May 7, 2022 · 1h 25m · allin
E79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein
Tom Goldstein · 21m spoken Amy Howe · 18m spoken David Sacks · 14m spoken Chamath Palihapitiya · 13m spoken Jason Calacanis · 9m spoken David Friedberg · 1m spoken
0:00 / 0:00
▶ Watch on YouTube →
gold bands on the timeline = statements, start to end. Hover to read, click to jump. CC turns on captions
In Episode 79 of the All-In Podcast, the hosts bring on Supreme Court experts Amy Howe and Tom Goldstein to analyze the leaked draft opinion in Dobbs v. Jackson Women's Health Organization, exploring its legal foundations, judicial philosophies, structural court reform proposals, and political consequences for state legislatures and civil rights.
How this conversation actually went
Every chapter scored 0–10 on four independent dynamics. Hover any point for the reasoning behind the score. The hosts hold 50.7% of the talking time here. How this is scored →
The hosts as informed peer 4.6 Guest teaching 4.1 Guest disagreement 1.6 The hosts pushing back 2.5
speaking balance: gold is the hosts, purple is the guest (3 minute bins)
Sharpest disagreement ▶ 30:35 Tom Goldstein dismisses Alito's precedent carve-out
Tom forcefully rejects Alito's assertion that Obergefell and contraception rights are safe, arguing Alito included the carve-out solely to secure five votes and does not believe it for a second.
Hardest push from the hosts ▶ 32:10 Sacks challenges parade of horribles using BostockSacks refuses to accept the premise that gay marriage rights are in jeopardy, pushing back against Tom by highlighting Justice Gorsuch's majority opinion protecting LGBTQ rights in Bostock.
Biggest teaching moment ▶ 33:03 Tom Goldstein educates Sacks on statutory vs constitutional lawTom corrects Sacks's reliance on Bostock by distinguishing statutory interpretation of federal laws from constitutional originalism, explaining that no founder in 1800 contemplated same-sex marriage.
The host holds their own ▶ 1:10:19 Sacks quotes RBG's 1992 critique of Roe v. WadeSacks demonstrates deep legal expertise by citing Ruth Bader Ginsburg's 1992 law review article, showing how Roe's sweeping decision halted state-level legislative reform and fueled decades of culture war.
the scores for every segment, with the reasoning behind each
| Chapter | Topic | The hosts as informed peer | Guest teaching | Guest disagreement | The hosts pushing back | Why |
|---|---|---|---|---|---|---|
| Guest Introductions: Legal Experts Amy Howe and Tom Goldstein | 2 | 4 | 1 | 0 | Chamath introduces the legal guests and asks for a historical overview of Roe v. Wade. Amy Howe and Tom Goldstein outline the trimester framework established in Roe and the viability standard set in Planned Parenthood v. Casey. | |
| Originalism vs. Living Constitution and Analyzing Alito's Draft | 3 | 7 | 1 | 1 | Chamath asks the guests to define originalism versus progressive constitutionalism and walk through Justice Alito's leaked draft. Amy and Tom explain Alito's two-pronged analysis focusing on historical roots and the five stare decisis factors. | |
| SCOTUS Constitutional Role and Impact on State Abortion Laws | 5 | 5 | 2 | 2 | Sacks and Friedberg press on the Supreme Court's jurisdictional role versus state legislative power, asking why abortion rights are not codified via federal statute or constitutional amendment. Tom and Amy clarify state trigger laws, federal commerce powers, and the filibuster hurdle. | |
| Stare Decisis, Confirmation Hearing Statements, and Judicial Politics | 4 | 6 | 3 | 4 | Chamath asks whether conservative justices lied during confirmation hearings regarding stare decisis. Tom and Amy reframe the premise, explaining that acknowledging a case as precedent does not mean it is immune from being overruled if deemed egregiously wrong. | |
| Potential Risks to Other Rights and Behind-the-Scenes Leak Dynamics | 7 | 7 | 5 | 6 | Sacks challenges the idea that gay marriage or contraception rights are threatened, citing Gorsuch's statutory ruling in Bostock. Tom Goldstein sharply counters, explaining that statutory interpretation differs fundamentally from constitutional originalism and dismissing Alito's carve-out as a mere vote-gathering tactic. | |
| Evaluating Supreme Court Term Limits and Structural Reform Proposals | 5 | 4 | 1 | 2 | Chamath raises Supreme Court age limits and Ruth Bader Ginsburg's refusal to retire, while Sacks outlines Ro Khanna's 18-year term limit proposal. Tom agrees with the concept but notes it requires a constitutional amendment. | |
| Host Debrief on Judicial Compassion vs. Moral Frameworks | 4 | 0 | 0 | 3 | In a host-only debrief, Chamath argues that original textualism lacks human compassion, while Friedberg and Sacks argue that differing moral frameworks require legislative adjudication rather than judicial decree. | |
| RBG's Roe Criticism, Public Opinion Polls, and Future Political Outlook | 7 | 0 | 0 | 2 | Sacks quotes Ruth Bader Ginsburg's 1992 law review critique of Roe's overreach, arguing that returning the issue to state legislatures could force political compromises. Chamath cites Gallup polling data to highlight where public consensus actually sits. |
Statements from this episode (16)
Howe: At least a dozen states have abortion trigger laws
“There are already, you know, At least a dozen, if not more states that have what's called trigger laws that have already been passed by the state legislature with an eye towards This decision or some other decision by the Supreme Court over ruling Rowan Casey.”
Goldstein: Filibuster is sole blocker to federal abortion protection
“The only reason that you're not getting a federal statute when you have a Democrats in control of the Senate, the House, and the presidency, the only reason you're not getting a federal statute protecting a right to an abortion Is the filibuster essentially.”
Howe: Alito draft states stare decisis is weakest in constitutional interpretation cases
“One of the things he talks about when he's outlining the principle of stare decisis, he says that this principle is actually at its weakest in cases like this one involving the interpretation of the Constitution, because only the Supreme Court gets to say what…”
Goldstein: Supreme Court conservative majority will likely vote 5-4 to overturn Roe
“Till June of this year, where they will likely win five to four.”
Goldstein: Chief Justice Roberts likely favors narrowing Roe over complete reversal
“They thought that John Roberts would, and it appears that he's very likely willing to cut back on Roe, but not overrule it entirely.”
Sacks: Supreme Court read LGBTQ rights into Title VII in Bostock
“This Supreme Court just two years ago in Bostock v. Clayton County read, you know, LGBTQ rights into Title VII. And that opinion was written by Gorsuch with Roberts, Joining him.”
Goldstein: Texas AG is reviewing Plyler v. Doe precedent on undocumented education
“The attorney general of Texas has said, look, I'm now, see, I heard what's gonna happen with Roe. I'm now looking at Plyler versus Doe. That's the constitutional decision that says states have to educate children, no matter whether or not they're lawfully in t…”
Goldstein: Perceptions of Supreme Court bias depend 95% on agreeing with outcomes
“Our, the perception of any individual about the Supreme Court, and whether it's neutral and objective, or instead political and biased, tends to be Rooted 95% on whether you like what it's doing or not.”
Goldstein: Roe v. Wade is on life support best case
“That might be in play, but people ought not be misled into thinking, like, there's a real, real debate about what's going on in abortion, and the Supreme Court row is, is on life support best case.”
Goldstein: Yielding SCOTUS rulings to draft leak protests sets terrible precedent
“Institutionally, that sets an Unbelievably bad precedent if it creates the impression that leaking documents to the public leading to protests causes the Supreme Court to change its mind.”
Goldstein: US won't enact Supreme Court term limits until a justice becomes senile
“We're not going to amend the Constitution to do this until we end up with a justice who's senile and who can't do the job and the Supreme Court turns into a laughing stock.”
Goldstein: Trump's Supreme Court appointments will span four decades
“The lead time effect of one presidency, of the Trump presidency, for example, now will span, you know, four decades.”
Sacks: Supreme Court will not overturn gay marriage
“I think the idea that this leads to gay marriage being overturned, I don't see it. It's just you know, it, maybe it's not impossible, but I just don't buy it.”
Sacks: Pro-life politicians rejecting rape/incest exceptions will face voter backlash
“By the same token, if the pro-life side refuses to make compromises for, say, rape and incest, they're going to be punished by voters in those states. I mean, that is very unpopular.”
Palihapitiya: Only six countries besides US allowed elective abortion past 20 weeks
“At the time of enactment of this Mississippi law, Only six countries beside the United States permitted non-therapeutic or elective abortions on demand after the 20th week of gestation. Those other six countries were Canada, China, the Netherlands, North Korea…”
Palihapitiya: Gallup poll shows 48% support abortion only under certain circumstances
“The split between pro-choice and pro-life is very even. It's, you know, 49% is pro-choice and 47% is pro-life, but if you ask the more nuanced question that David said, 48% consider, ah, abortion to be legal only under certain circumstances, 32% say it should …”