Latest / The Ben Ferguson Podcast / A Big Damn Deal

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A Big Damn Deal · The Ben Ferguson Podcast

0:00
Speaker 1: Rowe was egregiously wrong from the start, Its reasoning was
0:05
Speaker 1: exceptionally weak, and the decision has had damaging consequences and
0:09
Speaker 1: far from bringing about a national settlement of the abortion issue,
0:13
Speaker 1: Roe and Casey have inflamed debate and deepened division. We
0:18
Speaker 1: hold that Roe and Casey must be overruled. I am
0:21
Speaker 1: not simply speaking for myself and Senator Ted Cruz. I
0:25
Speaker 1: am reading the words of Justice Samuel Alito, who is
0:29
Speaker 1: apparently writing the majority opinion of the Court in a
0:34
Speaker 1: leaked document, a document that was leaked in what the
0:37
Speaker 1: Chief Justice John Roberts calls a singular and egregious breach
0:42
Speaker 1: of trust on the Supreme Court. We're gonna be talking
0:46
Speaker 1: to someone who knows a whole lot about the Court,
0:48
Speaker 1: a whole lot about the issue, and a whole lot
0:49
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Speaker 1: tactus to six five five three two. Welcome back to
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Speaker 1: Verdict with Ted Cruz. I'm Michael Knowls, Senator. I have
4:39
Speaker 1: seven bazillion questions to ask you about this. You've just
4:43
Speaker 1: come from the Capital. We have not even had a
4:46
Speaker 1: prep call yet, we have not talked about anything. Tell
4:49
Speaker 1: me everything that I need to know about this leaked
4:53
Speaker 1: document from the Supreme Court. Well, let's start on the substance.
4:55
Speaker 1: The substance is this is a big damn deal. Assuming
4:58
Speaker 1: that the report warding that a company that this league
5:02
Speaker 1: is accurate. It turns out what you and I discussed
5:05
Speaker 1: on this podcast days after the oral argument appears to
5:09
Speaker 1: be exactly right. On this podcast, you and I talked
5:13
Speaker 1: about what the justices were likely to do. I had
5:15
Speaker 1: listened to the argument very carefully, and what I told
5:19
Speaker 1: you at the time is that I believe there were
5:22
Speaker 1: six votes to uphold the Mississippi law, the Mississippi law
5:26
Speaker 1: restricting abortion after fifteen weeks. And I also thought there
5:30
Speaker 1: were five votes to overrule Row versus Wade in its entirety.
5:34
Speaker 1: So there's a distinction to be out there because the
5:37
Speaker 1: case at issue, or the law at issue, is this
5:40
Speaker 1: pro life law in Mississippi. So you could have a
5:42
Speaker 1: world in which you have different judges voting to uphold
5:46
Speaker 1: or strike down that law. Then you would have to
5:49
Speaker 1: go all the way back and overrule Revue Weight and
5:51
Speaker 1: planned parenthoodbe Casey, which invented the constitutional right to an abortion.
5:56
Speaker 1: That that's exactly right. And what Maya's assessment was from
6:01
Speaker 1: listening to the oral argument is that John Roberts, the
6:03
Speaker 1: Chief Justice, seemed prepared to uphold the Mississippi law, but
6:08
Speaker 1: he wanted to find a way to do it without
6:11
Speaker 1: overruling Row versus Weight. And remember I went into this
6:14
Speaker 1: argument deeply skeptical. I was not convinced there were five
6:17
Speaker 1: votes on the Court to overturn Row. I knew there
6:20
Speaker 1: were two. I knew Justice Alito and Justice Thomas, They'd
6:22
Speaker 1: both been quite public about that. But I had real
6:25
Speaker 1: skepticism about Kavanaugh, about Gorsitch, and about Barrett. From listening
6:32
Speaker 1: to the oral argument, all three seemed to be clearly
6:36
Speaker 1: leaning in in support of overturning Row, and from this
6:39
Speaker 1: opinion it appears that's exactly how they voted. Well, I
6:42
Speaker 1: guess we also have to establish first, this leaked document
6:46
Speaker 1: that went to Politico on Monday night and then was
6:50
Speaker 1: released to the broader public, the document is legit correct.
6:54
Speaker 1: This is an actual draft opinion from the Supreme Court.
6:57
Speaker 1: So it is the Court has confirmed that that this
6:59
Speaker 1: is a real draft opinion. And I got to say,
7:03
Speaker 1: that is a big damn deal. Like when this came out,
7:08
Speaker 1: that this came out Monday night, I was having dinner
7:10
Speaker 1: with some friends. You know me, Well, I am rarely
7:15
Speaker 1: at a loss for words. It's true. I was genuinely speechless.
7:22
Speaker 1: And it's difficult to convey to someone who doesn't regularly
7:26
Speaker 1: practice in front of the court, who doesn't interact with
7:29
Speaker 1: the Supreme Court often, the magnitude of the breach this represents.
7:35
Speaker 1: It is stunning at a level that is horrifying. In
7:40
Speaker 1: over two centuries of our country's history, never, not even once,
7:45
Speaker 1: has a draft opinion leaked from the US Supreme Court
7:48
Speaker 1: for this to happen. The Court has been this goes
7:55
Speaker 1: right to the heart of the integritegrity of the court,
7:59
Speaker 1: and it goes right to judicial independence. And I promise
8:06
Speaker 1: you this entire day has been like an earthquake at
8:12
Speaker 1: the Supreme Court because it undermines the ability of the
8:15
Speaker 1: Court to do its job. And what it means happened?
8:19
Speaker 1: I think in all likelihood, what it means is that
8:23
Speaker 1: there was a left wing law clerk who was upset
8:28
Speaker 1: at how the justices voted and decided to leak this opinion.
8:33
Speaker 1: And just as a matter of procedure, you've got all
8:36
Speaker 1: these law clerks and what are they Are they on
8:39
Speaker 1: an email threat or something? You know, this draft goes
8:42
Speaker 1: back to February. So obviously the justices and the clerks
8:46
Speaker 1: have been working on this for a long time. And
8:48
Speaker 1: is it just that any clerk can see any of
8:51
Speaker 1: these drafts? Is there any Is there gonna be any
8:53
Speaker 1: way to identify who actually did this? I guess is
8:56
Speaker 1: what I'm asking. So there may well be. So the
8:59
Speaker 1: way it works is when a case is argued, shortly
9:03
Speaker 1: after the argument, either on Wednesday or Friday, the court
9:06
Speaker 1: meets in conference. Now, conference is a special room. The
9:10
Speaker 1: conference room is actually attached to the chief justices chambers,
9:13
Speaker 1: So there's a conference table. In conference, it is only
9:16
Speaker 1: the nine justices. There's nobody else in the room. There's
9:18
Speaker 1: no law clerk, there's no secretary. It's the nine justices. Actually,
9:22
Speaker 1: the door leading to the conference room there two doors.
9:25
Speaker 1: There's a door and then there's about three feet of space,
9:27
Speaker 1: and then there's a second door. And the junior justice
9:32
Speaker 1: is expected to get coffee for the others. And if
9:36
Speaker 1: for some reason someone needs to pass a note to
9:40
Speaker 1: the justices, you open the outer door, you put the
9:44
Speaker 1: note on the floor, you knock on the inner door,
9:46
Speaker 1: You close the outer door, and then the junior justice
9:48
Speaker 1: goes and opens the inner door and gets the note.
9:50
Speaker 1: It's it's like an airlock. At conference, the justices cast
9:57
Speaker 1: their initial votes. In this instance, assuming the reporting is accurate,
10:02
Speaker 1: six justices voted to uphold the Mississippi Statute and five
10:07
Speaker 1: justices voted to overturn Row versus weight. When that happens,
10:14
Speaker 1: the senior justice in the majority assigns the majority. Given
10:21
Speaker 1: the line up here, it appears likely that that was
10:23
Speaker 1: Justice Thomas, who was the senior justice in the majority,
10:27
Speaker 1: and he chose to assign it to Justice Alito, who's
10:29
Speaker 1: the next most senior justice in the majority, and Justice
10:32
Speaker 1: Alito is a masterful opinion writer. Do you have any sense, Senator,
10:37
Speaker 1: at knowing some of the people involved here and having
10:39
Speaker 1: spent a lot of time around the court, why would
10:41
Speaker 1: Thomas not want to keep this for himself. This could
10:44
Speaker 1: be the most important decision in the last hundred year.
10:47
Speaker 1: I mean, this could be one of the most important
10:48
Speaker 1: decisions in American history. Yeah, I look, I don't have
10:51
Speaker 1: a great answer to that. I'm actually a little bit surprised.
10:55
Speaker 1: Justice Thomas didn't assign it to himself because he had
10:57
Speaker 1: that prerogative. But he made the judgment, and as the
11:01
Speaker 1: chief Justice, by definition, is the most senior justice in
11:04
Speaker 1: the majority. But in this instance, he wasn't voting to
11:06
Speaker 1: overturn Row versus Wade, so he would be writing his
11:10
Speaker 1: own independent opinion. If he could get five justices, he
11:13
Speaker 1: could assign the majority, but he was not willing to
11:18
Speaker 1: overturn Row, according to the reporting, and so Thomas made
11:22
Speaker 1: the assignment. Now, the way it works, once that's assigned,
11:26
Speaker 1: the justice who's assigned the majority opinion goes back to
11:29
Speaker 1: his or her chamber, and each justice has four law clerks.
11:34
Speaker 1: There will be one law clerk who is the lead
11:36
Speaker 1: law clerk on the opinion. So if there are four
11:39
Speaker 1: of you, each of you have a quarter of the
11:41
Speaker 1: cases before the term. The justice and the law clerk
11:46
Speaker 1: will work together drafting the opinion, and when you prepare
11:50
Speaker 1: an initial draft, you circulate it to all nine justices.
11:53
Speaker 1: That's what this is. So that was the first draft.
11:57
Speaker 1: Justice Alito circulated it to all nine justices. When that happens,
12:01
Speaker 1: at that point, nobody has joined the opinion, So it's
12:04
Speaker 1: not the opinion of the court. It is your draft
12:07
Speaker 1: that you're circulating to the other justices to get their opinions.
12:12
Speaker 1: What happens next is multiple iterations of edits, where you'll
12:18
Speaker 1: have individual justices that will say, hey, I don't like
12:21
Speaker 1: this paragraph. Hey, can you change this sentence? Can you
12:24
Speaker 1: add this footnote? Can you delete this footnote? Now, I
12:26
Speaker 1: don't like the way this is structured. And on a
12:30
Speaker 1: run of the mill opinion, you could get dozens or
12:33
Speaker 1: even hundreds of edits. On an opinion like this of
12:37
Speaker 1: this magnitude, you would expect hundreds, if not even thousands,
12:41
Speaker 1: of edits. This is for the history books. Every justice
12:47
Speaker 1: has to decide whether he or she will join the
12:49
Speaker 1: opinion in particular, the five justices and the majority here
12:53
Speaker 1: have to make a decision whether they will join the opinion.
12:56
Speaker 1: They may have all sorts of changes to it. And
12:59
Speaker 1: if they don't join the opinion, then they write their
13:02
Speaker 1: own concurring opinions, So they would they would be still
13:06
Speaker 1: voting to overrule Row. But they might say, I just
13:09
Speaker 1: don't agree with the way Alito is going about this. Yeah,
13:12
Speaker 1: And they could do that, And you do get opinions.
13:14
Speaker 1: You get sometimes cases where you have multiple opinions, concurring
13:20
Speaker 1: opinions to sending opinions concurring in part to sending in part.
13:22
Speaker 1: I mean it can get complicated. In order for the
13:26
Speaker 1: opinion to be the majority opinion, the opinion of the court,
13:30
Speaker 1: five justices have to join it. So it's consequential to
13:34
Speaker 1: have a majority opinion because the opinion of the court
13:38
Speaker 1: is precedent. And in this instance, I think the five
13:42
Speaker 1: justices who presumably are voting to overturn Row, want there
13:47
Speaker 1: to be an opinion of the court. So there's a
13:51
Speaker 1: high unless there's something you cannot live with an opinion
13:56
Speaker 1: with five justices as qualitatively different as legal matters. In
14:00
Speaker 1: an opinion with just four. Also in response to the opinion,
14:05
Speaker 1: other justices are working on a concurring opinion. So Roberts,
14:11
Speaker 1: assuming he wants to uphold the statute but not over
14:14
Speaker 1: rule Row, would file a concurring opinion where he concurs
14:18
Speaker 1: in the judgment. In other words, he agrees with the
14:21
Speaker 1: judgment that the law being challenged is valid, right, but
14:26
Speaker 1: he concurs for a different reason. So he would not
14:30
Speaker 1: overturn Row. But for whatever reason, he would lay out
14:34
Speaker 1: he thinks that the law is valid. And then the dissenters,
14:39
Speaker 1: presumably the three liberals on the court would write one
14:43
Speaker 1: or two or even three to cents. My guess is
14:46
Speaker 1: all three will write dissents. In this case, there will
14:48
Speaker 1: probably be a lead dissent, and that's typically a signed
14:52
Speaker 1: by the senior justice in the minority, But anyone can
14:57
Speaker 1: write a dissent, and so someone is given the nod
15:01
Speaker 1: of you be the lead dissenter, but there can be
15:03
Speaker 1: additional ones. What happened here is somebody handed over to
15:10
Speaker 1: the press the first iteration of this. You know, when
15:15
Speaker 1: you start as a clerk, your first week as a clerk,
15:18
Speaker 1: you sit down an orientation and they stress secrecy, They
15:21
Speaker 1: stress everything done in the courts confidentially. You don't talk
15:25
Speaker 1: about anything that happens at the court. You don't bring
15:28
Speaker 1: draft opinions home. You do your work in the Supreme
15:31
Speaker 1: Court building. So in any given night, the court is
15:36
Speaker 1: full of law clerks at midnight, one in the morning
15:40
Speaker 1: working on draft opinions and doing your work because you
15:43
Speaker 1: don't bring the opinions home. And so there is a
15:47
Speaker 1: a primacy on confidentiality and trust that somebody violated in
15:55
Speaker 1: a way that is truly historic and stunning. So what
15:59
Speaker 1: is going to happen to person? I know that the
16:01
Speaker 1: Chief Justice sent out this statement today. He said, yes,
16:04
Speaker 1: we're confirming this was a draft opinion. This is egregious.
16:08
Speaker 1: This is a singular breach of trust here, and I'm
16:11
Speaker 1: ordering the Marshal of the Court to launch an investigation
16:14
Speaker 1: into the source of the league. One is he going
16:17
Speaker 1: to be able to identify the source? And two? Did
16:19
Speaker 1: this person break a law? I mean, is this going
16:22
Speaker 1: to be a little slap on the wrist by John
16:24
Speaker 1: Roberts or are we talking about jail time? So we're
16:27
Speaker 1: talking about something very very serious. Let's start with the
16:30
Speaker 1: first thing. I very much hope they find out who
16:33
Speaker 1: the leaguer is. I think it is incredibly important that
16:36
Speaker 1: they find this person. The Marshal of the Court, they
16:40
Speaker 1: have considerable resources. There's a whole police force at the Court.
16:44
Speaker 1: They're about five hundred officers at the Court. So the
16:47
Speaker 1: Supreme Court takes separation of powers very seriously, so they
16:51
Speaker 1: don't want they don't allow capitol police into the Supreme Court.
16:55
Speaker 1: So the US capital has a whole capitol police force,
16:57
Speaker 1: but the Supreme Court they're a third branch of government.
17:00
Speaker 1: They're not part of the Congress, and so capital pet police,
17:04
Speaker 1: in their view, have no business in their building. You know,
17:10
Speaker 1: they don't generally handle law enforcement investigations. What the Supreme
17:17
Speaker 1: Court police typically do is stop protests and threats to
17:21
Speaker 1: the justices of the Court. But that being said, they're
17:25
Speaker 1: pretty considerable security measures at the court. And it's also
17:30
Speaker 1: a limited universe. So at several reporters asked today what
17:34
Speaker 1: if it was a justice that did this. I gotta
17:37
Speaker 1: tell you, I just don't believe that. It is such
17:40
Speaker 1: a grotesque violation of trust. To me, it is beyond
17:45
Speaker 1: imagination that a justice would do this. It to use
17:51
Speaker 1: the nuclear code example, it's it's like the president handing
17:54
Speaker 1: the nuclear codes to putin it just I cannot believe
17:58
Speaker 1: even the most left wing justice would do this. I
18:01
Speaker 1: think it is very very likely a law clerk, and
18:05
Speaker 1: it is very very likely a law clerk for one
18:07
Speaker 1: of the three liberal justices. That means there are twelve
18:10
Speaker 1: human beings who are your likely suspect pool. That's not
18:15
Speaker 1: a big likely suspect pool. It is likely to be
18:19
Speaker 1: someone who is a hard partisan and who was willing
18:24
Speaker 1: to burn the place down because he or she was
18:28
Speaker 1: so upset about what happens. If I were to guess
18:32
Speaker 1: the most likely justice for whom the law clerk is
18:35
Speaker 1: clerking as Sonya Sotomayor, because she's the most partisan of
18:41
Speaker 1: the justices and so she's the most likely to hire
18:46
Speaker 1: wild eyed partisans as clerks. I have no evidence of that.
18:50
Speaker 1: I'm just just making an inference. And with respect to
18:56
Speaker 1: the chain of custody, Look, the Supreme Court has technology.
19:03
Speaker 1: Actually when you print out opinions, I don't want to
19:09
Speaker 1: get into the details of how, but they are printed
19:13
Speaker 1: out with identifying materials that forensically you can find out
19:18
Speaker 1: where they were printed out from, whether they are able
19:23
Speaker 1: to track that down or not. In this instance will
19:25
Speaker 1: depend on whether they can get a copy of the
19:27
Speaker 1: actual opinion. Politico just put up a PDF. But the
19:33
Speaker 1: Supreme Court has taken pretty significant steps towards security. So
19:37
Speaker 1: as a law clerk, for example, when you're editing an opinion,
19:42
Speaker 1: you do it on the computer. If you print an
19:43
Speaker 1: opinion out, you can print it and read it in
19:46
Speaker 1: your office and you can edit it, but you never
19:48
Speaker 1: take it home. And when you're done with it, you
19:51
Speaker 1: throw it in a burn bag. And every law clerk
19:54
Speaker 1: has a burnbag, typically under your desk. And the burn
19:56
Speaker 1: bag is about this tall, and it's a kind of
19:59
Speaker 1: brown and red striped bag. And that bag is sealed
20:05
Speaker 1: and then it is shredded twice horizontally and vertically, and
20:12
Speaker 1: then it is burned and it is rendered completely unreadable
20:16
Speaker 1: before it leaves the building. And that is that's the
20:20
Speaker 1: level of security they take in that building. One question
20:26
Speaker 1: we don't know was this individual how smart a crook
20:30
Speaker 1: were they? We know the reporters who publish the story.
20:36
Speaker 1: One of the natural inquiries is going to be, particularly
20:38
Speaker 1: of the twelve likely suspects, what contexts did they have
20:41
Speaker 1: with those reporters? Did they know the reporters Did they
20:45
Speaker 1: go to school with the reporters? Do they have emails
20:47
Speaker 1: with the reporters? Do they have phone calls with the reporters?
20:50
Speaker 1: Do they have text with the reporters. I don't know
20:52
Speaker 1: the answer to any of that. I don't know whether
20:54
Speaker 1: these are master criminals or not. But it strikes me
20:58
Speaker 1: that it is very possible there is an electronic trail
21:02
Speaker 1: or a personal trail. Now, in terms of the consequences,
21:06
Speaker 1: if they identify the perpetrator, I am confident the perpetrator
21:11
Speaker 1: would be fired on the spot, but instantaneously you would
21:14
Speaker 1: lose your job. I am also confident that the perpetrator
21:17
Speaker 1: would be disbarred. That assuming the perpetrator was already a
21:21
Speaker 1: member of the bar. Sometimes clerks and members of the
21:24
Speaker 1: bar sometimes they're not yet. Like I was not yet
21:26
Speaker 1: a member of the bar when I was a clerk
21:28
Speaker 1: because I didn't I had not yet had time to
21:29
Speaker 1: take the bar exam. I took the bar exam right
21:32
Speaker 1: when I finished my clerkship. If this clerk, you know,
21:35
Speaker 1: presumed clerk, were not yet admitted to the bar, could
21:39
Speaker 1: they be preemptively held from from ever entering the bar.
21:44
Speaker 1: I don't think any bar would admit this person, I
21:48
Speaker 1: think this person's legal career is over if they If
21:51
Speaker 1: they are okay, and and by the way, that's a
21:53
Speaker 1: big deal. To be a Supreme Court clerk is the
21:55
Speaker 1: pinnacle of legal achievement for a student coming out of
22:00
Speaker 1: law school. They're only thirty six in the entire country.
22:04
Speaker 1: You get a signing bonus at a law firm as
22:06
Speaker 1: a Supreme court clerk. I think the current bonus is
22:08
Speaker 1: three hundred and fifty thousand dollars. The day you walk
22:11
Speaker 1: into the door at the law firm one I was clerking,
22:14
Speaker 1: it was fifty grand, so so you can see inflation.
22:17
Speaker 1: It makes a big difference. But at a minimum, the
22:23
Speaker 1: perpetrator would be fired and would never practice law. But
22:29
Speaker 1: there's a very real possibility. So in the course of
22:31
Speaker 1: the investigation, the investigators will question the clerks if they
22:37
Speaker 1: lie to the federal officers. Section one thousand and one
22:40
Speaker 1: or the Federal Criminal Code makes it a felony to
22:43
Speaker 1: lie to a federal officer that carries prison time. And
22:48
Speaker 1: so if they lie in the course of the investigation,
22:52
Speaker 1: I think they should be prosecuted and they should serve
22:55
Speaker 1: the maximum prison time possible. If they don't lie. It's
22:58
Speaker 1: a little more complicated whether they've in fact violated a
23:01
Speaker 1: criminal prohibition or not. I've actually asked my team to
23:04
Speaker 1: try to do some deep dive research on that. But
23:11
Speaker 1: I think regardless, the penalty should be as significant as
23:16
Speaker 1: possible because the damage to the court will be far lasting.
23:21
Speaker 1: It is going to make it incredibly difficult for the
23:24
Speaker 1: justices to trust the process of deciding cases in a
23:29
Speaker 1: collaborative matter, sharing drafts, going back and forth. If people
23:34
Speaker 1: treat it as just another political process, that does massive
23:38
Speaker 1: damage to the court's ability to do its job. So
23:41
Speaker 1: putting this criminal aside, you know, hopefully we can deal
23:46
Speaker 1: with this person. They're disbarred, they get thrown in jail
23:49
Speaker 1: and alcatraz, and they throw away the key. I almost
23:52
Speaker 1: don't even care about that person in spite of the
23:56
Speaker 1: attacks on the court and the institutional integrity, because I
23:59
Speaker 1: care so much about the case. So I don't want
24:03
Speaker 1: them to take away the joy that pro lifers should
24:05
Speaker 1: feel here in that it looks right now like the
24:08
Speaker 1: Court is going to overrule Row and Casey. This is
24:10
Speaker 1: something we've been waiting for for half a century. Sixty
24:14
Speaker 1: two million babies have been killed throughout since the Revuewaghe decision.
24:18
Speaker 1: So this is huge news unless it isn't. This was
24:22
Speaker 1: just a draft from February. So where does the case stand. Well,
24:27
Speaker 1: that's exactly right. And that is the single most dangerous
24:30
Speaker 1: thing about this league. The reason in all likelihood that
24:35
Speaker 1: this league happened is a left wing law Clark was
24:38
Speaker 1: trying to direct political pressure to the five justices to
24:43
Speaker 1: cause them to switch their vote. And justices switch their
24:46
Speaker 1: votes all the time. It's not a majority opinion, it's
24:50
Speaker 1: not a holding of the court until the opinion issues.
24:54
Speaker 1: At this point, it's just a draft. And this one
24:59
Speaker 1: of the things understand about this league. This is the
25:03
Speaker 1: most egregious manifestation of a multi year campaign by Democrats
25:10
Speaker 1: to politicize the Court and to pressure it. And you know, look,
25:16
Speaker 1: I'll give you some example. So Senator Schumer stood on
25:20
Speaker 1: the steps of the Court a couple of years ago,
25:23
Speaker 1: held a press conference and here's what he said. He said, quote,
25:27
Speaker 1: I want to tell you Gorsuch. I want to tell
25:30
Speaker 1: you Kavanaugh, you have released the whirlwind and you will
25:36
Speaker 1: pay the price. You won't know what hit you if
25:41
Speaker 1: you go forward with these awful decisions. So you had
25:46
Speaker 1: then the Senate Minority leader, now the Senate majority leader,
25:48
Speaker 1: directly threatening justices if they didn't vote the way he wanted.
25:53
Speaker 1: Sheldon Whitehouse is a senior Democrat in the Judiciary Committee.
25:57
Speaker 1: He filed an amicus brief in the court stated quote,
26:02
Speaker 1: perhaps the Court can heal itself before the public demands
26:07
Speaker 1: it be restructured in order to reduce the influence of politics,
26:13
Speaker 1: particularly on the urgent issue of gun control. A nation
26:17
Speaker 1: desperately needs it to heal. These are partisan democrats threatening
26:23
Speaker 1: and trying to intimidate the court to decide cases the
26:25
Speaker 1: way they want. That manifested even further in the campaign
26:30
Speaker 1: to pack the court to add four new left wing
26:34
Speaker 1: justices and grow it to thirteen. And by the way,
26:38
Speaker 1: not just that. So there's a whole dark money network,
26:41
Speaker 1: what's called the Arabella network of wealthy leftist who played
26:47
Speaker 1: wage dark money campaigns on judicial confirmations. They went to
26:53
Speaker 1: Brett Kavanaugh's house trying to intimidate him personally and threaten
26:58
Speaker 1: his family with Justice Brier, the reliably liberal democrat Justice
27:04
Speaker 1: Brier Demand Justice, which is which is the kind of
27:07
Speaker 1: main front group for the leftist launched a campaign to
27:12
Speaker 1: force justice Brior to retire, including creating a mobile billboard
27:20
Speaker 1: truck to pressure Justice Brier. These are partisan Democrats and
27:26
Speaker 1: so after this league happened, let me tell you what
27:30
Speaker 1: some of these leftist activists have said. Guy named Brian Fallon,
27:36
Speaker 1: who is the executive director of Demand Justice, used to
27:39
Speaker 1: work for Chuck Schumer. He tweeted out, quote, Scotus leaks
27:46
Speaker 1: are good elite lawyers on both the left and right,
27:50
Speaker 1: treating the court as precious. All these years have been
27:54
Speaker 1: given cover to an institution that is wholly unaccountable. The
28:00
Speaker 1: veil off. There's another guy, another leftist guy named Ian Millheiser,
28:06
Speaker 1: who tweeted the following serious seriously shout out to whoever
28:14
Speaker 1: the hero was within the Supreme Court who said ef it,
28:19
Speaker 1: although he didn't abbreviate f ef it. Let's burn this
28:24
Speaker 1: place down. That is what the left is doing with
28:30
Speaker 1: ending the filibuster, with trying to take over federal elections.
28:34
Speaker 1: They're trying to burn the Senate down. They're trying to
28:36
Speaker 1: destroy our institutions, and this league reflects the manifestation of
28:42
Speaker 1: that multi year campaign to burn the court down. And
28:46
Speaker 1: their activists are cheering this. So will it work? Senator.
28:50
Speaker 1: Will this pressure campaign and the league and the whole
28:53
Speaker 1: operation here, will it work to pressure one of the
28:57
Speaker 1: five justices to flip the vote? Are we going to
28:59
Speaker 1: see the ruling anytime soon? Are they going to wait
29:02
Speaker 1: for a month or two, or are we going to
29:04
Speaker 1: get it? We've already seen a draft from February. What
29:07
Speaker 1: is the status of the case right now? So I
29:09
Speaker 1: don't think it will work. The Chief Justice today put
29:12
Speaker 1: out a statement saying that it will not work, that
29:15
Speaker 1: it will not intimidate the court. This is an obvious
29:17
Speaker 1: attempt to pressure the justices to change their votes, and
29:22
Speaker 1: I think it is likely to backfire, that it's likely
29:26
Speaker 1: to cause them to dig in even more. Because for
29:29
Speaker 1: any justice at this point, when it's publicly known that
29:33
Speaker 1: you were voting one way, for you to give into
29:35
Speaker 1: the political pressure and flip would do possibly permanent damage
29:42
Speaker 1: to the credibility of the court. It would be to
29:45
Speaker 1: transform the court into a nakedly political body. Interestingly enough,
29:51
Speaker 1: I think nobody is more dismayed about this than John Roberts.
29:54
Speaker 1: Even though according to the Politico report, he doesn't agree
29:59
Speaker 1: with overturning versus Wade, he cares deeply about the institutional
30:04
Speaker 1: credibility of the Court. As you know, I know John
30:06
Speaker 1: Roberts very very well. I am certain he is horrified,
30:10
Speaker 1: and in fact, I think I have no doubt all
30:13
Speaker 1: nine Justices are horrified. I mean to give you a
30:15
Speaker 1: sense of the character of the place. I clerked for
30:21
Speaker 1: Chief Justice Rehnquist nineteen ninety six to nineteen ninety seven.
30:28
Speaker 1: At the time there was a tradition where the law
30:31
Speaker 1: clerks for each justice would go and have lunch with
30:35
Speaker 1: each of the other justices. It's very cool tradition. So
30:38
Speaker 1: you got to go have lunch with each of the
30:39
Speaker 1: other eight. At the time, I clerked Byron White, who
30:45
Speaker 1: was a retired justice, but he still went into work,
30:48
Speaker 1: and we very much wanted to have lunch with Byron White.
30:54
Speaker 1: He refused to have lunch. And the reason he wouldn't
30:58
Speaker 1: have lunch is because of the Brethren. So Bob Woodward,
31:03
Speaker 1: the reporter of Woodward and Bernstein, wrote the book The Brethren.
31:06
Speaker 1: It came out in the seventies and it's like this
31:10
Speaker 1: tell all from within the Supreme Court, with lots of
31:13
Speaker 1: gossip and lots of internal information about the deliberations of
31:16
Speaker 1: the court. A number of law clerks after the fact
31:20
Speaker 1: talked with Woodward. There's there's speculation at least one justice,
31:24
Speaker 1: likely Potter Stewart, talked with Woodward, and it was a
31:28
Speaker 1: scandal at the Court of Massive Proportions. So I read
31:31
Speaker 1: The Brethren when I was in high school. I think
31:33
Speaker 1: I was fifteen when I read it, and I thought, Okay,
31:36
Speaker 1: this like being a Supreme Court law clerks, sounds like
31:39
Speaker 1: the most amazing job on the face of the planet.
31:42
Speaker 1: I want to do this more than anything else. And
31:44
Speaker 1: it worked out that I got to. But ever since
31:48
Speaker 1: the Brethren, Byron White said I won't sit down and
31:51
Speaker 1: talk to other law clerks. I'll talk to my own clerk,
31:54
Speaker 1: but I won't talk to other law clerks because of
31:56
Speaker 1: the Brethren. That's and by the way, this was decades
32:01
Speaker 1: later that White still would not have lunch with clerks
32:04
Speaker 1: from other chambers. I think the repercussions of this will
32:09
Speaker 1: also be decades long. But I also think it is
32:15
Speaker 1: likely to harden the five justices in the majority of fact.
32:18
Speaker 1: I don't think it's impossible Roberts joins them because of
32:23
Speaker 1: this league. I doubt it, but the chances aren't zero
32:27
Speaker 1: that Roberts writes something that said, this league is unprecedented,
32:33
Speaker 1: wholly unjustified, an assault on the integrity of the court.
32:37
Speaker 1: You know, the closest analogy is the Obamacare case that
32:42
Speaker 1: upheld Obamacare, and in that case, after the decision came down,
32:48
Speaker 1: there was widespread leaking that Roberts had initially voted to
32:54
Speaker 1: strike down Obamacare and then had switched his vote to
32:59
Speaker 1: a hold it. And I have no reason to doubt
33:03
Speaker 1: that reporting. Now that was prior to this, the greatest
33:05
Speaker 1: breach that had ever happened. It was really dismaying to
33:07
Speaker 1: see the clerks leaking like this, But that was a
33:12
Speaker 1: qualitatively different situation because those leaks all came after the fact,
33:16
Speaker 1: after the opinion was down, just providing some explanation and context.
33:23
Speaker 1: In this instance, the league happened before the opinion was issued,
33:27
Speaker 1: and it's an effort to intimidate the justices into changing
33:31
Speaker 1: their votes. It's why it's a threat on the independence
33:34
Speaker 1: of the judiciary, because it's designed to try to move
33:37
Speaker 1: their votes. I think the effect will be the opposite,
33:40
Speaker 1: and that it will harden them because no justice wants
33:44
Speaker 1: to show that they're so unprincipled they can be moved
33:47
Speaker 1: by this. Right now, before I let you go, Senator.
33:50
Speaker 1: I know it's been a very long day and there's
33:51
Speaker 1: still much more to do, but I've got to turn
33:54
Speaker 1: to your particular branch of government now because one of
33:57
Speaker 1: the consequences of this league is you've got all of
34:00
Speaker 1: the elected Democrats up to and including Joe Biden saying
34:03
Speaker 1: that we need to codify Roe versus Weight into law.
34:06
Speaker 1: If the Court is going to behave in this irresponsible
34:08
Speaker 1: manner and strike down row View Wade, then we need
34:10
Speaker 1: a national pro abortion law. Can Joe Biden get that done?
34:17
Speaker 1: I do not believe so. I think he can pass
34:19
Speaker 1: it through the House. They've got a majority in the House,
34:22
Speaker 1: and I think the Democrats will stick together, and you
34:24
Speaker 1: may have a couple of Republicans in the House. I
34:26
Speaker 1: don't I haven't followed the kind of abortion lines in
34:29
Speaker 1: the House, but there may well be some pro choice
34:31
Speaker 1: Republicans in the House. In the Senate, he will not
34:35
Speaker 1: get it done because to get it done will require
34:38
Speaker 1: sixty votes because of the filibuster he would get. He'll
34:42
Speaker 1: get all fifty Democrats and I'm sure we'll vote on it.
34:45
Speaker 1: He will get Susan Collins, and I think he will
34:47
Speaker 1: likely get Lisa Murkowski, you get to fifty two, I
34:52
Speaker 1: don't know that you get any higher. The other forty
34:54
Speaker 1: eight are on record that Row is wrong in this case.
35:00
Speaker 1: I filed an amicus brief with the court along with
35:03
Speaker 1: Mike Lee and Josh Holley, arguing to the court specifically
35:06
Speaker 1: that it should overturn Roe versus Wade. I don't think
35:11
Speaker 1: there's any universe in which we get to sixty votes.
35:13
Speaker 1: So I assume the Democrats will try to force a
35:16
Speaker 1: vote on it, and they'll lose the vote. Now, there
35:18
Speaker 1: is some danger that Schumer. In fact, I think it
35:21
Speaker 1: is certain that Schumer will use this to try to
35:25
Speaker 1: end the filibuster. Right, there's some danger he succeeds, and
35:29
Speaker 1: if this becomes the issue they blow up the filibuster on,
35:33
Speaker 1: they will have succeeded in in permanently damaging two branches
35:37
Speaker 1: of government instead of just one. So you think there
35:40
Speaker 1: is a chance that, as they've already said explicitly, I
35:44
Speaker 1: think that not only will they try to get rid
35:47
Speaker 1: of the filibuster on this issue, but they would actually
35:50
Speaker 1: succeed in doing so. They could get a maybe a
35:52
Speaker 1: Joe Manchin or a Kurston cinema or who knows. I
35:55
Speaker 1: think it is possible. I don't know that it would happen,
36:00
Speaker 1: but I think their plan is to try one fast point.
36:04
Speaker 1: I don't believe any Democrats senator has condemned the League today.
36:10
Speaker 1: If they have, I haven't seen it and I was
36:11
Speaker 1: watching for it. It is ominous that the Democrats are
36:16
Speaker 1: not even willing to condemn the League, and it everyone
36:21
Speaker 1: should condemn. The League is as grossly a gross violation
36:25
Speaker 1: of trust. And it's ominous that if Democrat senators did so,
36:29
Speaker 1: I didn't see it. Wow, that is spooky and does
36:32
Speaker 1: maybe tell you something about how they're thinking about a
36:35
Speaker 1: national abortion law or ending the filibuster. On that scary note,
36:39
Speaker 1: we must leave you. We will see you on Apple podcast, YouTube, Spotify,
36:43
Speaker 1: everywhere you get your podcasts. Make sure you subscribe to Verdict.
36:46
Speaker 1: Leave a five star review if you don't mind. In
36:49
Speaker 1: the meantime, I'm Michael Knowles. This is Verdict with Ted Cruz.
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