"We can make Roe the law everywhere" - An Interview with Senator Elizabeth Warren

How is everybody?

We're doing great.

Thank you so much for being with us.

You bet.

We are the Five Four podcast.

We critique Supreme Court cases, and we're so happy to have you with us.

My name is Rhiannon.

Yes, Michael and Peter are here with us.

Joe guys with beards.

Yeah, that's right.

Classic podcast.

Exactly.

Oh, is it true?

You're a public defender.

I am.

I'm a public defender in Texas.

Wow, a public defender in Texas.

That's like it's the Wild West.

Okay, I'm ready whenever you all are.

Hey, everyone.

This is Leon from Fiasco and Prologue Projects.

On this special episode of 5-4, Peter, Rhiannon, and Michael are talking to Senator Elizabeth Warren.

Warren has been a vocal critic of the Supreme Court's decision in Dobbs v.

Jackson Women's Health Organization, which overturned Roe v.

Wade.

The Republicans have been working toward this day for decades.

They have been out there plotting, carefully cultivating these Supreme Court justices so they could have a majority on the bench who would accomplish something that the majority of Americans do not want.

Warren has pressured the Biden administration to take stronger action to protect abortion access and to reform the court, including by adding justices.

But she stops short of criticizing the Democratic Party for inaction, pointing out that it's Republicans who have waged a multi-decade campaign against abortion rights.

This is 5-4, a podcast about how much the Supreme Court sucks.

So first of all, welcome to the show.

Hello.

We're glad to have you.

We wanted to talk initially, at least, about

the party response to Dobbs.

You know, in early May, the draft Dobbs opinion is leaked, and the entire country is sort of on notice that the court is poised to overturn a Roe at that point.

You were in the streets shortly after.

You were proposing policy along with some other Democratic lawmakers in the month following, which we'll touch on.

And yet, when the decision drops about six weeks later, it seems like it caught the administration and the party more broadly a little bit flat-footed.

There seemed to be little to no coordinated messaging, no day of policy rollout.

And maybe this is too broad of a question, but

what the hell happened there?

Do you have a sense of why the administration seemed to be caught off guard and why why there wasn't sort of an immediate and coordinated response?

You know,

I'm going to just push back in the following sense.

Roe versus Wade, overturning Roe versus Wade, it's just, it's cataclysmic.

I mean, it's enormous.

The idea that this Supreme Court would restrict rights rather than preserve or expand them.

The

idea

that they would do so in an opinion that is so,

I don't want you to lose your license here, so I'm not going to use the word, but, you know, just kind of,

you know,

not even try to persuade.

And that they wouldn't just chip a little.

I feel like every part of this is enormous and that everyone is still absorbing this.

And that what I'm just going to stay focused on, because it's what we've got to stay focused on, is the emergency that is now upon us.

And I know and I don't want to be cranky with you because I know the politics are the most fun thing to talk about.

But we're really in a situation right now where

there are

people who are pregnant right now and they need help.

There are people who are going to be pregnant next week and who need help.

And so

I think this is at this moment, we got to be focused on what we're going to do to help them and protect them right this minute.

And then our bigger question is, and what we're going to do to get permanent protection in place.

And this time nationwide, not it's different in Texas than it is in Massachusetts.

But I mean, do you feel like the party's response was adequate considering the moment?

I mean, I agree that it was cataclysmic, but it really seemed like what the administration was doing, especially, and I use the administration not to pick on them, but because I think there were lawmakers that had a higher level of urgency, yourself included, at least it seemed to be the case.

But I mean, it took weeks to see any sort of policy, right, coming out of the Biden administration.

But remember, we didn't even wait for Dobbs to come down.

We voted on it in the United States Senate.

And every single sitting senator as of this moment is now officially on record on where they stand on Roe versus Wade.

We put WIPA, Women's Health Protection Protection Act, on the floor.

And, you know, let's get nerdy for a minute.

I love WIPA because it is truly about Roe and reinstating Roe, not all the ways it got chipped and banged and exceptioned through the years through conservative courts.

We put that on the floor and put 100 senators on record.

And let's just remember, every single Republican voted against it.

Every single one, and one Democrat, yep.

But I want to talk about 50 Republicans who put us in this hole.

And I want to talk about 50 Republicans.

If you want to talk about how we got here, I want to talk about all the Republicans who helped get those last three Supreme Court seats and all the ones who helped get the Supreme Court seats before then that put a pro-corporate.

socially extremist group of judges on the court that that has driven this court out to the far edge.

So I'm just going to keep driving what I think are the central points here.

The central points are what we need to do going forward, but the other one is where we need to cast blame.

And we need to cast blame on the folks who really made this happen.

And it's not the Democrats, it's the Republicans.

I don't disagree that that's where the blame lies, but I do think there's a question from our perspective, for example, of where it's useful to direct your energy, right?

Oh, I agree with you.

I totally agree.

That means that we talk about the Democratic Party, right?

Well, no, it means let's do talk about where it's effective to direct your energy.

First place it's effective is what are the things we can do right now through executive action.

And I, boy, sign me up for that conversation.

I'm ready to go.

As you know, I have written op-eds.

I've been on now two letters to the president, lining up all the things that I think that the administration can do on its own without Congress.

But the second part of what we can do on our own is we can hold every one of those Republicans accountable.

A third of them in the Senate will be up for re-election this year.

All of them in the House will be up for re-election this year.

We have a chance not only to hold on to the Senate, but actually to expand our lead in the Senate.

Two senators, we get two anti-filibuster pro-choice senators, and all of a sudden the whole world looks different because if we can hang on to the House and do that in the Senate, we can make Roe the law everywhere.

Texas, Massachusetts, Alabama, Illinois, we can make it the law everywhere.

And we can make it strongly the law.

That is, get rid of a lot of the craziness that got built in over the last few years.

And I think that's something.

worth getting out there and fighting for and that we truly are within months of being able to make make that change.

Senator, do you have a sense of which seats you think the Democrats could pick up?

Yes.

So, first, we've got to hold on to the 50 we've got.

Sure.

Right.

That's critical, but we're looking good.

The places I'm most excited about right now, Pennsylvania and Wisconsin.

Pennsylvania, John Fetterman, he has already gone on record about where he stands on the filibuster.

He's very much a supporter of Roe.

Same thing for Mandela Barnes in Wisconsin.

He would be a very strong partner.

We get those two people in the United States Senate.

And here's the part we need to see.

It's not that it pulls us back to where we were on the day before the Dobbs decision came down.

It's not that it pulls us back to this grinding that we've been in in the last year over reconciliation and you know how skinny a bill can we get through that we can get 50 votes for

it's that if we've got 50 democrats who really are willing to get rid of the filibuster now the dominoes start to click in the other direction so voting rights is now right there front and center ready to go and i mean robust voting rights protection for every american citizen to get a chance to vote and to get that vote counted.

Obviously, Roe, climate, we are there and ready to go.

Opportunity to unionize, the PRO Act, we are there and ready to go.

Tax reform, these giant corporations, what was it, 55

corporations made more, publicly traded, made more than a billion dollars in profits last year and paid zero or near zero in taxes.

We can fix that, the international tax, the 15% international minimum that shuts down these tax havens.

Universal child care, click, click, click, click, click.

We have enough votes to get all of those pieces through.

And so it's like, you know, people are always talking about, oh, most important election and then forever.

And, you know, now we've come to the fork in the road.

But this one really is.

This is a huge division in terms of what we'll be able to do.

So on, I did want to talk about you started listing a bunch of bills that we could pass.

So I've got a WIPA up in front of me and I'm familiar with the John Lewis Voting Rights Act and the For the People Act.

I would say I have some concerns with them.

Like one of the reasons we're here is because Texas and Mississippi ignored Roe v.

Wade and Casey when they were law.

Why should we expect them to respect the We the People Act and not just say that this is unconstitutional.

Congress doesn't doesn't have the power to tell us what to do here and keep going with their restrictive regimes.

Well, let's do it on WIPA.

To start, it's one thing

to say with Roe, oh, this is all court developed, court created.

The court has given us the language.

The court has shown that the language, shall we say, is somewhat malleable in terms of its particular application.

Now we have the opportunity to come back and do it by statute.

Will somebody sue and say you can't do this at the federal level?

Of course they will.

Somebody will sue.

I mean, come on, we're all lawyers here, let's be frank.

But

even

this Supreme Court

will recognize the places where Congress has the power to act.

Mitch McConnell has already assumed that he can act because he said he will ban abortions, right?

Or he will consider banning abortions all over the country.

So has Pence has said that, you know, this is what he'll do.

We've now got a bunch of, I think, a bunch of congressmen who've said that they will do this.

So I don't think anyone's saying Congress isn't in the game.

I think what they're saying is that Congress has not been in the game.

And when the courts have created the language, the power, they have obviously permitted the states to move in a direction I think is wrong, put it that way.

But I think you're actually raising a bigger point, and that is the importance

of getting Congress back in the game.

The EPA decision, for example,

in which the court does not say Congress can't do this, as I read the opinion.

The court says Congress didn't do this.

And we think if it's going to be that important, Congress should weigh in.

Well, okay, give me 52 senators and a teeny tiny majority in the House, but give me those two things.

And Joe Biden's still sitting in the White House.

And you know what?

We can make it clear that Congress wants them to do it.

All it takes is an amendment.

We can just put it in.

Gorsuch in the Native American case on the question of jurisdiction.

Castro Huerta.

Yes.

Notice what Gorsuch does.

He writes the language for us and says, here's the language that Congress needs to enact.

So I think part of what we've got

is

we recognize we can't rely on the court to protect our rights.

We recognize that the court is just way outside the mainstream.

This means Congress needs to clear its throat and act.

And I'll use that as one of the best reasons why we need to get rid of the filibuster.

Because it's one thing to have a filibuster when it is rarely used, and so on.

Although, let us all remember the racist roots of how the filibuster was used for so long.

That's right.

But it's quite another now to be able to say, Mitch McConnell just gets an automatic veto to anything that walks through

that you can't get 60 votes for, which means pretty much everything.

So that's why getting Pennsylvania, getting Wisconsin, and by the way, North Carolina might be in the hunt on that.

getting these Democrats in who start out saying no to the filibuster, That's what gives us the power to be talking about action.

And Senator, I'm glad that you brought up congressional action.

I also think even with congressional action, you still have the radical Supreme Court looming in the background.

Do you think items like jurisdiction stripping, for example, should be a part of this legislation, whether WIPA or the John Lewis Voting Rights Act, those kinds of things, or else that legislation is sort of threatened by the Supreme Court that will say this stuff is unconstitutional.

I think this is something we should explore: what it would mean to start using this tool on a regular basis.

You know, I would describe it this way.

I think we're going to see a lot of

potentially if the Democrats can hold on to

Congress and expand their lead in the Senate enough to solve the filibuster problem.

I think the next phase that we're going to watch in law is a much more dynamic interplay between Congress and the court.

And

my own surmise is that John Roberts, the institutionalist, will certainly be with

Kagan and Sodomayor and Katanji Brown Jackson in terms of the court has to be more modest in its assertion of dominance and shaping the legal landscape.

And the interesting question will be how many more can you pull off to that?

I understand

that some of the folks on the extreme right here

seem to be driven by outcome.

But the question is, how much are they willing to keep stretching the court's power into these areas?

It's not just the extremist outcomes.

It's the process along the way.

How much are they willing to do that?

And that's what will play out.

So what's your sense?

I agree that John Roberts has institutionalist tendencies, but I do wonder how far those go when he, for example, he writes the majority in West Virginia v EPA, which I thought was an aggressive opinion, right?

No, I know.

But remember, it was held to Congress didn't do it.

He didn't say Congress can't do it.

That is what he said, but I do think that Congress did do it.

I'm not going to defend that opinion.

It's a stupid opinion.

I'm not going there.

But I just want to say you can still hear the echo of the institutionalism in it.

And remember, he is the guy testing whether or not the Affordable Care Act could survive.

That he crafts this place in the middle to keep the court out.

Now, again, talk about a not a really good decision, a terrible decision.

But the point is, I thought that it reflected a kind of

the court cannot be in the business of going that far out structurally in terms terms of shaping the law.

That was how I read it.

Now, if I'm wrong, I'm wrong.

And I will still be glad then that we have a Democratic majority in the House and a Democratic majority in the Senate.

And remember, we got other tools here.

I'm in favor of expanding the Supreme Court.

Yes.

Yeah, so let's talk about that.

I mean, what is your sense?

of the appetite for court reform of any type on the Hill.

Obviously, we don't have, you know, 50 votes for expanding the court at this point, but there does seem to be some amount of momentum building, at least sort of within political discourse.

And there are more broadly popular reform options on the table, like term limits that are under discussion.

Do you have a general sense of where the wind is blowing among lawmakers on this?

Oh, there's a whole lot more appetite now than there was before the Dobbs decision.

Look at it this way.

When I ran for president, spoiler alert, I lost.

When I ran for president, I I talked about getting rid of the filibuster.

And I don't know if you remember this, but I think I was like, I don't know, was there one other person initially who agreed with me on that?

I'm not sure.

And my pitch was on every one of these.

All the Democrats would stand up during the presidential, and I said this also, by the way, I think during my Senate race.

Everybody would stand up and say, I'm for serious gun safety laws.

I want to get rid of assault weapons.

Don't belong on our streets.

We need background checks.

Or I'm, to talk about different things that they were in fact.

I'm for tax reform.

I want to get rid of Trump's tax stuff.

Anyway, talk through a bunch of these, immigration reform.

And I would say, if you're not willing to get rid of the filibuster, you're not serious about any of these proposals you've got, except for the ones that you can get through in reconciliation.

You're just not serious.

So if you really want to do immigration reform, if you really want to do gun reform, and then I started talking about Roe.

at that point, if you really want to put these through statutorily, you've got to get rid of the filibuster.

And

the appetite, as you put it, or the, you know, how is the wind blowing around here to get rid of the filibuster in 2018, 2019, pretty low, you know, very low.

But watching this past year after the Republicans, I think it was on voting rights that just

everyone started to tweak up and recognize

more clearly what the Republicans are up to.

And if they cut off voting rights, then

our whole democracy is thrown under the bus here.

So the importance of voting rights, you know, the John Lewis, as you were pointing out, you've got him in front of you, the John Lewis Voting Rights Act that passed almost unanimously.

20 years ago, now you can't even get, can't get a single Republican voter.

You can only get a handful of Republican votes for it.

And so a lot of folks who were never, never, never would I vote to get rid of the filibuster shifted over.

So now we're down to only

two hardcore defenders of the filibuster on the Democratic side.

Right.

Right.

I think this broadly speaks to maybe

the party sort of adopting a more combative,

sort of hard-nose, partisan approach, although not yet to my liking.

I don't think there's something something like 70

vacancies on the federal courts right now.

And all we're talking about here is the importance of the courts.

Not even half of them have nominees.

It looks like we're probably going to go to the midterms with at least 40 vacancies open without nominees, in part because Democrats are still giving Republicans vetoes on district court nominees.

Is that good enough?

If you're asking me, do I think we ought to be more combative

about

getting more judges through, all I can say is yes.

And if you tapped my phone lines first, I would say you can't do that.

But the second thing is you would hear me as I just sizzle various folks on Capitol Hill and elsewhere in government about the urgency of getting our judges through.

I just think it's absolutely critical.

And can I put in a pitch here?

It's not just that we need Democrats.

It's not just that we need people who are of different races and different genders.

It's that we need people of different lived experiences.

We need public defenders.

Okay, I didn't just say that to pander.

Yes, I need to do that.

We need,

but it's been my argument from the beginning.

We need people who didn't just work for giant law firms.

We need people who really come to the bench from having seen other slices of the world of America and of the legal world.

I think this is just crucial.

One of the first people that I was able to recommend when President Obama was still president was a labor lawyer, labor-side labor lawyer.

And while nobody did all of the research, as best we could tell, she was the first labor-side labor lawyer.

to be nominated and confirmed in like a bazillion years.

And that's really my point here.

Yes, you know how much we need a strong judiciary, district court, court of appeals, and Supreme Court.

And the way we do that is we've got to be combative.

We,

for decades now, the Republicans have understood the importance of who goes on the federal bench.

Exactly.

And they have played the game.

aggressively and smartly.

You have to give them credit.

They've played it effectively.

And we have just been dithering around, we Democrats, in the wrong end of the waiting pool on this one.

And

I

keep trying to pull more and more of my colleagues down to the deep end because that's where we need to be.

We need the right judges and we need them now.

Thank you so much, Senator, for your time.

We really appreciate it.

Yeah, we do.

Thank you.

Oh, thank you.

This is fun.

I could do this all day.

We'd love to have you all day.

This is cool.

I'm glad you do this.

And I love having an audience that we can talk about stuff like this and people have not fallen asleep.

I don't think you're the go-to-bed podcaster.

No, no, we're far from that.

Okay.

Go wake up and get angry.

That's just my ton of podcast.

Yeah.

Okay.

All right.

Thank you so much.

Bye-bye.

Bye-bye.

All right.

Let's take a quick break and then come back to discuss.

Okay, we are back.

So, what do you guys think?

Well,

speaking of filibusters, right?

She's the expert.

She just goes, I mean, obviously, she's one of the good ones, right?

And her political agenda aligns with us enough that I have very little interest in complaining about it.

You know, the general impression I get is she has some real loyalties to the party and

the president at the end of the day, or at least some bridges she's trying to maintain without burning too much.

And, you know, that's why you get the full dodge on the

did the administration fuck this up question.

When I think if you look at her policy proposals, including an executive order from June that was much more robust than what Biden put in place, you know, something like two weeks after the Dobbs decision, I think it's pretty clear that she does think that the response was inadequate.

And there's only a matter of getting her to say it, which apparently we're not the intrepid journalists to do, but I don't think we thought we were.

Yeah, I do feel a little bit like, you know, in the cartoons when the big,

what are those things?

The big construction with the huge flat wheel.

like runs over someone and they turn into like a little sheet of steamroller.

A steamroller, yeah.

Yeah.

A steamroller.

I've been steamrolled and I'm like a little flat sheet of paper now floating in the wind.

Yeah.

Well, I blame Rianne and Michael and I obviously can't interrupt her because that's talking over women, talking over PowerPoint.

That's your job, Rhea.

And

you're supposed to cut in.

Senator, stop.

Stop with the bullshit.

I was the third person to be steamrolled here, okay?

Regardless of my gender.

She also was a little dodging us on jurisdiction stripping.

Yeah.

Where there's a lot of like, we'll have to look at that stuff where I couldn't even get the sense of it's something that she herself would support.

Sure.

I think she has ideas for what the federal government, for what the administration, for what, you know, Congress could be doing in the wake of Dobbs.

And, you know, I think it's a disappointment that the rest of the party doesn't seem to have a taste for it, you know?

I mean, she did say something that I obviously agree with, which is that the party needs to be more combative and it needs to be more partisan and it needs to be better about the judiciary.

And I think that is broadly in line with our general critiques of the party, you know, that they don't take this stuff seriously enough and they don't fight hard enough on it.

And

they're getting better, but they're still not there, right?

And they're still prioritizing arcane senate rules over,

you know, securing

reproductive freedom.

But she seemed more willing to engage on expanding the court,

which I actually think is good.

Honestly, like jurisdiction stripping, like I would love for them to do it to protect the Women's Health Act, the WIPA, and any other laws that in

dream fantasy land where Democrats, you know, manage to ride a wave of anti-Dobbs public opinion to expanded majorities in the midterms.

I would like to see them protect their accomplishments in the wake of that.

But I think it's far more important to just generally be more combative with the court, right?

To be willing to take it on and to talk about the personnel and changing the personnel in a serious way.

And so if people are talking about expanding the court and if there's expanded appetite for that, which I think that's what I heard her say, then that's encouraging.

Yeah, I think that is like sort of the probably the boldest court reform measure, right?

Is literally expanding the Supreme Court.

But we asked her broadly about, Peter, I think it was your question, broadly about court reform, reform, other methods of court reform, right?

And she basically answered with an answer about the filibuster, not about sort of the other court reform options that are on the table, right?

Yeah.

And it is sort of on track with current Democratic messaging,

which is that the Republicans are this obstructionist force.

And if you just help us nudge them out of the way, we will deliver the utopia to you.

Right.

Right.

Here's our list of bills.

And a little bit light on

here's what we're using the power that we have right now, no matter how limited it is, to fight for your rights and sort of prove that we are the people to do this, right?

That you're not placing your faith in the wrong institution here.

I will say there's like a sort of a complete picture she paints that is like she describes basically

a more open dialogue between Congress and the court

where,

okay,

you say we need to act.

we're acting.

So the way I take it is she's saying that they're not necessarily talking about fucking around with on the edges with the court, where it's like they're going to legislate.

Right.

And if the court continues to step in, then they're just going to change the personnel in the court.

That's, I think, the most generous reading of

her answers.

Yeah.

Right.

Which is a coherent approach.

Like, look, we'll have a dialogue.

It is.

And it's in line with things we talked about with Jamel about a sort of reconceptualization of the constitutional order, right?

One where there's interplay between the branches and the court and Congress and the president are sort of all engaged more directly in the project of interpreting the Constitution and conceptualizing the Constitution.

On the other hand, I think that the less generous read of that is that it's an overly credulous approach to the court, that you're just walking right into a gauntlet where you're going to get swatted back and they're going to say, now what?

Right.

And why waste time on phase one?

Right.

Why waste time on having them prove to you that they are the partisan hacks that we all know they are?

Right.

And kicking like the reform can down the road to a later Congress that is going to then have

presidential election between now and then and maybe a new president or maybe the same one.

But like the political world and calculus will be transformed.

So

and there is like, I mean, I think I've made this point on Twitter, but there's like a

if Bush v.

Gore didn't convince mainstream Democratic leaders to take on the court and Citizens United didn't do it and Shelby County didn't do it and Ruchio v.

Common Cause didn't do it, right?

And all these awful cases we talk about and now Dobbs doesn't do it.

Yeah.

I don't know.

Is it really like, well, the next time, the next time is going to be the time that does it, right?

I promise.

Next time.

Next election, next Supreme Court decision,

it does feel like there's a little bit of that going on.

Yeah.

And, you know, the statement that this is, in fact, the most important election, it's like, come on.

You can't do it two elections in a row.

Yeah.

You got to split them up by at least four years.

I mean, it was 2016.

Let's be real.

It was.

And like second place, 2020, right?

It's this is like the third in the last 10 years

at best.

I mean, we just have like the retroactive confirmation, like Gensburg did die, unfortunately, and was replaced and that has like transformed the country like those things happened and there's the next important election will be the one on the democratic side would be one that actually was a springboard to transforming the personnel in the court in a roughly analogous way in terms of shift yeah right otherwise like who are we kidding yeah you know senator warren did say after we stopped recording that she was slowly slipping joe manchin the nerve agent that the russians used used on Viktor Yushchenko.

So, you know, give it a few months.

We'll see.

Also, I think Leannan's probably going to get nominated for a district court

judgeship, right?

Is that what she implied?

I think, I feel like

there was a clear line in her logic: you're a public defender, we need more public defenders on the bench.

Simple enough, enjoy being a Fifth Circuit District Court judge.

The only job more depressing than being a public defender.

Next week,

we are doing sort of a bit of a live show.

We recorded

a

show at the People's Parity Project annual convening in DC a couple weeks ago.

We discussed free speech, cancel culture, and the court.

It was a pretty good discussion, and we'll be putting it out as a premium episode next week.

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