The Exchanges

Q Amy, I don't know if you've had a chance to read Alito's draft opinion, but can you sort of walk us through his legal framework for coming to his conclusion that, that this thing needs to be struck down and what, why he's saying what he's saying?

A Yes, it is a 67 page opinion with another 30 pages or so in the appendix. And what he tackles it in two ways. The first is kind of from this originalist perspective. He looks at the idea of whether or not the right to an abortion is something that is deeply rooted in our country's history. And he concludes that it is not, that not only was there no right to an abortion, he said, until The late 20th century when, right around the time that the court issued its decision in Roe, but in fact, abortion was a crime in many places. And so, you know, he starts from that premise that, that there's no deeply rooted tradition of abortion being a right in, under the constitution. And that goes to the idea of what did the framers intend? Does it fall within this Fundamental right that would be protected by the Constitution, even if it is not specifically enumerated in the Constitution. But then he also has to look at Roe and Casey, because those laws have been in effect, that those cases have been in effect for 50 years now. The court issued this decision in Roe in the early seventies and then reaffirmed it in Casey in 1992. Because the Supreme Court and courts generally have a principle Called stare decisis that says that courts should not overturn their decisions just because they think the earlier decisions are wrong, that there needs to be a good reason to do that. And the court has nev…

AI assessment note: “what he tackles it in two ways. The first is kind of from this originalist perspective.”

Q the gay rights law, or even, like, interracial marriage, you know, Jason's in an interracial marriage, I am, you know, many of our friends are Are gay and married? How are we supposed to think about what this does precedentially? And does it create risk that all those rights could be taken away from us or our, or people that we care about? Like, is that something that's possible here?

A I mean, I do think there's a lot of those rights are going to be challenged. Justice Alito in this draft opinion says, no, those rights are different, you know, because Only abortion rests on the purposeful termination of a human life. But, you know, to go back to what Tom talked about earlier, you know, those rights rest, you know, are also not in the Constitution, rest on this same sort of principle called, you know, substantive, substantive due process, you know, rest on a right to privacy. And there were definitely arguments made In the Supreme Court, in the Mississippi case, not by Mississippi, but by groups supporting Mississippi, that if you overrule Roe and Casey, you do have to go back and look at these other rights.

AI assessment note: “I do think there's a lot of those rights are going to be challenged.”

Q that it wasn't, or has something fundamentally changed when we look at the Supreme Court and how they're behaving now? That's one of the things I'm struggling with is, was I just, You know, living under a, a false vision of, of this institution, and now I'm seeing reality, uh, or has something actually changed with the court, and should we as a country be looking at the court differently?

A I mean, I think at least one thing that has changed is that right up until the point, you know, in the last 10 years when Justices David Souter and John Paul Stevens retired, and then Justice Anthony Kennedy in 2018, you know, Now people who are sitting on the Supreme Court, you didn't always, you know, people did not always have the sense that they were voting in the same way as the party that put them on the court. You know, Justices Souter and Stevens, it really had become a solid part of the court's liberal wing by the time they retired. Justice Anthony Kennedy was still a conservative, but he was a conservative, you know, who provided the key votes on things like same-sex marriage. Uh, and whether or not there is a right to be intimate with somebody of the same, the same gender. And so you just didn't, I think people looked at the court and didn't think those decisions are political. You know, they're not always dividing five to four on sort of so-called party lines. I think that has changed. And I think some of the, the confirmation hearings, I think in particular, Democrats and progressives feel that at least one of the seats, either Justice Gorsuch or Justice Amy Coney Barrett, was, was stolen, in effect, because Justice Scalia died in February of 2016. Senator, Senate Majority Leader Mitch McConnell refused to have hearings for the President Obama's nominee, saying the…

AI assessment note: “I think at least one thing that has changed is that right up until the point”

Q Exactly. So this is what I wanted to ask both of you. How does this play out from here inside the court itself? And is there a chance that this draft isn't the ultimate decision? Is there a way that there can be a middle ground path? Like what happens from here? Or is this basically a fait accompli as, as, as written right now?

A So I'll let Tom talk about the leak and he's got some theories about what might have happened. It is. This was the first draft. You can see that on the copy that Politico published, and it is from apparently from back in February. The argument was in December. Nobody expected to get the decision in this case in all likelihood until late June. And so, you know, I do think that there is a chance that the opinion could change in some way. It might not have quite as strong a tone or it, you know, it's possible that What's going on behind the scenes, and we just don't know it, is some sort of effort to move justices away from this opinion to this alternative grounds that the chief was advocating for at the oral argument in December. I, you know, I'll let Tom talk about some of the theories that he has. You know, one of the things that somebody who actually gets to go to the Oral arguments right now, when you are at the oral arguments in any case, but in particular, this case, you know, the justices are talking to the lawyers, asking the lawyers questions, trying to flesh out what their positions are, you know, what the possible resolution of the case may be. The justices are also talking to each other. And so, one thing that was not a leak, but was really interesting at an oral argument on April, a couple of days before the, this Wall Street Journal editorial that Tom's going to tal…

AI assessment note: “I do think that there is a chance that the opinion could change in some way.”