- “Supreme Court Term in Review: Experts Warn of a Court Coming for Your Rights,” Wyoming McGinn, Ms. magazine, Jul. 7, 2022.
- “‘With Sorrow, We Dissent’: The Three Justices Who Rejected Dobbs,” Stephen Rohde, Ms. magazine, Jul. 5, 2022.
00:00:09 H. Adam Harris:
In the morning when I rise, oh, in the morning when I rise, oh, in the morning when I rise, going to rise up breathing, going to rise up hoping, going to rise with equal justice under the law for my brothers, my sisters, and me. When I rise, oh, when I rise, oh, when I rise, I’ll be hoping for equal justice under the law for my brothers, my sisters, oh, my people, and me.
Good morning. Good morning. Good morning. My name is H. Adam Harris, and I want to welcome you to the 12th annual Supreme Court Term In Review conversation hosted by the University of California Irvine School of Law and Ms. Magazine. Today’s conversation is moderated by our very own Chancellor’s Professor, Michele Goodwin and…yes. Oh, you all are ready today. I love it. And of course, our esteemed panelists. That’s you all. Welcome. We are thrilled to see so many of you here in person today at the Irvine Barclay Theatre, and I’m sending an additional hello to those of you watching via livestream.
The root of the word awesome is awe, and awe is about experiencing wonder and terror at exactly the same time. These days are some awe-some times. Heavy on the terror for many, but hopefully pierced by some brief moments of wonder. Today, we’re going to hear from these experts about what has come and hopefully what can be. I come from the world of arts, and we love these words by Toni Morrison. I know the world is bruised and bleeding, and though it is important not to ignore its pain, it is also critical to refuse to succumb to its malevolence. Like failure, chaos contains knowledge and information and can lead to wisdom. This is precisely the time when artists go to work. There is no time for despair, no place for self-pity, no need for silence, no room for fear. We speak. We write. We do language. This is how civilizations heal.
I’m thrilled we’ve got these experts here today to help us strategize, to help us think, to help us make our way through, and to heal. I turn it over to you.
00:03:30 Michele Goodwin:
Thank you so much, Adam. Quite spectacular. Thank you, Orange County. We love you. I’m joined on stage by Dean Erwin Chemerinsky, Berkeley School of Law, but always from UCI. Professor Mary Ziegler, who’s joined us now, left Florida for California, is at UC Davis. My dear friend, Professor Aziza Ahmed. Mark Joseph Stern, senior writer for Slate magazine. Regina Mahone, senior editor, The Nation. Mary Anne Franks, the distinguished Professor of Law at the University of Miami Law School, and I’m Michele Goodwin, and we’ll get this show started.
So, Erwin, I first want to turn to you because I’m wondering if we should stop writing together. I know we love doing it, Erwin, but when I think about it, about 6 or 7 years ago we wrote a piece for the Harvard Law Review, and we said, if there’s ever a pandemic, here’s how the response should be. We wrote a piece for the Georgetown Law Review saying that religion should never be a basis for harming others, just in case religion was ever used in that way, and then about five years ago, we said, well, okay. If in case abortion’s ever threatened, here’s the road map for what we can do to restore that. That was in the Texas Law Review. So, Erwin, there’s too much predictive value with what we do. I mean, I love writing with you, but I wonder, Erwin.
00:05:41 Erwin Chemerinsky:
Let me start by saying how wonderful it is to be back at UCI, how much it feels like being home again, and Michele, thank you for inviting me.
00:05:51 Michele Goodwin:
Thank you, Erwin.
00:05:55 Erwin Chemerinsky:
I’d like to say that we were prescient, but the reality is the writing has been on the wall for a long time, and once the Republicans blocked Merrick Garland, once Ruth Bader Ginsburg passed away and Amy Coney Barrett was rushed through, once Donald Trump got to put three people on the Supreme Court, it was pretty clear as to what was going to happen. So, this term was in one sense not a surprise, but yet it was shocking to see decision after decision coming down in a conservative way. After Justice Barrett replaced Justice Ginsburg, I made two predictions. One is we are going to see a lot of conservative 6-3 decisions, and the other is we’d see very few liberal 5-4 decisions because after all, now the liberal justice would need to get two votes rather than one. This year, the Supreme Court decided 60 cases with signed opinions after brief or no argument, 19 were 6-3 decisions, 9 were 5-4 decisions, and in every major case, the conservative position won. In every case, the conservative justices moved the law very far to the right.
00:07:05 Michele Goodwin:
You know, Erwin, on that point, just so that we level set a little bit in terms of what it means conservative versus liberal, we’re going to get to the Dobbs decision not quite yet, but just to level set with that, Roe v. Wade was a 7 to 2 opinion. Five of those seven justices were Republican appointed, and Justice Blackmun, who wrote the opinion in Roe, was put on the court by Richard Nixon. So, I think what you’re talking about is something that is beyond what we’ve seen before in terms of what is considered conservative.
00:07:39 Erwin Chemerinsky:
Let me add this.
00:07:40 Michele Goodwin:
Add it, Erwin. Add it.
00:07:43 Erwin Chemerinsky:
Planned Parenthood versus Casey that reaffirmed Roe versus Wade in 1992 was 5 to 4. All five justices of the majority had been appointed by Republican presidents. Harry Blackmun by Richard Nixon, John Paul Stevens by Gerald Ford, Sandra Day O’Connor and Anthony Kennedy by Ronald Reagan, David Souter by President George H. W. Bush, but I think this reflects how the Republican party has changed dramatically, and how much issues like abortion, like guns, and like separation of church and state now animate the Republican party. If you want to understand this term of the court, you don’t do so by looking at judicial methodology. You certainly don’t do so by precedent. You do so by looking at the Republican platform. These justices this term were very much about implementing the Republican platform into constitutional law.
00:08:37 Michele Goodwin:
Well, that’s something that we talked about in that Texas Law Review piece on abortion, and we’re going to get there. I want to start with you, Aziza, because we are in a period of pandemic. We’re so grateful for our audience that is here, as well as our audience that is tuning in virtually. This is our first time since the beginning of the pandemic to actually be together for a Supreme Court Term In Review live. Aziza, there were cases that were heard by the court that addressed matters of COVID. Give us a breakdown of what that was like because there are cases that, there’s been so…these cases have been so unsettling for some in terms of the outcomes that it would be easy to forget that we’re in the middle of a pandemic and how the court has responded to it.
00:09:33 Aziza Ahmed:
Right. Yeah. Thank you, Michele. Thank you for that question and thank you for this event. It’s truly amazing. So, I think the story of how the court has responded to the pandemic is a story of the executive branch trying to take action and the courts undermining them. I think that’s basically the way to see it, and you could read it in two different ways. You could read it as a story of politics and the court sort of asserting its authority, but also in the constitutional register of the development of a new doctrine, you know, a doctrine which is basically gutting the administrative state of its powers, and I think all of us on this panel are probably engaging with this in some way because we’re seeing that the Roberts court is very interested in dismantling the administrative state.
I think the story in the COVID response starts really with the last term, with the CDC eviction moratorium, and that’s the case in which the court essentially said, no, the CDC cannot have this eviction moratorium. They’re essentially overstepping their power as an agency. They can’t essentially keep people in their homes, and this was going against what public health authorities and what science, you know, scientists were like, that was the best practice at the time. Making people homeless, housing insecurity was going to lead to an increase in number in COVID cases, and in fact, that is what we saw, and then in this term, we had two very prominent cases, at least two very prominent cases. There were lots of cases on the shadow docket, but one…the two cases I’m thinking of now are…
00:11:03 Michele Goodwin:
And give me just one moment.
00:11:03 Aziza Ahmed:
00:11:04 Michele Goodwin:
For shadow docket.
00:11:05 Aziza Ahmed:
00:11:05 Michele Goodwin:
And a bit of a shoutout to Steven Vladeck, wherever you are, Steven, but what’s the shadow docket for folks that may not know?
00:11:12 Aziza Ahmed:
Yeah. So, the shadow docket is the cases that essentially the court is deciding without engaging with fully, and you know, typically those might have been cases that could’ve been decided sort of in an easy way without oral arguments, without a hearing, but now the court is taking major decisions through this shadow docket, and you know, we could critique the court for not essentially letting us air our opinions, letting us have our day in court, and so, here, you know, and…so, back to the…but back to the COVID cases.
We had two cases about the vaccine mandates, one regarding OSHA, the occupational safety and…sorry. OSHA, which does workplace regulation on health, of course I’m not going to remember the acronym right now, and Biden v. Missouri, and in both of these cases, there were vaccine mandates in play, and the court in NIFB v. OSHA basically said that, again, the administrative agency was overstepping its bounds. They could not implement this vaccine mandate. In Biden v. Missouri, they did uphold the vaccine mandate, but on the same grounds, I think if you really look at the cases together, even though they seem contradictory, what the court was basically saying is that the administrative agency has the authority in this case, and the administrative agency does not have the authority in this case. In other words, Congress gave the agency that authority or not, and again, sort of keeping power sort of out of the administrative agencies in many cases.
00:12:42 Michele Goodwin:
So, more broadly, I’m wondering if anyone on the panel might want to add to that. How do we understand then the Supreme Court and how it has approached its jurisprudence during this period of COVID? Mark?
00:12:58 Mark Joseph Stern:
I can jump in.
00:12:59 Michele Goodwin:
Yeah, please do. Exactly.
00:13:00 Mark Joseph Stern:
The Supreme Court’s conservative super majority hates government. It hates a…
00:13:07 Michele Goodwin:
Not to put it mildly, Mark.
00:13:10 Mark Joseph Stern:
It hates a government that works, especially a government that works for the people, the people who are most vulnerable, the people who need protections in federal law, the people who rely on these many administrative agencies, the EPA, the Department of Labor, the Department of Justice, Department of Health and Human Services, that do the daily work of interpreting and enforcing the law. Federal statutes do not enforce themselves. We need agencies to do it, and the six conservative justices hate those agencies.
00:13:42 Michele Goodwin:
What would be the response to folks that say, no, they don’t hate agencies, Mark. Where in the world are you getting this from?
00:13:49 Mark Joseph Stern:
Well, I encourage that hypothetical person to read these opinions because what you see is this incredibly bizarre depiction of beady-eyed bureaucrats scurrying around the bowels of the government trying to seize everyone’s liberty through the most underhanded and undemocratic way as popular, and I think the fundamental irony of these decisions is that the conservative justices will come out and say, we are defenders of democracy because we will not allow these unelected, unaccountable bureaucrats to be making these major decisions for Americans. You know who should be making those decisions instead? Unelected judges with lifetime tenure who have no constituency, who have no elections, who can do whatever they want with accountability. We are the ones who should be making these choices for the American people, and they frame that as a coup for democracy, and I think it looks a lot more like a plain old coup.
00:14:50 Michele Goodwin:
So, what do those cases mean on the ground? And you know, Aziza, you invited us to think about the last term, and the last term was a COVID case that involved prescription medications that were sent in the mail. Does anyone want to speak to that just in terms of the one prescription medication that were singled out out of 22,000? Aziza?
00:15:17 Aziza Ahmed:
Oh, you’re talking about FDA v. ACOG?
00:15:18 Michele Goodwin:
00:15:19 Aziza Ahmed:
Yeah. Sure. So, you know, here’s a case in which the ACOG, the American College of Obstetrics and Gynecology, advocates, women’s health advocates, SisterSong, reproductive justice organizations are basically begging the FDA in the context of the pandemic to say, please let us access abortion medication via telemedicine. We can’t access…we can’t go to the clinics. We can’t go to the doctors. It’s unsafe. Abortion’s being declared a nonessential service. Of course, we all know that abortion’s an essential service, and the Supreme Court basically said, no, we’re going to, in that case they said defer to the FDA’s authority. Now, what’s…but yeah. Oddly enough…
00:16:02 Michele Goodwin:
Oh, go at it. Yes. Exactly. Yes.
00:16:03 Aziza Ahmed:
Oddly enough, but no, I will say that I read that decision about 400 times, and I…there’s a…he, Justice Roberts says a politically accountable agency, and I just think, I always…I kept thinking, if he’s trying to defer to experts, why did he put politically accountable in there? If he’s trying to defer to experts, why did he put politically accountable in there? And I think it’s because it comes back to this question of democracy, you know? Like, who’s going to actually make these decisions? How are we going to bring…how do we understand and think about politics in the context of expert authority? But there we have a funny situation where essentially Roberts is willing to say, oh, no, I’m going to defer to the FDA because the FDA’s essentially limiting access to abortion.
00:16:44 Michele Goodwin:
Well, I want to pick up on this conversation and weave you in, Erwin, in terms of this question on the administrative state and what this means in light of the EPA decision from the court and whether that reconciles with what we’ve heard from Aziza and Mark.
00:17:02 Erwin Chemerinsky:
West Virginia versus EPA involves the ability of the EPA to regulate greenhouse gas emissions from power plants. Greenhouse gas emissions from power plants are a major source of what leads to climate change. The Supreme Court last week in a 6 to 3 decision said that the EPA lacked the authority to do this under the statute. It fits very much with what Mark was talking about. Chief Justice Roberts wrote for the court and said, when there’s a major question, Congress has to give the agency clear guidance in terms of how to act. He said, this is a major question, and the statute wasn’t sufficiently specific. Now, the problem is the court never defines what’s a major question. The court never tells us what’s sufficiently specific. So, I think the court here has opened the door to challenges to countless federal statutes giving agencies power. This is true with regard to the other statutes that give the EPA the authority to regulate environmental hazards and pollution. It’s true of all the statutes that give agencies the power to protect public health and safety. It’s true with regard to all of the statutes that give agency authority. The Supreme Court has tremendously opened the door to challenges to all aspects of the administrative state.
I thought Justice Kagan made a really important point in dissent. She said, for decades the conservatives have said, follow the text. She said, I even gave a speech saying, we’re all textualists now. So, the text gives the EPA this authority, but it’s not sufficiently specific according to the court. She says, inevitably, Congress has to write statutes that give broad authority and agency. Now, all of these statutes are constitutionally, or at least from an administrative law perspective, vulnerable. I think you have to see this as part of a pro-business agenda on the part of the Roberts court, and how the Roberts court here has really opened the door to business to be able to challenge almost anything because no one knows what’s a major question, or what’s sufficiently specific?
00:19:12 Michele Goodwin:
So, Erwin, you mentioned textualism, and there’s been a healthy dose of conversation that may be confusing about what in the world is textualism? What in the world is originalism, and were the framers of the Constitution actually originalists and textualists themselves? Can you give a little bit of a view of that?
00:19:36 Erwin Chemerinsky:
Textualism relates to statutes, and it’s the view that what the court should do is follow the plain language of the statute and pay no attention to legislative history. The problem is that words are inherently ambiguous, and what I find courts frequently do is say, here’s the words, the plain meaning is, and I look at it and say, I don’t think that’s the plain meaning. I think it’s ambiguous, and of course they find that the plain meaning to confirm their own ideological bias.
Originalism relates to constitutional interpretation, and this is the idea that the meaning of a constitutional provision is fixed when it’s adopted, so it means the same thing today as when it was enacted. So, the Second Amendment the court says means what it does in 1791 when it was passed, or in 1868 when the 14th Amendment was adopted. The problem of course is that history is ambiguous. The problem is that the world is so very different today than it was then. I mean, take the case about whether a football coach can pray on the field. Does it make sense to say, in 1791, could high school football coaches pray on the field? Or in terms of the Second Amendment, the weapons today are so very different, or when we think about how rural the society was…
00:20:52 Michele Goodwin:
No bullets then. Yeah.
00:20:53 Erwin Chemerinsky:
Compared to what it is now, or does it make sense to look at history in terms of abortion rights? Because it wasn’t a safe medical procedure in 1791 or 1868. Chief Justice John Marshall said in 1819, we must never forget that it’s a constitution we’re expounding. The Constitution may be adapted and endure for ages to come. Unfortunately, the conservatives on the Roberts court, they’ve completely forgotten that, and that it’s supposed to be a living constitution.
00:21:21 Michele Goodwin:
And not to mention the fact that much of this is something that has been established just in recent years. I mean, these are not matters that go back centuries at all, right? At best, we’re talking about a couple decades, right, of this framework.
00:21:36 Erwin Chemerinsky:
And if we’re going to look at history, why is the only relevant history 1791 or 1868?
00:21:43 Michele Goodwin:
Many of the people in this audience…
00:21:43 Regina Mahone:
But they don’t care.
00:21:44 Michele Goodwin:
Wouldn’t count back in that time.
00:21:47 Regina Mahone:
But they don’t care about it, you know?
00:21:47 Erwin Chemerinsky:
Roe versus Wade was 49 years old. Take the Second Amendment. From 1791 to 2008, not one federal, state, or local law that regulated guns was found unconstitutional. Why does the court ignore that history?
00:22:01 Michele Goodwin:
Well, on that note, Mary Anne Franks, I want to turn to you about this Bruen decision, and to help our audience understand that case, its context and how we can understand it moving forward.
00:22:16 Mary Anne Franks:
Well, I think it really ties into this question about history, originalism, selective readings of the Constitution, and one of the most useful frameworks I think for this is to think about what is happening with these interpretations of the Constitution as being effectively fundamentalist. So, if you think about what religious fundamentalism looks like, it’s this emphasis on saying, you have a very specific reading of certain words, and you invest yourself with the authority of, well, that’s what the original authors of this text really meant, or you invest yourself with this kind of ahistorical feeling about what these words mean, and just like with religious fundamentalism, what it really turns out to be is it just so happens that the original meaning or the textual meaning is exactly what serves your interest, and this is what’s happening all the time now with this court.
We’re seeing constitutional fundamentalism on this really deep level that’s, on the one hand, we can ask, why look at this history and not this other? Why look at history at all given the fact that when it serves the conservative theocratic agenda, history sometimes matters, sometimes not, so long as you can read history to get to the result they want? When I think about how you can encapsulate this approach, I think about the moment as people were speculating or there was concerns about how was the election going to go between, you know, it was so tight between Clinton and Trump. You know, what’s going to happen here? And Trump was asked, are you going to respect the results of this election, and what did he say? I’ll respect the results of this election if I win, and right there, and we know what happens when he doesn’t, right, but right there, you have everything you need to know about this particular philosophy, which is the rules and the text and the history and whatever else people are saying goes into their interpretative project. They care about it if it lets them win.
So, what does that mean in Bruen? And it’s such an interesting one to hit when we think about Bruen happening and then Dobbs happening because when you think about the different uses of history and the different conceptions of who has a right and what is a preexisting right and what is a super right and what is not a right at all, very interesting, but in Bruen essentially, the court says, yeah, well, there is this really long-standing law in New York. It’s been around for 100 years or so. They want to regulate certain carriage of guns in public, and they want to say that you have to show a special reason for wanting to have these weapons because of course weapons are dangerous.
00:24:38 Michele Goodwin:
00:24:39 Mary Anne Franks:
In public, right, because…
00:24:40 Michele Goodwin:
Not in your home.
00:24:41 Mary Anne Franks:
Right. Right, because to back up, you know, we had in 2008…
00:24:43 Michele Goodwin:
Not in your garage, you know?
00:24:45 Mary Anne Franks:
00:24:45 Michele Goodwin:
Man cave, so forth.
00:24:46 Mary Anne Franks:
Exactly. Not in the privacy of your own home because the court had already done a very weird thing before and said, you know, all this time, people thought that those words, well regulated militia, meant something, and in 2008, the court says, it doesn’t though and decides that they’re going to use that as a way to interpret a right to self-defense in the home using a handgun, none of which is in the text of the Constitution, but this adds onto it by saying, it’s not just in your home because if you have the right to defend yourself in your home, well then you ought to be able to defend yourself when you are freaking out about the person next to you on the subway, and the objection here was to say that, you know, history and tradition do not allow for the kinds of regulation that New York had put into place after contemplating, because of New York’s own unique considerations about what its population needs, and of course, the density of its population. The court says, you can’t do any of that. The Second Amendment itself takes the right to sort of even have that conversation out of your hands because that’s a preexisting right, and it’s impossible not to think about this in contrast and in comparison to what we get into Dobbs, but not just for the reasons of does history matter, or is there a right, or do you have to show certain cause? But think about what this entire interpretation rests on, which is not just that you can say, I want guns and I want them everywhere. You have to tie it to something that sounds I think facially plausible. What does the court say? It’s self-defense, which sounds great. What it …
00:26:10 Michele Goodwin:
It does sound great to many people.
00:26:11 Mary Anne Franks:
It sounds great, and the notion of self-defense in criminal law is that if there is a serious threat, imminent threat of grievous bodily injury or possibly death, then you are allowed to defend yourself. Notice how that concept doesn’t have anything necessarily to do with guns, right? It just has to do with the concept of proportionality and imminence, and then think about what that means when the court says, states are not allowed to make their own assessments, largely speaking, about how we should think about what is appropriate for self-defense. We’re just going to take it out of your hands altogether. In contrast, right, to what the court’s going to tell us about women facing pregnancy.
00:26:47 Michele Goodwin:
And we’re going to get there.
00:26:48 Mary Anne Franks:
00:26:48 Michele Goodwin:
But I want to hear about the dissent too, right? Like, that’s the majority’s take. What does…how does the dissent respond? Because these are not just majority takes, but we’ve got dissenters. So, what happens in that case in terms of our dissents?
00:27:02 Mary Anne Franks:
Well, the dissents are doing a good job of trying to say none of this makes sense, right, that none of what you’re doing here as a matter of interpretation makes sense, and this is I think the most chilling thing about this term, which is that it’s not just that we’re looking at the kinds of conclusions that we all knew were coming in some ways because of course the reason to have kind of violated the entire system of putting somebody in place for the Merrick Garland seat, and of course all these seats that Trump was able to secure, of course this was about getting to certain types of conclusions, but when you have a complete rejection of the law, right?
00:27:39 Michele Goodwin:
00:27:39 Mary Anne Franks:
The dissent points out and says, oh, you’re taking…you say that part of history that would go against this conclusion, we don’t count that kind of history because it’s too different from what we’re doing here, and then they skip ahead a few more decades and say, oh, but we like this piece of history.
00:27:50 Michele Goodwin:
And Mark, you’re nodding to that. Fill in some of this dissent.
00:27:54 Mark Joseph Stern:
I mean, I really want to hear from Mary on this because she is the historian who can just destroy Clarence Thomas’ totally amateur hour, dilettantish, pseudo-history, which is just, it’s pathetic. You know, I just want to say at the outset, none of the justices are historians. None of them have any real formal training in history. They are all flying by the seat of their pants here and cherry-picking, but at least the liberals admit that, and when they engage in history, it’s to spar with the conservatives. When Clarence Thomas writes, he has an almost pathological certainty of his own correctness, as if when he speaks these things about history, they come into being as truth and cannot be contested, and I think that Justice Breyer’s dissent in Bruen is very good, but it’s hard to argue with something who believes that he is essentially just spouting the divine truths of a deity rather than acting as a judge trying his level best to interpret the Constitution.
00:28:56 Michele Goodwin:
Well, Mary, you know, Mark has pivoted to you and says that he wants to hear from you, although Mark has given us quite a bit right there.
00:29:03 Mark Joseph Stern:
Had to get it off my chest.
00:29:05 Michele Goodwin:
Yeah, no. I mean…
00:29:05 Mary Ziegler:
It’s the Goldilocks approach to history in Bruen for Justice Thomas, right? So, it’s like this history is too old to tell us anything relevant about the Second Amendment, and this history is too Texas because Texas, God knows, you know, when it comes to guns, Texas is the outlier. That’s not a place where people have guns or regulate guns, and then this history is too close, you know, to the ratification of the 14th Amendment. So, it’s so obviously cherry-picking that when I’ve been in conversation with conservatives, they have a hard time defending the history in Bruen, which is saying something, and I think there’s also…it’s in keeping with the way Justice Thomas talks about history generally, in that it’s very racialized, right?
So, there’s the idea that people of color were denied their rights to bear arms in the aftermath of the Civil War, and so, the solution to racism is basically more guns because we don’t have enough guns now, and clearly more guns have been helping with the problem of racism. We’ve all seen in the abolition of racism that we’ve all been experiencing how wonderfully it’s going, and we need only to march further down that road, but which is in keeping, again, with his jurisprudence on abortion. He’s had a very racialized narrative about, and incredibly a historical narrative that essentially equates the eugenic legal reform movement of the early 20th century with the family planning movement of the 20th century, early 20th century, which is wrong.
00:30:22 Michele Goodwin:
Right, which is…
00:30:22 Mary Ziegler:
And then those movements with the population control movement of the 1970s, which is infinitely more complex than Justice Thomas suggests, and all of that with individual pregnant people having abortions today, which doesn’t make sense, but again, the idea is that sort of the people most invested in ending racism are the conservative justices on the Supreme Court.
00:30:41 Michele Goodwin:
You know, I will say…
00:30:42 Mary Ziegler:
It’s good news, everyone.
00:30:44 Michele Goodwin:
Say this. You know, years ago, I took my daughter when she was about 7 or 8 years old to the Supreme Court to hear two cases and oral arguments, and Justice Breyer actually read to her and a little group of kids The Cat in the Hat. It was really cute. I got a picture of it, but the fascinating thing was that she, you know, tugged on my sleeve at one point and asked why Justice Thomas looked asleep, and…because he really did. His eyes were closed, and the 7-year-old noticed it, and here’s what I will say is that he looked asleep. Today, Justice Thomas is awake.
00:31:25 Mary Ziegler:
00:31:26 Michele Goodwin:
But he’s not woke. He is awake, but he is not woke. Erwin, would you like to add any to this texture of Bruen majority or dissent?
00:31:38 Erwin Chemerinsky:
I think something occurred in Bruen that we’ve never seen before. Always before when the court has been originalist, it’s used originalism to determine whether there’s a constitutional right. This is the first time the Supreme Court has ever used originalism to limit what the government can do. Whenever the court before has found a fundamental right, like freedom of speech or free exercise of religion or privacy, the court has said, the government can act if it meets what’s called strict scrutiny, if its action is necessary to achieve a compelling purpose. Justice Thomas’ opinion in Bruen says, we’re not going to use strict scrutiny. Even if there’s a compelling interest, it doesn’t matter, even if the government action is necessary. He said, the only kind of government regulations of guns that will be allowed were those that were permitted in 1791 or maybe 1868. This is stunning because it gives Second Amendment rights a greater protection than any other right in the Constitution.
00:32:42 Michele Goodwin:
It truly weaponizes it. Go ahead, Mark.
00:32:44 Mark Joseph Stern:
I just want to add one thing while I’m on my high horse, which is you might all be thinking, well, wait, this is great. We’re going back to 1791 with gun regulations, so people can only have muskets, right? People can only have…
00:32:58 Michele Goodwin:
00:32:58 Mark Joseph Stern:
Yeah, yeah, cannons at best.
00:33:00 Michele Goodwin:
00:33:00 Mark Joseph Stern:
Like, no AR-15s.
00:33:02 Michele Goodwin:
00:33:02 Mark Joseph Stern:
No semi-automatic handguns, but that’s not what Thomas does. Instead, Thomas embraces one of the most overt forms of living constitutionalism that you will ever see on the Supreme Court when it comes to the types of weapons we’re allowed to have, where he says, as soon as a weapon comes into common use, then the government is basically not allowed to limit access to it. So, if in 2023 there were a TikTok craze about bazookas, and millions of teenagers went out and bought bazookas and started doing…you know, it was the biggest thing. Everyone wanted their bazooka. They were sold out at Walmart. You had to get them on eBay. They would become…
00:33:38 Michele Goodwin:
00:33:38 Mark Joseph Stern:
In common use, and they would gain constitutional protection, but at the same time, Thomas says that the government cannot impose a regulation unless that regulation existed in 1791. So, when it comes to the guns that we’re guaranteed access to, it’s just, you know, if they’re around today, then we get to have our hands on them, but when it comes to the regulations we’re allowed to impose on those guns, we have to have a séance with James Madison and figure out what he would’ve wanted.
00:34:10 Michele Goodwin:
Well, you know, this, what you’re describing as a kind of selective reading of the Constitution, perhaps even an opportunistic reading of the Constitution, these words have been used to describe not only the Bruen case, but also Dobbs, a case that is barely two weeks old in terms of the Supreme Court issuing the opinion, which has overturned Roe v. Wade, and Regina, I’d like to turn to you to set the stage about the Dobbs opinion.
00:34:48 Regina Mahone:
Where do you begin? Well, everyone knows of course Roe v. Wade, 1973, ruled that it…now, I have to look at my notes because I’m feeling nervous, so I apologize. Okay. Of course. So, it was decided under the 14th Amendment’s due process clause, which protects the right to privacy, and then Planned Parent v. Casey established the undue standard, undue burden standard, and so, in the Dobbs decision, they’ve overturned both of those cases and basically gotten rid of both of those standards, and also are allowing states to basically introduce any abortion ban. I actually have the language.
00:35:35 Michele Goodwin:
And to that, while you’re looking that up, right?
00:35:37 Regina Mahone:
00:35:38 Michele Goodwin:
So, not only…and thank you very, very much. I mean, this has been very jarring. So, I appreciate actually just how you’re feeling because there are…seriously, because there have been marches across the country. There have been women stuck on sides of roads found crying because they can’t get to the appointment in another state. There are doctors who are wondering if they may be criminally punished in states like California and New York and otherwise. Some of you may have even read about a story of a 10-year-old girl who had to leave a state that has now imposed a trigger ban, which went into effect after Dobbs, after she had been raped and did not want to be a 10-year-old or 11-year-old mother. So, I actually very much appreciate the energy that you bring to this because it’s not an easy conversation. So, I’m going to come back to you in just a moment.
00:36:39 Regina Mahone:
00:36:39 Michele Goodwin:
And turn to you, Mary, to help us understand the work that the majority did in this case.
00:36:46 Mary Ziegler:
Yeah. I think to understand how extraordinary Dobbs is, it helps to understand Justice Alito’s opinion leaked in early May, right, and lots of historians…so, there were 19th century historians who were saying, this 19th century history is bad. I mean, and to give you a sense of what I mean by bad, there were three historians, I use the word loosely, cited in the majority in Dobbs. One of them is an expert on land and water management and wrote one work of history in his entire career, which was cited by the majority. A second was on the kind of board of directors of the National Right to Life Committee, which is, as you may or may not know, one of the largest national anti-abortion groups, and the third is primarily a specialist in Christian ethics, who again, you know, had one foray into the history of anything, which happened to be about 19th century abortion law.
By contrast, there’s a…and then there was a separate part of the opinion about essentially stare decisis, right, when the court revisits its prior precedents, that dealt with Roe’s effect on American society. I personally, to not cite anyone else, just me personally, have written something like four books on this. The court decided to cite not me, not other historians, and I, by the way, on the salient points, agree with historians who are opposed to legal abortion, didn’t cite any of us, cited the great historian Antonin Scalia because if you’re looking for a historian to say Roe alone polarized the United States, you will not find any. There are zero. You cannot find any. So, the court had to go to Antonin Scalia. So, everyone got to say, wow…
00:38:13 Michele Goodwin:
A great historian, Antonin Scalia.
00:38:15 Mary Ziegler:
This majority is bad. Like, this draft is terrible, and ostensibly what happened was nothing. The final draft and the leaked draft are in salient ways identical, and so, one of the things that that tells you about Dobbs is not only that Dobbs will send shock waves through our constitutional order, not only that the Supreme Court has destroyed a constitutional right that’s 50 years old, but essentially that the court doesn’t care what anybody else thinks about what it’s doing, right? They had an opportunity to shore up the majority, to make it a more compelling majority. They chose essentially to wave that opportunity and to say, this is perfect. There’s no need to change it, and that, I mean, that’s almost as extraordinary to me as the fact that the court took this case, the fact that the court dismantled abortion rights as quickly as it did. I was on record. I was in the New York Times at various points saying, no, no, they’re not going to do it this fast because it’ll damage the institution too much, and I had to basically go back to the New York Times and write the…
00:39:07 Michele Goodwin:
You and I disagreed.
00:39:08 Mary Ziegler:
I’m an idiot piece because they didn’t care about all the things I thought they cared about anymore because this court is so fundamentally different than anything we’ve seen.
00:39:16 Michele Goodwin:
Tell us a little bit about the Mississippi case that the court decided to take up. What was that legislation?
00:39:22 Mary Ziegler:
Yeah. So, the law was a Mississippi ban on abortion at 15 weeks. This is part of a kind of broader strategy the anti-abortion movement has had off and on since the 1980s to target viability. So, Roe and Casey stood, among other things, for the proposition that there’s a right to choose abortion until viability, which is the point at which there’s a sort of relatively realistic chance of survival outside of the womb. There was a thought ever since Sandra Day O’Connor in the ’80s criticized viability that this might be kind of the Achilles heel. So, you saw all over various states laws saying, okay, you can’t have an abortion at 20 weeks because we found one expert who said fetal pain is possible at 20 weeks. There were laws, of course you’ve heard of the so-called heartbeat bans at six weeks. All of those were different ways of getting at viability. The reason the 15-week ban was so startling as a case for the court to take, there were only two states that had these laws, and if you know anything about the anti-abortion movement, that’s extraordinary. That means nobody liked this law because generally these laws go viral. There’s a playbook that you can find on Google that was sent to legislators everywhere. There was no evidence that…
00:40:26 Michele Goodwin:
And the law was not in effect. So, people should know that as well.
00:40:28 Mary Ziegler:
00:40:29 Regina Mahone:
00:40:29 Michele Goodwin:
There was an injunction that was imposed against the law going into effect.
00:40:32 Mary Ziegler:
Exactly, yeah, but it was one of these, you know, and I would joke about this that there were lots of abortion cases that were teed up to end abortion rights, and if you had asked me or lots of other folks, what are the best candidates? None of us would have said this law. So, there’s the sort of Mr. Right and Mr. Right Now for the Supreme Court. Like, do you go for the thing that’s going to make you look better, or do you just go for the first thing that you see? And the answer in Dobbs was Mr. Right Now. It was this case because this was not…it didn’t tee up any of the better arguments I think that the anti-abortion movement had made. I don’t think people in the anti-abortion movement thought they were going to do this because it was sort of not a great idea.
00:41:08 Michele Goodwin:
Well, and to that point, right, so what you’re talking about, Mary, is the 15 week ban on abortion. Regina, it made no exceptions for cases of rape or incest, right?
00:41:19 Regina Mahone:
00:41:20 Michele Goodwin:
But the Supreme Court decided to do something more than that, Regina.
00:41:24 Regina Mahone:
Well, the Mississippi Attorney General went back to the court and said, actually, won’t you consider just overturning Roe? Like, that’s actually what we really want, and they didn’t have to, and Roberts in his concurring opinion said, you didn’t have to, and didn’t support it, and in fact said that the law could’ve just stayed. You know, he agreed with the opinion at staying at 15 weeks, but instead Alito and the extreme conservatives on the court.
00:41:54 Michele Goodwin:
So, what do you think was the difference then, right, between the…? Here’s a 15 week ban on abortion. There was an injunction imposed so that the law was not in effect, a brilliant statement even, that ruling from Judge Carlton Reeves at the district court level, read the footnotes even where he takes Mississippi to task and uses the term gaslighting to describe what the state of Mississippi was doing in that case because Mississippi claimed that the law itself was to protect women, that this is why we’re enacting that law, and he said that this is just pure gaslighting, but Aziza, there is a response. That’s the majority, what we’ve heard, but what about the dissent?
00:42:47 Aziza Ahmed:
Well, the dissent replies to the majority as well as the concurrences on several different points. So, you know, just to put on the table two other dimensions of this, which is that Kavanaugh pretty strongly says in his concurrence that actually the court is acting neutrally because we are…we’re not taking a position on this issue and we’re going to leave it to the states to political process. Now, enter all the gerrymandering, all the redistricting, all the voting rights issues that are going on. Do state legislatures even represent the views of the people in some of the states anymore? And you know, but he says, all right, well, we’re going to take the court. We’re going to keep it neutral. We’re just going to throw it back to the states, and then Thomas, and he gets called out for this by the dissent, basically says, oh, look, you know, I know that those guys are all saying this is actually about abortion, but hey, we can just overturn everything now, you know? Let’s…we’re opening the door…
00:43:38 Michele Goodwin:
With regard to privacy, right?
00:43:39 Aziza Ahmed:
With regard to privacy.
00:43:40 Michele Goodwin:
He does put it, you know…
00:43:40 Aziza Ahmed:
Yes, yes. I’m sorry, privacy.
00:43:41 Michele Goodwin:
He just says with regard to privacy.
00:43:42 Aziza Ahmed:
Okay. So, LGBT issues, family privacy, everything that comes under contraception.
00:43:46 Michele Goodwin:
But he makes an exception.
00:43:47 Aziza Ahmed:
00:43:48 Michele Goodwin:
Not everything in privacy.
00:43:49 Aziza Ahmed:
Yes. That’s true.
00:43:49 Michele Goodwin:
Where is the exception?
00:43:50 Aziza Ahmed:
That’s true. Loving…
00:43:51 Michele Goodwin:
Protects himself and Ginni.
00:43:53 Aziza Ahmed:
Save his own marriage.
00:43:55 Michele Goodwin:
I mean, he does.
00:43:55 Aziza Ahmed:
Yes. It’s true.
00:43:57 Michele Goodwin:
Protects me and Greg, you know? So.
00:43:59 Aziza Ahmed:
Yeah. Yeah, and that’s a marriage that could legitimately be under interrogation right now by a lot of people. Yeah, but yeah. So, the dissent, you know, it’s a powerful dissent. They write against all of these points. They say, hey, you can’t call this neutral. Look at the impact this is having on people’s lives. What are you talking about, history? Just to go back to our prior conversation. You want to go to back to the 13th century to figure out how to deal with women’s…? The appendix is laughable in the majority decision. All those laws from the 1800s, you know, that dealt with abortion. I mean, give me a break. This is…
00:44:31 Michele Goodwin:
Well, abortions were being performed by the Pilgrims, right?
00:44:33 Aziza Ahmed:
00:44:34 Michele Goodwin:
Benjamin Franklin wrote a book about how to perform a safe abortion.
00:44:38 Aziza Ahmed:
Right. Right. The legal experts they go to here, you know, the fact that the legal experts themselves validated ideas about, you know, coverture.
00:44:44 Michele Goodwin:
00:44:45 Aziza Ahmed:
And you know…
00:44:48 Aziza Ahmed:
And were involved in the witch trial…I mean, it can’t get…this is next level, you know, and I mean it wasn’t even as though, you know, Mary talked about legitimacy of the court, you know, and I think a lot of us were really counting on that, you know, that the court…
00:45:03 Michele Goodwin:
Well, I actually want to spend just one moment because I use this terminology of coverture because there are people who are really trying to understand and unpack nuance in this. So, you or Mary want to talk about what coverture means at all?
00:45:13 Aziza Ahmed:
Oh, yeah. No.
00:45:14 Mary Ziegler:
We could do either.
00:45:15 Aziza Ahmed:
Yeah. Go ahead. Yeah.
00:45:16 Mary Ziegler:
Sure. So, coverture for, you know, many years, until rather recently, was the idea that…some of you may have heard when you got married, I now pronounce you man and wife, right? So, men remained men. They had the same legal rights they had before. Women became wives, and the idea was that their identities were literally covered by that of their husband. So, they were not allowed to own property. They weren’t allowed to contract. They weren’t really allowed to make wages, and unsurprisingly, they weren’t really allowed to practice law. So, you don’t…you have to get into the late 19th century to find the first woman who was a member of a bar. So, citing an authority on coverture for the proposition that there are no…
00:45:57 Michele Goodwin:
00:45:57 Mary Ziegler:
Abortion rights isn’t going to be, you know, the answer would not come as a great surprise that the answer from that person would be that there would be no protection for lots of things involving women, other than to ask their husbands what the answer was.
00:46:09 Aziza Ahmed:
And the dissent…oh.
00:46:10 Michele Goodwin:
And that’s actually a mild version, and then we’ll get to the dissent and get you in here too, Erwin, because coverture was also the frame of law that was used to protect men who beat their wives.
00:46:21 Aziza Ahmed:
00:46:21 Mary Ziegler:
00:46:22 Michele Goodwin:
And who raped their wives.
00:46:22 Mary Ziegler:
Marital sexual assault as well.
00:46:24 Michele Goodwin:
Right? I mean, this, and these are lawyers that are cited by the majority who write about coverture, right? So, to really understand the context of not just you are sort of in the identity of your husband, but this is a framework within law that justified physical and sexual abuse of women without protection under law.
00:46:43 Mary Ziegler:
Yeah, and the race part of the majority is really extraordinary too. They cite Justice Thomas for the idea that pro-choice folks are racist, and then they completely whitewash the 19th century history.
00:46:53 Michele Goodwin:
Well, they, right, whitewash their own history, right? Buck v. Bell, Justice Oliver Wendell Holmes explains it very clearly that in that eugenics decision, Carrie Buck is a young white girl, right? So, this, you know, to your point, Mark, you know, sort of Justice Thomas reimagining even the Supreme Court’s own jurisprudence is really quite stunning and startling. All right, Aziza, you were getting to the dissent.
00:47:17 Aziza Ahmed:
Oh. Well, yeah. So, I mean, I will…the point I was about to…
00:47:19 Michele Goodwin:
There’s just so much there.
00:47:21 Aziza Ahmed:
Yeah, there is a lot there. The point I was about to make was just to say that the thing that the dissent does that I really appreciate is say very clearly, if we’re going to back to the founding of this country, if we’re going to go back to the, you know, 18th century, you have to remember who was in power then and who those laws were benefiting, and they say in a very explicit and a very clear way, they basically say, only white men…you know, I’m paraphrasing here of course, but only white men were, you know, were benefiting from the legal system at that time, and you know, if we continue to go back to that as our point of reference, that will be the kind of power structure that we’re reproducing over and over again, and it is what’s happening. I think that’s why so many of us are so aghast because we can see it happening, and I appreciate that the dissent, you know, really called them out on that.
00:48:13 Michele Goodwin:
Yeah. Erwin, would you like to add?
00:48:16 Erwin Chemerinsky:
Sure. Ultimately, the question of abortion is who should decide before viability whether a woman can have an abortion? Should it be the woman to decide or the state to decide? And the majority says it’s for the state to decide. They really give two reasons. One is they repeatedly say that the fetus is “a potential life,” and second, they say the only rights protected by the Constitution are those in the text or part of the original meaning or those with long history and tradition. If you put that together, the implications are frightening. It means that each state right now gets to decide for itself whether abortion is allowed. Over half the states will prohibit abortion. What it means is that in those states, women with resources can travel to states where abortion is legal, but poor women, teenagers can’t. Michele, in the article we wrote, we pointed out before New York became the first state to legalize abortion in this country, 25 percent of the abortions in England were performed on American women. It wasn’t poor women going to England for abortions.
00:49:20 Michele Goodwin:
No, it wasn’t.
00:49:21 Erwin Chemerinsky:
Also, what we’re going to see is states adopting laws that regulate reproductive health in all sorts of ways. What’s different now compared to 1973 is how much the conservative movement has embraced restricting reproductive choice. So, you’re going to see laws that prohibit the morning after pill, laws that prohibit IUDs because they take effect after conception, laws that regulate in vitro fertilization, laws that make it a crime for a woman to cross state lines for an abortion, but beyond that, once the court says the only rights that are protected by the Constitution are those in the text or part of the original meaning or long history and tradition, no longer is there a right to contraception, no longer is there a right of consenting adults to engage in same sex sexual activity, no longer is there a right to marriage equality. Once the court pulls this thread from the fabric, I don’t know how the rest can stand, and Justice Thomas in his concurring opinion says the court should overrule all those decisions.
00:50:18 Michele Goodwin:
Well, that’s right, but the majority, there would be those that would say that these rights that you’ve just talked about, Erwin, are protected because Alito in the leaked draft opinion and in this one says we don’t have to worry about contraception because that’s different, don’t have to worry about these questions with regard to marriage. So, Erwin, why do you look so doubtful given that Alito said, you don’t have to worry or no one has to worry?
00:50:45 Erwin Chemerinsky:
The criteria that they articulate for rights doesn’t give protection to the ones that I just mentioned, and what we learned from this case is it’s a court that doesn’t care about precedent. It’s quite willing to overrule precedent when it gets in the way of what they want. So, the just trust me by Justice Alito rings very hollow.
00:51:06 Michele Goodwin:
Okay. Let me open this up to others.
00:51:10 Michele Goodwin:
Do you also think that it rings hollow as well, others on the panel?
00:51:14 Mary Ziegler:
Yeah. I mean, also, I think it’s especially rich coming from Justice Alito who’s written recently that he thinks that there is no right to marriage equality, and that he thinks that decision should be overturned.
00:51:24 Michele Goodwin:
And was a dissenter in the cases that came before the court…
00:51:26 Mary Ziegler:
Right, right, and he would’ve…
00:51:27 Michele Goodwin:
Addressing those issues.
00:51:28 Mary Ziegler:
Exactly, and he and Justice Thomas, there was a case involving Kim Davis, some of you may recall, who was a woman who was refusing to grant marriage licenses to same sex couples. Her case went up to the Supreme Court. The Supreme Court decided not to hear it, and Justices Alito and Thomas wrote separately essentially to say that Obergefell, the case that recognized marriage equality, was a monstrosity and should be overruled, and so, the idea that somehow Justice Alito is going to be the guarantor of that right going forward, and to the extent that his answer…I think to the extent there’s a real answer there. It’s essentially that abortion is different because it’s the taking of a human life, and it’s not as if you go through door two, there’s something on that side too, which is of course the personhood movement because the end game for people who are opposed to abortion has never been the overturning of Roe. It’s been the recognition of constitutional personhood, the idea that the word person in the 14th Amendment applies before birth, and that therefore, abortion in…
00:52:20 Michele Goodwin:
Which is not what the 14th Amendment says, by the way.
00:52:22 Mary Ziegler:
Right, but that’s the argument, and if that argument, if the Supreme Court accepts that argument, the idea would be that abortion is unconstitutional in California, right? It’s unconstitutional everywhere. So, the more Justice Alito leans on this, you know, you can trust me because this is actually about the inalienable rights of the unborn child, it’s not as if that’s going to reassure anyone either, right? I mean, the reassurance is not reassuring.
00:52:44 Michele Goodwin:
00:52:44 Regina Mahone:
I wanted to go back to something that Erwin said.
00:52:46 Michele Goodwin:
00:52:46 Regina Mahone:
Because you had mentioned who gets to decide, or who should decide in this case? And I have read an interview that Justice Ginsburg did where she was speaking about, I think it was in Chicago, speaking about how, you know, Roe was always on shaky ground. Of course, this was, I think it was like five year…anyway. It doesn’t matter. Roe was always on shaky ground, and she actually mentioned a case you mentioned, Michele, in your book, the Struck v.…
00:53:13 Michele Goodwin:
00:53:14 Regina Mahone:
00:53:14 Michele Goodwin:
The case involving Captain Kathy Struck.
00:53:16 Regina Mahone:
Who got pregnant while in the, I believe the Navy, and they said, well, you can have an abortion or you can lose your job, but you can’t have a baby and keep your job, and she wanted to, but then before the court had any involvement in it, it was settled. I think they changed their policy or something.
00:53:33 Michele Goodwin:
00:53:34 Regina Mahone:
There might be…
00:53:35 Michele Goodwin:
So, yeah. The case of Captain Struck was the case that Justice Ruth Bader Ginsburg before she became a judge and was at the ACLU hoped would be the case that the Supreme Court…
00:53:45 Regina Mahone:
00:53:46 Michele Goodwin:
Would actually hear. What many people don’t know is that the US military had abortion available, in fact insisted that women in the military would have abortions when they were pregnant. So, this case involving Captain Kathy Struck, she actually wanted to remain pregnant and said, look, let me be pregnant. I will give the child up for adoption, but I don’t want to have an abortion, and she lost over and over again in US courts.
00:54:16 Regina Mahone:
00:54:17 Michele Goodwin:
Because the military required women in service, if you’re pregnant, terminate that pregnancy. It was a case that didn’t reach the United States Supreme Court because Roe was taken up and it became a moot issue.
00:54:29 Regina Mahone:
But I bring it up because it is, Roe was always about allowing doctors to make decisions for the people who wanted abortions. It was never the case that the person who got to decide was the person actually going to be carrying that pregnancy, and in the United States, which has strikingly high maternal mortality rates, is putting their life at risk if they do get pregnant and carry a pregnancy to term, and so, I know like the Jane Collective, the feminist healthcare network, that really centered the people who were getting those abortions in the experience of getting, when they actually sought healthcare. I hope that that’s a vision for the future because it wasn’t in Roe, and now we don’t have Roe, so where do we go?
00:55:13 Michele Goodwin:
00:55:13 Regina Mahone:
Hopefully, it’s in actually having the person who gets to make the decision for themselves about their body being the deciding factor, not a doctor, or you know, anyone else who would be involved in that, their husband.
00:55:28 Michele Goodwin:
That’s such a critically important…it’s a critically important point just in terms of the trajectory over time reproductive health rights and justices sort of tying what a woman may do to a third party involving her body, something that men never have to worry about, a third party determining what they can do. Aziza, you wanted to add to that? Then I’m going to go on to another set of cases.
00:55:54 Aziza Ahmed:
Oh, yeah. I just, I kind of wanted to add to what Regina was saying because, you know, I know, Regina, you’re working on abortion stories, and I think it’s important to focus on that for a minute because so often the voices of the people who actually get cited to at the Supreme Court, who get referred to at the Supreme Court aren’t the voices of reproductive justice advocates. They aren’t the voices of, you know, women of color, of Black women, of Latino women. In fact, those voices are written out in favor of Operation Outcry, you know? Operation Outcry gets cited at the Supreme Court. It got cited in Carhart for evidence that abortion causes regret, you know, that women suffer the consequences of their abortion. So, I just wanted to lift up your work for a second because it’s so important.
00:56:37 Michele Goodwin:
And to be clear, if you add that on, that that is actually inaccurate kind of.
00:56:41 Aziza Ahmed:
Of course. Yeah. Yeah. So, I’m sorry.
00:56:42 Michele Goodwin:
The substance. Right.
00:56:43 Aziza Ahmed:
Yes. That is inaccurate.
00:56:43 Michele Goodwin:
Because people are listening right now.
00:56:45 Aziza Ahmed:
00:56:45 Michele Goodwin:
We want to make sure that…
00:56:46 Aziza Ahmed:
Yes. That is inaccurate.
00:56:45 Michele Goodwin:
What the Supreme Court has cited actually is…
00:56:47 Aziza Ahmed:
Yeah, which is why it’s so outrageous that they would cite to the brief of a right-wing organization that basically, you know, sort of get affidavits online of women to attest to the fact that they’ve regretted their abortion, and then they use that to cite, to make the claim essentially…this is in Carhart v. Gonzales…that they use that to make the claim that women regret their abortions. Again, no cites to the public health literature, to the evidence…Ginsburg has a very long citation in her dissent in which she basically takes on this point. You know, if you’re going to deal with this issue, then deal with it properly. Here’s five, you know, not five million, but you know, here’s many citations to the literature that show that women don’t experience abortion regret, but to me it’s also a story about whose voices get promoted and legitimized at the Supreme Court and whose get erased.
00:57:37 Regina Mahone:
And just to clarify, it is my…oh. It is my co-author for the book I’m working on, Renee Bracey Sherman, who works on abortion stories, and she actually with her organization, We Testify, submitted an amicus brief. Six-thousand people who’ve had abortions signed onto that letter saying, don’t take away our rights. Don’t take away our healthcare, but of course that wasn’t mentioned at all in Alito’s opinion.
00:57:58 Mary Ziegler:
Yeah. The healthcare piece…
00:57:58 Mary Anne Franks:
Can I just say one thing to connect those to the Bruen case?
00:57:59 Michele Goodwin:
00:58:00 Mary Anne Franks:
Because this is back to the point that you just made so starkly about how for so many women, especially for Black women, that pregnancy is actually life endangering, and what you get in Bruen is this kind of encomium to the right of self-defense, that we have a right to protect ourselves, and right, you know, the very next day, the court says women don’t have that right. They don’t have that right at all, and so, yes, when the dissent states the obvious in Dobbs and says, when you start pegging the rights to whoever was writing them in 1791, you are literally saying the only people that should have rights are white men. The only people who should get to defend themselves are going to be white men, and they know that the way that the world works is that when you say, we’re going to invoke the right of self-defense for Black men, for instance, we know what the reality is, right? Try being just a young Black boy who’s not even holding an actual weapon and see how far that goes, much less respecting a Black man’s right to wander around the streets carrying a weapon.
So, the court is really signaling more strongly in this term than I think ever before who counts and who doesn’t. They are really literally saying in Bruen, the only people who are going to be allowed to have self-defense is this small group of people, and the very next day, nobody should be allowed to…no woman should be allowed, no woman, no girl, no pregnant person should be allowed to have the same rights, and it doesn’t matter, you know, what right you think that they have, it’s invisible now, right? There’s a super right to guns, and there is a nonexistent right to not have your body be used for purposes of enforced birth or to risk serious harm to your health and to your, basically to your life, and so, I think it really needs to be clear just exactly what the court is saying, who lives, who dies, who gets to defend themselves, who doesn’t.
00:59:40 Michele Goodwin:
Well, on that point, the majority didn’t spend much time at all referencing maternal mortality. The United States is the deadliest place in the industrialized world for a woman to be pregnant, ranks 55th in the world, not in company with Germany and France, et cetera, but actually in company of nations that still publicly stone and lash women to just add on to what you all were saying. Mark, did you want to add anything here before we transition?
01:00:18 Mark Joseph Stern:
I’ll just briefly say that Senator Bill Cassidy, a Republican from Louisiana, was recently asked about his state’s sky-high rates of maternal mortality, and asked, well, isn’t this going to become a much worse problem when women are forced to carry their pregnancies to term? And Senator Cassidy answered, well, when you remove Black women from the statistics, our rates of maternal mortality is actually not that high, and I think that tells you everything you need to know about Republicans’ views on this issue.
01:00:50 Michele Goodwin:
It does. It says a lot actually. To just add to that before we move on, Mississippi, the state that brought this litigation that made its way before the court, in that state, Black women, a Black woman is 118 times more likely to die by carrying a pregnancy to term than by having an abortion. That’s the level of this conversation that you’re having. So, thank you all very much for discussing this decision on Dobbs. I know it’s very important for this audience and also our viewing audience. Erwin, there were criminal justice cases as well that the court heard this term. Can you give us a sense of those cases? Because in the wake of the Bruen decision about guns, the Dobbs decision about abortion, and even the EPA case, it could’ve been missed just where we are in terms of criminal justice after this term with the court.
01:01:49 Erwin Chemerinsky:
I point to one case, and I think it fits the theme that we’ve been talking about. It’s a case called Vega versus Tekoh. It was argued by Paul Hoffman, who’s a member of the faculty at UC Irvine Law School…yes, and Paul did a brilliant job.
01:02:06 Michele Goodwin:
01:02:07 Erwin Chemerinsky:
What’s involved here is a Supreme Court decision that everyone is familiar with, Miranda versus Arizona from 1966. Chief Justice Earl Warren there said that in custodial, police interrogation is inherently coercive. To lessen the coercion, police have to give warnings before questioning, and we’re all familiar with those warnings from having watched police shows. Terence Tekoh was a nursing assistant at a hospital in southern California. A patient accused him of inappropriately touching her. A police officer, a deputy sheriff, Carlos Vega came to question him, took him into a small room, questioned him at length in a very intimidating and threatening way. At one point, he made a statement that appeared to be incriminating. He was prosecuted and he was acquitted by the jury. He then sued the police officer and said, under Miranda versus Arizona, you were required to give me these warnings. I was in custody. It was a coercive situation. You didn’t do so. Therefore, since my constitutional rights are violated, you should have to pay me money damages, and the Supreme Court ruled 6 to 3, again, split along the familiar ideological lines of all these other cases, that there can’t be a civil suit for money damages for the violation of Miranda.
Here Justice Alito wrote for the majority, Justice Kagan wrote for the dissenters. Justice Alito said, Miranda versus Arizona doesn’t create a constitutional right. It’s just a prophylactic mechanism. Those are the words that the court uses over and again, and you can’t have a civil suit for money damages to enforce a prophylactic mechanism. Now, the Supreme Court in Miranda couldn’t have been clearer that the privilege against self-incrimination gives rise to the requirement for warnings. In the United States versus Dickerson in 2000, the Supreme Court opinion, by none other than Chief Justice William Rehnquist, said Miranda’s a constitutional right. I think here the court is reading Miranda out of the Constitution. It leaves victims of police abuse in this way without a remedy, but I also think it puts Miranda very much in danger for the future.
01:04:21 Michele Goodwin:
Others comment on this, right? As Erwin mentioned, everybody, right, many people know about Miranda rights. Anybody who’s ever watched Law and Order or any of the sort of TV shows that are based on that kind of model, how essential it is to get that warning from law enforcement, and even to think about Dobbs, how important it might be to get a warning from your doctor that anything that you say to your doctor could potentially be used against you later on in a criminal or other proceeding. Others who might want to add to this?
01:04:58 Mark Joseph Stern:
I just want to say that this is a textbook example of the way this court tees up major decisions because Vega, so beautifully described by Erwin, totally flew under the radar. It came down the same day as Bruen, the gun case, the day before Dobbs, but it was a major decision.
01:05:16 Michele Goodwin:
01:05:16 Mark Joseph Stern:
And Justice Alito seeded his opinion with all kinds of language that tees up a next case in which the court will say because Miranda warnings are not a constitutional right, we have no power to enforce them, and Miranda warnings are gone, are kaput, but most people are not reading the footnotes of Alito’s opinions and not looking at what the court is doing, and so, it is very careful and I think pretty clever about teeing up these major cases for future terms, and that just sort of goes to this broader theme that we’ve touched on a bit, which is that the court is ticking off these cases so quickly, but this is not the culmination of anything. This is the start of a new conservative revolution in the law. This is the opening act, and we are just at the very beginning, and you can look at Dobbs and Bruen as the beginning of something new, and Mary has spoken about this.
You know, the court uses this language in these cases that is laying the groundwork for future, even more radical and expansive decisions. It is…we call it the YOLO court at Slate. It is flooding the zone with these huge decisions because, you know, the justices know that Clarence Thomas’ arteries aren’t going to stay clear forever, you know? They have a limited window in which they can act to accomplish all of these items on their agenda, and they are not wasting a second, and so, don’t let these cases like Vega go under your radar because they are telling you where the court is going to go in the next term and the one after, and it is very frightening.
01:06:48 Michele Goodwin:
You looked eager to join in there, Erwin, and Mary, perhaps you do too. Let’s start with you, Mary, and then I’ll turn to Erwin.
01:06:53 Mary Ziegler:
Yeah. I mean, I read Vega in concert with the court’s decision on SB 8, which we haven’t talked about. SB 8 was the Texas law you may have heard of that allowed literally anybody to sue doctors in a loose category of folks who were aiding and abetting, and I think Richard Fallon at Harvard has a piece coming out on this, but essentially the idea that even when the courts says you still have a right, it’s in the business of eviscerating your access to a remedy for that right, and Vega…so, I don’t know if the court’s going to just go all the way to overruling Miranda, or if it’s just going to go further down this road of saying, sure, you have all these rights, but you know, you can’t go to federal court. There’s no money damages. You can’t get an injunction. So, you enjoy that right because you can’t do anything. It’s sort of like that, and as my grandmother would say, that and a dollar will get you a pack of gum, right? So, I think that was another sort of way that Vega bothered me because the court has been on the side of sort of eroding or decimating constitutional remedies in ways that I find disturbing and probably that I was more aware of because the court did something similar of course in the SB 8 litigation before just getting rid of Roe entirely. So, if there’s a repeat, it will be then overruling Miranda entirely.
01:08:01 Michele Goodwin:
So, Erwin, is it as dark as what Mark suggests?
01:08:07 Erwin Chemerinsky:
I want to disagree with something Mark said and then agree with his larger point. I don’t think this is the beginning of a conservative majority on the Supreme Court. We’ve had a conservative majority since 1971 on the court, and the court has been conservative for some time. Think of Citizens United in 2010. Think of Shelby County in 2013.
01:08:29 Michele Goodwin:
01:08:30 Erwin Chemerinsky:
And I can give example after example. What’s different now is the court is more conservative than it’s ever been, and when you look at the five conservatives, and here I’m talking about Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, they are more conservative than any justices who have been on the court since the 1930s, and Chief Justice Roberts is virtually always with them, even though he didn’t go as far in Dobbs as they wanted to go.
Last Saturday, there was an article in the New York Times that said this was the most conservative court since, term since 1931, which tells us something, and I think where Mark is absolutely right is these five justices, or six justices, are just getting started. Next year, they’ve already got on the docket cases about whether to overrule decades of precedent that allowed affirmative action. Does anyone in this room have doubt that they’re going to overrule those precedents and eliminate affirmative action? They have a case already on the docket about whether or not someone’s religious beliefs give them the ability to discriminate against gays and lesbians. Does anyone in this room have doubt as to where they’re going to go in that regard? They just took a case about so-called independent state legislature theory, which would say that courts can’t enforce the Constitution, even when it’s clearly violated. Only the legislature gets to decide. I worry what the court’s going to do there. So, it’s in that sense that I think that these justices are just getting started.
01:10:01 Michele Goodwin:
And it’s very dark times. This is a time in which I need to begin wrapping up. It’s gone by so quickly, and I want to ask you all about a silver lining. It’s something that I do on my podcast. You all are maybe thinking, is there a silver lining? Can there be? But before I do, I want to touch on something that you’ve just mentioned, Erwin, and that is what we saw in the Dobbs decision and we can see this theme throughout, is we’ll turn this matter to states. We’ll turn it to the political process, and something that you mentioned, Erwin, in the Shelby County decision where it was this Supreme Court that dismantled key provisions of the Voting Rights Act.
I can’t help but think of what a cruel joke it was in Dobbs to say, just go and vote, knowing that that is a case that came out of Mississippi, a place that just a generation ago, Black people were forced or coerced to guess how many jelly beans in a jar in order to be able to vote, how many bubbles on a bar of soap in order to be able to vote, to recite the state’s constitution in order to be able to vote, and being beaten in the process, something that Fannie Lou Hamer wrote about and she cited in the lower court opinion that imposed an injunction against that state’s legislation. So, thank you for that, but now a silver lining, and very quickly. A silver lining, Mary Anne?
01:11:43 Mary Anne Franks:
Well, I think if we look at the machinery of what is happening, what’s been described here, the kind of ecosystem of the decimation of constitutional rights and who is being excluded, of course it should remind us of times when things were dark, and that civil disobedience was one of the things that helped lift us out. So, I think one lesson, I don’t know if it’s a silver lining, but I think it is to be as uncompromising about justice as the conservatives currently are compromised by power.
01:12:13 Michele Goodwin:
01:12:14 Regina Mahone:
There are incredible activists who are tired, more tired than any of us could possibly be, who are still out there supporting people in every possible way, and I think in the same way, it’s important that if you’re feeling inspired and motivated to get out there, to offer some relief, even if it’s temporary, but you know, it’s going to be all of us who get us free, and so, just using this as motivation to just continue to fight because we’re, you know, it’s our generation, it’s future generations, and we all have to continue to fight because that’s the only way through this.
01:12:49 Michele Goodwin:
01:12:50 Mark Joseph Stern:
My silver lining is three words, Ketanji Brown Jackson.
01:12:53 Michele Goodwin:
01:12:55 Mark Joseph Stern:
I think she is an incredible jurist. I think no matter how high your expectations are for her, she will exceed them. I think she will be one of the great justices of American history, and I could not be more thrilled to see her on the court.
01:13:09 Michele Goodwin:
All right. Thank you, Mark. Aziza?
01:13:12 Aziza Ahmed:
I think I’m one of those people that just always sees everything in movement, and I think we’re seeing a lot of our institutional structures come into question and lose legitimacy. We’re already dealing with the police and we’re rethinking the police and we’re having a national conversation about it. It’s not always going the way people want it to go, but maybe the Supreme Court is next, you know? Maybe we’re going to have a conversation about how to redo this court, make it better.
01:13:38 Michele Goodwin:
Thank you. Mary?
01:13:41 Mary Ziegler:
Yeah. I was going to say something similar. I think it behooves progressives sometimes to remember that their rights never came from the Supreme Court. Even when the Supreme Court recognized rights, they were speaking in dialogue with border movements, and it also, I mean, as a historian I always remember how losing in Roe really energized conservatives in a way that winning never would have, and so, the kind of pain of defeat, right, can be, really generate something hopefully beautiful and important, and I think we’re seeing some of that already, and hopefully we’ll see more.
01:14:11 Erwin Chemerinsky:
My silver lining comes from the words of the late Dr. Martin Luther King, Jr., which said the arc of the moral universe is long and it bends towards justice. The sweep of history has been tremendous expansion of freedom and equality. What’s so shocking about Dobbs, it’s one of the few times in history that the Supreme Court has taken a right away. I believe there will be a point, maybe not in my lifetime, when Dobbs is overruled. I believe there will be a point that these terrible decisions we’ve been talking about will be overruled, but it’ll only happen if all of us work to make it happen.
01:14:44 Michele Goodwin:
Thank you, Erwin, for that, and I’ll meet you with a Dr. King on that, Erwin. In 1966 in giving a speech in Wisconsin, Dr. King was asked why it was that he was addressing issues such as women’s reproductive health, why it was that he was concerned about environmental justice, and why it was that he was concerned about workers, and he said, because I refuse to segregate my moral concerns, and I’ll repeat that, I refuse to segregate my moral concerns, and I thank you all for refusing to segregate your moral concerns and to be with me and our audience in Orange County today.