The Exchanges

Q rights into Title VII. And that opinion was written by Gorsuch with Roberts, Joining him. You know, I think it was, uh, that was a six, four or six, three majority. So the idea that this Supreme Court would overturn, you know, marriage equality, you know, Bergeville, which was just, um, written by Kennedy in 2015. I mean, I understand that you're saying it's possible, but is it really likely?

A Well, look, Bostic is totally different. It's interpreting a federal statute, a law that Congress passed. That's their point. The conservatives view is like, okay, Congress passes a law to protect, you know, same sex marriage. Fantastic. Have at it. And if it has passed Title VII to prohibit discrimination on the basis of sexual orientation, fine. Uh, we don't have a problem with that, but it's, our problem is interpreting the Constitution to strike down those laws. Do you say, is it likely? You know, the, it is a, it is a bizarre circumstance, because doctrinally, when we think as lawyers, when we think as judges, it should be much harder to overturn Roe versus Wade, because we do have, this is a lot of water under a lot of bridges. Whereas with same-sex marriage, it's a pretty new thing that we've recognized in the constitution. And if you say, look, we're going to talk about the founders of the constitution. We're going to talk about originalism. I'm going to give you two propositions. You tell me which one is more likely. And that is in the year, 1800, someone said, uh, given the choice, do we protect a woman's right to have an abortion? Say in the instance of rape or incest or something like that. Or we're going to say that it is, there's a constitutional right for two men to marry each other. This is not close. It is just not close. Now I believe in both of those rights, …

AI assessment note: “Obergefell is just an easy target, to be honest.”

Q Sorry, just, just, just, just to, sorry to interrupt, but a statute is a law, not a constitutional amendment, right? Can you just distinguish?

A That's right. So the, the constitution is our founding, you know, foundational doctrine document. It's what creates the Congress and gives Congress the power to regulate sort of things. It creates the presidency and it creates the Supreme Court. And so it's the most important thing. You can't do something that violates the constitution. Then Congress can pass laws. And states can't do anything that is contrary to either the federal constitution or a federal statute, unless the constitution says, oh, only the states can handle this question. So there would be a big fight over whether abortion is strictly the regime and strictly the purview of the states to deal with. Then you say, okay, well, the constitution stands above everything else. Uber alles. Why don't we just amend the constitution? And as you suggest, we're just not in the business of doing that anymore. Uh, there, we have very few constitutional amendments, and we haven't done it in a long time. The Constitution imposes all kinds of hurdles, uh, in terms of congressional authorization, state authorization. It's why the Equal Rights Amendment was never passed. Uh, it's just incredibly hard to get the kind of supermajority in the country that you need to amend the Constitution and the, our kind of foundational rights. And that's what's made the Supreme Court so important, by the way, and that is, We have something like …

AI assessment note: “That's right. So the, the constitution is our founding, you know, foundational doctrine document.”

Q it seems quite strategically, and this feels like a rug pull to a lot of the people who voted these people on, and now you have a large group of the country who feels like this is exactly the opposite of what the majority of us want. So can you explain that to us? What's going on here with these humans, uh, who have these positions of power and authority?

A Yeah, I think that's a fair characterization of what is a majority of the country that is, to varying degrees, pro-choice. Now, we ought to pause and recognize that there is another significant part of the country for whom this is, you know, an incredibly important, positive moment. The country is divided on this question. There are passionate views on both sides. Uh, the women who are directly affected, many of them will feel no doubt incredibly impassioned strongly that this is an outrage. Um, but there, there are activists on, on both sides, and yes, from the day that Roe was decided, there has been an unflinching commitment among conservatives to undo it, and it has taken them five decades to do it, but they have marched forward from that position where they were losing seven to two in the Supreme Court till June of this year, where they will likely win five to four. And they have worked tirelessly, uh, to put justices on the Supreme Court who would be willing to take this step. 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. But that the other conservatives, whether it's someone who's been on for a while, like Justice Thomas, or instead much more recent appointments, which is the, uh, and, uh, in Gorsuch, uh, Kavanaugh, And in Barrett, and Justice Alito having been on the court for a while…

AI assessment note: “this is the number one agenda item for what they believe is correcting the course”

Q Is there, um, Anything, uh, because the person who leaked this, we would assume, is hoping to make some change and send this out as a warning sign to the country and the people who want to preserve Roe. Would we agree on that?

A Some people think that's, I think that's true. Others think that, uh, this was an effort to, uh, get Kavanaugh on record as having voted to overturn Roe and to hold his feet to the fire. That's certainly how I interpret the leak to the Wall Street urchin. Uh, Royal Street Journal editorial board. I think the release of the opinion, however, the distinct, like, this piece of paper is intended to do what it did, which is to, you know, motivate progressive forces and say, wake up. Like, this is really happening. We're not kidding. You've been hearing that the Supreme Board's getting more and more conservative, but I'm telling you, in eight weeks, you don't have a right to an abortion anymore. Uh, you better get your act together. So I think that's what happened.

AI assessment note: “Some people think that's, I think that's true.”

Q So RBG, you know, there could be a claim now that if, if Ruth Bader Ginsburg had actually stepped down, Or tried to hold on, you know, it would, could have been a different outcome. There could have been a different person. What do you guys think about this age limit concept for Supreme court justices and, and, and dealing with that in that way versus making these lifetime appointments?

A I'm personally strongly in favor of this, but you have to recognize that it would require changing the constitution. Um, there are all kinds of attempted workarounds, but I'm telling you that the people who would decide the constitutionality of the workarounds are the justices themselves, and they would have no. Interest in accepting any limitation on their life tenure. So, you, you have to expect that we're talking about something that's kind of pie in the sky because we're not going to amend the Constitution to do this until we end up with a justice who's senile and who can't do the job and the Supreme Court turns into a laughing stock. And at that point, the country will react, but we're just not good as a country at seeing this problem coming. I mean, fundamentally, what happens is we're now incentivized to put people on the Supreme Court when they're in their late teens and just get them on there as soon as you can and keep them there for 70 years. And it's not gotten terrible. And, you know, justice Thomas was extremely young, but we've seemed to have settled around 50 years old. And there's nothing intrinsically wrong with having somebody on the court for 30 years or 40 years at age 50. We've been super lucky, ah, when it's come to the fact that, ah, we've, everybody's been pretty copus mensus. We've, we've gotten, we've run good. And we could run much worse than we have…

AI assessment note: “I'm personally strongly in favor of this, but you have to recognize that it”

Q That seems like starry diseases, it just said in different words, or no?

A Oh yeah, and there's no question that, that all of the nominees that have gone through have acknowledged, because it's not just two cases, there are 10 abortion cases, you know, this has been in front of the Supreme Court ever since 73, Over and over and over again, and Casey adopted this framework, and it's been reaffirmed over and over and over, and the court has been moving in a conservative direction, upholding more abortion restrictions, but the foundation, the core of Roe, has been there. But the issue is this. When someone says this is a precedent and a super precedent, they are not saying it cannot be overruled. Everything can be overruled. And so that's why Alito's draft is so strong. It is, it uses a formulation that Kavanaugh has used, which is egregiously wrong from the start. So that if something is just outrageously totally wrong, now pause to the fact that a super majority of Supreme Court justices have thought it was correct, including a bunch of Republican appointees.

AI assessment note: “Oh yeah, and there's no question that, that all of the nominees”