Latest / The Ben Ferguson Podcast / The Cloakroom Preview: A response to Chief Justice Roberts

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The Cloakroom Preview: A response to Chief Justice Roberts · The Ben Ferguson Podcast

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  Speaker 1: You're listening to a special interview of The Cloakroom, a
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  Speaker 1: serious with Liz Wheeler and Senator Ted Cruise, exclusively for
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  Speaker 1: Verdict Plus subscribers. Each week, Liz is joined by Senator
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  Speaker 1: Ted Cruise to pull back the curtain on the philosophy
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  Speaker 1: that informs our political debates, the stories that are reshaping
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  Speaker 1: our culture, and the legal principles at play on America's
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  Speaker 1: stage and beyond. To hear more of the Cloakroom, become
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  Speaker 1: a Verdict Plus subscriber at Verdict with Ted Cruise dot
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  Speaker 1: Com slash Plus. All right, welcome back everyone. I'm Liz Wheeler.
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  Speaker 1: This is the Cloak Room on Verdict Plus. I'm sitting
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  Speaker 1: here with Senator Ted Cruz and this is such an amazing,
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  Speaker 1: insane time to be alive in our country. Rovie Wade
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  Speaker 1: has just been overturned by the Supreme Court. And I
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  Speaker 1: don't know about you, Senator, but when I saw this news,
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  Speaker 1: I was I was obviously following the Supreme Court issuing
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  Speaker 1: their opinions. And I'm on the West coast right now.
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  Speaker 1: I'm out in Santa Barbara, California. So it was early
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  Speaker 1: in the morning. It was just after seven am, and
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  Speaker 1: I start frantically texting our producers. Are you awake? Are
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  Speaker 1: you asleep? Do you see what's happening? This is absolutely bananas.
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  Speaker 1: I don't think we're going to forget that moment. Yeah, no,
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  Speaker 1: it was. It was extraordinary. Um. I was in DC
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  Speaker 1: at the time. I had the night before, we had
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  Speaker 1: been late on the Senate floor battling over gun control. Uh.
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  Speaker 1: And then after that I had gone and filmed a verdict.
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  Speaker 1: So so we had Thursday night. We we did a
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  Speaker 1: verdict at twelve thirty at night, and so we finished
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  Speaker 1: at h I think I got home about two in
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  Speaker 1: the morning. Uh. And so Friday morning, I was still
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  Speaker 1: in DC. I was in my apartment and saw the
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  Speaker 1: opinion came down, and shortly thereafter I had a flight
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  Speaker 1: to Milwaukee. I'm in Milwaukee right now at a political
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  Speaker 1: conference to energize and mobilize grassroots activists here in Wisconsin.
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  Speaker 1: But my flight wasn't until late afternoon. So I actually
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  Speaker 1: played basketball for two hours, uh, Friday morning with several
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  Speaker 1: guys on my staff, and we we did played three
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  Speaker 1: on three and four on four for a couple hours
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  Speaker 1: and then uh, and then I up from the shower
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  Speaker 1: and wet and did a Fox hitt talking about the
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  Speaker 1: DABS ruling, and then jumped on a plane and flew
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  Speaker 1: to Milwaukee. It's first basketball game in a post row America.
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  Speaker 1: But you never thought that would happen. There you go.
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  Speaker 1: And in fact, on the plane I had with me
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  Speaker 1: this binder with the full text of all of DABS,
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  Speaker 1: and so I spent the entire flight just reading carefully
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  Speaker 1: word for word the opinion and DABS, which was which
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  Speaker 1: was pretty cool too to go through it and to
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  Speaker 1: try to although I will say a three wing binder
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  Speaker 1: on Southwest Airlines with a guy in the middle seat
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  Speaker 1: next to you is a little hard to like not
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  Speaker 1: jab him in the leg with, so you try to
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  Speaker 1: somehow managed to hold it and your diet coke call
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  Speaker 1: at the same time. It wasn't easy. That's when your
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  Speaker 1: Senate negotiation skills come in. You say, I get I'll
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  Speaker 1: give you the arm rest if you don't mind that
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  Speaker 1: my binder is going to be blacking you the whole time.
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  Speaker 1: I want to talk about what the most unpopular part
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  Speaker 1: of this opinion. I read all two hundred and thirteen pages.
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  Speaker 1: I think it was of the ruling as well. It's
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  Speaker 1: it's beautifully written. Not the Descent the Mage already opinions
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  Speaker 1: beautifully written. But I want to talk about Roberts. Robert's
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  Speaker 1: ruling for a second. He voted to uphold the Mississippi
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  Speaker 1: law which bands abortion at fifteen weeks. He voted not
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  Speaker 1: to overturn Rove Wade. His reasoning is absurd, It's ridiculous.
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  Speaker 1: You and Michael talked about that in depth on Verdict.
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  Speaker 1: I highly recommend if anybody hasn't watched that, it's a
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  Speaker 1: really good episode that you guys just filmed. It hasn't
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  Speaker 1: aired yet, but I said here and watched the whole
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  Speaker 1: thing behind the scenes. But Alan Dershowitz, Harvard law professor,
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  Speaker 1: went on Fox News and on Newsmax last night and
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  Speaker 1: said that Roberts was correct. Now, Dershowitz is the only
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  Speaker 1: person that I've heard in the entire country who says
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  Speaker 1: that Roberts is correct. But his reasoning is kind of
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  Speaker 1: legalistic and something that I want us to dig into.
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  Speaker 1: I do, and I think it should never be done
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  Speaker 1: under any circumstances. But I do think the Supreme Court
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  Speaker 1: should never have had to reach beyond the fifteen weeks.
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  Speaker 1: That's what was before the Subreme Court, and everybody on
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  Speaker 1: this show seems to think that fifteen weeks is reasonable.
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  Speaker 1: Senator Ruby thinks fifteen weeks. The Europeans think fifteen weeks.
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  Speaker 1: Why did the Supreme Court have to jump into this
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  Speaker 1: and say, we're not going to decide the case before us,
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  Speaker 1: We're gonna ban. We're gonna ban ROVERSUS way to overrule
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  Speaker 1: it and allow states, allow states to be sure, allow
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  Speaker 1: states to abolish abortion completely. That was judicial activism, overreaching,
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  Speaker 1: and seoan you oppose judicial activism, you should join me
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  Speaker 1: and agree with Justice Roberts that judicial activism was at
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  Speaker 1: play here and it was unnecessary. I would take issue
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  Speaker 1: with Sippi case. So, Liz, it may surprise you. I
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  Speaker 1: actually don't think either Roberts or Dershowitz are crazy and
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  Speaker 1: what they're saying, and I think they have a reasonable
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  Speaker 1: basis for what they're saying. I don't agree with it,
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  Speaker 1: but it's not It's not a shocking thing for them
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  Speaker 1: to be advocating for. And the reason I say that,
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  Speaker 1: I mean, let's look at Roberts's re Robert's approaches cases,
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  Speaker 1: and he's an incrementalist, and there is a principle of
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  Speaker 1: judicial restraint which is that the court should not decide
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  Speaker 1: any more than is necessary to resolve the issue before
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  Speaker 1: it in the case that is being litigated. That is
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  Speaker 1: a sound principle of judicial restraint and it is a
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  Speaker 1: right way to approach most issues. That's what Dershawitz is
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  Speaker 1: focusing on there as well. Now, what I especially don't
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  Speaker 1: agree with is Dershawitz saying this is judicial activism. I
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  Speaker 1: think that is that's being provocative. And as you know,
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  Speaker 1: I know Dershawitz very well. He was my criminal law
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  Speaker 1: professor and he's a friend. I think he's being deliberately
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  Speaker 1: provocative with that. I don't think he's right. But the
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  Speaker 1: instinct of don't do more than is necessary is a
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  Speaker 1: sound judicial instinct. So why do I think it wasn't
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  Speaker 1: right here? Well, I would commend people to read the
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  Speaker 1: majority opinion, where on pages seventy two and the next
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  Speaker 1: several pages of the opinion, the majority opinion squarely addresses
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  Speaker 1: what Chief Justice Roberts advocated for, which was uphold the
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  Speaker 1: Mississippi Statute but don't overturn rug And I think the
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  Speaker 1: majority opinion dismantles the argument as a legal matter. What
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  Speaker 1: does the majority point out? It points out Number one,
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  Speaker 1: Roberts doesn't attempt to defend rose reasoning nobody does. Number
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  Speaker 1: two Roberts doesn't even pretend to defend Casey's reason. Instead,
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  Speaker 1: he grounds his argument on starry decisis, which Casey did
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  Speaker 1: as well. But starry decisis means not overturning decisions, and
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  Speaker 1: what Roberts advocates would overrule much of RUG. So what
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  Speaker 1: he says is well, Okay, Row prohibited restrictions on abortion
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  Speaker 1: before viability. He said, we should get rid of the
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  Speaker 1: viability requirement, but we should. Here's what the majority. How
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  Speaker 1: the majority puts it. The Concurrence would leave for another
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  Speaker 1: day whether to reject any right to an abortion at all,
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  Speaker 1: and would hold only that if the Constitution protects any
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  Speaker 1: such right, the right ends once women have had a
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  Speaker 1: quote reasonable opportunity to obtain an abortion. The Concurrence does
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  Speaker 1: not specify what period of time is sufficient to provide
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  Speaker 1: such an opportunity, but it would hold that fifteen weeks,
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  Speaker 1: the period allowed under Mississippi's law, is enough at least
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  Speaker 1: quote absent rare circumstances. So Roberts is proposing overrule a
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  Speaker 1: big chunk of Row, but create this new reasonable opportunity rule, which, notably,
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  Speaker 1: he doesn't find anywhere in the Constitution, he doesn't find
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  Speaker 1: anywhere in the Supreme Courts precedence, he doesn't find anywhere
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  Speaker 1: in anything resembling law. He just makes it up, says, well, gosh,
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  Speaker 1: if we make up this rule, then we don't have
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  Speaker 1: to over rule Row. That isn't that being a legislator? Though, yes,
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  Speaker 1: that's exactly what and it's what Row did. He's got
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  Speaker 1: a new standard. He thinks he's smarter than Harry Blackman.
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  Speaker 1: He is unquestionably smarter than Harry Blackman, and so he
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  Speaker 1: likes he likes his standard, and his standard, this reasonable
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  Speaker 1: opportunity standard. But it is not you know. The majority
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  Speaker 1: opinion points out the rule that Roberts is advocating. The
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  Speaker 1: Concurrence would do exactly what it criticizes Row for doing,
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  Speaker 1: pulling quote out of thin air a test that quote
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  Speaker 1: no party or amicus asked the court to adopt. So
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  Speaker 1: neither of the parties in this case asked for that.
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  Speaker 1: None of the amiki, I think there were one hundred
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  Speaker 1: and thirty amiki, none of them put forward this theory.
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  Speaker 1: But look, John Roberts is a very smart man. He
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  Speaker 1: came up with his own theory. It's like, well, let's
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  Speaker 1: go with this one instead. And it's based on the
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  Speaker 1: idea that they don't have to do anything that will
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  Speaker 1: be seen as politically as traumatic as overturning Row. But
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  Speaker 1: Roberts is advocating overturning what the court and Casey called
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  Speaker 1: the central holding of Row, which is the viability standard.
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  Speaker 1: And Roberts wants to get rid of the central holding. Well,
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  Speaker 1: if you're getting rid of the central holding of a case,
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  Speaker 1: you're overturning the case. Like his proposed minimalism isn't very minimal,
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  Speaker 1: and it would create a whole new host of problems
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  Speaker 1: that are likewise not found in the law or the constitution.
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  Speaker 1: This is why Liz what Dershowitz says is wrong. He
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  Speaker 1: calls it activism. Activism is a court imposing its own
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  Speaker 1: policy preferences and not following the law. Let me ask
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  Speaker 1: you about the leaker. Though this has gone out of
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  Speaker 1: the news very quickly, the left was not interested in
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  Speaker 1: discussing the identity of who this person that publicized gave
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  Speaker 1: to the media the draft majority opinion, which by the way,
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  Speaker 1: is very very similar to Aldo's final draft of his
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  Speaker 1: majority opinion, which I was glad to see that they
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  Speaker 1: weren't bullied into into changing any of their verbiage, any
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  Speaker 1: of their language, any of their arguments based on this.
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  Speaker 1: What do you think the proper course of action is
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  Speaker 1: now regarding this leaker? Should we continue to investigate? Should
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  Speaker 1: the name be revealed publicly? Should they be should this
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  Speaker 1: person be prosecuted? And will they yes? Yes, yes, And
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  Speaker 1: I don't know. Look, the investigation should continue. Roberts has
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  Speaker 1: announced that the Court has launched an investigation. The Marshall's
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  Speaker 1: Office is leading the investigation. I think it's critical that
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  Speaker 1: we fight out who the leaker is. I think their
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  Speaker 1: name needs to be made public. I think they need
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  Speaker 1: to be criminally prosecuted to the maximum extent possible. Will
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  Speaker 1: it happen? I don't know. The Marshall's Office, generally speaking,
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  Speaker 1: doesn't have a whole lot of experience investigating crime. That's
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  Speaker 1: not there. Their principal focus is protecting the court, which
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  Speaker 1: is a different It is a law enforcement function, but
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  Speaker 1: it is not It is not typically investigatory, So I
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  Speaker 1: don't know how effective the Marshall's Office will be at
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  Speaker 1: the investigation. I also don't know there's been no public
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  Speaker 1: reports about how much the law clerks are cooperating. So
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  Speaker 1: for example, it's been reported that the clerks were at
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  Speaker 1: We're asked to sign a statement, presumably saying they did
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  Speaker 1: not hand the opinion over to anyone. I don't know
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  Speaker 1: if they're clerks who refused to side it don't. I
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  Speaker 1: don't know that, and nobody knows outside the court what
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  Speaker 1: has happened. But I think it is critical both for
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  Speaker 1: the long term integrity of the court and for the
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  Speaker 1: rule of law, that we find and prosecute the leaker.
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  Speaker 1: I hope that happens. On the question of prosecution, it
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  Speaker 1: will depend on Merritt Garland's Justice Department, And unfortunately, this
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  Speaker 1: Justice Department has been so political that I could easily
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  Speaker 1: see the Department of Justice refusing to prosecute it. I
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  Speaker 1: hope they don't, but I think that's a risk. Step
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  Speaker 1: number one is find the leaker, and then step number
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  Speaker 1: two should be ensuring that there are real and meaningful
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  Speaker 1: consequences for the gross violation of duty to the court
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  Speaker 1: and to the rule of law. All right, verdic Clause
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  Speaker 1: members wigh in post below. Do you think that we're
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  Speaker 1: gonna find out who the leaker is the identity of
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  Speaker 1: this person and if so, do you think that they
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  Speaker 1: will be prosecuted? Do you think Mary Garland will do
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  Speaker 1: anything or not, and if so, what do you think
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  Speaker 1: the charges will be or should be? Comment below way,
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  Speaker 1: and I'm really interested in everybody's opinion. Also, a little
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  Speaker 1: behind the scenes going on here. The Senator is at
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  Speaker 1: an activism conference in Wisconsin right now and his staff
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  Speaker 1: is about to pull him up out of the chair
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  Speaker 1: because we've run so late talking about this topic. So Senator,
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  Speaker 1: I'm going to let you go. Thank you everyone for watching.
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  Speaker 1: This was a really great discussion. I'm Liz Wheeler. This
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  Speaker 1: is the Cloakroom on Verdict Plus