Good discussion:
https://www.nytimes.com/2022/05/06/opin ... anscript=1
"I’m Kara Swisher, and you’re listening to “Sway.” This week, a draft Supreme Court opinion was leaked to the media. It reveals a dark future for abortion rights and potentially for other rights in the United States. Yesterday, I talked to Nancy Northup from the Center for Reproductive Rights.
Today, I wanted to expand on that conversation with a broader discussion of the Supreme Court itself. So I invited three lawyers, of course. Amy Kapczynski is a Yale Law Professor. She directs the Law and Political Economy Project and she clerked for Justices Breyer and O’Connor. George Conway is a conservative lawyer who has argued before the Supreme Court. He’s also a founding member of the Lincoln Project. And Neal Katyal is a professor at Georgetown Law, as well as the former acting Solicitor General of the United States, who’s obviously also argued cases in front of the Court.
Welcome to Sway, everybody, and thank you for doing this. So let’s kick off with sort of a round robin. I want to get each of your takes on the leaked draft Supreme Court opinion. Of course, let’s caveat. This is an old drafted opinion, nothing final. So just a couple lines, please. Think of it as opening arguments. Neal, why don’t you start?
Neal Katyal
I think this draft — you used the words dark future. And that’s absolutely right. It is the hugest step back for women in decades for reproductive justice and reproductive freedom. And it’s going to have profound consequences. And one telling fact is this blesses the Mississippi law, which has no rape or incest exception. So this permits flat bans on abortion in all 50 states.
Kara Swisher
OK. Amy?
Amy Kapczynski
So what’s really remarkable about the decision, I think, is how radical it is. It really just takes a sledgehammer to decades of Supreme Court precedent. And in a way that it’s sort of hard to tell who’s next. So the way the court argues about why this law can be passed in Mississippi both says no holds barred for abortion, but it’s the same part of the law that protects L.G.B.T. rights, that protects contraception, that would say a state can’t pass a law saying people have to be sterilized. So that’s really part of what’s scary about it is what it says about where the court’s going. And how that connects to other things we’re seeing from this very same majority.
Kara Swisher
But they certainly don’t have to go there, correct? It’s just they could.
Amy Kapczynski
They don’t have to go there. But what we look at as lawyers is how do you argue about where you would stop? And there’s nothing in here about where they would stop, except whatever they want. And that’s scary.
Kara Swisher
OK. George?
George Conway
I’m going to take a position that makes absolutely nobody happy.
Kara Swisher
OK, good.
George Conway
Which is that the slippery slope argument that Amy just made was the argument about Roe, because there were no limiting principles to create unenumerated rights by judges. Which is why even in 1973, many liberals were stunned and shocked and disturbed by the opinion, and why I always thought that Roe v. Wade was wrong. On the other hand, I don’t think it should be overruled. I think it’s too late. It’s 49 years down the pike. I think the stare decisis portion of Alito’s draft opinion is absurd.
Kara Swisher
Explain that. Explain what that is.
George Conway
Stare decisis is the principle that you rely on things that are decided. It literally means the thing is decided. The matter is decided. And it’s not a hard and fast principle of law that every precedent, once it becomes settled, can’t be overruled. But it’s a prudential doctrine, because just because you come on the court and you think that a decision decided yesterday or 50 years ago is wrong doesn’t mean you should encourage your colleagues to overrule it, because that undermines the rule of law.
And one of the factors that’s considered — an important factor that’s considered in the stare decisis analysis is the reliance of society on the decision. And here we’ve had 49 years of people believing that they have a constitutional right to choose to have an abortion. And the problem with overruling Roe now is even if you think that Roe undermined the rule of law in the first place — which I do — you even have a greater undermining of the rule of law by overruling it today. And I think the reaction to Roe shows that. I mean, it just shows that the court is putting itself in grave danger by trying to undo, especially in one fell swoop, what it did 50 years ago — 49 years ago.
Kara Swisher
Amy or Neal, any reaction to that?
Neal Katyal
Yeah, I want to match up what George just said in the second half — which I agree with — what Amy said. Because if there’s a case that was hard to overrule, it’s actually Roe v. Wade. As three Republican justices said in 1992 in the Casey decision, social expectations have crystallized around Roe. So even if Roe was wrongly decided, you can’t overrule it without doing grave damage to the court’s legitimacy.
George Conway
That was 30 years ago.
Kara Swisher
This is Casey v. Planned Parenthood.
Neal Katyal
Exactly. And so while theoretically, I think, Kara, you’re right, does the court have to go and overrule any of the things Amy is talking about from same-sex marriage to contraception or whatever, they started here. The hardest case for them to overrule. The other stuff is a lot easier.
Kara Swisher
Well, George, let’s discuss for a second. If you could explain for people, it’s based on the 14th Amendment, on the liberty, correct? Explain that. The 14th Amendment, by the way, my favorite amendment. But go ahead.
George Conway
It’s based upon the due process clause of the 14th Amendment, which says that no person shall be deprived of life, liberty, or property without due process of law. And I think the principal criticism of this is that this is what has been known and called over the years the substantive due process, where the court has basically said that clause doesn’t just govern the procedures you have to give people before you take away life, liberty, or property. It creates some inviolable rights that can’t be taken away, regardless of the process involved.
And that is contrary to the language. And even many liberals over the years have criticized it. But the problem is, which Amy is about, is that we have a lot of substantive due process in our lives in the Supreme Court, including basically the incorporation of almost the entire — maybe the entire Bill of Rights into that provision. Basically, they say that they’ve held that that provision, even though on its face it deals with process, it says that essentially the First Amendment applies to the states, even though the First Amendment says Congress shall pass no law. And you know, that doesn’t make any sense to me either. But there is no way if I were a judge on the Supreme Court — and not even Justice Scalia, who called himself a fainthearted originalist in this regard — would overrule that. You just can’t — it’s just too radical a change of expectation to basically undo it all.
Amy Kapczynski
But George, I’m glad you brought up the First Amendment. Because that’s an area where, again, there’s no original understanding of the First Amendment that would say it applied in the way it applies today. And so we can’t have campaign finance laws, sorry. Right? That’s a construction that this court has adopted. And they just turn the other way. They don’t use those arguments when it comes to campaign finance law. Or if they want to strike down laws about labor unions, for example, they just use the First Amendment. And they say, well, that’s not undemocratic.
George Conway
But also things that we like are like that, too. I mean, you know, New York Times against Sullivan. I mean, that’s completely ahistorical. But no, the conservatives aren’t going to overrule that. A problem with our jurisprudence is that we can’t — sometimes the courts went too far in not trying to create limiting principles that people don’t understand and also —
Kara Swisher
Right, meaning leaving it to the courts, leaving it to us. Neal, you’re about to say? And then I want to get to the leak itself. But go ahead.
Neal Katyal
So there’s a problem that George is identifying with about inconsistency. But I think the point Amy is getting at is far more resilient and stronger, which is the methodology that this draft opinion uses says that in order to find a constitutional right, it’s got to be expressly in the text of the Constitution or deeply rooted in the tradition of the nation. And that is the test that Robert Bork put in 1987 at his confirmation hearings and he lost.
And you know, I’ve argued 45 cases since that time in the Supreme Court. And I don’t think any justices have adopted such a radical view, a compressed view, of what is a constitutional right. So Amy’s right. This is a game changer. And whether it’s contraception or L.G.B.T. rights or whatever, the test that’s being used here — and the muscularity by which this draft opinion uses that test — means there is nothing safe anymore.
Kara Swisher
Well, he’s going for it, in other words, you’re saying.
Neal Katyal
He’s going for it, 100 percent.
Kara Swisher
Neal, let’s talk about the leak to start with. You called it the equivalent of the Pentagon Papers, the famous leak of top secret documents during Vietnam. Explain what you mean, because it has happened before. Leaks have happened. But there’s different leaks. There’s leaks and then there’s leaks. But go ahead.
Neal Katyal
Yeah, there’s leaks and then there’s leaks. And this is as major as it gets. I mean, there’s certainly been smaller, minor leaks. A full draft opinion? I mean, Amy and I both had the privilege of clerking there. And the idea that if you even talk to a reporter, even about the weather, I think you’d lose your job. So the idea to have this amount of discussion out for everyone to see is just horrific. And I really do worry about how this will change the dynamics at the court. Because any leak any time — and I’ve seen it in government on the executive branch side — once there is one, it forces compartmentalization of information even further. Fewer people get to see stuff. And it’s generally incredibly counterproductive.
Kara Swisher
Counterproductive. So just that Supreme Court rulings have been given to journalists before they’re announced to the public. The result of Roe v. Wade, in fact, was leaked by a Supreme Court clerk to a Time magazine reporter.
Neal Katyal
But again, Kara, there’s a big difference between the bottom line being leaked and a full opinion with all the reasoning and methodology in it. That kind of internal access to the court’s processes while they’re happening in real time is just different.
Kara Swisher
Amy, you clerked at the Supreme Court. Can you imagine something like this happening in your time? And explain where it is.
Amy Kapczynski
So there’s a conference where the justices vote. And after that, the majority opinion will be drafted. And then concurrences and dissents will be drafted and circulated. So they do kind of come in a sequence. And it is very, as Neal said, unprecedented to have an opinion like this leaked. And I think part of what it demonstrates is that there’s a new and escalating form of power politics going on at the court.
I think you see it actually not just in the leak of this opinion, but then you look back and suddenly I think people have connected the dots to what happened a week ago at The Wall Street Journal, for example. The Wall Street Journal wrote an editorial that you read that now and it looks very clear —
Kara Swisher
That they knew.
Amy Kapczynski
That came — they knew. That came from a leak inside the Supreme Court.
Kara Swisher
This was, for people who don’t know, it was sort of a warning to Justice Roberts — Chief Justice Roberts — that he better fall into line. I think that’s what it kind of read like, to me.
Amy Kapczynski
That’s right. It read like they knew, for example — it said that Alito probably wrote the draft majority, which we now know be true. And it suggested that maybe there was a John Roberts concurrence that was being circulated. And that maybe they were worried that Brett Kavanaugh was going to join. And they said that. That suggests there’s a conservative at the court or more than one leaking directly to The Wall Street Journal to try to influence another justice’s vote. That’s wild. That’s wild. That’s a kind of power politics, using a leak to the media, that I think — and then this draft opinion is yet more of it. But I think that really suggests something —
Kara Swisher
Which is more the legislator — legislatures do this all the time.
Amy Kapczynski
For sure, but not at the court. And to try to change a particular justice’s view, coming from inside the house. I mean, that’s astonishing.
Kara Swisher
All right. George, Justice Roberts has called for an investigation. When you think about this leak, what was your first thought?
George Conway
My first thought was that it might have been a liberal clerk or a liberal somebody with access to the draft opinions who was leaking this in an attempt to create a public furor that would cause a justice or two to back off the Alito opinion. But there’s no way of knowing.
I mean, the other hypothesis that it was a conservative trying to solidify a conservative vote is — I think it’s equally plausible. I don’t think there’s any way to know, one way or the other, which it is.
Kara Swisher
The question of a leak is always who benefits. I think it’s cui bono. I think it was in The Times, using a little Latin, I guess. Amy, you thought it was a conservative. That was your argument, correct?
Amy Kapczynski
I mean, I think it’s consistent with how we’ve seen some of the conservatives operate. And if you look at both the timing of this particular decision being leaked, that it didn’t come in February when the decision was obviously circulated. But it comes now, when a concurrence would be circulated. Like the timing of it, I think, makes sense of trying to lock in.
I also think the dynamics of how the court works — it’s interesting to see people from the outside saying, why would they feel badly about editing a decision after a draft went out? Normal people edit stuff after it comes out. But that’s not the psychology of the court, I don’t think. There’s a psychology that we deliver the rule of law and to show that it changes and it morphs and it’s up to us, that undermines how we work. So I think the psychology of the leak actually supports that view.
George Conway
What’s interesting is that in 1989, basically without the leak, a similar thing happened. I mean, Rehnquist had written an opinion. And I think he had five justices. Essentially, it was much shorter and much more concise than this opinion. But it essentially did what this opinion would do, which was basically return the issue of abortion to a rational basis test, which means basically that virtually nothing gets overturned unless it’s completely off the wall.
And he lost O’Connor’s vote at the last minute. When I first read that opinion in 1989, I looked at the plurality opinion. I said, this clearly was a majority opinion until 48 hours ago, because of the way it was written. And you know, Scalia wrote a slapdash dissent or partial concurrence. And O’Connor wrote a separate opinion. It was a mess. And then the vote switched. And then Kennedy, who had joined that opinion, switched three years later in 1992 on Casey.
I mean, there’s a real possibility that what is going on here is the situation that Amy posits, which is the conservatives are afraid that a conservative’s vote is being lost and that they’re trying to — I don’t know how this helps accomplish that when you answer the cui bono question. Because I think it just shows — to me, this is going to show to someone who is wavering what political danger, the political minefield that the court is getting into by overruling Roe.
Kara Swisher
All right. Neal, I want you to make the case for a liberal leaking it, meaning trying to get people so incensed over it politically.
Neal Katyal
I don’t think I want to make that case, Kara. Because I think as this discussion shows, this is the most rank speculation imaginable. The one thing that I would say that we do know — that I at least feel that I know — is that it is not a justice on the court doing this. I think all nine of them are deeply, deeply invested in the project of judging and judging the way that the court has historically judged stuff, which isn’t with leaks. And so if there’s a leak, it’s some level below that. And I think at that level, it’s just too hard to predict the consequences of a leak.
Kara Swisher
All right. So let me ask — let me ask you a different — you’re absolutely correct. The court’s dirty laundry is being aired publicly. What does it talk about cohesion and respect in there? Or is it because the court is divided, which it’s been for — the court has not always been so collegial as people think, if you read any of the many histories of it. But what does it talk about cohesion and respect within the community? First, Neal and then Amy and then George.
Neal Katyal
Yeah, so I think that this Supreme Court is far more conservative than any court in our lifetime. And it’s a result of some games that were played by Mitch McConnell and others. And so I think that has to manifest itself even at the court itself. They all have enormous respect for one another. But the fact is, this is a court that’s handing down decision after decision that’s far to the mainstream of the American people. And the court’s going to feel that. Because you’ve got justices like Justices Kagan and Sotomayor, who are incredibly strong voices and they’re not going to sit down quietly. They’ll be respectful, of course. But they’re going to voice their concerns. And as a result, I do think — I feel that the court is more intellectually fractured than any time since I’ve been practicing before it.
Kara Swisher
What about you, Amy?
Amy Kapczynski
I think that there’s a lot to that. What’s going on is we have a really radical, kind of extremist now, five — sometimes six — votes on the court to smash lots of things. And again, look at the way they decided this decision — well, this draft opinion. But also, look at — there are many other examples we can give you. Cutting away voting rights. Using the First Amendment to undermine the power of unions — overruling again, 40, 50 years of precedent when they do that.
There was a takings case about property that came down recently, too, that just took the regulation and just totally reversed how the court had thought about these things. So there’s a kind of extremism that has five votes or sometimes six on this court that I think is deeply undermining the institution.
And we could connect that up to other things that we’ve seen recently that are about the rules of the court and how they operate, like the fact that Clarence Thomas sat in a case that directly implicated his wife and does not seem to think that means that he should recuse. So there’s a kind of bare-knuckle politics, but also kind of an extremism in their views.
Kara Swisher
What about you, George?
George Conway
I don’t think I’d characterize the court as extremist quite in that way. I do think they’re willing to go farther in pursuit of their reasoning than they probably should, because of the political ramifications — at least in this case. But I agree also with Neal. I don’t think anybody on the court would have leaked this. I think they do take seriously the notion of confidentiality, because it protects their discussions. Most of the time, they don’t disagree on a lot of things. And we forget that.
Kara Swisher
That there is cohesion.
George Conway
Well, there’s cohesion in the sense that they work together. And they also often find common ground. I mean, we saw a decision this week that a lot of people criticized in the right or the left, I guess.
Kara Swisher
It was 8-0.
George Conway
Yeah, it was 8-0. And it was written by Breyer. And there were liberals who were very upset about that. And he joined with some of the conservatives. And we see all sorts of lineups in these decisions. It’s just these very few cases where there is — this intense polarization seems to define the court as an institution and define its perception with the American people. And it’s not defining it in a positive way. And that, to me, was the problem that it got into this whole business in Roe in the first place, which caused all the politicization of the courts — or enhanced this politicization.
Kara Swisher
We’ll be back in a minute. And by the way, you can use that minute to leave a comment about your thoughts on this episode. Just visit nytimes.com/sway. If you like this interview and want to hear others, follow us on your favorite podcast app. You’ll be able to catch up on “Sway” episodes you may have missed, like my conversation with Nancy Northup. And you’ll get new ones delivered directly to you. More with my law firm of Amy, George and Neal after the break.
So when you think about this Supreme Court, Amy and Neal, talk about the idea of the justices legislating these things. Because that’s where they’re going to go at with gay marriage, contraceptives. It should all be in the hands of legislatures. Is that where it’s headed?
Amy Kapczynski
I mean, I think very plainly, just even on the issue of abortion, it’s not headed only back to the legislature. There are going to be questions about how people can cross state lines. There are going to be questions about is a state going to try to ban the advertising of abortion drugs to people inside their state and mailing it. There’s going to be a huge number of questions.
And again, this opinion just bats those aside as if they’re going to get out of the politics of this or get the courts out of it. That’s not going to happen. And I think the other thing is, as constitutional lawyers, we know of any number of examples where the courts step in and they say, this campaign finance law, OK. That campaign finance law, not. That is the same thing. That’s the same thing.
And this court is perfectly willing to do that in all kinds of cases. This particular law that funds unions, no, we’re going to strike it down using the Constitution. Doesn’t matter that it was democratically elected. So I think it’s a little bit of a bait and switch, the idea that oh, we’re pro democracy. And we just want to leave it to the people. That’s just not true. Not if you look across the decisions that they’re making.
Kara Swisher
Neal?
Neal Katyal
Yeah, I think that the first battle to be fought after this decision — if this does become the decision of the Supreme Court — outside of abortion, will be marriage equality. Because the Supreme Court, just a few years ago, guaranteed that right under some reasoning — as Amy said — that looks very much like the reasoning that the court is rejecting now in this draft opinion.
And so it’s a really clear, present threat, at least to marriage going forward, because the dissenters in that case said exactly what this draft opinion says, which is let’s leave marriage decisions to the states. And they should decide. The people should decide whether marriage is between one man and one woman or something else. And anything else would be the kind of substantive due process that George was railing against a moment ago."
