what this court held. They know how the court has defined this concept of liberty for women and what control they will have in the situation of an unplanned pregnancy. And for the court to reverse course now, I think would run counter to that societal reliance and the very concept we have of what equality is guaranteed to women in this country.

 

Kate Shaw It’s just the contemptuousness that Alito brought to talking about this notion that people do depend and have depended for now several generations on the availability of abortion should have become necessary. And Alito is like those are assertions about the national psyche and also makes the ridiculous claim that reproductive planning could immediately take account of any sudden restoration of a state authority to ban abortions like contraception doesn’t stop failing because states banned abortion.

 

Leah Litman Pregnancy complications.

 

Kate Shaw Pregnancies don’t become non-viable because states in an abortion like it’s just like the obtuseness of this claim that everyone can just respond accordingly so there will be no harm, no foul is just a year out. Still so infuriating.

 

Jon Lovett It’s not a person’s job to immediately reorganize how they think about what medical care is available in a hospital. Based on what the Supreme Court said, there are probably a fair number of people out there that discovered just how bad this decision was when they were in an emergency and their life was on the line and they’re sitting in a hospital parking lot, wait for a lawyer to call a doctor to find out if it’s okay for them to go inside. This idea that you can, like, use logic to dance on the end of a pin to find this rationale for some of the most ridiculous interpretations of the document of the law of Human Rights. Like that is what he does. That is what he lives to do. That’s what he’s been trained to do. And you don’t need to be a lawyer to see how arrogant and dangerous it is. If I could say. But he’s so funny.

 

Kate Shaw Also charming.

 

Jon Lovett It’s like I’m looking. I’m in the market for a mean Scalia without a joke. Is there do you have anything like that? Is there anything in it? You have anything at Yale that is there any on the Yale store that I could get?

 

Kate Shaw Also, like a dollar intellect and patent, Right. We can sort of add those on the list for sure. All right. So maybe we’ll transition to the next quote when you ready.

 

Jon Lovett Hard to do.

 

Melissa Murray Get in character. It’s okay.

 

Kate Shaw Get back into it.

 

Leah Litman Landlord, energy. Landlord.

 

Jon Lovett No. Everyone said no. When I wanted to go to the prom, everyone said no. Everyone.

 

Jon Lovett Our decision returns the issue of abortion to those legislative bodies. And it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators and voting and running for office. Women are not without electoral and political power.

 

Kate Shaw Unfortunately.

 

Leah Litman Right. Obviously, Sam is sad about that. And on some level, this statement has held up in the sense that, you know, abortion measures are undefeated in state ballot initiatives since Dobbs You know, including in my home state in Michigan, Kansas, California, Vermont, Kentucky, it also mattered significantly in judicial elections in Wisconsin, you know, for the race to. For all you know, that state Supreme Court. On the other hand, this seems to gloss over some of the things this court, as well as the conservative legal movement more generally have been doing to the democratic process that make it harder for women and people more generally to actually decide to protect the right to reproductive freedom. And Kate, Melissa, I know you’ve written about this.

 

Melissa Murray This court has done more than perhaps any other institution to distort the landscape of democracy through its own decisions blessing, partizan, gerrymandering, making it harder for individuals to challenge laws that try to suppress the vote, particularly among certain communities. We’ve also seen measures to limit the force of direct democracy. So right now, you know, Ohio, there is a very active effort to thwart the opportunity that Ohioans will have to use direct democracy measures to protect themselves and to protect abortion rights and that state’s constitution. So it seems like democracy was sort of good here. He was kind of into it. But the rest of the party is not quite sure how democracy curious they want to be. And it really kind of depends on what the outcome will look like.

 

Jon Lovett There’s a famous moment in The Simpsons where Principal Skinner is caught on an open mic. He’s he’s in an argument and all of a sudden you get an assembly and he accidentally says, you know, Michael, we both know these children have no futures. And then the children all gasp. And he turns to the audience of children. He goes, Prove me wrong, kids prove me wrong. And that’s what I was reminded of when I saw this. It’s like, look, are you are you for people, little ladies? Not to, by my account, but hey, good luck out there. You know, use those. Use those bodies that belong to me to figure out how to make some change and stop me from what I’ve been trying to do.

 

Leah Litman You know, maybe we were giving you wrong notes, Jon, when we suggested, like, a landlord trying to evict you. Maybe the right energy to channel all along was Principal Skinner.

 

Melissa Murray Why don’t we take a principled Skinner approach to the next line? Let’s. Let’s see how that one plays out with a Skinner-esque vibe.

 

Jon Lovett Oh no. The argument in Planned Parenthood v Casey was cast in different terms, but stated simply It was essentially as follows The American people’s belief in the rule of law would be shaken if they lost respect for this court as an institution that decides important cases based on principle, not social and political pressures, there is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the court overrules a controversial watershed decision such as Roe. This analysis starts out on the right foot, but ultimately veers off course.

 

Melissa Murray Thoughts?

 

Jon Lovett You’re you’re all the lawyers. Is that what it says?

 

Melissa Murray Oh, really? Do you think the public perceives that this was a political decision? Like, I’m going to be fully straight up about this. Like, it seems really weird to me that Roe and Casey withstood a million different challenges over the course of the last 50 years. Not a million, but a lot. And it survived each and every time. And then suddenly Ruth Bader Ginsburg dies in September 2020. Amy Coney Barrett gets installed on the court in October 2020. Now we have a 63 conservative supermajority, and all of a sudden Mississippi has changed its request before the court. Like before, they were just like, we have a very modest ask. Tell us about viability. Now they’re like, you know what? Just overrule Roe and Casey and the court does it. Like, how can it not be political? How can it not be about the changing personnel of this court? Like, how is it about principle when in the past we never had anything like this, even though these questions had repeatedly come before the court?

 

Leah Litman Well, also, they said it was about personnel and politics, like in the debates leading up to the 2016 election, Donald Trump was literally asked about Roe versus Wade. And what did he say?

 

Clip Well, if that would happen, because I am pro-life and I will be appointing pro-life judges, I would think that that will go back to the individual states. But I’m asking you specifically, would you like to overturn that? It’ll go back to the states. What I’m asking you, sir, is do you want to see the court overturned? You just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe? If we put another two or perhaps three justices on, that’s really what’s going to be has that will happen? And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.

 

Kate Shaw He said it’ll happen automatically. And I was like, well, no, exactly. But then I was like, Oh, no, he was right. Actually, it did kind of happen.

 

Melissa Murray He’s he’s really truthful about a lot of things. Roe, the fact that he’s getting indicted, like, I mean, he’s good on some of these things.

 

Jon Lovett There is is that kind of an Alito way that he’s sort of flipping the logic on its head because there is the kind of Alito grievance politics that’s seeping in here, which is saying, if you’re telling me that there would be incredible negative political ramifications because of the monumental unpopularity of this decision, while you’ve only emboldened me and forced my hand, because if I were to allow the fact that this nation would revile this choice, well, then don’t I have no choice but on principle to do it anyway, thus, to prove that this Supreme Court is beyond politics.

 

Melissa Murray Spoken like a guy that was rejected for the prom. That’s like. That’s like, rejected from the prom.

 

Kate Shaw You all made me do. Yeah.

 

Jon Lovett Yeah. And the more political pressure I feel, the only the more sure I am that I have that that this is the right call. Because that shows you just how righteous a court we have, because this group of people were put in place to defy the public. Well, but in this anti majoritarian way and so good for us the more you hate the better I feel.

 

Melissa Murray Think about it hard. Like.

 

Kate Shaw And also honestly they did I think in like the Casey court which we’ve been talking about they did genuinely care about the institution of the court and its perceived legitimacy and that’s why I like this. That’s the the language that, again, Alito is disparaging from Casey. Was the justices surprising a lot of people, defying a lot of expectations and upholding, in this opinion, written by some Republican appointees, the kind of core of Roe by saying, like if guys, if we reverse course now just after this personnel shift, it’s going to be pretty obvious that we’re a political body. You know what? We’re not we don’t want to be. And Sam Alito was just like fully kind of ran right into that thread. And like you said, it sort of actually inverted its logic and that that’s precisely the reason we have to move forward.

 

Jon Lovett I’m curious what you all think about the way Amy Coney Barrett talked about this during her confirmation. Because what was striking to me is just sort of an observer and political pundit who didn’t go to law school is she took these great pains to basically avoid saying that she didn’t respect precedent because what she or the way she said it was. Well, if a precedent truly is important, it won’t come to me. Whereas Alito is saying I don’t care about I don’t care about precedent, all that doesn’t factor in.

 

Melissa Murray She actually had one of the more interesting approaches to answering questions about Roe and Casey. And again, everyone should understand, whenever they talked about precedent in the context of confirmations, they were shadowboxing with Roe and Casey. They weren’t talking about anything else. That’s what they were talking about. And she was just sort of like, you know, when I think it was Dianne Feinstein who asked her, you know, do you think that these decisions are precedent, are super precedents and precedents on precedents or whatever? And she was like, you know, if it’s a super precedent, then it’s been settled and it won’t come before me. And and that’s why it’s a super precedent. If it does come before me, then it’s not a super precedent that I’m a. To offer a real difference.

 

Kate Shaw You didn’t even go further and basically say, I remember being really nasty and basically saying, and I’m getting a lot of questions.

 

Leah Litman Exactly.

 

Kate Shaw From you about this case, which makes me think it’s not a super precedent. It was like in some ways some of those like really sharp exchanges I think made her at least marginally less dishonest than like Kavanaugh and Gorsuch were, because she kind of let her contempt show for Roe. And, you know, that’s that’s how she felt. She didn’t really work very hard.

 

Melissa Murray She didn’t have to I mean, all she needed was a simple majority, Like it was pretty much in the bag for her. I mean, the Democrats were in no position to beat her down. She was just basically on cruise control at that point.

 

Jon Lovett And then Senator Feinstein obviously asked that hard follow up question about whether she supported France in their fight against the Kaiser, which she obviously avoided answering.

 

Leah Litman Jon, thank you so much for coming to represent the elite Strike Force legal team that was the Dobbs majority, the Mojo Dojo Casa House court and everything we have come to expect from Samuel Alito. So thank you.

 

Jon Lovett Thank you for having me.

 

[AD]

 

Melissa Murray We’ll now shift to that Thomas concurrence and joining us for this segment to play Clarence Thomas but also to join our discussion about the Thomas concurrence is Strict Scrutiny super guest and author of the bestselling book Allow Me to retort A Black Man’s Guide to the Constitution and also the justice correspondent at the Nation and Lee as preferred pick for the next vacancy on the U.S. Court of Appeals for the Fifth Circuit. None other than Elie Mystal. Welcome Elie.

 

Elie Mystal Thank you so much for having me. Let’s talk about Jerk Face.

 

Kate Shaw So let’s indeed get right to it. This is going to be a look back on the concurrence heard around the world. So want to kick us off, Elie with that first line we’re going to reexamine.

 

Elie Mystal For that reason. In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswald, Lawrence and Obergefell, because any substantive due process decision is demonstrably erroneous.

 

Kate Shaw Okay, pause. Before we get to the substance. I didn’t know you had that Thomas baritone like that. You really just channeled the voice.

 

Melissa Murray Can you laugh like, your jocular laugh. From your belly.

 

Elie Mystal Ha ha ha.

 

Melissa Murray Exactly.

 

Elie Mystal It’s the evil laugh.

 

Kate Shaw So good.

 

Leah Litman See now our listeners get to experience it.

 

Melissa Murray Stroke a hairless cat.

 

Leah Litman And now to the substance.

 

Elie Mystal Speaking of demonstrably erroneous right like that. The thing that always stands out to me about that lying and I think it stood out to others is that he lists three cases that he considers to be demonstrably erroneous applications of substantive due process. Griswald, which deals with contraception laws, which deals with gay rights, and Obergefell, which deals with same sex marriage. But what’s the fourth one? What’s the one he leaves out? .

 

Melissa Murray I know, I know, I know teacher I know.

 

Elie Mystal And the one the substantive due process decision that he leaves out is loving the Virginia, the one that allows for interracial marriages. Did he forget about it? Did his clerks not remember that case? No.

 

Melissa Murray Mark Meadows wishes he could forget about it.

 

Elie Mystal Because loving the Virginia is the interracial marriage case and he happens to be interracially married. Not that there’s anything wrong with that, obviously, but like the whole reason why this line, like stings so sour to me is that it shows that he is not simply kind of applying his own radical ideology fairly across all cases. If Thomas could push a baby out of his urethra, would he have mentioned to Griswald? Right. Like you don’t.

 

Kate Shaw Okay, that’s now burned into my brain. Yeah.

 

Melissa Murray So, Elie, let me let me just intervene here to perhaps offer a devil’s advocate and maybe a defense of Clarence Thomas.

 

Elie Mystal Good luck.

 

Melissa Murray Though, I’m not trying to defend him. So some would argue there perhaps are statutory limitations that would prohibit states from ending interracial marriage or not recognizing interracial marriages. And, you know, and perhaps that’s the reason why he didn’t include loving.

 

Elie Mystal The point here is that there were also statutory positions that applied in Lawrence. There were also equal protection provisions that applied in Lawrence, and yet he still included Lawrence. He reduces those three cases to simply a substantive due process analysis. Right. Which is not the only analysis that was used in those three cases in the same way, is that it wasn’t the only analysis that we used that was used in Roe v Wade, which is what he’s attacking fundamentally in this concurrence. Right.

 

Leah Litman So if I could just add one additional point here, which is even if there are statutory protections for interracial marriage, that would still mean loving versus Virginia should be overruled to the extent that it holds that the Constitution guarantees a right to interracial marriage or doesn’t permit states to write statutes prohibiting interracial marriages, and then just like quickly flesh out two things is like to the extent an alternative explanation is, while the equal protection clause could explain loving, it’s not clear why that would explain loving, but not Obergefell, since that distinction might also violate the equal protection clause. And then just to flesh out the idea that there might be other statutory protections that could explain the results in Obergefell or Lawrence, like there are federal civil rights laws that also prohibit discrimination on the basis of sex in a variety of arenas. And given the Supreme Court’s holding in Bostock that discrimination on the basis of sex includes discrimination on the basis of sexual orientation, it’s also not clear that that rationale distinguishes between those cases either.

 

Elie Mystal 100%.

 

Kate Shaw And in terms of the outcomes that we’re already starting to see follow from his clarion call. So we’ve. Talked about the conspicuous omissions from his concurrence, but of course he highlights Griswald and Lawrence and Obergefell, and he’s talking to, I think, a few different audiences when he says, you know, we should reconsider these cases. He’s talking, of course, to his colleagues, but he’s also talking to lower court judges, he’s talking to litigants. And it kind of feels like he’s also talking just more broadly to individuals who are part of, you know, the implementation of the Constitution and like help shape its meaning. And I think he is basically saying these precedents are up for grabs and you can comport yourselves accordingly. And so I were a year out, and I think we are seeing seeds of I think as a result of a combination of his sowing real doubt about the future durability of these precedents, but also three or three creative, which we talked about at the end of last term, a great deal. People starting to basically say, well, public accommodations laws may not be able to be enforced. We’re talking about same sex marriage or same sex couples. The constitutional imperative of marriage equality may actually be in some doubt. So like, well, I’m just going to act on what I think the Constitution may be understood to mean five or ten years out and refuse, you know, hair salons, services refuse, maybe marriage licenses. I mean, I don’t do as involving as the Kim Davis is like, oh, yeah. For trial in September for her 2015 refusal to issue marriage licenses to same sex couples even post Obergefell. And I am sure swirling around that jury trial is going to be this set of open questions that Thomas has.

 

Melissa Murray She’s already talked about it.

 

Kate Shaw Has thrown. But I mean, even like in front of the jury, like I just think that all of this is really changing the constitutional landscape, even though it is obviously an opinion for one person. It is already reverberating and I think it’s going to continue to reverberate all the more.

 

Elie Mystal He’s talking to the Fifth Circuit, thats what he’s doing.

 

Kate Shaw Your future judicial home, Elie.

 

Elie Mystal Right? He’s talking to the Fifth Circuit, and he’s doing that because he knows that people on his side of the aisle will get out in front of the Supreme Court, are willing to get out in front of the Supreme Court like people forget they overturned abortion in Texas before. DOBBS Right. They just straight up with their with their Jonathan Mitchell bounty hunter plan. They straight up overturned Roe v Wade in Texas before the Supreme Court got around to it in Dobbs ever. I was like, cool. All right. Well, we’ll just roll with that then.

 

Melissa Murray I, for one, when I read this line, was actually really happy that because I want to see any of these precedents threatened or in jeopardy. But because we had been saying this all along, like in the run up to Dobbs, everyone had been talking about what else could happen, what else could fall. And I think we were saying that all of the substantive due process precedents were imperiled if Roe fell because they all rested on the same foundation. And there were so many people who were like, You witches need to get back to your cauldrons and stop talking crazy. And this actually, I think, made it clear that we were not nuts like that. This was definitely happening. So for that reason and only that reason, I said for the first time ever, thank God for Clarence Thomas.

 

Leah Litman So maybe we can go on to the next line. Because interestingly, while Justice Thomas seemed to want to reconsider other substantive due process decisions because they were inextricably related to Roe versus Wade and Planned Parenthood versus Casey, he also had some other thoughts about what the majority opinion did or didn’t mean as to those other precedents. So, Justice Thomas, take it away.

 

Elie Mystal Thus, I agree that nothing in this Court’s opinion should be understood to cast doubt on the precedents that do not concern abortion. So here’s the fun thing about that. It’s not his line. He’s quoting the majority opinion. It’s like somebody comes into your house, shoots your dog. Leaves the cat alive. What Thomas is saying thus, I agree. The cat is still alive. He ain’t saying not going to shoot the cat next, right? He’s not saying that the cat is safe. He’s saying that he agrees with the factual situation on the ground, that the cat happens to be still alive after he’s just killed your dog.

 

Leah Litman The cat is not formally overruled yet.

 

Elie Mystal Right. So, like that entire lying should have exactly as you just say, a “yet” on it.

 

Melissa Murray I agree that nothing in this court’s opinion should be understood to cast doubt on those precedents that do not concern abortion. And that’s the problem, because I think we should be casting doubt on these other precedents, too.

 

Kate Shaw Right. But I think in terms of what it does to folks in the position of translating the court’s work to the public, I think that what you said a couple of minutes ago, Ali, is really profound and accurate. And this line is one that I was asked about. I’m sure you all were as well. Again and again the next day, which is. But Thomas says that everything else is safe and in full context. That’s not remotely true, but it’s an easy line to pluck out and sort of hold out to the public as providing comfort about what this opinion actually encompasses. And so I actually think it was very strategically included by Justice Thomas.

 

Leah Litman Yes.

 

Elie Mystal And he also pisses on the line on the next line, because the line you had me read first is the one that like so. So let me just.

 

Melissa Murray Read all the lines.

 

Elie Mystal All right. Thus, I agree that nothing in the court’s opinion should be understood to cast doubt on the President’s that do not concern abortion. For that reason, in future cases, we should reconsider all of this court’s substantive due process precedents, including.

 

Melissa Murray That what I said. It was wrong. They didn’t go far enough. That’s what he’s saying.

 

Elie Mystal He should have done wrong with the majority. He is. He is agreeing that what the majority did, he’s not saying that majority is right. He’s saying that if if it’s up to him, these precedents would be disturbed and he is actively shopping for cases. And this is the thing that like like this is where I wish I could go back to my law school professors and be like, you lied to me because they told me in law school that judges don’t shop for cases in their opinions. Right. And that’s just.

 

Leah Litman Who says that?

 

Elie Mystal Yes, Harvard. Harvard said that and Harvard said that. And that’s just not true.

 

Leah Litman And, you know, just some evidence as to why, maybe including a yet in that sentence would have been more accurate or the cat isn’t overruled yet, is the better characterization of the sentence. I mean, think about what’s happened in the last year. We had three or three creative, which Kate already mentioned, which basically distinguished slash, effectively narrowed and limited all prior cases saying there wasn’t a license to discriminate exemption from public accommodations, laws and invited differentiation, you know, for same sex couples and, you know, treating them differently. You also had students for Fair Admissions, which effectively overruled, you know, all of the court’s prior cases allowing affirmative action in higher education. You had Sackett versus environmental protection. So you which, you know, basically whittled away all of the court’s prior cases that said the EPA could regulate certain kinds of wetlands under the Clean Water Act. And we’re looking ahead to next term in which they’ve got a bunch of other cases on top in which they are being explicitly invited to overrule prior cases or again, effectively narrow or limit that.

 

Elie Mystal This court doesn’t care about precedent. And look, I don’t I don’t know how else to explain that to people like they just.

 

Leah Litman Elie’s laughing because Kate’s holding up your shirt “Stare Decisis is for suckers.”

 

Kate Shaw I pulled out some of the original emerged because that felt fitting today.

 

Melissa Murray We’d said that in 2019 and people thought we were being hyperbolic.

 

Kate Shaw This shirt is like falling apart from the wash because I’ve been wearing it for years and its catching up.

 

Melissa Murray Like the Constitution is falling apart.

 

Elie Mystal Nobody should be surprised by what’s happening because they were picked and appointed for this express purpose to overturn precedent. And that and that goes to how good, quite frankly, and how accurate, quite frankly, the Federalist Society has been at picking judges. And to me, this all goes back this all goes back to Anthony Kennedy and David Souter stabbing those people in the back.

 

Melissa Murray And O’Connor. O’Connor too.

 

Elie Mystal O’Connor. I mean.

 

Melissa Murray You know, they were always suspicious of her, but she was like she made sure they’re like, you were right to be really suspicious of me.

 

Elie Mystal You’re right. But I also think they give O’Connor a little bit of a pass. But she was.

 

Melissa Murray A lady pass.

 

Elie Mystal Right.

 

Leah Litman Just her silly lady brain.

 

Elie Mystal Lady out. Right. You know, she was exactly. She was going to have lady brain sometimes. But that David Souter. Right. That Jon Paul Stevens, like the conservatives for 40 years, made the mistake of picking conservative judges. This is who actually believed in precedent, Right? Who actually believed.

 

Melissa Murray And limited government.

 

Elie Mystal In limited government, who actually believed in practicality.

 

Melissa Murray I want to turn to another line. I think this one is actually perhaps my favorite Thomas line here, because I think Clarence Thomas is actually the only member of the Dobbs Court who could say this with a straight face, in part because of what I think of as the epistemic authority he has as the only African-American on this court at the time. So can you read this line and then we can talk about it on the other side.

 

Elie Mystal Third, substantive due process is often wielded to disastrous ends. For instance, in Dred Scott v Sanford, the court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories while Dred Scott was overruled on the battlefields of the Civil War and by the constitutional amendment after Appomattox. That overruling was purchased at the price of immeasurable human suffering.

 

Melissa Murray All right. Species of substantive due process is really doing a lot of work here because abortion and a taking seem to be like very different doctrinal strands here. So can we talk about this? Like how is conflating these two very distinct understandings of substantive due process?

 

Elie Mystal The Dred Scott decision was not based on substantive due process. Number one, Substantive due process as just a thing that we talk about was not invented in 1852. People didn’t talk. So so not only is he talking about a thing that wasn’t actually invented at the time that he’s talking about it, the baseline reasoning of the Dred Scott decision was not one based on substantive due process and process rights and all of that. It was

 

Melissa Murray Just for clarification, like the part of the Dred Scott decision to which he is referring is the part where the court holds that Congress does not have the authority to enact the Missouri compromise, which essentially renegotiated property rights of slave owners. So that’s the property piece of it. Right? And sort of like the due process rights of property owners were apparently renegotiated with the Missouri compromise, but it’s not at all a substantive due process decision.

 

Elie Mystal No, you know what it is? It’s an originalist decision. Dred Scott is a straight up, originalist decision. And if you don’t mind, I came prepared. I would like to read the original as part of the Dred Scott decision. Alright.

 

Leah Litman Let’s do it.

 

Elie Mystal This is now Roger jerk faced Taney talking when the Constitution was adopted. They were not regarded in any state as members of the community, which constituted the state and were not numbered among its people or citizens. Consequentially, the special rights and immunities guaranteed to citizens do not apply to them, and not being citizens within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States. That is the Dred Scott decision, and that is a wholly originalist reading of the Constitution. What can you say is that because the states did not view black people as people when they were brought here, that the court cannot later infer people rights upon them? That’s originalism one oh frickin one. And that’s what Dred Scott is. Right. So when Thomas is saying he’s they’re enacting a species of substance to due process. No, no, no. They’re enacting a species of originalism. Number two, it infuriates me the way that the conservative right tries to idol the difference between Dred Scott and Roe v Wade. Right. For the conservatives, they’ve used for like a generation, Dred Scott as code for Roe v Wade. Right. Because their argument, their analysis is that these are two morally incorrect decisions. Right. Dred Scott viewed ruled, ruled that black people had no rights. The white man was bound to respect from their perspective. Roe v Wade views that the fetus has no rights, that the white man is down to respect. Right. And so that’s how they try to make the connection. And in infuriates me for two reasons. One, equating black people to fetuses offends me, right? I as a black person and able to eat on my own, I don’t have to reach nutrients out of a woman’s body in order to survive because I’m a person. I can also do things like talk and see and white my own. But the idea that a fetus is the same as a slave is just. Yeah. So. But number two, there is a person here in the abortion cases, right? There is a person here when we talk about Roe v Wade or Planned Parenthood or jobs. Right. And that person is the pregnant person. And what Dobbs is saying, what these people are saying, is that a pregnant person has no rights that the white man is bound to respect. That is the upshot of Dobbs, not that the fetus has no rights that we’re about to express, but the person that for nine months from when you get knocked up to when you push it out, you have no rights that anybody has to listen to you. That’s what Dobbs says. And that’s why the connection to Dred Scott is infuriating, because they get it entirely wrong.

 

Leah Litman The Dobbs Court says they are just simply ill equipped to assess these rights of these so-called people, women you are referring to.

 

Melissa Murray Are they people? Are they people, Leah?

 

Leah Litman That’s why I said so-called. That’s why I said so-called.

 

Melissa Murray I mean, I think we’re going to have to have a Daubert hearing about it.

 

Leah Litman Yeah.

 

Melissa Murray Honestly.

 

Elie Mystal Who’s the expert, though, right?

 

Leah Litman Samuel Alito. Samuel Alito is the expert. So I just want to say two things, you know. One is the passage from Dred Scott. You read, Ali, about how the court said black people did not have rights that white people were bound to respect. That wasn’t even about the property rights aspect of Dred Scott at all. That was about the court’s initial holding that black people were not citizens. The diverse jurists of the Article three. Exactly. And therefore could not sue in federal court. And the federal courts did not have diversity jurisdiction over their cases. So like that didn’t even involve this species of substantive due process like takings as claim. But then second, as you know, Melissa, when you were introducing the segment, you mentioned that Justice Thomas is the only person with the epistemic authority to make this claim. And yet and yet people before him, other justices had tried to, namely Justice Scalia, who also analogized the Supreme Court’s decision in Planned Parenthood versus Casey to Dred Scott when he recited some of the court’s reasoning. And that said, there comes vividly to mind a portrait that hangs in the Harvard Law School.

 

Melissa Murray Always Harvard.

 

Leah Litman Roger Taney. Look, why again what the fuck is going on at Harvard Law School?

 

Melissa Murray What is going on, Elie? What’s happening?

 

Elie Mystal Hey I’m just happy I got out alive, man.

 

Melissa Murray Can I just say one thing in defense of Justice Scalia? Let me. Let me just say, like, he doesn’t go nearly as far as Justice Thomas does here. I mean, like Justice Thomas literally is doing Civil War reenactments, like we’re on Appomattox. There’s immeasurable human loss and human suffering. I mean, he’s conjuring the battlefields of the Civil War in much the same way. At his confirmation, he conjured the image of black men being lynched. And I don’t think anyone has ever gone that far in their recitation of Dred Scott and certainly not Scalia who mentions it. Yes, but links it to this portrait of Roger Taney that hangs in Harvard Law School but doesn’t go any further, in part because I don’t think he can in the way that Justice Thomas can.

 

Elie Mystal Thomas has often in his career tried to trade on the racial pain of our ancestors while doing everything he can to put that pain forward into the future. He’s always tried to protect himself through his blackness while doing everything he can to keep other black folks down. It’s one of the more, I think, terrible parts of his career and his public life. He does this as a matter of course not. I’m used to it, I guess is the best way I can put it right. Like, of course, Thomas is the one who wants to get out there and be like, Oh, look at what happened to the slaves. It’s so bad. And that’s why women should have no rights. Like it. He does it so seamlessly and he does it so easily. And he’s done it for his entire career this his entire public career. You know, it’s one of the reasons why that man can’t stand. CATANESE Brown Jackson. Right. That’s why that man hates Ketanji Brown Jackson because Ketanji Brown Jackson is basically sitting there kind of she doesn’t even have to say anything. When you are the only black person in an all white environment. You get to you have license to say some stuff without anybody calling you out for it. Right. Like speaking of Harvard Law School. Right. Like as a person who was often and the only black person in the room. Right. You can have some fun with white people in terms of like speaking from what they assumed was your authority. Right. So one time this is not something I’m proud of, but I’m talking about on my podcast. So that’s really great. Yes, I’m drinking a bunch of white friends and they’re bothering me, right? So I do a joke and I say to them, you know, most black people poop standing up and these white folks are like, Really?

 

Melissa Murray Why are you like this? Like why? Why are you like that?

 

Elie Mystal I was drinking and annoyed by these people. Right. And, like, for 5 minutes, I just had them going. That’s Clarence Thomas. Clarence Thomas. Is that joke? Only for 31 years on the Supreme Court.

 

Kate Shaw And with catastrophic consequences for the nation.

 

Melissa Murray For, like actual black people. Exactly.

 

Elie Mystal That’s Clarence Thomas and that’s. And Charlie Brown. Jackson just doesn’t let them get away with it, which is nice. The last point, though, about this, overruled on the battlefields of the Civil War. Bryant. Was it really? Because as far as I remember, correct me if I’m wrong, but there was a war. The good guys won and for like 13 years or so, the good guys committed to keeping their foot on the neck of their racist cousins so that there could be freedom in the South. And then they got sick of it. Then the good white people, the good white folks got sick of reconstruction, got sick of militarily dominating the South. They went back to their racist societies in the north and the south immediately reinstituted basically everything an attorney says in the Dred Scott decision. Immediately went back to black people to have no rights. The white man is down to respect immediately.

 

Kate Shaw Originalism doesn’t have to be faithful to actual history. Lee I think that’s clear by now. So, Lee, thank you so much for helping distill this concurrence as truly only you could. There is a reason you’re a strict scrutiny super guest and we’re grateful for the time. So thank you.

 

Elie Mystal Thank you so much for having me.

 

Kate Shaw And now here because he is willing to humor us for his first appearance on Strict Scrutiny as a guest that is excluding crossover episodes coming to us beamed down from the mothership that is Crooked Media is one of the hosts of Pod Save America. Jon Favreau. Jon, welcome to the Pod.

 

Jon Favreau Thanks for having me and thanks for asking me to play Brett Kavanaugh.

 

Leah Litman I mean, we needed somebody to play America’s favorite father of daughters, the ultimate girl dad, the greatest feminist on the court since RBG. So that’s what you’re here to do. Um, but because got.

 

Jon Favreau Drink a lot of beer in college, played a lot of beer pong.

 

Leah Litman We’re not totally cruel. So we will also allow you to join us in responding to the lines that you are going to be reading. And if at any point the criticism gets too much for you, just say I hired the first all female class of law clerks and I am a father of daughters, and then automatically no one is entitled to criticize him.

 

Jon Favreau Whew, thank you. That is a good out.

 

Leah Litman So without further ado, maybe you can read the first of the justices lines.

 

Jon Favreau Great. The nine unelected members of this court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.

 

Melissa Murray Wow. That was a really good reading. Like, I felt like he was here. I felt that was very Brett-esque.

 

Jon Favreau That’s what I was hoping for.

 

Leah Litman So how have these lines played out?

 

Melissa Murray I mean, per usual, I think Brett really got it wrong. Don’t you think?

 

Leah Litman What’d he missed? What did he miss?

 

Melissa Murray Well, I mean, this idea that this court does not possess the constitutional authority to override the democratic process. I mean, this medication abortion ruling down in textbook, not this court, but a court, and they may have something to say about it.

 

Kate Shaw We will see. I think in some ways we have seen some of the predictions, like in the joint dissent, which we will get to really borne out regarding the on the ground consequences in terms of suffering and medical crisis and dreams dashed and all the other things that the joint dissenters said would come to pass as a result of this court’s overruling of Roe that we’ve already seen. I actually think because the court still has to come back to a big national abortion case, which may be the medication abortion case. We will see if the court decides to side with this lunatic challenge to medication abortion, which it didn’t do on the shadow docket. But who knows if they actually hear full arguments on this case and decide to somehow either curtail or limit the availability of mifepristone, then, you know, obviously this will give the lie to that suggestion that the court is not going to set nationwide abortion policy. But even with what the court has done so far, basically suggesting we’re going to let the states just decide for themselves, but then essentially put in place all kinds of obstacles to people in the states actually deciding for themselves what abortion policy is going to look like. You know, it’s hard to take this very seriously, but I think it is to be seen what the Supreme Court is going to do with its next abortion.

 

Melissa Murray Leah, do you agree with me that I think we’ve already seen some inklings that this court is not as studiously neutral as Brett Kavanaugh would have us believe?

 

Leah Litman I think there has been some evidence to that. Which pieces of evidence do you have in mind, Melissa?

 

Melissa Murray Well, I want to hear your evidence first. Show me your evidence, Leah.

 

Leah Litman So one is the writings, of course, of Samuel Alito, not just in the U.S. reports in which he was bitching about how the government had not promised to enforce a ruling that would be a judicially ordered ban on the most common method of abortion in the United States, medication, abortion, but also what he has written in, frankly, the pages of the Wall Street Journal and told to them as well, in which he has criticized efforts to criticize the court for what they are doing and announced that he actually didn’t know how to pronounce before Presto. And despite going along with that judicially ordered medication abortion ban.

 

Melissa Murray I also just think even if we are not going to consider extra judicial writings or talks like, you know, this court in the context of guns like, has shown precious little attention to being neutral on questions in which democratic processes have apparently played out and worked themselves in favor of gun control legislation. I mean, so this idea that the court’s just neutral and not playing politics is it’s just it’s ridiculous. He knows it’s ridiculous. But he continues to say it because because that’s what he does. So, Jon, back to you. Yes, studiously neutral. Brett Kavanaugh has more to say about how the court has to be studiously neutral. So why don’t you read the next line?

 

Jon Favreau The court’s decision today properly returns the court to a position of neutrality and restores the people’s authority to address the issue of abortion through the processes of democratic self-government established by the Constitution. Other abortion related legal questions may emerge in the future, but this court will no longer decide the fundamental question of whether abortion must be allowed throughout the United States through six weeks or 12 weeks or 15 weeks or 24 weeks or some other line.

 

Leah Litman This is another example where I fundamentally wonder whether he is high on his own supply and like he is just so sold on everything the conservative legal movement has told him. Because already in the last year there are a bunch of cases that tie up the question about what sort of restrictions on abortion are permitted. You know, there are lawsuits under m taller. The federal law that requires emergency care for people in labor. And there are conflicting federal judicial decisions about when and whether and Tallulah, you know, basically contravenes or prohibits the enforcement of these state restrictions. There are also state restrictions potentially in conflict with the FDA’s approval of mifepristone. Again, there are multiple cases raising these issues as well. And those cases are going to tee up the permissibility of different methods of abortion, you know, at different points throughout pregnancy. So, like, that’s not going anywhere.

 

Kate Shaw Jon, obviously you are a politico. And so it’s kind of a political question that I would love to pose to you is what do you think? So if we’re right about how this all played out, which is that Jon Roberts tried to convince Brett Kavanaugh to do something much more measured and allow Mississippi to enforce this ban, but not overrule Roe. And maybe it seemed like it was kind of working and maybe the leak of the opinion changed the trajectory. Maybe not. Who knows? But. In any event, Kavanaugh did not go along with the Roberts approach. He joined the Alito opinion in full, but then wrote this separate missive whatever it was.

 

Melissa Murray The Kav-currence.

 

Kate Shaw The Kav-currence right. And then obviously, we saw the Democrats electoral fortunes really buoyed in the midterm elections, at least in part as a result of Dobbs and got kind of going into.

 

Melissa Murray Despite their best efforts to buoy their electoral fortunes.It did. It did in fact.

 

Kate Shaw What do you think Brett Kavanaugh is thinking right now? Was the court do you imagine there’s any buyer’s remorse in the court having gone as far and as fast as it did here, if it actually has hurt the Republican Party? I mean, and do you long term think that that’s going to prove true in the 2024 election cycle as well? I mean, we you know, we’re seeing Donald Trump continuing to tout having put on the court the justices who overturned Roe despite the unpopularity of that. And so I guess just, you know, both a year out where we think Kavanaugh might be, but also how likely Dobbs is to continue to be a big electoral issue going into 2024.

 

Jon Favreau Yeah, I, I hesitate to put myself in the mind of Brett Kavanaugh.

 

Kate Shaw No, we hired you to do that.

 

Jon Favreau Despite the fact that I am reading his words on this episode. But no, if you were to ask me about like Alito or Thomas, I’d say, no, there’s probably no buyer’s remorse. But Kavanaugh, because he is a fundamentally a Republican operative or was in a in a past life, probably still is. Yeah, I think he’s looking at the politics and wondering maybe this is more of a backlash than I expected. I mean, I think it Trump is interesting because he’s out there bragging about putting these justices on the Supreme Court. But at the same time, you see him sort of walking away from the six week ban or a little trying to dance around it. And, you know, he’s he’s got better political instincts than Ron DeSantis and some and Mike Pence in thinking that, like this could be a problem in a general election. And I think what’s interesting about the politics of this is you you see a bigger backlash in the states where there are bans now. Right. And so where people are seeing their rights taken away even in the deepest red states like we saw in Kansas. This is an issue. And I do think that any Democrat running in 2024, particularly in a place where abortion rights are at risk, which will be everywhere if we get a Republican president and a Republican Congress and their go for a national ban, then you’ll see it become an issue. And I think Democrats should. I mean, what Republicans are trying to do right now and you hear this with everyone from DeSantis to to everyone else is saying like, oh, well, a national ban, I just don’t think it’ll will ever come to my desk. That’s they. And no one is pressing them on it. Like, I mean, even Chris Christie said that to leave it in the rearview, too. He was like, I don’t think a national I don’t think we’ll get a national ban. But they’re not willing to say. They’ll either say no to a national ban or they will prove it, because they know, of course, they will say yes to a national ban if it gets through Congress. But Democrats should forget about their half answers. We should just say that if Republicans win, if they get control of all three branches, there will be a national abortion ban.

 

Leah Litman I was just going to say, Jon, like that was an awful lot of thoughts for Brett Kavanaugh. But I appreciate you were really straddling both rows there. But second is, I think, asking them, what are you going to do if a national abortion ban comes to your desk is the wrong question, because we have seen that they are actually willing to attempt to restrict abortion without passing laws. And so another example we talked about the medication abortion lawsuit is the possibility that they will attempt to enforce the Comstock Act, which is the Victorian era law that is on the books, that prohibits the distribution of licentious materials. And there are theories, including one in the medication abortion case, that actually in the wake of Dobbs, that allows the federal government to prohibit and criminally prohibit the distribution of medication abortion. And so you could have a Republican president and Republican attorney general effectively enforcing a kind of federal abortion ban without the Republicans in Congress ever having to pass a law or the president signed one. And that’s a real risk that it feels like people just aren’t talking about in this lead up to the presidential election.

 

Jon Favreau That’d be a good debate question for those Republicans in the first debate. It would. I don’t know who the moderator is. It’s probably like Sidney Powell or something, but.

 

Leah Litman She might be busy depending what Jack Smith does next.

 

Jon Favreau Ginni maybe it’s Ginni.

 

Melissa Murray Speaking of debates, like, I think this might be a good time to play a clip from the 2020 debate when candidate Trump had a lot to say about his new nominee then Judge Now Justice Amy Coney Barrett and the impact of abortion policy on that election.

 

Clip The point is that the president also is opposed to Roe v Wade. That’s on the ballot as well. And the court in the court. And so that’s also at stake right now. And so the election is all you know, it’s on the ballot. Why is it on the ballot? Because why isn’t it on the ballot? It’s on the ballot in the court. In the court. Well, there’s nothing happening there. Donna, would you you don’t know her view on Roe v Wade. I don’t have you.

 

Melissa Murray How does that strike you now, Jon, in the rearview mirror?

 

Jon Favreau I think we have those of us on this podcast have long believed that what Republican candidates say about justices that they may or may not nominate and how they’re just going to be calling balls and strikes and neutral and don’t have any political views is bullshit. But I think after the last election we may have put that to rest for, I’d say, a majority of the American people now.

 

Leah Litman I am certainly hoping so. But I think that this is another reminder about how to take the statements about what they would do with a federal abortion ban, you know, a hypothetical one or not. Right. In 2020, after literally almost four decades of Republican presidents campaigning on appointing justices who would overrule Roe at the moment, this was in their grasp. All of a sudden they’re like, what are you talking about? We have no idea what the justices we’re appointing are going to do. Who is to say who is to no justice, Amy Coney Barrett is going to do. And then what do you know? It happens.

 

Jon Favreau I don’t know how you do. If you’re in the Senate. Like I don’t know how you approach the next hearing, like the next confirmation hearing, knowing that so many lies have been told, whether they’re like, you know, even if their lies of omission by previous nominees.

 

Leah Litman I mean, if you’re Ted Cruz, you find a children’s book and you put it on a billboard and then you talk about anti-racist babies, and then if you’re Josh Hawley, you go cue curious and start screaming about pedophiles.

 

Leah Litman Yes.

 

Melissa Murray Yeah.

 

Jon Favreau Yeah, that’s right.

 

Kate Shaw Jon, we’re going to ask you to maybe transition or sorry, Justice Kavanaugh. We’re going to ask you to transition to the next quote if you’re ready.

 

Jon Favreau Some of the other abortion related legal questions raised by today’s decision are not especially difficult as a constitutional matter. For example, may a state bar a resident of that state from traveling to another state to obtain an abortion. In my view, the answer is no, based on the constitutional right to interstate travel.

 

Melissa Murray Easy peasy, lemon squeezy. Not a big deal.

 

Kate Shaw This just, like, encapsulates everything that is so enraging about Brett Kavanaugh because on the one hand, that’s helpful. He wants to assure everyone. That’s great. We can travel, yes.

 

Melissa Murray Wait Kate, this is literally cut and pasted from an Emanuel’s on constitutional law like this is from a commercial ally.

 

Kate Shaw He says, because it is the case that we all think and it seems right, that there should be a constitutional right to interstate travel. But the avowed originalist and textualist on this court are supposed to care about what’s actually in the written Constitution. And it turns out you can scour the words the Constitution. And in fact, there is no explicit protection for the right to travel per se. It has been understood as emanating from various parts of the Constitution, much like the right to privacy and to terminate a pregnancy was once understood to flow from various provisions in the Constitution, though abortion itself appears nowhere. So he’s just kind of like casually deploying this contested constitutional claim as if it’s very easy and obvious. But he’s hoping no one will notice, and maybe.

 

Melissa Murray He does hedge, Kate, in his view, he’s going to be the lone vote for this. He will be principled and he will uphold the constitutional right to travel.

 

Jon Favreau If I was designing ads and arguments for the Democrats in 2024, some of these like very sad, horrific, extreme examples that we’re hearing about that like in Texas, in Florida. Right. Of people who have unviable pregnancies that are forced to give birth anyway and women’s health being at risk. And like it is, it is shocking. And I think it’s sort of you see them pop up in like local news stories all the time, but they kind of go under the radar after that. And I think that reminding people of these extreme examples, not just because they’re the only injustice, but because I think that that will hit most voters in a real serious way is going to be important because and these are the kind of things that you hear in apolitical settings, right? Like with people who aren’t news junkies and politics junkies, they just like. And people who might be more conservative. Right. Let’s talk about a story they heard about someone who almost died because they were forced to give birth. And I think the Democrats have to make that a central part of the of the campaign in 24.

 

Melissa Murray I mean, I don’t think he had any more big thoughts. So I guess.

 

Jon Favreau That’s it.

 

Melissa Murray The words to thought ratio was.

 

Jon Favreau I just gotta go. I just got to go be a father to my daughters.

 

Melissa Murray Girl Dad.

 

Kate Shaw You have to probably go coach.

 

Jon Favreau Talk to talk to my law clerks. Yeah.

 

Melissa Murray Thank you for stopping by.

 

Jon Favreau Thank you, guys. This was really fun. Appreciate it.

 

[AD]

 

Melissa Murray So, listeners, we have saved the best for last. And that, of course, is the joint dissent, which was jointly written by the Court’s Cassandras, who I should say then the court’s Cassandras, because they’ve definitely been upped in their number. But these Cassandras definitely saw what was going to happen. And of course, we know them as Sonia Sotomayor, Elena Kagan and Stephen Breyer.

 

Leah Litman And we are delighted to be joined for this segment by some very special people who will be playing the Joint Dissenters, the best role in this retrospective. Trust us. And also discussing the last year through their eyes. That is the hosts of the Betches Sup podcast. Amanda Duberman, Alise Morales, and Milly Tamarez welcome to the show.

 

Betches Sup Hello.

 

Amanda Duberman We’re thrilled. I have I have a joke. I think it’s a very hackneyed joke, but and I have a feeling the guests have already made it, But it is that me being on this podcast might be the longest my husband ever listens to me.

 

Leah Litman Whoa! No one has made that joke.

 

Amanda Duberman No one has?

 

Leah Litman You win it. You win it.

 

Milly Tamarez Amanda’s husband’s famously a lawyer, and he loves it.

 

Amanda Duberman He’s. Yes, he is Big Law Ken.

 

Melissa Murray Big Law Ken! He is Ken-nough.

 

Leah Litman He’s just Ken. You’re Barbie.

 

Amanda Duberman Exactly. Exactly. Big Law Ken. Liberal politics, Barbie.

 

Kate Shaw Well, we are, I think, even more excited than big law and husband is to have you on the podcast. Leah and Melissa had a blast recording with you all on your podcast earlier in the summer, and I was so open that I could be there, but we all knew we needed to get you back and get you on our show A.S.A.P. So let’s do it.

 

Milly Tamarez Yesssss.

 

Leah Litman First, very important threshold question Which justice in the Dobbs Majority, aka the Mojo Dojo Casa House Court has the biggest Ken energy or Ken-nergy.

 

Alise Morales Oh, I feel like Brett. I mean, just the name Brett is a version of Ken, in a way.

 

Amanda Duberman I was going to go with Sam Alito just from plastic.

 

Milly Tamarez Yeah. I feel like, okay, this is where we dissent. I feel like pre Kensurrection, I think was Brett Kavanaugh for sure. His job is beah. He’s all about vibes. Barbie. Barbie, look at me. Look at me, Look at me.

 

Alise Morales The emotionality, the crying.

 

Melissa Murray The mink coat.

 

Kate Shaw No, that’s post. We’re talking pre.

 

Milly Tamarez Yeah. No, no, no. Yeah. Pre pre. Kensurrection. Post the sinister. The horse is on TV. It’s giving it’s giving Mr. Thomas for me.

 

Kate Shaw I think it’s giving Gorsuch as you said that this like rugged western country man.

 

Melissa Murray Neil Gorsuch would never wear a mink coat.

 

Kate Shaw No but the horse is somehow I feel like.

 

Milly Tamarez Sure. I’m just like the sinister.

 

Melissa Murray Only because he’s from Colorado.

 

Milly Tamarez Plotting. The listen to me. The listen to me play guitar for 4 hours is giving book. It’s given buy my book. That’s like really, really long.

 

Kate Shaw These are great answers.

 

Milly Tamarez Spoiler alert.

 

Melissa Murray I do think the Simu Liu Ken is very definitely Sam Alito here, don’t you think?

 

Milly Tamarez Yes.

 

Alise Morales I am simply disturbed. We have so many options because it is mainly men.

 

Melissa Murray I mean, that’s the world in which we live, right? We don’t live in Barbie Land. We live in the real world. So back to our original programing. Now, we would love for you to share a line from the descent and then we can all debrief about it, talk about how it’s aged over the last year, whether it still has that or G or actually Barbie energy. Yeah.

 

Milly Tamarez Yeah. Barbie energy. I guess I’ll start. So whatever the exact scope of the coming laws, one result of today’s decision is certain the curtailment of women’s rights and of their status as free and equal citizens. It says that from the very moment of fertilization, a woman has no rights to speak of.

 

Melissa Murray Ten out of ten.

 

Leah Litman That checks.

 

Melissa Murray No notes.

 

Alise Morales Yeah, unfortunately holds up. Regrettably.

 

Melissa Murray It’s giving Oklahoma. Arkansas, like a lot of places, really.

 

Alise Morales Texas had put in place a bunch of the scariest laws ahead of time, but it is still terrifying to see what women have had to go through in Texas.

 

Amanda Duberman Yeah, it feels like a year out to see whatever the exact scope of the laws and to now know what that scope is is pretty disturbing and nauseating.

 

Milly Tamarez Well, because it’s even like it’s not even women. It’s like anybody who even helps a woman who sends her a Facebook message, even Facebook matter is, well, you know what I mean? Doesn’t have rights.

 

Kate Shaw In terms of a year later, kind of what we have seen playing out on the ground and just how sort of fully the joint dissenters predictions have been borne out. We thought it would be useful to play a couple of clips from the Zborowski trial that is unfolding in Texas state court right now, and that’s the case, seeking an injunction barring the enforcement of laws that do not allow doctors to provide abortion care when such care is medically necessary. In the doctor’s judgment. And there has been just some unbelievably wrenching testimony from the plaintiffs and physicians in the case. And in case people haven’t been following it closely, we thought we’d use this opportunity to play some excerpts.

 

Clip I still like my pregnancy was not my own. That it belonged to the city because I no longer had a choice of what I could do. I felt abandoned. I couldn’t believe that after spending my entire life in this city. Being a sixth generation Texan. Practicing medicine in this state that. The stage completely turned their back on me. And for them. My only choice was to continue the pregnancy.

 

Amanda Duberman I mean, these are these are really the worst case scenarios I feel like women were warning of. Alise used to say something on the podcast, you know, four years before this where, you know, eventually there will be a name who is kind of the first woman, first person that we all acknowledge died as a result of this. I wonder if it’s happened already. But like, I mean, the stories that you hear, I mean, a woman like she was so overcome by what happened to her that she vomited on the stand. I mean, Amanda is aroused, has had to unpack her deepest trauma over and over and over again. And I think, you know, when we we knew all of the possibilities from this law of how it would affect people. Something that, you know, I definitely don’t think of as much as just how much they were going to have to retraumatize themselves over and over and over again. And just to look back on like the year that somebody like Amanda’s a Rousey has had, it’s just devastating and sickening and nobody should have to go through that and then be like the spokesperson for it.

 

Milly Tamarez Yeah, I mean, it seems extremely unfair. And just thinking about how the majority of people in this country who make these laws like have never had to go through it even any remotely anything remotely like don’t understand, like women’s care, like a lot of these people, especially like legislators in Texas, like famously don’t know how long a period lasts or that it can last different. Like and the fact that, like, people have to retraumatize themselves to share for people that have some modicum of compassion or understanding of how their legislation affects, it’s just really sickening.

 

Alise Morales Yeah, for me, it’s like when I hear these clips and I hear these women again having to trot out their personal traumas for a group of people who honestly don’t give a shit. Like, I remember in the first instance of this, like Amanda’s rescue was testifying before Congress, Ted Cruz doesn’t even show up. Like, these are people who.

 

Melissa Murray He was in Cancun, Alise.

 

Milly Tamarez The Ritz Carlton waits for no one.

 

Alise Morales Yeah, well, Snowball was there. You remember his dog.

 

Melissa Murray Justice for Snowball Justice for Snowball.

 

Leah Litman Don’t drag Snowball’s name in this.

 

Alise Morales I’m saying Snowball showed. Snowball is holding is being held accountable but it is like that’s what it I feel like it goes into the legacy of like taking it back to like Christine Blasey Ford where like women have to come out and say talk about the worst moments of their life before a panel of just like uncaring individuals, even going back as far as like Anita Hill. And then maybe in like 20, 30 years, we’ll be like, wow, she really did that. I mean, obviously we here can acknowledge it, but like, it’s such a long game for these women to actually be recognized for, like the bravery of what they’re doing and what they’re saying. And it’s so frustrating to see them have to do this for a group of people that didn’t even care to like. Consult doctors before writing their laws about a medical procedure. People who like for them, it’s about political points. It’s not about the reality of what women have to go through as a result of the stuff they’re putting into place.

 

Milly Tamarez Well, and it just goes to the first thing of like women are not free and equal citizens. You know, they don’t care.

 

Melissa Murray It was something that you said earlier just about, you know, the lack of representation in some of these institutions that are making decisions about, you know, whether a pregnancy will be continued or whether it won’t be. Institutions that have no medical training to speak of. But Kate and I have a paper where, you know, we know that in the States with the most draconian abortion laws, there is an overrepresentation of men in the legislature. So men are passing these laws. And in jurisdictions where women are better represented, like there are better outcomes like laws that are more favorable, have exceptions, like maybe don’t ban abortion entirely. And you know, there’s something so perverse about that. I mean, when you think about all of the reasons why women are not involved in politics, you know, a lot of it is do I think to one, not having the capital to get into the race like so much is needed to become a candidate, not having the time because you have all of these other responsibilities often to young families. And instead, you know, we have to cede this political landscape to so many of these men, and then they turn around and make these laws that absolutely stick it to us.

 

Kate Shaw And just don’t put some numbers to that. Right. The Mississippi legislature. So Mississippi is the state out of which the law and issue and jobs arises that legislatures like 14.9% women. It’s mostly men in that way, Plager, that’s, you know, lower than some other states. But it’s you know, there’s nothing approaching parity in state legislative representation. The federal Congress is a little bit better, but women, when they do run for office, mostly do it after having kids, sometimes after their kids are out of the house. So not only do you have women wildly underrepresented, you have young women like radically, radically underrepresented. There are very few young women whose bodies are going to be the most impacted by these laws who participate in the making of them. It’s mostly people who are men and mostly old men. And then there are some women, but smaller numbers and mostly much later in life. So it’s just not these lawmaking bodies don’t remotely reflect either the population at large or critically the most affected segments of the population.

 

Amanda Duberman I’m sorry, Kate I specifically remember Samuel Alito saying that we did have the electoral ability to just.

 

Milly Tamarez I mean, that point that you made, Kate, was just really reminded me of something we covered in batches a few weeks ago. I’m this up about this article saying that, you know, as we’re talking about like elected officials, it’s like if you’re a young woman, you know, working in in a professional environment, people will often say, like, you’re inexperienced, you’re you don’t know or this and that. But if you’re older, they’re like, oh, you’re really out of touch. And it’s just like seems like an impossible task to be a professional woman, working woman. Like in general, just to be like a marketing exact or a marketing manager. So you have to, you know, you have to like wrap your head around that of like trying to get people to vote for you To represent them is like its own hurdles in its own things. But the result of that is laws that, you know, again, it’s just the same people who think you can go to college for $3,000 and buy a house for 50 are the same people who are like, just don’t get what you say, no foot,.

 

Alise Morales Just put the baby in box at the end.

 

Milly Tamarez Yeah, just put a baby in a box. Just go to work and all this stuff. Mississippi, It’s just so funny. Mississippi famously a great place to raise children, all their government support. Things have been taken by a former football player to build a volleyball stadium right there for his daughter. So pro-women. Hello

 

Melissa Murray The father of daughters.

 

Milly Tamarez That’s that’s a girl dad right there. So, yeah, just all these things are just seeped in. So much irony. Alanis Morissette should include it in a remaster of.

 

Melissa Murray There’s more in this joint dissent. And these two women, Sonia Sotomayor and Elena Kagan and their wingman there, Allen Stephen Breyer, had a lot to say. So maybe let’s read the next slide and parse that.

 

Alise Morales The most striking feature of the majority is the absence of any serious discussion of how its ruling will affect women. A state can force her to bring a pregnancy to term, even at the steepest personal and familial costs. Human bodies care little for hopes and plans. Events can occur after conception, from unexpected medical risks to changes in family circumstances. Which profoundly alter what it means to carry a pregnancy to term. In all these situations, women have expected that they will get to decide, perhaps in consultation with their families or doctors, but free from state interference, whether to continue a pregnancy for those who will now have to undergo that pregnancy, the loss of Roe and Casey could be disastrous. What I like about this quote, or I don’t know if like is the right word, but what jumps out at me about this particular quote is that it also acknowledges that there are reasons that women have abortions that aren’t just medical emergencies. And that’s that’s something that I feel like now in the wake of the decision, for better or worse, there’s a lot of focus on like the women who never wanted to have one, but because of a medical emergency that arose, have had to have one. But there are so many other legitimate reasons why women make this decision. They says in the, quote, unexpected familial circumstances, financial issues. You know, there’s just so many personal reasons that anyone chooses to have an abortion. And the fact that that decision might be taken away, it is they use the word disastrous like that can have a disastrous effect on a person’s plan for the rest of their life.

 

Milly Tamarez My favorite judge, Judge Lynn Toler from formerly of Divorce Court, used to say, if you’re not in control of your fertility, you’re not in control of your life. And I feel like that is something that really struck me. And that’s why this again, just to, you know, piggyback off what Alise was saying, the high percentage of people that are doing, you know, I think people see like, oh, abortions are done by irresponsible women that use that as birth control and all this stuff. When that number is 40% of abortions are, you know, are with women who are married. And there are a lot of financial costs that this government, again, with the representation, the representative body being 80, 70 years old like don’t know what it’s like to raise a small child, don’t understand the financial constraints or anything, the time that it takes, the hits that it takes to being a woman, a working woman and a career and all that stuff like these are all factors. So it’s like they’re not do it, you know. I mean, we can have five other podcasts about the realities of being a working mother in this country and like how our government does not make things easier for that reality. But then, you know, for people who want to make another option, it’s like they’ve completely removed that. It just doesn’t feel like we’re equal and free, you know, because it’s like we really don’t have many options. Are taking the options away of what we can do and what our life looks like.

 

Melissa Murray We had a whole fight over the course of the Biden administration about whether we should think about childcare as infrastructure. I mean, like, you know, whether that was necessary to make the economy work. And it’s worth I mean, you make a really great point, really like this whole pro-life ethic is nested within an ethic that really abhors the idea of redistribution of resources in society and especially to women to help them raise their families.

 

Leah Litman I mean, we were kind of talking earlier, Legislators are writing these laws without input from doctors. It’s almost like they don’t understand what is going to happen from them. And some people have asked, like, did the court, the majority in jobs, anticipate what would happen in the wake of Dobbs? Did they know? Well, people told them to their faces, like in the pages of the U.S. report. So it’s not like they didn’t have this information before them. Right. And in fact, this is, again, how it has played out, like again, from the Zborowski trial, here are two different witnesses testifying about pregnancies that they were carrying that were incompatible with life that they were forced to carry to term. One from Ashley Brant, the other from Samantha Cassiano.

 

Clip I’ve had to watch twin A, Iyla, deteriorate more and more every week. So I’m sure they would want to give birth to an identical virginal daughter without a school, without a brain to hold her solution to my. And I can see her pain in her eyes. A little bit. Now my daughter has been diagnosed with A.F., and that means that her skull and her brain is not fully developed. And she was sorry I didn’t have any option. I was pregnant. She then called in a caseworker. Caseworker came in and they are handed me a paper that said funeral will be separate. She told me that I didn’t have any options because there was a law that the Texas abortion law prohibits. I wasn’t able to get it. So I. I felt like I was abandoned.

 

Melissa Murray Because we think it’s so important to make clear what Dobbs has unleashed. We wanted to include here a very lengthy segment from Amanda’s Nawrocki. It’s her opening statement to the Senate Judiciary Committee, where she testified about her own experience in Texas. So here it is. And again, it’s long.

 

Clip My name is Amanda’s Zurowski. And I’m here to tell you a little bit about my experience with the Texas abortion bans. About eight months ago, I was thrilled to be cruising through the second trimester of my first pregnancy. I was carrying our daughter Willow, who had finally blissfully been conceived after 18 months of grueling fertility treatment. My husband, Josh and I were beyond thrilled. Then, on a sunny August day, after I had just finished the invite list for the baby shower my sister was planning for me. Everything changed. Some unexpected symptoms arrived and I contacted my obstetrician to be safe and was surprised when I was told to come in as soon as possible. After a brief examination, my husband and I received the harrowing news that I had dilated prematurely due to a condition known as cervical insufficiency. Soon after my membranes ruptured. And we were told by multiple doctors that the loss of our daughter was inevitable. It was clear that this was not a question of if we would lose our baby. It was a question of when. I asked what could be done to ensure the respectful passing of our baby and to protect me now that my body was unprotected and vulnerable. I needed an abortion. My health care team was anguished as they explained there was nothing they could do because of Texas’s anti-abortion laws, the latest of which had taken effect two days after my water broke. It meant that even though we would, with complete certainty, lose Willow, my doctors didn’t feel safe enough to intervene as long as her heart was beating, or until I was sick enough for the ethics board at the hospital to consider my life at risk. So all we could do is wait. I cannot adequately put into words the trauma and despair that comes with waiting to either lose your own life, your child’s, or both. For days, I was locked in this bizarre and avoidable hell. Would Willow’s heart stop or would I deteriorate to the brink of death? The answer arrived three long days later. In a matter of minutes, I went from being physically healthy to developing a raging fever and dangerously low blood pressure. My husband rushed me to the hospital where we soon learned I was in septic shock, made evident by my violent teeth chattering and incapacity to even respond to questions. Several, several hours later, after stabilizing just enough to deliver our stillborn daughter, my vitals crashed again. In the middle of the night. I was rapidly transferred to the ICU where I would stay for three days. As medical professionals battled to save my life. What I needed was an abortion. A standard medical procedure. An abortion would have prevented the unnecessary harm and suffering that I endured, not only the psychological trauma that came with three days of waiting, but the physical harm my body suffered, the extent of which is still being determined. Two things I know for sure the preventable harm inflicted on me has already made it harder for me to get pregnant again. The barbaric restrictions that are being passed across the country are having real life implications on real people. I may have been one of the first who was affected by the overturning of Roe in Texas, but I’m certainly not the last. More people have been and will continue to be harmed until we do something about it. You have the power to fix this. You owe it to me and to Willow and to every other person who may become pregnant in this country to protect our right to safe and accessible health care. Emergency or no emergency? No one should have to worry about the life of their loved one simply because they are with child. Your job is to protect the lives of the people who elected you, not endanger them. Being pregnant is difficult and complicated enough. We do not need you to make it even more terrifying and frankly, downright dangerous to create life in this country. This has gone on long enough. And it’s time now for you to do your job, your duty, and protect us.

 

Leah Litman And there are so many other names and stories we could recount. You know, in addition to the people who are testifying at the Zurowski trial, there are the two women in pregnant Anya Cook and Cheney Smith Cunningham, who experienced a preterm labor, a rupture of membranes that required surgery in one case and leading one of them, you know, to require hospitalization, requiring her to be ventilated. There are the individuals like Taylor Edwards and others who had pregnancies that were not compatible with life and were forced to carry them to term. Deborah Daubert And there are just so many circumstances that arose again precisely as the joint dissenters suggested would happen about why abortion became necessary and the right decision for these women, given the circumstances of their pregnancies and their lives. And again, like they told this to the Dobbs majority, and the Dobbs majority just appears to have kind of shrug mojeed and insisted like, we’re going to do what we’re going to do. It’s so crazy to think of any other job where, like, you’re like, okay, it’s been a year in this position. Let’s look at what’s happened. Your decision has resulted in the maiming of many women and has altered the course of many people’s lives and a tremendously upsetting and traumatizing way. Keep at it. See you Monday. Like it’s just our Supreme Court justices. Like I thought that they were. Aren’t they supposed to consider the impact of their decisions? Like, don’t they do or do they not have an obligation to think like if we take away something like, I think of Dakota, like we take this away, it would have such a profound impact on American society? Or are they purely like, No, it’s just all you want is our our interpretation of the Constitution. You know, it depends who you ask. I mean, Neil Gorsuch has performatively and proudly proclaimed that he just doesn’t care and doesn’t listen to people when they inform him about the likely consequences of his rulings. Like he thinks that is like a mark in his favor that proves he’s like a real lawyer and a real judge. Yeah, I know. Like, not exactly a great circumstance, but, you know, this is also what the Dobbs majority characterized as arguments, just sounding in the national psyche that they were unwilling to basically consider because they were like, well, sure. Right. You’re telling us this might happen? Who is to say? Right. On one hand, you have like the history doctors testifying, the reality of pregnancy. And on the other, you have the pro-life movement’s feelings. And they would prefer to do this anyways. And the court basically said, like were unwilling or unable to actually resolve that.

 

Melissa Murray To your earlier point, I think one of the things I really like about the joint dissent is that it not only talks about the absence of abortion as an option in times when there are medical exigencies, they also just note as a general matter, 45% of pregnancies in the United States are unplanned. Even the most effective contraceptives fail, and effective contraception is not always universally accessible. So, I mean, they just sort of talks like sometimes life happens and like you need an option. And the option isn’t always to bring another human being into the world.

 

Alise Morales No, but you can put it in the box.

 

Melissa Murray Yes, Lady Safe Haven. I think you need it to be in a different part of this retrospective You’re doing, major in Lady Safe Haven Happy Families midge vibes.

 

Alise Morales That’s Amy’s whole thing.

 

Kate Shaw We didn’t cast anybody to play Amy, because you know what Amy did not do? Write down her views. She did not take the pen and explain why she was joining the majority in this case. No, she just went along silently.

 

Milly Tamarez To an earlier point. And in the Barbie of it all, and like just using my imagination, first of all, like.

 

Melissa Murray It’s very Sam Alito of you. What do.

 

Milly Tamarez I know. I know. Well, a girl can dream. I just can’t think of a situation where women are in the majority and have to decide on something and a procedure that affects men’s lives. First of all, I can’t even think about what procedure that would be and a procedure that would to have men have to, in detail, reshare the most traumatic surgery of their lives, maybe like a botched vasectomy or something like and then decision a circumcision maybe, and then like have the the group of women say, like.

 

Melissa Murray Pull yourself up by your bootstraps. Yeah, by your jock strap.

 

Leah Litman Vote Ken. Yeah.

 

Milly Tamarez Vote. Yeah, you should have. But I just I just can’t even think about even the fact that I can, you know, an equal procedure that happens only to men and that women are deciding. I can’t even use my imagination for that.

 

Melissa Murray It may be because. It’s like they’re literally is nothing equivalent for men. Like literally gestating a whole baby and then delivering it through your lady parts. Like there’s nothing like that.

 

Leah Litman So maybe we can turn to the final quote we wanted to end on, because unlike the failings of the majority, to actually talk about the consequences for women and pregnant people, the joint dissents really ended their writing on that. So would one of you like to read that passage?

 

Amanda Duberman This one’s such a gut punch, isn’t it?

 

Leah Litman Yeah.

 

Amanda Duberman With sorrow for this court, but more for the many millions of American women who have today lost a fundamental constitutional protection. We dissent, and specifically these Barbies and Allen dissent.

 

Kate Shaw And not respectfully, which is not the most important thing about this. But it, you know, bears noting.

 

Amanda Duberman I have a question for you all. Legal question. Is the ERA the solution?

 

Leah Litman No, because the Equal Rights Amendment prohibits discrimination on the basis of sex. And earlier in the Dobbs opinion, Justice Alito for five justices, rejected the argument that restrictions on abortion constituted discrimination on the basis of sex. Melissa wrote a fantastic amicus brief arguing that, you know, a better understanding of equal protection would recognize that abortion restrictions constitute a denial of equal protection and discrimination on the basis of sex. But even if you pass a constitutional amendment that prohibits sex discrimination, there are at least five justices on this court who would say abortion bans, restrictions on abortion don’t constitute sex discrimination.

 

Kate Shaw I’m less pessimistic about this. I think they would at least have to grapple with a serious argument that there’s a new constitutional basis for asserting protection. And they would I think there’s a very good chance they would reject it, but I don’t think they can do it by just citing these old 1970s cases, which is what they did to to reject the equal protection argument here. They would have to construct the argument anew. And I think that it would be like facially ridiculous for them to try to defend that argument in the face of a newly enacted constitutional prohibition. It doesn’t mean they wouldn’t do it, but I’m a little bit less pessimistic about it, that they would just get there with quite that ease. I think they would have to work really hard.

 

Leah Litman They’d write like two paragraphs instead of one.

 

Kate Shaw Yeah. It’s just an unbelievably dismissive rejection of that argument, obviously, in Dobbs, but I just don’t think they could do that. If we had an ERA.

 

Amanda Duberman What would a successful outcome of the Zurowski trial this case mean for abortion rights in America? I mean, I know it’s Texas specific, but is this really like a useful roadmap for reclaiming what we’ve talked about, what we’ve lost?

 

Kate Shaw I mean, everything helps, but this is like this is like stemming bleeding. I don’t think this is like a roadmap for returning to a gay pre Dobbs era. I think I think this is I think this is about like actually making sure that exceptions have to. But like, that’s still a prohibition that applies to most people who aren’t in a medical emergency.

 

Melissa Murray I’ll take a different beat on that. This is like maybe me and Malibu Barbie mode. You know, I think there’s stuff that will play in courts of law and then there’s stuff that will play in courts of public opinion. And I think a greater part of the energy in the Zurowski trial is actually about public opinion. Like, I think they are genuinely trying to read some teeth into the exceptions and make the exceptions meaningful. And for the most part they are toothless in any jurisdiction that has them at this point. And Jessica Valenti has said quite a lot in her substack about why that is. But I think they’re just basically I mean, this is like narrative and storytelling about what this means and consciousness raising for people around the country who are like business as usual. It’s totally fine. Like, no, it’s actually like this huge deal. Doctors don’t know what to do. Women don’t know what to do. Pregnant people don’t know what to do. And it’s just utterly chaotic. And the state has created this landscape of chaos and will not resolve it.

 

Milly Tamarez And I feel like with that in mind, like. Because abortion is a majority of the country does believe we should not ban abortion. Right. There’s like 60%. It is. With more of these public opinion, storytelling, narrative things that are happening is and obviously with the help of your podcast, really undermining the Supreme Court and showing that this is an unelected group of people who are doing whatever they want because a billionaire to go on a yacht in Michigan or because somebody paid off their credit card debt. Brett Kavanaugh Who did that? Please tell me I’m dying to know.

 

Leah Litman So speaking of Brett Kavanaugh and this court that came to be we wanted to end on a note, which is while most normal people would be kind of aghast at what has been happening in the year since Dobbs and the consequences that decision has unleashed. Apparently not everyone is. One person is actually bragging about how they did all of this. And that person also happens to be running for president in 2024.

 

Melissa Murray He also happens to be indicted like triply.

 

Alise Morales Yeah.

 

Leah Litman Yes.

 

Melissa Murray That hasn’t seemed to have dimmed his post retirement plans for reelection.

 

Leah Litman Same number of indictments as Supreme Court appointments. This man received.

 

Alise Morales Who are you guys talking about?

 

Leah Litman So let’s play that guy here.

 

Clip I did something that nobody thought was possible. I got rid of Roe v Wade.

 

Leah Litman So thank you all so much for joining us. We could not have asked for better guests for this segment. And thank you. Thank you again. And we hope to be able to have conversations again in the future.

 

Amanda Duberman Thank you. It’s always a pleasure. I love I love talking to you guys.

 

Milly Tamarez You guys are so smart!

 

Alise Morales Best in the biz.

 

Melissa Murray Mutual admiration that we’re all Barbies.

 

Kate Shaw Go Barbies.

 

Leah Litman Barbies, all of us.

 

Kate Shaw Huge thanks to Jon Lovett, Elie Mystal, Jon Favreau, and the hosts of the Betches Sup podcast, Amanda Duberman, Alise Morales and Milly Tamarez for joining us for this Dobbs retrospective. And one final note. Late Friday, after we finished recording this episode, the judge presiding over the Zurowski case in Texas issued a temporary injunction siding with the plaintiffs and finding that doctors in Texas must be able to provide abortion care to pregnant persons who have an emergent medical condition, which is basically anything the physician has made a good faith determination poses a risk to the person’s life or health, including their fertility. The case is set for trial in the spring of 2024. Since this was just a preliminary injunction ugh but meanwhile, Texas has already announced it is immediately appealing this order to the Texas Supreme Court. We don’t yet know how this case will ultimately turn out, and it could be a model for other similar challenges in other states. But in any event, it is just one part of a broader post Dobbs fight. But we are grateful to lawyers Molly Duane and Mark Heron at the Center for Reproductive Rights, in addition to the many brave plaintiffs who, as you just heard, shared their stories in an effort to try to protect others from some of the horrors they experienced. Strict Scrutiny as a crooked media production hosted and executive produced by Leah Litman, Melissa Murray, and me. Kate Shaw, produced and edited by Melody Rowell. Ashley Mizuho is our associate producer, Audio Engineering by Kyle Seglin, Music by Eddie Cooper, Production support from Michael Martinez and Ari Schwartz, and digital support from Amelia Montooth.

 

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