The Yale Law Professor Who Is Anti-Roe, But Pro-Choice
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This is honestly, like many of you, I was shocked last week by the Supreme Court leak indicating that the court is very likely going to overturn Roe v. Wade. It was shocking because of the substance. If this were to go into effect, it would drastically change America's abortion laws overnight and essentially make abortion illegal in 13 states. But it was also shocking because what it said about the state of the court.

The one institution that felt sacred now appears to be another casualty in our culture war. And when I thought about who I wanted to talk to about all of this, who I felt would offer the fairest assessment of the draft decision that would explain best its historical precedent and also its political implications,

I thought immediately of Akhil Amar. Akhil Amar is the Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law. He is himself a graduate of Yale Law, and after clerking for Judge Stephen Breyer, he joined the faculty at the ripe old age of 26.

Akhil's the author of more than 100 law review articles and several award-winning books. Perhaps most impressively, Ammar's work has been cited in more than 40 Supreme Court cases, which is more than anyone else in his generation. In the draft opinion that's become the dominant news story in the country, Ammar's name is mentioned several times. And what's weird about that is that Ammar is a liberal. He's a Democrat.

And he is pro-choice. So why is he the one that Alito is citing? That and much more, including what overturning Roe might mean for the country and the court after this. Hey guys, Josh Hammer here, the host of America on Trial with Josh Hammer, a podcast for the First Podcast Network. Look, there are a lot of shows out there that are explaining the political news cycle, what's happening on the Hill, the this, the that.

There are no other shows that are cutting straight to the point when it comes to the unprecedented lawfare debilitating and affecting the 2024 presidential election. We do all of that every single day right here on America on Trial with Josh Hammer. Subscribe and download your episodes wherever you get your podcasts. It's America on Trial with Josh Hammer.

Akhil, thanks so much for being here today. There's a ton to cover today. Let's jump in by talking about the draft decision itself. I presume you've read the, I think it's 98 pages cover to cover, maybe more than once. And I noticed that you're cited several times in the draft opinion. So for those of us who aren't constitutional law scholars, for those who haven't had a chance to read through the decision itself, can you break it down for us? What is Justice Alito's argument?

It's so great to be with you. Thank you so much for this opportunity. In a nutshell, Justice Salito says the Constitution is the supreme law of the land, not the precedents, not the cases. Roe v. Wade is a case, but if it's inconsistent with the Constitution, then there's a

strong argument that it should be discarded and the court should return to the correct meaning of the Constitution. He then proceeds to argue that the Constitution basically is the pole star. Precedents can and should be disregarded when they're egregiously wrong and the draft talks

talks about all sorts of other cases and situations in American history in which wrong precedents have been tossed overboard. And so he proposes to toss Roe versus Wade overboard to start from scratch. When you look at the Constitution, the Constitution permits

states and the federal government to regulate abortion in a wide range of situations. He argues that Roe's rules are restricting that

And so the Mississippi law at issue, which prohibits abortions in general after the 15th week, that Mississippi law is a valid law, even though it's in tension with, inconsistent with, what the Supreme Court said back in 1973 in Roe v. Wade, which is that you can't really have prohibitions like that.

until, in effect, the 22nd week. So we're moving in the case at hand from week 22 to week 15, but more generally, the draft proposes to open up this quadrant and permit other states, presumably, to regulate them at even earlier moments in pregnancy. I

I want to make sure that I'm understanding Alito's argument. His argument is, and this argument has been signed on to by the other conservative justices on the court, other than Chief Justice Roberts, who we'll get to. The argument is that Roe v. Wade was egregiously decided from the start

that it's a bad decision and that, as Alito puts it, it's time to heed the Constitution and return the issue of abortion to the people's elected representatives. In other words, it's not for the court to decide. It's an issue of states. It's an issue of democracy. It's an issue of voters.

Is that correct? Right. And one additional thing, it's possible that Congress can weigh in, not just for states, but for Congress. Right. So he's saying it's not for the court to decide on this highly sensitive fraught issue. It's up to the people who were elected by voters, whether at the state or the federal level. Exactly.

Oh, and one other thing that Congress might do is to say, well, states have a lot of choice to do this or to do that, but it's very important that we, the Congress, make clear that we think people have a right to cross state lines to get abortions where they are legal, even if they live in a jurisdiction where a given abortion would be illegal. Akhil, I want to understand what you personally make of all of this.

because you're pro-choice, you identify politically as a liberal, but you've also said many times over the years and written many times that you are anti-Roe. So explain that to us, because I think a lot of people think about Roe as being synonymous with being pro-choice. Explain to us how a person can be both pro-choice and anti-Roe. A person like me could be

pro-choice and anti-Roe because I think the Constitution, rightly read, honestly read, is not the same as what my, Akhil Amar's personal preferences are.

Personally, I don't have a gun. Guns rather scare me, but I think actually Americans have a right to have a gun in their home for self-protection. That's, in my view, the better reading of the Constitution's text, its history, its precedents, and so on.

Personally, I'm pro-choice and I'm pro-choice because although I understand and deeply respect the sanctity of innocent unborn human life, I personally think that there are a lot of complex medical and moral issues that are implicated in different situations.

And I generally trust women to make better decisions than the government, which can be very flat-footed and crude. There are abortions, for example, in situations where pregnancies are desperately wanted. People have been hoping to get

pregnant for a very long time and they're so happy that they are, but then the doctor informs them that the fetus is not going to be in the end viable. It's going to die in a horrible childbirth or something. It's anencephalic, other things, there are other defects. And if the pregnancy ends now, the person might be able to get pregnant more quickly and give birth to an innocent, unborn human life that will actually survive later on.

and more quickly. So there's so many complicated situations that personally, I think government is ham-handed and I tend to trust women. I just don't think that's a constitutional argument. That's my own view. Let me tell you one other thing, Barry, since we're talking honestly, my brother, who is also a law professor, Vik Amar, he

clerked for Harry Blackman, the author of Roe v. Wade, and he quite liked Harry Blackman. Harry Blackman was a very decent person, but Roe just doesn't cut it as a constitutional opinion. I'm actually with Justice Alito in thinking that, gee, when you look at the Constitution and you look at Roe v. Wade, you just can't get Roe easily from the Constitution.

For those who aren't familiar with the details of the decision, why is it unconstitutional? What is the argument made in Roe that makes you side, in this case, with Alito? Because at the end of the day, if you say something is unconstitutional, you have to kind of show me where. Roe versus Wade says it's unconstitutional to prohibit abortion before viability, basically 22 weeks.

And you look at the Constitution, it doesn't say anything about abortion, one way or the other. And Justice Blackmun's opinion says, well, you know, whether it's in the Ninth Amendment or the Fourteenth Amendment, you know, we think it's there. And I'm thinking, gee, it doesn't even matter what text it's in. That seems pretty nonchalant.

And the Ninth Amendment actually is about unenumerated, that is not listed, rights against the federal government. But here we're talking about state governments like Texas or Mississippi. So that would be the 14th Amendment adopted after the Civil War that limits states. But it limits states by saying no state can deprive someone of life, liberty, or property

without due process of law. But what that generally means is that if a state's going to take away your liberty or your property, and your liberty would include your bodily autonomy, if it's going to limit that in some way, it needs to have a proper law passed by the legislature, presumably signed by the executive or passed over the executive's veto, enforced by courts, by judges and juries, using fair procedures,

But in general, abortion laws have passed all those things. They're passed with due process. Roe v. Wade doesn't even quote abortion.

The language of the Constitution that it says is applicable, which to repeat, says that in effect liberty can and property can be restricted with proper legal procedures. So you can't really easily find the row right in the text. Okay, fine. What about history, original intent, what the framers of the 14th Amendment were trying to do?

Here's the key fact, if you're an originalist, and this is put forth by the dissenters in Roe and repeated very emphatically and prominently by the Alito draft. At the time the 14th Amendment was pending for ratification, we're talking now about the mid-1860s,

37 or so states plus or minus and there were basically fewer than 40 states at the time. This is the 1860s.

37 states had prohibitions on abortion. So if the framers of the 14th Amendment and the ratifiers thought the amendment they were agreeing to was going to restrict the ability of states to prohibit abortion, presumably someone would have said something because all these states have abortion laws on the books, almost all of them, and no one said, hey, wait a minute, the 14th Amendment would overturn these laws. No one said anything like that. So presumably...

it's not just the text doesn't say anything about abortion, about limiting states' ability to criminalize or prohibit abortions in various situations. It's not just the text doesn't say that. The original intent, the history, doesn't seem to provide very much support either. And so you say, okay, well, there's

text, there's history. What about American contemporary values and traditions and customs and practices? Well, when Roe was decided in 1973, at least 49 of the 50 states, maybe all 50 states, there's a question about New York state, but at least 49 states

actually had laws on the books that regulated abortion far more strictly than the viability rules and the trimester rules and all the rest that Roe promulgated. So Roe is invalidating the laws of at least 49 of the 50 states. So it doesn't have a lot of textual support. It doesn't have a lot of historical support. I'm being generous. This is, I'm putting it mildly. It runs very hard against all

what actually America is in 1973,

Oh, and it's even worse than that because it cites some precedents about contraception and other things, but then two pages later says, oh, but all those precedents, and this is the phrase Justice Blackmun uses, inherently different because none of those precedents involve innocent, unborn human life long after conception. So when you talk about privacy, it's a little awkward to...

Privacy is a sensible way of talking about contraception, but abortion, Justice Blackmun actually admits, is inherently different from that because there's arguably this other entity, this fetus, this life in being. If it's 21 weeks, oh my gosh, it looks quite human on ultrasound. And that's not the most private of transactions because what about the fetus? And Blackmun himself recognizes that, but then somehow...

Still charges ahead. The abortion is typically not taking place in a home. It's taking place in a clinic with a third party, a medical provider that maybe the woman has never met before and will never meet again, a stranger. It's a financial transaction. Money's changing hands.

This is really very different than two spouses using contraception in their marital bedroom. So in a nutshell, Roe doesn't really have much support in constitutional text.

in constitutional history, in the mores and customs of America at the time the case came down. It actually doesn't have strong roots in pre-Roe precedence. And those are all problems the deus decided. Since then, it's been deeply divisive and controversial. It's never really gained the kind of consensus support that many other decisions that were controversial when

they would decided have gained. In case our listeners think that you're just a total outsider on this issue, you know, what's coming to mind as you're speaking is, is Ruth Bader Ginsburg, maybe the most famous paragon of, of,

women's rights, obviously a trailblazer, Supreme Court justice. And she had misgivings about Roe and about the impact that it had on American culture. She did. Among the things that she has said is that the court has given its opponents a target to aim at relentlessly. And that, as you just said, the decision sort of moved things along too far and too fast. She said that.

But truthfully, I was a great admirer of hers. Later on when she's on the court,

she's not particularly accommodating or compromising and she actually is pushing forward and not yielding in any way. She said some of those things early on kind of as an academic, maybe when she thought it was safe to say those things because it seemed that Roe, you know, was already in place. But let's just put her just for one moment to one side. Many academics,

Many other prominent academics who are pro-choice have also expressed misgivings about Roe. And the reason I'm putting Justice Ginsburg to one side is I think she said some of those things, but then she maybe regretted them later on and she would not be with Justice Alito today. But here are some people who actually are with me in thinking that we personally would vote

pro-choice, but we just can't quite see it in the Constitution the way Roe saw it. And some of these were cited by the Alito draft. John Hart Ely was a professor of constitutional law at Harvard. He later became dean of the Stanford Law School. He's the author of The

most significant book for a general audience on constitutional law in the late 20th century. It's called Democracy and Distrust. He said, gee, Roe is completely made up, even though I, John Hart Ely, am pro-choice. He's a former clerk of Earl Warren's.

Archibald Cox, this preeminent professor at Harvard, Solicitor General of the United States under John Kennedy, the first Watergate prosecutor, said, gee, this seems made up. My friend and co-teacher, Philip Bobbitt, an eminent constitutional scholar at Columbia, also said, gee, Roe is, from a technical legal point of view, a bit of a train wreck. Well,

Other liberals have made the argument, many of them, that it's better for the country for this to be an issue that's decided by voters and not by the court. There was an article that The Atlantic published in 2005 by Benjamin Witts, basically making the argument of overturning Roe from the pro-choice perspective. And here's what he wrote.

The liberal commitment to Roe has been deeply unhealthy for American democracy, for liberalism, and even for the cause of abortion rights itself. All would benefit if abortion rights proponents were forced to make their arguments in the policy arena rather than during Supreme Court nomination hearings, and if pro-lifers were actually accountable to the electorate for their deeply unpopular policy prescriptions. Do you agree with that argument?

So Ben Wittes is a really interesting thinker. Let me mention one other person who wasn't cited by the Supreme Court but could easily have been, who makes a similar argument. My dear friend, former student, president of the

National Constitution Center, Jeff Rosen, whose marriage was actually performed by Ruth Bader Ginsburg. He loved Ruth Bader Ginsburg and the feeling was mutual. And he took these positions before he became president of the National Constitution Center because as president, he has to be strictly nonpartisan. But in his law professor days, he made an argument like Ben Wittes'

that it would be healthier even for reproductive rights advocates to win their battles democratically. And one thing that this actually will mean is pro-choice advocates like myself are gonna actually have to get involved in politics. So I think that there's a lot to that. Let me say one other thing. When Ben said this in 2005, America, I think, was less geographically polarized than it is today.

So I'm going to offer a slightly different point. I'm going to say one thing that has happened and is continuing to happen is people are actually voting with their feet. They're sorting themselves out. The blue states are becoming more blue and the red states are becoming more red. But as long as even if you live in Texas, you can go to New Mexico and get a legal abortion and then come back or go to Nevada and get a legal abortion and then come back.

It may very well be that this will help America just kind of live with each other, because people differ on this issue. And if red people are allowed to live in a red state and blue people are allowed to live in a blue state, and we don't have to have a one-size-fits-all rule like Roe versus Wade, maybe actually we can all get along a little bit better.

In fact, but one key, though, is going to be Missouri can't say to its women, you can't cross the state line into Illinois and get an abortion. That would be a real problem. That would kind of trap people in their home states. But if we actually could sort ourselves out a little bit more, maybe, in fact, that would tamp down some of the culture wars.

Let's turn to the other side of the argument, to those who say that overturning Roe is a catastrophe for America, especially in this extremely fraught political moment. One of the best criticisms I read last week, funnily enough, came from a conservative who

Brett Stevens wrote an op-ed in the New York Times as a kind of letter that was addressed to the five conservative justices. And he basically makes the argument that overturning Roe isn't a conservative choice. It's a radical one. And he largely makes that argument based on the idea of respecting precedent. And then he goes on to say this.

you will be lighting another cultural fire, one that took decades to get under control in a country already ablaze over racial issues, school curriculums, criminal justice, election laws, sundry conspiracy theories, and so on. So first, how do you respond to Brett's argument? And do you think that the draft wrongly disregards precedent?

No, I don't. And I respect Brett Stevens, but I'll be really blunt with you. He is not burdened by a legal education and he's not burdened by constitutional expertise. So what he says is actually not a constitutional argument or to the extent it is, it cuts exactly the opposite way. So let's start with precedent. See, at the end of the day, the Constitution is the supreme law of the land. It says so.

That's the supremacy clause. This Constitution is the supreme law of the land, not precedent, this Constitution. And judges take an oath to the Constitution. So if they're going to be faithful to their oath, they have to prioritize the Constitution. So that's point one.

Point two, fine, start with precedent. Let's think about the precedence about precedent, because Alito talks about those things. And he says, "When you look at the precedence, the precedence themselves say the precedence should be tossed overboard when the chord is convinced."

in general, that the pressants are wrong. So, Plessy versus Ferguson was tossed overboard about 50 years later in Brown versus Board of Education. Plessy is 1896. It said, "Separate but equal, segregation, apartheid, perfectly okay."

And Brown, in effect, says, no, it's not okay, because actually the Constitution says equal. It really does say it. And equal means equal, and apartheid isn't equal, so bye-bye Plessy. That's a precedent, Brown, in effect, on precedent.

you know, on Plessy. So, and I could imagine a Bret Stephens-like person in 1953 saying, "Oh, you know, overruling Plessy would be radical. It will inflame America. Why don't we just stick with what we've got right now and not rock the boat and stir the pot?" Well, I'm glad the court didn't do that in Brown because it was faithful to the Constitution.

itself. Let me give you just a couple more examples. In the 1930s,

There were basically 50 years of precedent in which the court was striking down all sorts of legislation designed to protect employees and consumers. Minimum wage laws, maximum hour laws, worker safety laws. And in an era that lawyers called the Lochner era, basically 1880s to the mid-1930s, again a 50-year period,

The court basically was striking down all these laws saying they violate freedom of contract and property rights and the like. Now, actually the constitution doesn't say that. The court made that stuff up. And in the new deal, the

The court very famously in 1937 basically switched it. It abandoned the precedents, rightly so, because the Constitution really didn't provide this super strong protection for contract and property that the Lochner denounced.

justices. I'm said it did, but I could imagine a Bret Stephens-like character in 1937 saying, well, let's stick with precedent while I rock the boat and stir the pot. Let me take one final example.

In the 1960s, the Warren Court overturned a boatload of precedents. And I say rightly so because in 1953, when Earl Warren just becomes a Chief Justice, there was segregation across the land.

There was massive disfranchisement. There was massive malapportionment. There wasn't one person, one vote. The Bill of Rights largely didn't apply against states and localities, according to Supreme Court precedent. There was organized sectarian prayer in the public schools.

Criminal defendants had very precious few constitutional rights the courts were enforcing, and if you couldn't afford a lawyer, you had no constitutional rights to have one provided for at government expense in a criminal case if you were indigent.

And the Warren Court came along and said, it really says right to vote. It says it so many times in the Constitution. We have to enforce that. It says freedom of speech, and we're not really enforcing that. It says free exercise of religion. We have to enforce that. It says right of counsel, and that's meaningless if you're indigent, unless the government is going to provide counsel. So the Warren Court revolution was a revolution in the name of constitutional text and

and constitutional history and first principles. And I think the country is much better for that revolution. But again, I could imagine a Bret Stephens-like character back then, especially not burdened by a constitutional education or a legal education saying, why not just sort of stick with what judges have done in the past? And the answer is, so what I've just given you is precedent about precedent.

the precedents themselves are actually filled with examples of overruling wrong cases in the name of proper constitutional understanding. And Justice Alito has a very long, like two-page footnote listing some of those examples. In all of the cases that you just mentioned, the cases of the court overturning decades of precedent, Plessy, for example,

They seem to me in the bucket of cases expanding rights for Americans, not withdrawing a right as it will be in Roe v. Wade. Am I wrong to make that distinction? Yes. Yes, you are wrong because that's exactly what did not happen in the 1930s. Akhil, I'm also not burdened by a legal education. Right. So I'm being straight with you because this is honestly. So in the 1930s, there was...

A court that said, in the name of rights, we prohibit the government from regulating minimum wages and maximum hours and all the rest. In the name of rights, in the name of the right of freedom of contract and property rights.

And the New Deal court said, no, those rights don't exist. Government is allowed to regulate the economic sphere. That's the exact same thing as what's being discussed now, except it's not the economic sphere. It's the pregnancy sphere. And the court says at a certain point, you know, in the name of rights, government can't do this.

And now what Alito is saying is actually, yes, it can. So the only difference between what happened in the 1930s, in which rights of property and contract were tossed overboard because they really weren't in the Constitution to the extent the court thought they were, and what Alito is proposing today is tossing overboard rights

reproductive rights because they really aren't in the Constitution the way Roe said they were. The only difference is in the 1930s we're talking about conservative rights, economic rights, and here we're talking about liberal rights, reproductive rights. And I'm a liberal, but the distinction isn't actually between extending rights and reversing rights or something like that. It's just what's being done right now from a rights restriction perspective, no different than what happened in the 1930s.

Let me say one other thing, that Roe itself was importantly restricted in 1992 in a case called Casey. Well, your argument now in number 91-744, Planned Parenthood of Southeastern Pennsylvania versus Robert P. Casey. 91-902, Robert P. Casey versus Planned Parenthood of Southeastern Pennsylvania. Abortion rights cases were actually

"After considering the constitutional questions decided in Roe, the principles underlying the institutional integrity of this court, and the rule of stare decisis, we reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability, and to obtain it without undue interference from the state."

We also hold the state has legitimate interest from the outset of pregnancy in protecting the health of the mother and the life of the fetus that may become a child.

Roe itself was cut back on. The trimester framework was restricted in Casey. So we've already done this once with Roe itself. We've already done that in 1992, and this would just be, you know, a second time. Okay, so during Alito's confirmation hearings in 2006... Let me come now to the statement you made in

that the Constitution does not provide a basis for a woman's right to vote.

to an abortion. He was grilled. Do you agree with that statement today, Judge Alito? Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration. On his views about Roe. They do what the law requires. But do you think there is as fundamental a concern as legitimacy of the court

would be involved if Roe were to be overturned? Mr. Chairman, I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not sway in the wind of public opinion at any time. John Roberts said that Roe versus Wade is the settled law of the land.

Do you believe it is the settled law of the land? Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it's been on the books for a long time. It has been challenged on a number of occasions, and I discussed those yesterday, and the Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes in Casey, based on stare decisis.

And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis. Help me square that, Alito, with the author of this draft opinion. Is it that his views simply hardened over the last 16 years?

Or is it that he always felt the way that comes through in this opinion, but Supreme Court nominees just have to tell us what people want to hear during a confirmation hearing because they're totally political? In other words, I'm asking you, did he lie when he was asked that question in 2006? No.

I know Sam Milito and he's a very straight shooter. He did not lie. People misunderstood what he said. They over interpreted what he said. His views and mine are pretty similar on the law and every single thing that he said was legally right. He's describing what the Supreme Court has said.

He's correctly saying when a case has been reaffirmed multiple times, as Roe has, that strengthens it. But it doesn't mean that it's immune from critique and from overruling. And if you thought he said that, that's on you, not on him. He didn't say that. He's very careful. He's lawyerly, so to speak.

Today, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we've been discussing, and that's the issue of stare decisis. And if the analysis were to get beyond that point, then I would have to – I would approach the question with an open mind, and I would listen to the arguments that were made. So you would approach it with an open mind, notwithstanding your 1985 statement? Absolutely, Senator.

Yeah, but why didn't he just say or why didn't Amy Coney Barrett say what they're saying now, which is Roe is a bad decision and it should be decided on, abortion should be decided on democratically by elected leaders and not by the court? Meaning for most people, if you go back and you look at what all these people have said during their confirmation hearings. Do you agree with Justice Scalia's view that Roe can and should be overturned by the Supreme Court?

That's a case that's litigated. It could, you know, its contours could come up again, in fact, do come up. You know, they came up last term before the court. So I think, you know, what the Casey standard is and that's

That's just it's a contentious issue, which is I know one reason why it would be comforting to you to have an answer. But I can't express views on cases or pre commit to approaching a case any particular way. It will sound like splitting hairs. In other words, they're like dancing on the edge of a knife. What would you say your position today

is on a woman's right to choose. It is an important precedent of the Supreme Court. By it, I mean Roe v. Wade and Planned Parenthood versus Casey. It's been reaffirmed many times. Casey is precedent on precedent, which itself is an important factor to remember. And I understand the significance of the issue, the jurisprudential issue, and I understand the significance as best I can.

I always try and I do hear of the real world effects of that decision, as I tried to do of all the decisions of my court and of the Supreme Court. Are they doing that simply because to say out loud publicly and honestly what they truly believe would be too controversial in a confirmation hearing and they want to get confirmed? In other words, there's a difference between lying and sort of restricting what you really believe.

I think you're being completely unfair to them and too nice to yourself. And hold on to Susan Collins. He noted that Roe had been reaffirmed 19 years later by Planned Parenthood versus Casey and that it was precedent on precedent. He said it should be extremely rare that it be overturned and it should be an example. You have obviously full confidence. I do.

Susan Collins wants to vote for Brett Kavanaugh, but she doesn't want to admit that Brett Kavanaugh is likely to overturn Roe v. Wade. Today, Senator Collins reacted to the news with a brief statement saying in part, quote, if this leaked draft opinion is the final decision and this reporting is accurate,

it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office, unquote. I testified at the Kavanaugh hearings, and you can look at the testimony. I included in it an op-ed I wrote for a newspaper in Maine directed just at Susan Collins, a Portland, Maine newspaper, and I explicitly said that

I'm pro-choice, but do not think that Brett Kavanaugh is going to be great on this issue. I don't think he is, but no one else that Donald Trump is going to nominate would be any different. Would you commit yourself on whether you would or would not?

Senator, what I will commit is that I will obey all the rules of stare decisis, that if a question comes up before me about whether Casey or any other case should be overruled, that I will follow the law of stare decisis, applying it as the court has articulated it, applying all the factors, reliance, workability, being undermined by later facts and law, just all the standard factors.

And I promise to do that for any issue that comes up, abortion or anything else. I'll follow the law. They were very careful. You can say they're splitting hairs and, you know, potato, potato, but I'll say, no, they never said that Roe should be followed if it's egregiously wrong. They never said anything like that. They haven't changed their views at all. Do you agree with Justice Scalia's view that Roe was wrongly decided?

So, Senator, I do want to be forthright and answer every question so far as I can.

I think on that question, you know, I'm going to invoke Justice Kagan's description, which I think is perfectly put. When she was in her confirmation hearing, she said that she was not going to grade precedent or give it a thumbs up or a thumbs down. And I think in an area where precedent continues to be pressed and litigated, as is true of Casey, it would be particularly, it would actually be wrong and a violation of the canons for me to do that as a sitting judge.

And by the way, none of them could ever promise that they were going to follow Roe or overrule Roe. Promises in a confirmation process are a shonda. They would be an utter disgrace because a justice has to be free to change his or her mind. And so you can't make a promise about what you're going to think when the case actually reaches you. But if you ask me honestly, did they change their minds at all? I don't think so.

Akil, I got a lot of texts from friends last week saying frantic things to me, like, is birth control going to be made illegal? Am I going to be able to get an IUD? Is same-sex marriage going to be made illegal? Is there any connection between that message?

Fear about those rights being taken away and the draft decision, or is that just a kind of moral panic that maybe began on Twitter and spread like wildfire among a lot of young women that I know?

I think it's a lot of fear mongering. It did start on Twitter. Many commentators have stoked this fear and it is in my view based on a profound misreading of the Alito draft opinion.

and some of these cases like Griswold versus Connecticut, for example, about birth control and a misreading of the facts of American history. So in a nutshell, Justice Alito says,

Unenumerated rights should have strong support in American history. Let's take Griswold. So, first of all, in Sam Alito's confirmation hearings, he explicitly said: Starting with the woman's right to choose, Judge Alito, do you accept the legal principles articulated in Griswold v. Connecticut that the Liberty Clause and the Constitution carries with it the right to privacy?

Senator, I do agree that the Constitution protects our right to privacy. He thought Griswold was

was rightly decided. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy. And a later case called Eisenstadt v. Baird, which was about contraceptive use by

unmarried couples griswold was about married couples he said it's rightly decided he said it very very clearly and he said he disagreed with robert bork about

about birth control and the Constitution. And if he actually has changed his stripes on that, then you could say, oh well, then he either changed his mind or he's lying. So he's absolutely clear in his confirmation, and so was John Roberts, absolutely clear about that. The right to privacy is protected under the Constitution in various ways. It's protected by the Fourth Amendment. It's protected under the First Amendment, dealing with

prohibition on establishment of a religion and guarantee of free exercise protects and so was Clarence Thomas in his confirmation hearings and actually so was Amy Coney Barrett in her confirmation hearings Griswold involves a ban on contraception criminal ban on the use of contraceptives and I'm asking your legal position I want you to keep in mind how many people are listening and watching because they may

take a message from what you say, they may see what you say and be deterred from using contraceptives or may feel the fear that it could be banned.

I think Griswold isn't going anywhere unless you plan to pass a law prohibiting couples or all people from using birth control. They have never, on the basis of anything that they said before, given me any reason to think that they want to undo, for example, contraceptive rights. That's point one. In the opinion, cases like Griswold are actually cited with implicit approval. That's point two.

The framework that Alito commits himself to saying, let's look at actual tradition and custom and practice is actually supportive of Griswold and other cases. That's point three. Here's the key point. In Griswold versus Connecticut, Justice Harlan, who was a traditionalist, second Justice Harlan, the grandson of the great dissenter in Plessy, actually said at one key point,

Conclusive is the fact that no state other than Connecticut makes it a crime to use contraception. So birth control has generally been freely available and Griswold emphasizes that birth control rights are deeply rooted in the American tradition. Roe, by contrast, Justice Alito reminds us, invalidated the laws of either 49 or 50 states in 1973.

Griswold, on the other hand, invalidated the laws of one weird outlier state, my home state of Connecticut. So let me say it a different way. The Republican Party for at least 40 years has been saying we hate Roe. It's in their platform every time.

They're not saying we hate birth control. In fact, the reddest of the red states aren't seriously proposing to take away birth control. I don't really know of any national politician in general who was urging something like that. So, you know, I don't know whether it's intentional or not, but it's a profound misreading of Sam Alito and Clarence Thomas and Amy Coney Barrett to think birth

they at all are getting ready to try to undo contraceptive rights in America. Okay, Akhil, so that's contraception. But what about gay rights, which is a relatively new right? It's very easy when you look at some of the backlash that we've been talking about on various episodes of this show to wokeness and backlash that's sort of understandable, that you could see red states wanting to roll back rights.

rights like gay marriage. How does this draft decision impact

those rights. So the court's decision says, the draft decision, says very clearly this is about abortion and only abortion because it involves innocent unborn human life and Alito says that pretty clearly. You say okay fine but when he also says rights have to be deeply rooted in American tradition where does that leave gay rights? Two or three things.

First, who writes all the gay rights decisions for the court? There are four of them. Romer versus Evans, Lawrence versus Texas, Windsor and Obergefell. There are four landmark cases. Every single one of those was authored by Anthony Kennedy, with actually a pretty fierce dissent by Anton Scalia. Here's my point. When

I, as a Democrat, lose in 2016. I lose the presidency and I lose the Senate. Now we have a Republican Senate, Republican president. I'm going to get actually Republican justices. And here's my choice. I'm going to get, in effect, a Scalia clerk or a Kennedy clerk. That's what's going to happen.

I prefer Kennedy clerks and the reason is because they're going to try to preserve in general Kennedy's legacy. So let me tell you about Brett Kavanaugh because Brett Kavanaugh is going to have to sign on to this opinion to make five. Brett Kavanaugh, in my view, believes in gay rights. Now, what's my reason for thinking that? Because he clerked for Kennedy.

Kennedy chose to step down. Kennedy didn't die unexpectedly like Scalia or Ginsburg. Kennedy chose to retire, just like Breyer's choosing to retire. He's in good health.

He believes in his legacy and he understands his legacy and he understands that gay rights is at the core of his legacy. He's a Northern Californian, so am I. He grows up actually looking up to Earl Warren. He lives in Sacramento and his family is closely connected to the Warren family.

He knows Brett Kavanaugh. Kavanaugh was his clerk for a year. I think he steps down believing that he will be replaced by Brett Kavanaugh and wanting that, being perfectly comfortable with that because I think he thinks his legacy is going to be absolutely safe with Brett Kavanaugh. And

I don't think Brett Kavanaugh is at all looking to undo the Kennedy legacy, which is to repeat Lawrence versus Texas, prohibiting sodomy laws, but also Obergefell. So I said when it came to contraception, no state or leading politician is pushing back on that.

On gay rights, yes, there are some states that are. There are some politicians, but they're a minority. And today, in 2022, they're basically pretty far out of the mainstream. And the approach that Alito puts forth is basically saying Roe is a problem because it invalidated the laws of 50 states or 49 states. And even today, half the states or more want to restrict abortion and Roe is limiting them.

That's not where we are in 2022 on sodomy laws, not where we've ever been, or same-sex marriage. One final thing. The framework that Alito puts forth in his opinion is a framework for unenumerated rights. But when it comes to sodomy laws and...

same-sex marriage laws and gay rights more generally, there's an explicit constitutional right at issue, an equality right. The framework for thinking about explicit rights is very different from the framework that Alito puts forth for unenumerated rights. I myself am fiercely devoted to gay rights and Alito's opinion does not worry me in the slightest.

And I think a lot of people who have said otherwise are uninformed or fear mongering. First of all, that's comforting for me to hear. But I'm also wondering, would it be wise for lawmakers to go ahead and push for marriage equality legislation so there's not a risk of a conservative court, in theory,

deciding that this issue like abortion is something best left up to elected leaders. Why not do that just as a kind of belt and suspenders mechanism? Yes, yes, yes. I'm with you, sister. They should do that.

Okay, Akil, last question before we get to the drama of last week and the leak itself. I want to understand from you where the Chief Justice, John Roberts, sits on this issue. He wasn't signed on to the Alito decision along with the other conservative justices. But a few hours after the draft decision leaked, CNN reported, who knows if it's true, that Roberts doesn't want to overturn Roe.

How did he find himself standing alone here and why? Why is he standing apart from Alito, Thomas and the three Trump appointed justices? We don't know for sure that justices Kavanaugh and Barrett in particular are on board with the Alito approach.

approach. It's possible that they might go along instead with the more moderate, go slow, don't overrule Roe, but whittle it down approach of John Roberts. That's what the Wall Street Journal had reported a couple of weeks back, that

they may be in play. I don't think Alito himself is in play. He likes his opinion, and it's been confirmed that it was his opinion. I don't think Justice Thomas is in play based on what he's written before on Roe v. Wade, but also because presumably Justice

he may very well have been the person who assigned the opinion to Alito. He was the senior justice in that wing of the court. And based on what Justice Gorsuch has written in the past, I don't think he's in play. So I think

Three are pretty much locked in to the Alito approach. I'm not sure, actually, that Kavanaugh and Barrett are locked into that approach, and Roberts might be trying to pull them over into a more moderate approach, which is uphold the Mississippi law,

Don't overrule Roe immediately. Just say we don't need to reach that question in order to decide the case at hand. It's enough that this law is okay. It gives women enough time, 15 weeks, to make a decision. They don't really need 22. The difference between 15 and 22 is only 4% of abortions or something, and we don't need to decide, for example, whether six weeks is enough time or not.

Let's leave that for another day. Now, why, you ask, might Roberts prefer that approach? Because Roberts is less of an originalist

He is more of a Bret Stephens sensibility. He is a go slow conservative. - The phrase that comes to mind is, there's a Jewish phrase, shalom bayit, which means peace in the home. Like you don't always have to be right, but you have to do things in order to like keep the family together. That to me seems to be this Bret Stephens argument. And you're suggesting maybe that's the Roberts point of view. - For at least two reasons.

First, that's his temperament and sensibility. He's a go slow guy and not a first principles originalist.

Second, he's the chief justice. So just as you say about peace in the home, he has a special institutional interest in trying to protect the court as an institution, which means don't overrule more court precedents than you have to. He's going to be a little bit more sympathetic to precedent because every time the court overrules a previous court case, it's reminding people that the

the court has made mistakes and and if you're an institutional person maybe you don't love that so much but yes let's try to keep the peace and he sees that more as chief justice so again the two reasons that's who he is as a temperament he's more of a brett stevens kind of person and he's chief and a chief has a different institutional perspective than an associate justice

After the break, more with Akhil Amar on what the leak says about the culture of American law and what supporters of legal abortion should do now.

Okay, Akhil, let's talk about the leak itself. This is a bomb at the court, really a bomb. On the one hand, some reporters that have been covering the court for decades, like Nina Totenberg at NPR, they're calling the leak a bomb. This is a full-flown Pentagon Papers-type compromise of the court's work.

And they won't be able to trust each other for a very long time. And they won't be able to trust their law clerks in the same way either. And on the other hand, and this is mainly blue checkmark Twitter types, they've been saying things like, this is just a Republican talking point. Who cares about the leak? Or, and this is the line that keeps getting repeated over and over, the leak is not the story.

Obviously, an NPR correspondent like Nina Totenberg is not the person you'd expect to be spouting Republican talking points. So square that for me. Is this leak unprecedented? Is it the bomb that it seems to be to me or is it a nothing burger? Yeah.

Maybe both. It is unprecedented. It is a bomb in the following way. There have been leaks in the past, but

They've tended to be after the fact, like Bob Woodward and Scott Armstrong telling us the backstory of this case or that one years after the cases come down. Or Joan Biskupic telling us what really happened in the run-up to the Obamacare case or Bush versus Gore or something like that. But after the cases come down...

or smaller leaks from someone in the court, but never an entire 98-page draft opinion, much less on the biggest case of the term and one of the bigger issues of the decade. So that is big and unprecedented. But here's why it may be less of a bombshell if...

It came from a justice. Oh, my God, that would be horrible because what would that suggest about the relations among the justices? How can they ever trust each other again to keep confidential conversations confidential if things are going to be leaked like this? So if it came from a justice, oh, my God, that would be a nuclear bomb.

On the other hand, imagine it actually was somehow a mistake. Someone just failed to shred a document. They thought they put it in the shredder, but they actually tossed it in the trash instead, and someone found it. Okay?

Okay. Or no, it came from inside the court, but not from a justice, from a messenger, from a low level person in the printing office who was trying to make a fast buck or make an ideological point or impress their spouse or something like that. Well, that would be bad, but not

remotely the kind of bomb than if it came from a justice. Now, in between, suppose it came from a law clerk. Well, that would be very bad because law clerks are picked by the justices themselves and it would be very embarrassing for the justice, but it wouldn't be at all like

coming from a justice himself, herself, it would be basically, well, young and foolish people sometimes do foolish things. Okay, well, that brings me to my next question, which is there's a tremendous amount of speculation, right? The most obvious speculation

theory of the case seems to be a liberal clerk who wanted to mobilize liberals, Democrats ahead of the midterms. But then there's others who say, no, maybe one of the justices in that group of five was getting shaky. And this was actually leaked by a conservative in order to stiffen their spine.

I know it's speculation at this point, but you're a court watcher. You know these characters. You know the culture of the court.

What, in your view, is the most likely story of the leak and how it happened? Because I think that you would agree that it's probably not a janitor that happened to come across something that should have been shredded. So I've been really forthcoming about my opinions on this and that, the other thing, and I've had some pretty strong opinions. I don't have a strong opinion on this because it is such speculation. And I want our audience to know that

Although I clerked for Stephen Breyer way back when, when there were dinosaurs on the playground, I did not clerk for him when he was on the Supreme Court. So I don't know quite the culture of the court. Many of my students have clerked. My brother was, as I mentioned, a law clerk to Harry Blackman. My friends who are clerks, former clerks, have told me, oh, yeah, they think it might be a

a clerk. What's interesting though is

Some of my friends really do think it was a conservative clerk, and others of my friends really do think it's a liberal clerk. There's an interesting piece by Tommy Goldstein who actually thinks there were multiple leaks. There was first a leak to the Wall Street Journal, he thinks, about Roberts making a play for Kavanaugh and Barrett. And then in response to that, there was a leak to Politico, and maybe there were actually two leaks to Politico or something. So Tommy Goldstein actually thinks

oh, there might be sort of more than one leaker to more than one leaky. Justice Roberts immediately announced an investigation and he said something like it was absolutely appalling. Do you think the leaker will be caught? And also, what do you think should happen to that person? If it's a law clerk...

That person faces disbarment if they haven't taken the bar yet, they may be ineligible over to sit for the bar. Lawyers have to keep the confidences of their clients. It's very important and this law clerk

if it was a law clerk, did not do that. And maybe they'll become rich and famous. They can maybe write a book. Maybe they run for the Senate, but they're not going to be practicing law anytime soon if it's a law clerk. And I hope it isn't because I would feel very sorry for this person because they're talented, young, would-be lawyers. And many of them already are lawyers. They've already taken the bar. So if it's a law clerk...

they have really lost their status as lawyers. If it's some other non-legal staff person, a messenger, a person in the printing office, I don't know quite enough about personal matters. They're going to lose their job, obviously. But if it's a justice, oh my God, that would be horrible. And honestly, there would be impeachment talk everywhere.

In fact, they just would be. I'm just predicting that. But if it were a justice, how are you going to actually ever repair your credibility with your colleagues? I don't think it's a justice at all. I would be shocked if it were. Well, most people seem to think it's a clerk. And the night of the leak, I called up one of the smartest legal professors I know.

And I asked this person if they were surprised. And this person said, you know, unprecedented, some of the words you've used, serious, severe. But in the end, they said, not surprising. And I said, why? And here's how he put it.

To me, the leak is not surprising because many of the people who we've been graduating from schools like Yale, your school, are the kind of people who would do such a thing. They think that everything is violence and so everything is permitted. Does that resonate with you? Unfortunately, yes.

I hope it's not a clerk. I definitely hope it's not a Yale law clerk. But if you put a gun to my head and you're holding a loved one of mine hostage and you said, you know, your loved one will be released only if you get the right answer, you know, I probably would put my money on a Yale law clerk. Okay. Now, Akil...

We're laughing about that because I think we know the kind of profile or persona we're talking about. For the person that's never met a Yale Law grad or a Yale Law clerk, explain why that would be the bet you would make if a gun was held to your head.

because they're very smart, sometimes a little too smart. They think maybe a little too well of themselves. And they're young, they're impatient. Many of them, yes, do think that because they're so sure that they're right, and they're so sure that the other side is so deeply wrong, that they're willing to shut down political speech that they don't agree with, and try to

bully folks on the other side into silence. Barry, you're nodding your head because yes, you have lived through some of this. You know about some of this. Truthfully, I think that's a bigger problem at Yale on the left. And again, I'm a Democrat and I'm a self-described liberal. It's a bigger problem on the left than the right. But action and reaction is going to breed

countermeasures on the right. So it could be someone on the right too. So that's why I'm afraid it could be possibly, you know, an overzealous law clerk. And I think the law clerks who graduate from Yale, many of them are probably

prone to a certain kind of narcissism that law clerks, if you went to, let's say the University of Illinois, where my brother is Dean, you know, you wouldn't remotely think that you were God's gift in every respect because you weren't at the number one law school or whatever. And you might have a little bit more humility than some of the people at Yale Law School may lack that humility, alas.

I noticed in the day after the leak that people had gone out somewhere on Yale's campus and chalked things, Yale law students, like silence is violence, like we are the law, and like law is violence. And some of those laws, violence, you laugh, but the idea of we are the law gave me pause because actually,

They are the law. And so it's amazing to me to think about, you know, we're so shocked about this leak, but what happens when a generation of graduates, clerks, people who are rising to white shoe law firms to, you know, clerk for federal judge to clerk for the Supreme Court believe in this ethos? What happens to American law going forward?

Ultimately, I have some optimism that the legal system, which has served America very well for a very long time, not perfectly, but very well compared to other countries, will continue in general to produce lots of young lawyers who will be guardians of the system. Okay. Last question, Akhil.

Listeners who are swayed by Alito's opinion and by your view that it's the correct opinion, but still want to live in a country where abortion rights are protected. What should those people do right now? Speak up.

vote and if possible, at least try to have some respect for your fellow citizens who have a different view on this issue. The most important thing of all I believe is not the abortion issue and I'm strongly pro-choice. It's not even the gay rights issue and oh, that's hugely important to me.

the most important issue of all is that we hold together as a country. Akhil, you say to go out and vote and you give that stirring final note and I agree with you. And then I look out at who there is to vote for. And it seems to me that we don't have serious leaders right now who are worth voting for. But obviously that'll have to be a subject for another day. Akhil Amar,

burdened as you are by a law school education and by knowing the constitution. Thank you so much for coming on. Honestly, really appreciate it. Thank you.

Thanks for listening. And thanks to Akhil Amar. Check out his newest article in the Wall Street Journal this week, where he dives deeper into all things Roe. His latest book is The Words That Made Us, America's Constitutional Conversation, 1760 to 1840. And listen to his podcast, America's Constitution, wherever you get your podcasts. See you soon.