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Shumita Basu, Narrating: This is "In Conversation" from Apple News. I'm Shumita Basu. Today, what a leak from the Supreme Court tells us about the future of abortion and the future of the Court itself.
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Basu, Narrating: It's been one of the most historic weeks ever for the Supreme Court. A leaked draft of a majority opinion in Dobbs v. Jackson Women's Health Organization shows us that the Court is ready to overturn Roe v. Wade, a nearly 50-year precedent that protected abortion as a federally guaranteed right.
This comes at a time when the Supreme Court is facing a lot of scrutiny$% accusations from Democrats that Republicans stole a seat from under them, a series of contentious confirmation hearings, from Brett Kavanaugh to Ketanji Brown Jackson, and text messages revealing that Justice Clarence Thomas's wife, Ginni Thomas, pressed the White House to overturn the 2020 presidential election.
Along the way, public trust in the Court has plummeted. There's a growing feeling that this court is not in sync with the majority of Americans on major issues like abortion.
So, has the Supreme Court lost its legitimacy? And is there a way back?
To answer some of these big-picture questions, I wanted to talk with Dahlia Lithwick. She's a senior editor at "Slate" who's covered the Supreme Court for more than two decades. First, I asked her about the language in Justice Samuel Alito's draft opinion. He says the legal justification for Roe v. Wade was exceptionally weak. I asked Dahlia to explain why.
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Dahlia Lithwick: I think the simplest answer to the question is, because of course the word abortion appears nowhere [LAUGHS] in the Constitution and that, you know, you heard some of that from Senator John Cornyn, from Senator Marsha Blackburn at the Ketanji Brown Jackson hearings, right? What are you talking about? This isn't … A word that is in the Constitution is "guns." That's a word [LAUGHS] in the Constitution. But a word called "abortion" isn't in the Constitution, so there's no meaningful Constitutional right to lash this to. And it's an old critique of Roe. I mean, I guess we should stop and say the word "woman" [LAUGHS] also nowhere appears in the Constitution, right?
Basu: [LAUGHS] That's right. Yeah. Literally the word "woman" is not in the Constitution.
Lithwick: [LAUGHS] Nowhere there. And not in the 14th Amendment. I mean, I think that even given the chance to afford protections to women, the Constitution fails to do that. So, I think in one sense, if you have this backward looking, historic view, that nothing that wasn't enshrined in the Constitution or the amendments to the Constitution is a meaningful right or liberty, it's very easy then to say, "Look, it's not there, it's not there." So, the easy answer is that this is not a document that was drafted contemplating the freedoms or even the interests or value of women.
Let's pause here and talk about the basis of the decision in Roe v. Wade. As Dahlia mentioned, it had to do with the 14th Amendment, which protects Americans against invasions of human liberty. At the time, the Court ruled that liberty includes a right to privacy and that right to privacy protects a woman's right to choose to terminate a pregnancy. Justice Alito rejects that argument in this opinion, saying abortion is not a protected liberty because it's not rooted in the country's history and traditions. But Dahlia pointed to historical arguments that say otherwise.
Lithwick: If you look at the floor speeches and you look at the drafters and what they produced when they were trying to craft the 14th Amendment, there's actually a very coherent theory of liberty. And that theory is that if you were a victim of chattel slavery, you were not free because women could be raped [LAUGHS] in order to produce more slaves because husbands and wives were separated from one another and not allowed to live together, because children were taken away from their parents, right? These are the cornerstone of what slavery meant. And the 14th Amendment, in no small measure, was an effort to say, that's not freedom. Freedom is being able to marry who you love and raise your children as you see fit. And if you look at the line of cases under this idea of what is substantive due process, what is unenumerated rights, all of the cases are about parents who want to determine how their kids are educated, that the state cannot sterilize you, that the state cannot remove your children from your custody. This ends up being Griswold v. Connecticut, right? The cases that say you're allowed to have access to reproductive freedom. This is Loving. This is the case that says, interracial marriage bands are unconstitutional. And this becomes Roe. So, I think looking at Roe in isolation and saying, Roe is just this wackadoo theory that was plucked out of the [LAUGHS] ether by Justice Blackmun in 1973, and it's not tethered to anything meaningful, is to ignore the entire history of what the 14th Amendment was trying to do, which was to say, the family is the fundamental unit of democracy. And in order to be able to manage the family, you cannot be told who you marry or who you live with or how you raise your children or how many children you have.
Basu: Yeah. I mean, hearing you explain it in that way is so clarifying. And I have to say, the phrase that I keep kicking around in my head from this opinion from Justice Alito, is this idea of what is "deeply rooted in the Nation's history and traditions." Who gets to say? Who gets to set that definition?
Lithwick: Well, it's exactly the right question. And if you look, I mean, there is doctrine here and he cites a case called Glucksberg, which is the case that says, sure, we have these liberties, but they do have to be deeply rooted in our traditions. But you're exactly right. I mean, for absolute certainty, we know that same-sex marriage is not going to pass that test. We know for absolute certainty that bans on interracial marriage are not going to pass that test because they certainly weren't contemplated at the time of the framing. And so, it's not just that it's subjective. And you're right, this is the Court saying, "You know what is a 'deeply rooted' value? The right to carry guns around on the New York City subway." Right? The Court is poised to decide a case called Bruen, in which they're going to say that is meaningful liberty. But I think that it also goes to this idea that we have to realize that to be deeply rooted in the traditions of liberty is to start by erasing women and people of color, because slavery was also [LAUGHS] deeply rooted in the traditions and as was the idea that women could not vote. And so, I think you have to be so careful. And this is not me saying we blow up the Bill of Rights and we blow up the Constitution, but it is to say that this history-based, backward-looking notion that the only rights and liberties we value are the ones that are deeply rooted in what the framers believed liberty to mean, is to essentially carve out of the equation any [LAUGHS] other values that, as a society, we have come to believe in.
Basu, Narrating: Justice Alito's draft opinion has a lot of people worried about how this could ultimately impact other decisions that rely on similar reasoning to the Roe v. Wade decision; rulings that gave people in the U.S. the right to use contraception, the right to marry the person you love regardless of race or sex. In his opinion, Alito tries to get ahead of some of these concerns. But Dahlia says his words are not very reassuring.
Lithwick: I think we need to be really aware that when Justice Alito says, this is only about Roe, I'm not talking about Griswold, I'm not talking about birth control, I'm not talking about Obergefell, he may assert that, he certainly asserts it in the opinion, but he's pulled out the Jenga piece [LAUGHS] that is, if all of these deeply rooted traditions are not really deeply rooted, then all of those other cases are sitting on sand. And so, what you're asking me is exactly the right question, which is, how is it possible that Obergefell, that Loving, that Griswold survive? And the answer is, they survive because Alito is telling us, in his opinion, that he thinks that they're different. That's not certainty [LAUGHS] and it's quite terrifying. And it's the thing I think we are slightly missing when the aperture is set really narrowly on abortion. What we miss is all of these arguments could be made about birth control and they could be made about birth control next week. And I have no doubt in my mind that we are gonna see attempts to do away with same-sex marriage in states, in the coming months and weeks because the Supreme Court has just green lit that project.
Basu: What does it mean for people seeking abortions right now? Just in practical terms, what changes in the short term?
Lithwick: Well, so here is where I have to scrupulously say that right now, nothing has changed. This is a draft decision that will change somewhat between now and the end of June or beginning of July when it comes out, but for right now, the law is the law, and that's the first thing. Your big question is what happens on the ground when this goes into effect, which it may materially unchange, and then the answer is there are 22 or 24 states that have some version of either what's called "trigger laws," which essentially say, the minute Roe is struck down we're gonna have close to an all-out ban on abortion, or "ghost laws," which are laws that predated Roe v. Wade that are on the books. And then, I think we should look at the actual possibility - and "The Washington Post" reported this on Monday before "Politico" leaked this document - that there's also a very, very sophisticated strategy to get a national abortion ban into place, that this isn't just going to be a patchwork of state by states, that there is a real meaningful push to have a national abortion ban follow. So, I think what we're gonna live in for the short term is a patchwork where if you live in California and New York, abortion is still lawful, and your life doesn't change substantially. And if you live in Mississippi or Oklahoma or Texas, you have essentially lost your right to get an abortion. And then real questions are rising about the right to travel. One of the things that we're starting to see now is states say, we are not going to actually let you travel interstate to get an abortion. And I think that the really grim reality that we're looking at, is that it may not take all that long to say, we're gonna make the jump from saying that you can't get an abortion in our state to really criminalizing certain acts. And we're already seeing that if you think about, for instance, Brittney Poolaw in Oklahoma, who is in jail for fetal endangerment, right? For having drugs in her system when she miscarried. We saw a case very recently in Texas, where somebody was charged with harming their unborn fetus. And so, I think the slip from "It's not legal to get an abortion in state X" is gonna quickly turn into prosecuting doctors, going after women. If you find out that somebody is mailing abortion drugs to one of those states, they can be implicated. But I think we're gonna see more and more cases that are really different from pre-Roe, where people are really criminally prosecuted for trying to aid or assist somebody in a different state.
Basu: I mean, the idea of criminalizing people's decision to move across a border and seek medical care on the other side is frankly disturbing to me, as an American. Is there a legal argument for that? What would be the legal argument to allow for that?
Lithwick: For instance, Missouri is a state that is talking about stopping their own residents from having abortions in states that allow abortions. And they're saying that any private citizen could sue - this is reminiscent of that Texas bounty bill - that private citizens would have a cause of action to sue an out-of-state physician who performs a procedure out of state and also [LAUGHS] to sue anyone who tries to transport someone across state lines to a clinic outside of Missouri. So, that bill, I think, is a model. And it really tells you - "Politico" reported this in March - but I think it really tells you how much that model of the Texas S.B. 8 bill that gave people a private right of action to bring a civil …
Basu: Putting the onus on individuals.
Lithwick: Exactly! That allows individuals to enforce it. And remember, the U.S. Supreme Court signed off on S.B. 8 not once in its shadow docket, where it did it with an unsigned order, but twice when it heard the case and decided it again. So really, really, I think look to states like Missouri that are going to try to make it impossible for somebody to seek care out of states. And as I suggested, Connecticut has just passed a model bill that would actually immunize its own physicians from suit, and it's a really, I think, bold effort to say, you actually don't have jurisdiction to go after a Connecticut doctor for providing services.
Basu: Let's try and take this idea that maybe the Supreme Court should not be deciding the legality of reproductive rights and that there could be a benefit to moving that into the jurisdiction of state governments. What do you see as the big flaw with moving reproductive rights into the jurisdiction of state governments, as opposed to the Supreme Court?
Lithwick: I mean, I think it was the same flaw with the argument that said, we will let the states decide whether they would allow marriage equality. Right? That was the argument. We don't need to make a determination nationwide about Obergefell. We can just let the states decide. That was the argument, right, in desegregating schools, maybe it's okay that some states just don't wanna do this. We'll let the states decide. And so, when you heard Brett Kavanaugh suggesting that that was the solution in the argument at Dobbs, it's useful to remember that was certainly not the solution when it came to Brown v. Board and school desegregation, that "Let the states just work this out" is actually not the way we protect fundamental liberties and fundamental dignity and equality.
Basu: I wanna spend the rest of our time talking about the state of the Supreme Court. So, sort of a little bit of how we arrived here and where you think it's going. But let's start with - 'cause I think a lot of people may not really know this very well - what was the Supreme Court designed to do, and how does it function today compared to what it was originally designed to function as?
Lithwick: That's a perfect question. And it's such a good segue from the last question because, of course, the Supreme Court was meant to be one of three co-equal branches of government. And by design, it was not supposed to reflect simple majority preferences, right? That's why we have two branches of government that are supposed to be responsive to the will of the people. And that's why you can remove your president or your senator if you don't like what they do. Supreme Court justices are from, again, the beginning, they are immunized, they serve for life. They can only be removed by impeachment and only in cases of grave, grave misconduct, right? High crimes and misdemeanors. And that was in order to let the Court do the thing that you and I keep talking about, which is be the branch of government that speaks for things that are Constitutional values that may not be popular, right? And that's why we get Brown v. Board, it's why we get Cooper v. Aaron, it's why we get Roe v. Wade, it's why we get Obergefell because the Court is essentially saying, don't really care what your elected branches think your rights should be. There is something transcendently important about protecting the liberties enshrined in the Bill of Rights and in the Constitution, right? So, I think that's the theory. And the way they do that is they give the justices lifetime tenure. And the way they say, we're gonna make sure that these justices are not this unelected, crazed juristocracy that can willy-nilly do what they want, is we're gonna give them no power. The Court doesn't have an army, it doesn't have a budget. Congress wants to turn the lights off in the building and stop up the toilets, they could do it tomorrow. Right? What does the Court have …
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Lithwick: They should not do that, but what does the Court have in lieu of those meaningful powers to enforce their own decrees, is they have public acceptance. So, as long as the public exceeds to the Court's legitimacy and supremacy, then the Court can continue to issue opinions, and we abide by them. And so, I think you really have to understand that paradox. And it's so complicated that the Court is both all-powerful and utterly powerless, and that is by design. It's crazy. And what worries me - and I know this is your question - about what we are seeing happen, and it's not just this leak, it's the shadow docket, it's decisions about COVID cases that came at midnight that have no doctrine or reasoning. It is very, very sharp elbows at oral argument. Right? Think of Justice Sotomayor talking about the stench around the Court, language that we've never heard before. Plummeting approval ratings, right? For the first time in Gallup polling, we have Court approval numbers that are in the high 30s, low 40s. All of that is a thing that the Court itself could correct by behaving [LAUGHS] appropriately, behaving like a court.
Basu: [LAUGHS] What does that mean to you? What does it mean to "behave appropriately," that is the different than what you're seeing out of the Court today?
Lithwick: I mean, I think it starts with transparency, right? It starts with a Court that shows its work when the Court makes hugely consequential decisions about the Remain in Mexico policy, about the Biden eviction moratorium, about allowing 10% of the women of child-bearing age in this country, in Texas, not be allowed to have abortions by nullifying Roe v. Wade, and they make those decisions in unsigned orders where we don't even know what the vote was in some of those cases. And by the way, hugely consequential voting rights cases that are also coming down on the shadow docket. The one thing the Court has is the ability to show its work. And the problem with the shadow docket, it's the opposite of transparency from a branch of government that promises us that it can and work in secret in the shadows. We can't go in and watch the arguments, but at least they will show us their work product, and they are not doing that. Clarence Thomas' wife, we've now seen the texts …
Basu: From Ginni Thomas. Mm-hmm.
Lithwick: … was deeply involved in at least discussing the events of January 6th and involved in texts with Mark Meadows to set aside the results of the 2020 election. And there's no ethics code that binds the justices. There's no federal rule that they apply to themselves to say, maybe he shouldn't sit on the actual case about documents that are to be released around that. So, there's a thousand ways in which the Court could check itself. And many of them are not radical things. Having disclosure rules, having ethics rules that say, you cannot sit on a case where you have a financial interest, having rules that, by the way, apply to the rest of the federal judiciary that say, these are the terms under which you must recuse, and the standard is the appearance of impropriety. This is all stuff the Court could do.
Basu: You know, I've been thinking a lot about, at least in the past few days, I've seen all of these clips of past confirmation hearings getting resurfaced. Right? Revisiting what several of the sitting justices said during their confirmation hearings about Roe.
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Samuel Alito: 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 the Supreme Court has reaffirmed the decision.
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Amy Coney Barrett: Roe is not a super-precedent because calls for its overruling have never ceased, but that doesn't mean that Roe should be overruled.
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Neil Gorsuch: So, a good judge will consider it as precedent of the United States Supreme Court worthy as treatment of precedent, like any other.
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Brett Kavanaugh: I understand the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision. I don't live in a bubble. I understand. I live in the real world. I understand the importance of the issue.
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Basu: I'm curious to know your thoughts on this. I mean, I think what a lot of people are feeling, frankly, is what is the point of the confirmation hearing process if nominees are able to say one thing and then, as justices, seemingly do another?
Lithwick: I mean, it goes to this very existential question about the confirmation hearings as just not just empty Kabuki, which is the word that I think people have been using, certainly in the two decades I've been covering the Court, that this is meaningless theater. I think we saw in recent confirmation hearings that it was more than meaningless theater, that it was actually abuse. I think anybody who watched Judge Jackson's confirmation hearings came away feeling bruised. And also, and I think this is another, I just think very, very important thing that we fail to reckon with, which is Clarence Thomas is still angry about his confirmation hearings, that Justice Kavanaugh promised at his confirmation hearings that the people who had opposed him by surfacing Dr. Christine Blasey Ford's testimony would "reap the whirlwind," was words he would use. And I think it's not simply that it belittles the nominee, it makes them angry in ways that we can see affecting doctrine, but I think it really lowers the Court in the estimation of the American public. And so, if the goal here, and certainly the goal of the framers and the goal of Article III lifetime tenure, is to have a court that the public respects and will accede to their decisions, everything about the confirmation hearings cuts against that. I'm not sure how we reform it, but it's really … If you are a person, and I wanna be really clear that I'm a person who believes deeply in the rule of law and the centrality of the Court in this project of democracy, I don't think we have a good plan B if the American public decides that the Court is a joke.
Basu: So much conjecture about who leaked this document and why they would've done it. What do you think? And ultimately, how much does it matter?
Lithwick: I think it was either a justice or clerk. And I think it could as readily be somebody on the right wing of the Court and the left. There are reasons on both sides. Presumably, if it was somebody on the liberal wing of the Court, this was an attempt to tell justices Amy Coney Barrett and Brett Kavanaugh, who are very, very suggestible on these questions of Court legitimacy and future confidence in the Court. They care deeply about that, and you heard that in the Dobbs argument. So, I think there's a very strong reason to believe that either somebody on the left side of the Court wanted to say to them, "Really? You're gonna sign off on Justice Alito saying horrible things about your mentor and hero, Anthony Kennedy? Cool, good luck with that." Or alternatively, somebody on the right side of the Court doing exactly the opposite, saying, "Stiffen your spine, hang with Justice Alito in this majority. We've already lost John Roberts," who's clearly not gonna sign up and has now leaked to "CNN" that he's not signing off on the project of overturning Roe and Casey. And so, somebody saying to them, "Look, now you're tagged with this, you're in this majority, so brazen it out." And why it matters is, I think - and this is a part of the story that I think has gone probably unnoticed - that while we are running around trying to figure out whether it was Colonel Mustard in the ballroom with a candle stick, which is all we're thinking about, what we've really failed to look at is that the Court cannot function when there's a breach of trust like this. And so, I think for me, the lasting, and I do think catastrophic, effects of these go to these questions of the legitimacy of the Court and the rule of law. And those are things that are as consequential as it is, that pregnant people in Mississippi and Alabama and Oklahoma may not be able to terminate a pregnancy in three months. The idea that the Court just dealt this, I think, almost fatal blow both to itself in the public eyes and to its ability work with one another. I think we're gonna be living with this for decades.
Basu: How do you, as a person who believes in importance of the Court, square that reverence with the makeup of the Court being so misaligned with the general American public on an issue as big as abortion?
Lithwick: So, I think there's two answers. I think we have to start, and this is where you and I started today, with the predicate that the Constitution and American democracy were not built to be pure, perfect democracies, they were built to entrench all sorts of privileges and prerogatives of white male landholders, right? That was the plan. And from that flows things like the electoral college and a wildly malapportioned Senate, which means if you live in Montana, you have the same number of senators as you would if you live in California, right? Everything about this is a minoritarian project. And one of the reasons that it entrenches itself is not just because then you see gerrymandering and then you see vote suppression, right? You see all these efforts to ensure that that minority rule persists on into the future. And I think the best way for me to think about this is that if you have a Supreme Court where all but one of the conservatives on the Court now were seated by presidents who failed to garner a majority of the vote, right, and then they were confirmed by a Senate that is wildly malapportioned, then what you have is an entire system that is reproducing itself in direct kind of contravention of what majorities want. And maybe the best way to say it is the Court has to exist to protect unpopular minorities, but it cannot be the case that unpopular minorities in other branches of government are using the Court, using the mechanisms of capturing the Court, to continue to protect minority interests that are wildly, as you say, misaligned with what the public wants. This is a systems problem. And we have to, even though it's dorky, think of it and analyze it as a big systems problem. But I think if we don't really deeply reckon with the fact that one branch of government that is supposed to protect minorities is now being used by other branches of government that want to enshrine minority rule. And that was never, ever, ever, I think, what was contemplated, if it was what was contemplated, it is certainly not a system that we all agreed to. And so, I think this is where this democracy work of really fighting for voting rights and making sure that vote suppression laws don't pass and making sure that wild gerrymanders are not blessed by the Court, as they were just last year, this is stuff folks can do. It sounds so boring, but I think in some sense, it is the essential work of democracy that probably the framers would've wanted to see us do in this moment.
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Basu, Narrating: You can read Dahlia Lithwick's latest piece on the Supreme Court in Apple News. You can find a link on our show notes page.
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