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tv   The Rachel Maddow Show  MSNBC  May 2, 2022 9:00pm-10:00pm PDT

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>> from the beginning, proportion's forces have seen this issue is a question of freedom of an individual's choice. the freedom to have an abortion is now legal in every state. >> and here we, are 49 years later, more than a lifetime ago for many of us. back in december, justice sonia sotomayor asked this, quote, well this institution survived the stench that this creates in the public perception that the constitution and is reading aren't just political acts? i don't know how it will be possible. and cool. an unprecedented leak involving one of the most divisive issues in this country leaving a nation with many with more questions than answers on this unsettling monday night. but as our guest said, for those of you are watching, who are planning, or have appointments for abortion services tomorrow, another those appointments hold, you are safe as of tonight, nothing's changed.
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i don't that know wish you all a very good and a very safe night. from all of our colleagues from across the network of nbc news, thanks for staying up late with us, and we'll see you in the end of tomorrow. , and we'll see you in the end of tomorrow. as a supreme court has voted to overturn rights. according to an initial draft majority opinion written by justice samuel alito, circulated inside the court and obtained by political, the supreme court has voted to strike down the landmark roe v. wade decision. the draft opinion is a full-throated unflinching repudiation of the 1973 decision which guarantee federal constitutional protections of abortion rights. and also, a subsequent 1992 decision, planned parenthood v. casey, which largely maintain the right. a leader writes, roe was egregiously wrong for the start, we hold that roe and casey must
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be overturned, it is time to e heed the constitution, and return the issue of the abortion to the elected representatives, which means returning to the states. and more than two dozen states, there are what are called triggered laws, which would immediately render abortion a crime immediately upon the supreme court issuing such a ruling. as josh gerstein reports along with alexander ward, the immediate impact of the ruling would be two and a half century guarantee of a federal protection of abortion rights, it would allow each state to decide whether to respect or ban abortion rights. it's unclear whether there will be changes to the draft, it is reportedly drafted in february. political received a copy of the draft opinion, from a person familiar with the court 's proceedings, in the mississippi case. the abortion case. along with other details supporting the authenticity of the document, the draft opinion runs 98 pages, the document is completely citations to previous decisions, books, and authorities, and includes 118 footnotes, the parents and timing of this draft, is consisting with court practice.
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it is a rare breach of supreme court secrecy, and tradition around its deliberations. >> joining us now is josh gerstein, he's a senior legal affairs reporter for politico, he's one of the best legal reporters, and legal reporter explainers, he broke the story, books, and authorities, and includes 118 footnotes, the parents and timing of this draft, is consisting with court practice. it is a rare breach of supreme court secrecy, and tradition around its deliberations. >> joining us now is josh gerstein, he's a senior legal affairs reporter for politico, he's one of the best legal reporters, and legal reporter explainers, he broke the story tonight along with alexander ward. thanks for coming on tonight, after such short notice, i know that you did know four minutes ago you wouldn't be on tv talk to me about this. >> no problem, rachel, happy to join you. >> i'm not going to pressure you, of course, on your sourcing here. but i want to press you on your confidence in your sourcing. obviously, this is a very unusual, if not completely historically unprecedented leak. a document that purports to be the draft majority opinion of the supreme court, before they have issued any such ruling. can you tell us about your confidence in the authenticity of the document? >> well, we're very confidence
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in the authenticity of this draft majority opinion rachel both in the way that we obtained, it and other information that we got that supports its authenticity, and makes us believe, -- it was circulated in the court as a first draft by justice alito, in february, dated february 10th. so it is possible there vincent and sit changes since then, but our best understanding of where the court stood at that time, which is about two and a half months after arguments in this federal mississippi abortion case. >> and you report, josh, and forgive me if i get any of these details wrong, i am learning this isn't talking about it, which is always dangerous. but you report that the court
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majority here is established, but there are at least in the initial conference between the justices after the arguments, there are five votes on justice alito's reported side here, and the only ambiguity -- justice roberts will make it a 63 decision or a 54 decision, if he chose to decide with the more liberal members of the court. what can you tell us about your reporting, in terms of the numbers here in terms of how the two sides align and whether that may still be a matter of some fluidity? >> well, it's our understanding from a person familiar with the proceedings that justice alito believes, that the court has five justices that are essentially aligned with his opinion that he has written. it's just a withering takedown of the roe v. weighed precedent. it pulls no punches at all, it's pretty brutal, and in the way it structured it needs to
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be that way, because of the way alito confronts this issue of court precedent, stare decisis is the legal term. something has to be really really, wrong if they want to overturn it, and that's the case the justice alito makes year. there is still some ambiguity about where chief justice john roberts stands, as many people noted that the oral arguments in the beginning of december, it sounds like he was finding a way maybe to approve this mississippi law, which is a 15 -week abortion ban, without completely ripping down the roe v. wade precedent. our understanding is that, you know, most of his republican colleagues want to go ahead and take down roe v. wade. that said, where the beginning of may here, and his final decision likely won't be published until the end of june, perhaps, even the beginning of
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july. so, it's fair to say that this is a situation that is unresolved at this point, and i can't promise you that various things may not change between now and late june. >> josh, in terms of the substance of this opinion, as written, i get news draft the majority opinion. with the caveat that this is a historically unprecedented lead of what appears to be a draft majority opinion from the court before any ruling was issued, with the caveat you just described as if this might go through any changes, maybe use substantial changes before we see the ruling from the court is published later this year. with all those caveats intact, look at justice leader wrote here, how does this comport with expectations in this case? obviously, as you are just describing, the leanings of the justices on this matter. i think, to realize minded observers were clear even before oral arguments, and certainly clear thereafter. there is also still common wisdom, that the justices would try to soft pedal this a little, that they would try to undermine roe, and effectively remove the protections of roe, without a sort of 21 gun salute which is what this appears to be, at least in terms of the way that you have been able to
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describe justice alito's thinking. is that a fair assessment of this? that this is more of a bludgeon, when it was perhaps expected to be expected to be something more of a subtle approach? >> it's definitely a swing for the fences draft majority opinion. he's really holding nothing back here, justice alito. and you know, i know with the conventional wisdom was, rachel, that maybe the court would try to soften the blow, but after those arguments, there is precious little indication of that for many of the republican appointed justices, other really than chief justice roberts. and another reason to think that this may have full support from all the republican appointed justices except the chief. if you go through the opinion, you'll find echoes in their of views that other members of the
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court have stated on previous occasions. there are parts of this opinion, that sounds a lot like justice clarence thomas, when you read through it on a few occasions the word abortionist appears in this opinion. that's where the justice thomas was taken to using in recent years, and that most of the other members of the court don't typically use. and there's another passage that seems to cater to some comments that justice amy coney barrett made, at the oral arguments about the views on unwed pregnancy out of wedlock. births, and women's rights have evolved since roe v. wade was handed down in 1973, so it really seems like alito is trying to cobble together a majority. people can also look at it, and we think how much does it do to address the concerns of shea chief, roberts and the credibility of the court and the -- to the chiefs concerns. which also supports the notion that, maybe he is not expecting to be part of this opinion.
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josh, in terms of the likely impact of a ruling if it doesn't its final form look like whatever parted and publish tonight. if we had our republican controlled house senate republican controlled senate, any a republican lawyer house, is there any line in those ruling, as you read it, that would prevent the legislature and the president from establishing a new law that full out, full on banned abortion in its entirety in every state in the country in every instance? >> well, it's a draft decision, and it doesn't really get into the issue of what the federal government's power i think would be in this area. so i think it certainly leaves that open as a possibility. it might be other obstacles to that, like the legislative filibuster we still have, at least for the time being in the united states senate. but, there are points which
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illegal tries to suggest that this won't bring all the scenery down. if we move away from abortion to other privacy base rights, such as contraception, rights like gay marriage, he does try to wring fans this in, and say all we are talking about is abortion. he mentions that several times. and he suggests that it shouldn't be stretched and other areas. that's that, i'm old enough to know that the court many times has said, don't try to apply our opinion on x to the situation why, because different. and, yet it often does get apply that way. but there's no question, he's trying to keep this confined to the issue of abortion. >> and, of course, that's telling in itself, right? to be willing to, say this is just about abortion, it's not about anything important. don't worry. tells you a lot about that, that frame of mind of behind people who would make this kind of a change. let me just ask you about one
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last piece of this, josh. since we've been on the, air since we received our reporting, tonight, since you published, we, on my show, have contacted four former clerks for supreme court justices. all of, whom uniformly told us that the document that you published tonight appears to be a legitimate work product of the court, meaning it just matches and, form in style, and texture, that kind of product that they as clerks were used to seeing as a draft majority opinion. that highlights in itself, i think, the unique nature of this reporting that you have done. and this leak. and i wonder if you have any reflection on what it might mean for the credibility of the court, for the legitimacy of the court, for a drafts majority opinion to have made its way into your hands. this is something that is never happened before in the history of the court. and, as a court observer, and somebody who understands how the court fits into our
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politics, what sort of impact do you think this will have on the court itself? >> well, i mean, there have been leaks out of the court before. perhaps not at this magnitude, but we've all gone kind of used to own these big decisions such as obamacare, such as this abortion decision to -- there's a nuanced reading of editorials that appeared in different places. places like the wall street journal editorial page where you can often see indications that maybe the court is moving one way, i'm conservatives aren't happy about it. you see that kind of dialogue. but, never accompanied by an actual opinion. so, i do think that this is groundbreaking. and it does take the court into new territory. it will certainly be very interesting to know what chief justice john roberts thinks about this, even if he doesn't agree with this opinion. what does he think about whether this causes the court to be viewed as a political institution?
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by some people. that is what we're gonna have to see plays out over the next couple of months. as this continues to resonate towards the final decision addendum. >> all right, and the importance of chief justice roberts opinion on matters like that is not just what he thinks as a person, and how it affects them personally, it's that the court is effectively a self regulating body. it's just his own set ethics on standards. and, if this is going -- of this is gonna shake the foundations of the court and its perception and its role in politics, his opinion will be more important than anybody else is by a considerable margin. josh goldstein, senior legal affairs reporter for political, you will always be the reporter broke the story. whatever else happens in your life and everything else they've done in the past, i know this is a really big deal. and i really appreciate you
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being here tonight with us, thank you. >> thanks so much, rachel, take care. >> all right. i will just mention, let me restate what it is that we are talking about here. the reporter you just saw for political, along with his colleague alexander wart, as just broken this remarkable story at political dot com. supreme court has voted to overturn abortion rights, draft opinion shows. the fact that a draft opinion from the united states supreme court is in front of us is itself, as far as we know, an unprecedented thing. there have been leaks in the past, as justin mentioned, about what's happened during discussions among the justices. about what may or may not have gone down in the room behind where the justices sit on the day's. we're also for the our sketches when we sit down and conference to discuss what happens. we have had descriptions of those discussions in the past. we have never, as far as i know, had a written, in this case, 90
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plus-page draft a majority opinion released of the public from a reporter for a ruling was actually issued. we don't know anything about what's the sources, josh, you just heard him speak in his own words about why he and his colleagues and his editors are confident and the sourcing of this matter. it's obviously an earthquake, and i will tell, you just and motto how confident we are in the story, we've spoken with for a former supreme court clerks. just in the last few minutes, will say that they agree with josh and his colleagues in politico that this looks like a product from the court. whether or not it has been or will be revised before it's ultimately published. the bottom line here is that this is -- this would appear to be the day that -- i was born in 1973, with the year that roe v. wade was passed. in my entire sentient life, women have been talking about the day that this would come.
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and that roe v. wade would be overturned, and that the united states will become a country where abortion was treated as a crime. and it was the government, it was the state that was allowed to decide whether or not women give birth. it's the state that is allowed to force women to bring unwanted pregnancies to term, even if they, for the world's most -- greatest our lattice reasons, don't want to do it. putting the government in control of women's lives in this way. this change is something fundamental about who we are as a country and we are as a culture, and we are as men and women. and, if this changes coming, not as a sort of feathered in set of reforms designed ultimately to undermine the right, or make a less available like we've seen, even over the course of this year's republican controlled states have been advancing these newly aggressive policies. the courts have been letting them do it. but, if instead, they are just knocking it, out an abortion is
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going to be illegal in every state that will make that happen on their own terms, or as the washington post reported just this morning, with this headline, the next frontier for that portion movement. a nationwide ban. washington post literally reported this morning that antiabortion groups and their allies and their congress have been meeting behind the scenes don't plan a national our strategy, including a push for a strict nationwide ban on abortion if republicans retake barr in washington. that was the news this morning, they're working on a nationwide wedding band to make it a crime. coast to coast, everywhere in the country, as soon as they've got power. as chris just noted a moment ago. but to have that pair tonight with this draft opinion saying that the supreme court is about to clear the way just for that, means that we're on the precipice of becoming a very different country. and our daughters and granddaughters are living in a very different world. we'll be right back with much more on this breaking story, stay with us.
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the breaking news tonight broken by politico. com reporter josh gerstein and alexander ward. a remarkable development, a draft majority opinion appears to have been leaks from the united states supreme court. this is not something that has ever happened before, at least that we know of. the way that these things work in the united states supreme court, and never been a clerk, i only have a layman's understanding of these things. part of this is described, and mr. garcia and mr. wards article, and part of this we know from just covering so many consequential decisions overtime. there are oral arguments that happen in front of all of the justices, we're familiar with those, we've heard the audio of them. you may be even been lucky enough on it class trip to hear supreme court arguments in person, we know with those oral arguments are like. and shortly after the oral argument happens, the way the process usually works is that the justices get together, and they hold effectively preliminary votes, saying i think i'm gonna go yes, i think i'm gonna go no, based on whichever side is able to cobble together but they believe is going to be the majority in the case. and an individual justice will be assigned, then as a member of the majority, will be
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assigned to write a draft a majority opinion. now that draft of majority opinion is just a draft -- that liken any kind of sport, something you write months before, it goes through a number of iterative processes with your colleagues will change. but the draft has been published tonight, is dated february 10th 2022, from justice alito, circulated to all the other justices. it is described as a first draft, and it is a double barreled shots. it is a double-barreled elimination of the right to have an abortion in the united states. it says broadly on page five, we rule that roe and casey,, casey was important supreme decision, essentially made roe more practical in the way was implemented in states ability to ban abortion. it overturned both roe and casey, we hold they must be
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overruled. the constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. one paragraph down from that it says,, quote, stare decisis, the basis on which it was -- unending adherence, to roe's abuse of judicial authority. it was egregiously wrong from the start, and the decision has had damaging consequences. if, in fact, this ruling survives, which is no reason to expect that it won at least in substance do so, from what we understand from mr. josh gerstein reporting tonight, this would have the effect of an acting letter so-called trigger laws in more than two dozen states in the country, more than two dozen republican controlled states would immediately ban abortion upon the publication of this rolling.
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it would also open up the prospect for what the washington report -- which would be a nationwide strict abortion ban. again, the washington post reporting just a morning that is the priority for antiabortion groups, and republican members of congress now, if given the leeway to act by the united states supreme court, they would seek a nationwide abortion ban. we're starting to see republicans and states around the country and drop their previous taboo is around this issue. they used to say, if a woman was raped, while the government would enforce a rape victim to bear the child of her rapist, when they? we'll have an exception for
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rape. there are starting to drop rape exceptions, they're starting to drop incest exceptions, that even starting to talk about dropping exceptions to save the life of the mother, if those are dropped, which of course republicans are talking about in some states. that's a situation in which a woman, if there is no exception to protect the life or health of the mother, that's a situation which the government would be forcing a woman to give birth even if it kills her. again, this is a surprise both in style, but also in substance, in terms of how blood this is. my friend ali illiterate, joins us now, he's a senior editor at slate magazine, she writes about the court. she's hoe host of the podcast, dahlia want you to tell me if i've said anything wrong thus far, and i want you to tell me what you are thinking. >> no, i think you said it right, i think josh used swing for the fences, and this is both a swing for the fences in terms of justice alito's rhetoric, and language, as you noted. this is not a milk toast opinion, this is just going for
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broke. it's also suing for the fences in terms of the way this happened, we have never ever seen a 98-page draft opinion, or heard about deliberations, who is writing the sense. every piece of this, rachel, is astonishing. and you almost can't let the one astonishing thing, which is the substance of this draft opinion, over master the other astonishing things, which is that i guess all bets are off now at the court, and norms and traditions that have stood intact for centuries, if not for decades are gone. and now we just leak opinions. >> well, let me ask you about the substance of that. because, i think a lot of americans hearing this news right now, maybe even watching the show right now, are gobsmacked by the revelation that, yeah, we might have heard it was coming, we might have heard the warnings. but this means that the government is going to force women to give birth now, this is going to make abortion illegal in most of the country, in much of the country instantly. and potentially all the country soon. i think most people are very gobsmacked by that, but i think
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he rightfully point out that this mean something important in terms of the rule of law. in terms of our system of government, we've got the executive branch, the legislative branch, and the judicial branch, the judicial branch is headed by the supreme court. which is a self governing institution, which does not have external ethics rules which apply to them, the justices police themselves, they set their own warriors and traditions it's somewhat secretive body and certainly a very small one, it's the smallest of all branches. it's like you say oh bets are off and draft opinions get lead now and the procedural shock that we've got tonight also takes hold what is consequential about that for americans? yeah >> i just think this is a last bastion of how the court as you said polices itself.
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we did not see lead drafts and bush v. gore, we did not see leaked drafts -- we've certainly heard whispers occasionally, but even that i think was never relied upon, so when you're getting i think it's important to say, this is the first draft. i think it's important to think of that as a first bit this is presumably gonna get honed and refined. people may be put off by some some of the sharp language in here, this is clearly justice alito doing a little something to justice barrett, giving her the sort of safe haven, concerned she had about dropping babies off the fire stations. the eugenics claims, that those are very near in dear to justice thomas's heart. he's dumped it all in here, and presumably not all of the
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justices, we again don't know why chief justice roberts, there's a huge john roberts shaped a hole in this draft opinion. but i think this presumably gets buff down some want, but i think if it is in fact the case that the long standing norms governing how clerks conduct themselves, and justices conduct themselves, which is that we don't have leaks at the u.s. supreme court. if that is gone, then it's really really very hard to see what other rules they will be using to conduct themselves. because this is, just as you said, a gobsmacked-ing turn of events. it's very very clear to me, it is not just a leak, people are talking and this is clearly being done, we don't know by who. to either soften the blow, or kind of inflate the blow of what's coming in june. so i think it's been done for purely political reasons, which
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also goes to your question about rule of law. a court that cares about its appearance, as an institution that is above politics, just threw caution to the wind and made a determination to do the most brazen political act that i have ever seen. >> i keep thinking about a recent article that was published about the kind of new new rights, and what's happening in terms of eccentric right wing, fascist friendly billionaire peter heel, finding new kinds of republican candidates. i was thinking about that article recently, in the atlantic, and the moment when j. d. vance, who is set ohio senate primary primaries tomorrow, he was talking about why he wants to join the senate. he says at one point, the part of the reason he wants trump to
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win and run again in 2024, if you think that if trump gets in there, he should fire every single government employee in the entire country, and fire them all at once. he acknowledges that there are legal protections for a lot of people in those jobs, and so that is sort of a mass firing, which has been a right-wing fantasy for a long time, that would be illegal. in j. d. vance orders because that, of course with that quote it through the courts, he should just pull and andrew jackson, and say that the chief justice has made him ruling, now let him enforce it. and that is, again, a sort of right wing man on a whitehorse fantasy about the kind of government and governing that they want. but it also shows that the court isn't in a safe position from the right, right now. and it's i think come under very serious scrutiny from the left, in terms of the ethics issue surrounding justice thomas and his wife, and her
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involvement in political issues related to cases before her husband in the court. the legitimacy of the court isn't just an academic thing, it's a question as to whether or not their rulings are followed, and if they're not they don't have an army, they don't have a police force to influence these things. it does feel like this gets us closer to that edge to. is that fair? >> look, rachel, the court started this term, the first monday of october with the lowest approval rating since gallup has been polling, right? so depending on the pole it was the high 30s, the low 40s. i know that seemed astronomically high compared to other branches of government, but it is catastrophically low for the court, and it has dropped substantially in a really compressed amount of time. i think a thing we have to think about is that when justice alito, or justice gorsuch, or justice barrett say, oh don't criticize the court, because you are undermining the
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legitimacy of the court, and when you hear the courts say, don't impose ethics rules and standards on us, don't force us to have meaningful recusal roles, but they're saying is don't criticize the court, because you're undermining the court. i think your point here is so important, which is that the court is undermining the court. which whether it's the shadow, docket as you said, the ethics violations, whether it's reaching out to take cases that are not before it. there is a whole litany of things that the court has done, in a really short amount of time -- anybody who cares about the court, maybe just end with this. because i think it's really important, there is a non trivial chance that the 2024 election goes to the court. and the idea that progressives and democrats want to undermine the court because they want the court to come down with a decision we can all ignore is chilling. because i've as i've said many
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times there is no plan b if we ignore the court. plan b is the army, it's not good. and so we want to have a court that has neither the four first nor the story, that's the federalist papers, but that has public respect. and when the court itself is really working very hard to undermine that, it's awfully hard to say that this is anything other than a, a self inflicted wound, and be a self inflicted wound that is going to write down to the benefit of absolutely nobody, when the rubber hits the road and we need and -- >> duluth, wake senior editor at slate magazine, thank you for time tonight kelly, as we continue to respond to this breaking news. i know it's hard to talk about something as we're still absorbing, and and none of us had time to read 90 pages of this opinion, let alone the 37 -page appendix, thanks for helping us as we're learning it. >> thanks, rachel. >> i want to bring into the conversation now, one of the members of congress who is most qualified to talk about this
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matter, specifically because he is esteemed constitutional scholar. maryland congressman, member the house judiciary committee, congressman jamie raskin, whose book to be here about the january six investigation. but congressman, i have to ask tonight, and start tonight by talk about this breaking news, thanks so much for joining us. >> sure, i'm glad to be with you rachel. >> have you had a chance to look at the reporting a politico, at the ruling that has been published? >> yes, i just sped read the decision, i found it astonishing and appalling. the basic legal claim here is that the word abortion doesn't appear in the constitution, and of course it doesn't appear in the constitution, but the supreme court in 1973 in a row versus wade on griswold versus connecticut, which was a 1965 decision by the supreme court striking down a law banning birth control, even for married
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couples in connecticut. the supreme court said that the due process liberty cause includes a right to privacy, over into intimate decision-making. so, the point is that justice alito's decision would apply also, presumably, to the right to privacy in contraception. we know, of course, that there is a right wing war on contraception now. but if casey is to, fall if roe v. wade is to fall, then griswold versus connecticut, presumably is to follow as well. because the word contraception or birth control doesn't appear in the constitution. indeed, the phrase right to privacy doesn't appear in the constitution, so this would appear to be an invitation to have handmaids type anti feminist regulation and legislation all over the country. all that is perfectly in keeping with justice alito's opinion, which admittedly i just read in the last 20
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minutes. but to my mind, it's scituate's that trajectory of the american right, in where fox news and tucker carlson want to go, which is to make us in the image of hungarian illiberal democracy, now. to keep elections going where people can be whipped up about various scapegoats, but to carve out and destroy the freedoms in the rights of the people. and that's where the right-wing seems to be going with this decision, and the supreme court if it actually goes through with this majority draft opinion, which has now leaked out and does look to me completely real, or at least an extraordinary forgery of what a supreme court decision by justice alito looks like, and sounds like. but if it does go forward with it, i believe that the court
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will have returned to its historic baseline, of being a reactionary conservative institution to the far-right of everything else at the federal level in the government. you know, it's still got this lingering fake halo around it from the wing brown versus bore, and roe v. wade, miranda versus arizona. but for most of our history, take all the way up to the civil war, the supreme court never did anything for in slaved americans, other than to cement and constitutionally is the system of slavery in the dred scott decision, and declare the african americans have no rights at the white man is bound to respect, and to declare that the constitution is indeed a white man's compacts. even after the civil war, and the reconstruction era, the court articulated american apartheid in plessy versus ferguson, approving jim crow arrangements throughout most of the country. so there was that brief few
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decades -- now the roberts court, the supreme court has returned to that traditional baseline. and all it means to me, at least in my mind, and made a liam speaking as a person in politics. but we need to turn out the vote like we've never turned out the vote before, the people need to stand up and defend democratic institutions and the rights of the people, because a supreme court is certainly not doing anything for us. >> congressman raskin, let me ask you a question that i posed to them josh gerstein, the reporter about the story of the top of the hour. from the ruling, the way that it is written, and with the caveat that this is what appears to be a first draft opinion and, it will likely go through many other iterations in lots of changes, before we ultimately get the ruling, but based on what we've got, there's a remarkable leak of a first draft, and the way that
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justice alito has constructed this argument. if this survives this intact, is there anything here that would prevent republican controlled states, or indeed a republican controlled congress, and a republican president, from outlying abortion full stop in every instance, making it a crime that put doctors in prison, potentially but women in prison? is there any new restriction on the ability of the government to force women to give birth, that is recognized here, or is it an elimination entirely of that restriction. >> it is an elimination entirely, as i read it. the good thing about roe v. wade, or planned parenthood versus casey, was that it established a balance between the liberty of the woman to seek reproductive health care and consult patient with her physician, and her family, it was a private choice, it was not up to stage legislatures, or two members of congress.
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but, there was a ballast saying tack, against the developing fetus, so that a certain point under roe v. wade, for example, in the third trimester it could be banned entirely. and the decision could be regulated in the interest of maternal and fetal health in the second trimester. but this abolish is a balancing test entirely, and says that because abortion is not mentioned in the constitution, and presumably there is no right to privacy, according to justice alito, the legislators can do whatever they want. so, look i serve on the judiciary committee, and the oversight committee. we have lots of hearings about this. the same right-wing lawyers who filed all these cases, and are always filing amicus -- they don't take a position that there's any kind of balancing,
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they say is perfectly fine for the legislatures, to limit the soldiers entirely, including cases of rape of the women, including in cases of problematic medical issues that might come up. they say that some of the state legislatures. so if there's a move on right now to pass a federal law that would categorically prohibit abortion, the only thing stopping them from doing that, will be the votes in the house, and the votes in the senate, and the potential veto of the president of united states. because they don't see any jurist prudential, or constitutional impediment to doing it. maryland congressman jamie raskin, member of the judiciary committee unconstitutional scholar. sir, thank you very much for being here. i know as a change goes quickly with you tonight. i appreciate you reading the opinion and joining us on such short notice. >> thank you rachel, we'll take a rain check on january six. >> indeed, love you back soon, sir, thank you. neil joins us now. he said during the long administration. neil, as nice as you tonight, thank you for being here. >> thank you. >> we've been absorbing this
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developing news as it has happened. we've only had this information for about an hour now. let me ask you if anything you've heard us discussing seems wrong to you, or if you think we missed anything important and terms of the implications here. it's obviously stunning for court watchers and for those of us thinking about the structure of the government to have a draft opinion like this leaked from the supreme court. but then there's also the substance of this opinion says as congressman raskin was explaining, there which appears to be a opening the door for bans on abortion without any limits. >> so, rachel anything we know about the court system either this opinion is likely illegitimate true opinion. it's not a deepfake. it looks like a court opinion. across like a court opinion. it talks like a justice alito opinion. and, so i think what you've been saying is absolutely right. put more cycle, this is the huge a step back for women in decades. a the hue just step back for a
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reproductive justice in decades. it will have profound consequences. and one thing that i don't think has been expressed mentioned so far is this telling fact about the alito draft opinion. the mississippi law that it upheld's has no exception for rape or incest. and this draft opinion by the supreme court says that is a okay. so, you can have now a flag ban on abortion if this opinion becomes the law in any state or as you were saying before the federal government. so, it's astounding both in terms of abortion, but also, kind of the brazenness that the court majority, and again, it's still a tentative opinion, and we can talk about that in a minute. but, the brazenness by which they pass this decision. remember 1992, three republican justices who connor candidate and suitor that said, look, roll might be right, it might be wrong, but we can overrule, it because social expectations of crystalize around this decision. and it's critical for the
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court's legitimacy. it was all blown off by the draft opinion. >> and, neil, you suggested that this opinion will change, and that's obvious. so in time things change, from first off the final. but what you know of the court thinking about what dolly olympics said earlier this hour that some of the rough edges of this might be buffed off. do you think there's any chance that this ends up not being the majority position? do you think there's a chance in which we end up with this being would for judges, four justices will believe, not five. and therefore this is not going to be the majority whirling? >> right, there's always that possibility that hope springs eternal, but i guess i disagree with ali a little bit because, she was really speculating that the chief justice roberts would change his opinion or vote with the senators are something. but the key thing here is that chief justice roberts is relevant. as justice alito plus the four justices to his right beside chief justice roberts who you need to flip. kavanaugh, or for such, or thomas.
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and that is just, you know, that is pretty unlikely thing given the argument. so, rachel the process is, this case was argued in december. the justices take a tentative vote right after it. and then, the senior most justice of the majority assigns the opinion to whomever she or he wants. here, it's unlikely roberts will send a majority, because you would've probably signed the draft opinion to himself. so it's likely illegal or thomas was one of those two. illegal has not written this opinion, it's circulated to the other justices, there's gonna be a descent those gotta be prepared. sometimes, it's possible that the senate can change the minds of those and the majority. but here, you know, so far, we haven't seen any indications with that from the other four. so i'm afraid to say, and this is of course, this literally never happened in our history. but right now it does look like the supreme court is poised to overrule roe v. wade and
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implement bans on abortion and 50 states in the federal government. and if they can do this, for this, what's next? and they can do it for the most, probably the opinion that most americans know by name, more than anything, except maybe brown versus board of education, they can do it for gay marriage, or anything else that the court has guaranteed. and that is a very scary prospect. >> neil, former acting solicitor general, sir, thank you for your time this evening. again, joining us on short notice. i appreciate it. senator amy klobuchar, democrat of minnesota joins us now, she's on the judiciary committee. she's absorbing this news just as we are. senator klobuchar, thank you for being with us tonight. let me just get your reaction to this news, again. the headline, politico has voted to overturn abortion rights. draft opinion shows. >> now, you know, everything has a different or the disclaimers. and we don't know the final opinion will be but i will say that we have predicted this for a long time based on the hearings for these justices. i asked amy canning barrett if
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she thought roe v. wade was super president. she did not think that it was. and yet, i believe the american people are with us. i like to focus a bit here on what's gonna happen if they do issue this opinion when all signs point to that they will. not just this leak, which is unfortunate, but also, what they've said in the past. if this is issued, over 20 states, there is a trigger where abortion will automatically be banned. so, it's no longer gonna be a decision between a woman and her doctor. basically, i guess, ted cruz has made this decision for people. the second thing that we're gonna see happen is that you're gonna have individual states considering laws, banning it, and meanwhile, and washington, it's on us now to try to codify roe v. wade into law.
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and as you, know we have two republican senators who are with us when it comes to choice. but the question is, with the filibuster in place, which i firmly believe we should reverse, could we ever get to 60? so, this is what we're doing with right now. and, i cannot overemphasize how, what a change this is. but a disregard to president this is, if this is true. yes, we can be outraged. but also off the plan. we are going into election year. we are going into the fall. where women's rights are going to be on the ballot. and so, if nothing can get done in washington because of republican obstructionism, then the american people and women are gonna have to vote, and people who believe in joyce are gonna have to vote like they never voted before. because that's the only way we can change this up, or we're gonna have a patchwork of laws across the country. >> senator, as you know, one of the things that is most
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determinative of a woman's economic freedom and self determination is her ability to make her own decisions about when and if she has kids. if that becomes the government 's decision, if that is no longer the station that women are allowed to make for themselves that fundamentally changes the economic and life and culture prospects for everyone in the country. i wonder if that stark truth about what this does to the future of american womanhood and the future of the american family, the future of who we are as a culture. if i might be enough to scare republicans and washington off an effort to do a nationwide ban. as you said, those trigger laws don't require any action. we'll just go into effect and more than 20 states. but we have reporting on the washington post that they want a nationwide, six, week flat ban. do you think that would be the dog that catches the car in that case?
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they may be too scared to actually do something that radical? or do you think they would just go for it? >> well, i mean, obviously, they are not going to be able to pass something like this in the senate right now, because democrats have the slim 50/50. but we have the majority. but i think what you're going to see is a discussion of this in real terms, like we've never seen before. back alley abortions, people having to take buses to other states. people not being able, as you said, to make their own economic decisions. rioters are coming out of this pandemic. where there's so much uncertainty right now, and people are just trying to get their grounding. and then we're literally stripping the women of this country of the rights. if that happens, i think you're gonna see repercussions like
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never before. they have basically stacked the court with these judges who, various procedural gains that they played in the senate. and now is the moment. and the only way this gets decided, if this opinion gets issued as is. it's gonna be state-by-state fights about this, with the automatic trigger is going in place and many. and, then it's going to be a decision for congress. and it makes the election for the house and the senate more important than any we've seen in our lifetime when it comes to the protection of women's rights. >> senator amy klobuchar, member of the judiciary committee from minnesota, thank you for the time this evening. thank you. >> it's great to be on, rachel. >> again, it has been a remarkable hour. this is groundbreaking reporting from politico. com. josh goldstein, alexander ward. they have obtained -- i can't even, i still caught sounds crazy to hear the words coming from my mouth. they've obtained a graph maturity opinion from the supreme court. this is not a ruling that has been issued, but it is been drafted by conservative justice samuel alito which overrules roe v. wade and planned parenthood versus casey, full
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stop and completely. and with an exclamation point. effectively clearing the way for republican controlled states and any future republican controlled congress at white house to flat out and completely ban abortion in this country, making it illegal without constraint. we're fundamentally changes as the country, it will fundamentally change the relationship between women and the government. it will fundamentally change the future of every girl in the country, for all our daughters and granddaughters, and women that come after us. just a remarkable thing. we knew was coming, but to see it, even in draft form, in terms of this blunt, it makes it feel like a different country. that's gonna do it for us for now, now it's time for the last word with lawrence o'donnell, ignorance. good evening, rachel, what we're witnessing tonight is the loss of a lights. they loss of a constitutional right.
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that is something that you and i have never borne witness to in our lives. if you pointed out, if you're 50 years old or younger in this country, if you're a woman 50 years old or younger in this country, you've had a right throughout your life to abortion services. a constitutional right, to that decision, that is what is being taken away here. a constitutional right. >> and will just say, in terms of the real world impact on women's lives, congressman jamie raskin raised a really good point about the reasoning in this opinion, which again is a draft opinion. but the way this is written, it undoes a woman's right to decide whether or not she's gonna carry a pregnancy to term, but this also absolutely creates their circumstance in which it is possible for them to undermine, and overturn a related ruling called griswold, which is about the right for people to have the right to contraception, even if certain state legislatures decide that
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contraception is evil, and we want to make it unavailable to people. it's a straight line from this ruling, not only to banning abortion instantly and potentially nationally, but to also preventing americans from accessing birth control. in a ruling that is argued along the same lines as the established presidents that are starting on this opinion. it's a fundamentally different world if this happens. >> and included in this fundamentally different world, is the other part of what we're experiencing tonight, it is minority government, minority ruled government, and the supreme court is the most incredible exemplar of that. you have these judges, appointed to the supreme court by two presidents, who did not win the most votes in that presidential election. george w. bush, appointed the justice who wrote this opinion, he did not win the most votes in his presidential election, but he won the electoral college.
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and then you have donald trump, appointing three of these deciding justices, he did not come close to winning the most votes, but he got the presidency in this country because of this capacity for minority rule in our government, which is what the united states senate is about every day of every year. more people vote for democrats for the united states senate, but republicans end up either in control of it with fewer people voting for them, for those seats, or as we see now in the 50/50 position this is a minority-controlled government, this is the product of that. >> it also raises the question as to, how the court is perceived. the reason that stare decisis is, it's maybe not when you learn day one of kid law school but it's maybe day to. part of the legitimacy of the court is that the court compounds the idea of the legitimacy of the role of lava respecting past president. and to have thrown out
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established super precedents, in casey and in a row here, the way that this draft opinion is written, is to say that there is nothing that any court has previously done there's nothing that any supreme court that has previously arrived that that deserves respect and even with as you say, justices that are pointed by presidents who didn't win the popular vote, and one case by president who had already been impeached. it doesn't matter, because once you've got power, you can use it to wreck everything, because stare decisis doesn't exist, and whatever we'd say has to go, goes and we have the power to do, it and how you gonna respond? we -- it's a challenge on the legitimacy and credibility claims of the court, that implies that battle is over. that they're no longer trying