5-4 x Know Your Enemy: "Overturning Roe, Part One"

Hey folks, Rhea, Michael, and I were guests recently on Know Your Enemy talking about the origins of the conservative legal movement and its decades-long campaign to overturn Roe v.

Wade.

Know Your Enemy, if you don't know, is a podcast about the American right, and this episode is part of a series they're doing called How They Did It, about the likely reversal of Roe.

So, in this episode, we talk about the role that violent anti-abortion groups have played in the broader anti-abortion movement, the role of the Federalist Society in the conservative takeover of the court, and why and how conservatives just kept hacking away at Roe, even when the courts were ruling against them.

We had a lot of fun doing the episode, even though it's a pretty fucking grim topic, of course.

So, we wanted to share it with you guys.

If you like it, you can find Know Your Enemy wherever you get your podcasts.

And we will see you next week with Egbert v.

Boulet.

A case about whether Border Patrol agents can just brutalize you without repercussion.

And spoiler, the answer is yes.

All right.

Welcome, listeners, to episode 56 of Know Your Enemy.

I'm Matt Sitman, your podcast co-host, and I'm here with my great friend, Sam Adler Bell.

Hi, Matt.

Hey, Sam.

I'm excited for, well, all of our episodes, but this one in particular.

Yeah, it's a good one.

This is the first of a three-part series we're planning on the impending overturning of Roe v.

Wade.

Yeah, exactly.

This episode in particular is on the legal aspect of that, the federal society, the conservative legal movement, and the kind of intellectual work that conservatives did around Roe v.

Wade to kind of get us to this point.

Yeah, exactly.

So listeners can look forward to at least two more episodes in this series, How They Did It, It on the Rights Battle Against Abortion Rights.

So who do we have on for this one?

You know, we were thinking about who we could have on to talk about this, and there really was no other choice than our great friends at the 5-4 podcast.

So Peter, Rhiannon, and Michael joined us.

They were fantastic.

We couldn't have asked for better guests.

We had a lot of fun doing it with them.

We're very grateful they took the time to talk with us.

Absolutely.

We've had them on the podcast once before.

Their podcast, 5-4, about why the Supreme Court sucks is awesome.

So they were perfect guests for this episode.

Yes, and we wanted to plug another podcast before we get to our housekeeping items.

Speaking of 5-4, you know, we were first put in touch with our friends at that podcast by Leon Napok, podcast guru.

You'll remember him from Slowburn back in the slate days.

His new podcast is Fiasco.

There's a new season of it on the AIDS crisis in America, and it's available in Audible.

And we wanted to plug that because Leon's been a great friend of the pod.

And, you know, these deep dives he does really, I love listening to them.

And I think this series on the AIDS crisis, again, available on Audible, there'll be a lot of overlap that our listeners will appreciate.

I think, especially, of course, this all unfolded during the Reagan years.

Yeah, and listeners will remember we had Leon on along with Rick Perlstein when he did his season of fiasco on the Boston busing crisis.

That's a great episode.

That season was excellent, too.

But I feel like for our listeners, just as much this series on the AIDS crisis is going to be right in their wheelhouse.

You've got the Christian Wright, you've got Reagan, obviously.

And, you know, also

the whole season was recorded and unfolded during COVID.

And so a lot of the people who are remembering back to that time were making connections between now and then, which are probably very illuminating.

Yes.

So we wanted to give a shout out to Leon's new podcast, the latest season of Fiasco on Audible.

Well, Sam, I think we should get to housekeeping items that turn this over to the conversation we had.

Yeah.

As always, we're grateful for our partners at Dissent for sponsoring the podcast.

One of the things they do that is really great is for $10 a month, if you subscribe to Know Your Enemy on patreon.com slash know your enemy, you get access not only to all of our bonus episodes, but a free digital subscription to Dissent.

And of course, for $5 a month, you have access to all of our bonus episodes.

So please do consider supporting us in that way.

And as always, we want to thank Jesse Brennan, our intrepid producer, who did a great job pulling this episode together, and Will Epstein, who does the music for the podcast.

And as always, rate and review us on iTunes and

tell your friends about Know Your Enemy.

Yes, spread the word.

Well, with that, let's get to it.

This is the first of three episodes we're going to do on the impending overturning of Roe v.

Wade.

If you don't enjoy it, we at least hope you come away from it informed about what's happening.

All right, here we go.

Well, listeners, we're very excited to be joined by our friends at the Five to Four podcast, Michael, Rhiannon, and Peter.

Welcome.

Hey, hello.

Hi, thanks for having us.

Because there's a lot of people on the podcast, could you all just say your names, introduce yourselves?

Yeah, sure.

I am Peter.

I'm Michael.

And everybody will be able to tell me apart.

I'm Rhiannon.

We're really excited to talk to you.

We know you're very busy.

It's been a

the news cycle regarding Supreme Court cases has been.

I'm sure you guys have been taxed.

Yeah, you could say that.

Yeah, but for the sake of your podcast, I think more and more people are agreeing with the premise that the Supreme Court does indeed suck.

Yes.

Isn't that convenient?

We started this podcast a couple years ago now, and now everybody's everybody's got something to say about how much the Supreme Court sucks.

We have a lot of agreement from our audience of left law students and lawyers, and now we're trying to reach your audience of a feat conservative person.

There are at least a few of those who listen, so tell them what for.

I was surprised during my recent brief Twitter ban how many conservatives wanted me back.

It was a little disturbing, actually.

I don't know how you should feel about that, Matt.

I I don't know what that means.

It was nuts.

I mean, I was on Twitter seeing all this happen, you know, trying to get some attention for Matt.

And, like, everyone was like, oh, my God, we love Matt.

If they have to take one of you, it should be Sam.

Like, Matt's a saint.

He's the best person on Twitter ever.

Fuck this shit.

You know what I mean?

Come on.

Well, it was unusual in the sense that usually when someone from left Twitter goes, people are like, well, it's probably from when he sent a death threat to Nancy Pelosi, right?

And with Matt, it was like you couldn't even think of a single thing it could be, right?

Matt will admonish himself for even thinking that, you know, something bad should happen to Nancy Pelosi.

It's true.

I have the Catholic guilt going on.

So, you know, when I was banned, I was like, why wouldn't they ban me?

You know, I deserve it.

Well, what are we talking about, Matt?

Well, you know, this is the first in a few episodes we're going to do about the seeming impending overturning of Roe versus Wade.

And of course, you know, a lot of speculation about that, a lot of recent discussion about that has centered around the leaked opinion in Dobbs, the Dobbs case, written by Samuel Lito, the purported majority opinion.

And I thought that'd be a good place to start.

I was wondering if all of you could tell us a little bit about what this decision was, what the main lines of argument in it were, and how we should think about it before we kind of then work backwards toward how we got here.

Sure.

So, you you know, what's at issue in the Dobbs case, this case comes out of Mississippi, and Mississippi passed a 15-week ban on abortion.

Now, this would represent like a pretty big shift in the law.

Right now, under current jurisprudence, viability about, you know, 23, 24 weeks into a pregnancy is when a state can start outright banning abortion.

So this would represent a huge shift in the law.

And turning to this Dobbs draft, Justice Alito's opinion, you know, I think paring it all the way down, the question that he's answering, sort of an essential question, is what is a fundamental right under the 14th Amendment?

Is privacy a fundamental right?

And is abortion included there, right, in the right to privacy?

So that's the essential question that he's kind of answering.

And that's because, just for the listeners, like, that's because the original Roe ruling relies on this idea of the privacy right in the 14th Amendment to identify a constitutional right to abortion.

Aaron Ross Powell, yeah, that's exactly right.

There's also, it also is the sort of foundation of the right to contraception, that kind of thing.

So the way he answers this question, is abortion a fundamental right that is guaranteed by the 14th Amendment, he says no.

And there's a line of conservative thinking under this substantive due process analysis that basically fundamental rights only exist.

The Constitution only protects fundamental rights that we've kind of historically always had, that are deeply rooted, right?

That's the terminology.

Yeah, deeply rooted in historical traditional notions of ordered liberty.

When this thing leaked, were all of you surprised?

Was there anything about the kind of substance of the opinion that wasn't what you were necessarily expecting?

I would say

no.

I mean, I guess to the extent I was surprised at all, it was almost to like how to type it was, right?

Like if you've read about abortion in legal circles at any time in the last 20 years, all these arguments are familiar to you.

Like everything he trots out has been out there for a long time.

And it's not surprising that they are overturning Roe v.

Wade.

I think there were some people who were in very strong denial about what was happening.

But for those of us in the real world,

this was clearly coming down the pipe for a long time.

I think the fact of the leak was pretty surprising to me.

Yeah, yeah.

There you go.

That was the surprise.

That was the surprise.

Yeah, we don't want to get too sidetracked by that, but what do you all make of that?

I'm going to go on the record.

I think that a boy did it.

That's my leading theory.

You would.

You would.

Our initial instinct and everyone's initial instinct was like, a liberal did this, right?

A fed up liberal was like, fuck this, you know, I'm just going to sort of ruffle some feathers and throw this out there.

The theory that it was a conservative who is trying to sort of like lock down five votes has risen to prominence.

I do think like the conservative leaker theory is a little too cute.

It's imputing a lot of craftiness and strategic thought to the leak.

And I'm not, I'm, I'm much more inclined to believe that it was someone who was just sort of fed up and tossing it out there.

But I mean, it could easily be wrong.

So in other words, you know, the theory that it might be, say, Ginny Thomas, you're not sold that the same person who texted Mark Meadows about releasing the Kraken was a brilliant strategic mind behind this leak.

If Ginny Thomas was able to like successfully pin down five votes and it turns out that her craftiness in leaking this is what destroyed Roe, that's it for me.

You know,

I fucking give up.

It's the funniest outcome, obviously, is that Ginny is the leaker.

There's no question.

I would welcome it.

It would be incredible.

It would be just phenomenal news for our podcast.

Yeah.

I do not see Ginny Thomas leaking anything to the media that doesn't seem within her character, unfortunately.

I'd say the best evidence right now for it being a conservative, the only thing that has given me second thoughts on my initial read of it is that after the initial sort of Fuhrer, where all the conservatives were saying, impeach whoever leaked this and their career should be ended, it got very quiet

in a matter of like, I think 48 hours.

And so I do kind of wonder if there was like somebody was sort of like, hey, guys,

maybe, maybe relax on that.

Maybe ease up on that, you know?

And it kind of made its way around that they should cool their jets on calling for someone's head.

That's the best insight I can offer on that.

I just thought it was wild.

Like, I really don't have a strong theory of who did it.

I do think Occam's razor, it's probably just a fed up liberal, liberal clerk.

But I do think the fact of the leak was wild.

It's unprecedented in terms of a leaked opinion of at least this kind of controversy.

This is just not usually in Supreme Court news.

So a definite break with tradition.

The Norms lovers were really up in arms about this.

Was it Scotusquad who had the...

Scott as fuck.

It was just like a crazy tweet.

I can't get over it.

It was like, this is the worst thing since like.

The gravest sin, I believe it said.

Yeah.

Gravest sin, unforgivable since was the terminology.

Yeah.

The gravest, most unforgivable sin.

Oh, man.

That's our competition in media coverage of the Supreme Court over there.

And maybe we'll get to this later on, or it's kind of a theme on your podcast is like, it should be the goal of people who want, you know, a more just and egalitarian society for the Supreme Court to lose legitimacy.

And this did seem like both a potential, like a symptom and a potential cause of that continuing up pace, the losing of legitimacy of the court.

As a Supreme Court delegitimization accelerationist, I thought this was a good thing to happen no matter what.

Yeah, completely agree.

And we've been talking about that for quite some time.

You know, when people talk about the legitimacy of the institution, we've said the legitimacy of reactionary institutions is not good on balance.

And it's been enjoyable to watch it all fall apart kind of, you know, very rapidly, frankly.

I mean, I loved Clarence Thomas saying that he would resign if he ever did his job as poorly as like Supreme Court media people.

Retire now, man.

We want to kind of talk about how we got to this place.

We can't talk about everything in this episode.

We'll do other episodes on, say, the religious right and their kind of emergence in the 70s and their relation to abortion politics.

But we want to focus on kind of the courts, the legal aspect of this impending overturning overturning of Roe, and the kind of intellectual and political infrastructure that the right built to kind of get to this place.

When you were on our podcast before, we talked about the origins of originalism, the kind of conservative legal movement, and how they were bound up with the kind of advances made during the Warren Court in the 50s and 60s.

And, you know, there's a lot of discourse these days about the relationship between, say, racism and desegregation and the religious right and, you know, whether that was the true origins of the religious right and abortion came in later.

And this is kind of like a live question for a lot of people that's being debated.

So how do you conceptualize abortion's place in the conservative legal movement and originalism?

It's difficult to sort of pinpoint what precisely, if anything, if any single thing does, kicks off the conservative legal movement.

But if you sort of take the question

and broaden it a bit and say, how much of originalism, say, was a response to Roe and other liberal interpretations of the 14th Amendment, then I think the answer is all of it, or close to all of it.

There's obviously some denial about this on the right, because they want to believe that they are adhering in good faith to a coherent intellectual framework, but the timeline is pretty clear.

You have these liberal wins in the mid-century

primarily revolving around the 14th Amendment and these sort of vague terms within the 14th Amendment, like liberty, right?

What does it mean to protect liberty?

And there's a very marked movement, not necessarily for originalism at first, but against living constitutionalism, right?

The idea that our interpretation of the Constitution should evolve over time.

Parts of the movement pretty clearly predate Roe.

Like Robert Bork is sort of considered to be the OG originalist guy.

He publishes a law review piece on living constitutionalism in 1971, where he's sort of planting the seed of originalism.

So two years before Roe, in other words.

Right.

Right after Roe, there is a spate of scholarship that's essentially saying,

whatever you thought of the 14th Amendment before, they've clearly gone too far here, right?

And a lot of the authors are sort of hashing out ideas that we would now recognize as originalist.

Rehnquist writes a law review article in 1976 arguing against living constitutionalism.

That's while he's on the court.

Is that unusual for them to write a law review article while they're on the court?

I think at the time it wasn't.

It would be unusual now,

relatively speaking.

At the time, it was a little more common.

Supreme Court justices didn't have like narrowly defined roles.

Some of them were sort of statesmen.

Some of them were academics, right?

They were doing their own things to a much larger degree.

You know, there's tons of scholarship in the late 70s that we now sort of recognize as the building blocks of originalism.

And to be clear, the notion of being guided by the original intent or meaning of the Constitution, it wasn't a novel thing, but it's only after Rowe and these other 14th Amendment cases that it crystallizes into like this very discrete and rigid interpretive theory.

Before that, it was just like one of many norms and guideposts that lawyers would reference when reading the Constitution.

So I think when you look back at that, it's hard not to see that the scholarship kicks into overdrive right after Roe.

And if someone wants to argue that like the timing of all this was a coincidence, you know, fine.

I just think that they have the brain of a baby bird.

I just wanted to add to one thing to Peter's point about originalism sort of being new and novel as a rigid mode of analysis, but its sort of elements being familiar within jurisprudence.

You know, it's worth noting that like you go back past like the 1950s and your Supreme Court opinions were like three pages long.

Like

the idea of any sort of systematic, like, you know, rigid theory behind what they were doing is silly if you read them.

It was just, it was just, they were just vibing out.

So, I mean, yeah, this is all very much a modern invention.

It's like the way jurisprudence is done has evolved, and this is a part of that.

I just wanted to ask before we went further, you know, what was the interpretation of the 14th Amendment, you know, in the cases that relied upon this, the right reacted against?

Like, what was being said about the 14th Amendment?

How was it being interpreted?

The big thing is the 14th Amendment has the due process clause, which which says that the state won't deprive you of life, liberty, or property without due process.

And that applies to the state governments, not the federal government.

And so the question is,

what's the liberty?

What's that component in there?

What does it contain?

Is it just

your physical liberty, confinement to a cell?

You won't be physically restrained?

Or something broader?

And I think, you know, if you talk to like a libertarian, right, their conception of liberty, if you tell them they have to get a driver's license to, you know, drive on the public roads, they'll tell you their liberty is being infringed upon.

Right, right.

Like, literally, like, there's that amazing clip from the libertarian presidential

convention a couple years ago where like Gary Johnson was running for the

libertarian nomination.

He's like, yeah, like, I'm okay with driver's license.

There's like, you know, shouts.

Did someone have to have a government-issued license to drive a car?

Hell no.

What's next?

Requiring a license to make make toast in your own damn toaster?

The license to drive?

You know, I'd like to see some competency exhibited by people before they drive.

Boo.

But so there's like very capacious understandings of what the liberty clause means, which would like unquestionably include the kinds of decisional or bodily autonomy arguments that were used in Roe.

Yeah, so the idea with the right to privacy, I think, can get misunderstood.

The idea is is that your liberty includes like a zone of like autonomy that's not a matter of public concern.

Like it's not something for the government in that sort of public sense.

And that's why it's a right of privacy.

It's like a zone of privacy because that's part of your liberty, right?

Like if you go to the pharmacy to pick up contraception because you and your significant other don't want to have kids yet, and they say no, you're going to feel like your liberty's being infringed upon that you're not getting to live your life in the way that you see fit right that's that's sort of the key insight i think that it's like the foundation of all this yeah and and to go back a little farther i mean it's important to know that the 14th amendment is a reconstruction amendment right and then after

it's passed there's sort of a a legal stalemate that matches the political stalemate in the country right so you have this long period where no one's really doing anything with the 14th Amendment.

And when they try, like in Plessy v.

Ferguson in the 1890s, it just gets slapped down by the court, you know, the court upholding segregation.

And so what happens is that there are many decades where there's really no development of what this actually means.

And then as the 1900s begin, you see the court use it to protect contract rights for many years.

That's what was going on after the Civil War.

They were like,

we got to protect the right of people to make contracts.

That's the important thing here.

And then that gets struck down in the 30s.

And there is like this spate of new scholarship and just sort of open pontificating

about what exactly is the 14th Amendment is talking about, right?

How should we be interpreting it?

It's sort of that discussion that leads to the liberal interpretations of the 50s and 60s.

And then the conservatives freak out, sort of thinking, well,

you know, we didn't exactly have a coherent theory of what it meant, but not fucking that, right?

Something besides that.

Just so the listeners know, you know, before Roe, what were the other big 14th Amendment-reliant decisions?

The big one is Griswold v.

Connecticut, which is the case protecting contraceptive rights for married couples and the case that really established the right to privacy as it was interpreted in Roe.

Now, you had discussions of privacy in the context of other amendments, like the Fourth Amendment.

That sort of leads the court to its conclusion in Griswold.

And then you also had equal protection also in the 14th Amendment, which has its own strings of cases in many different areas, all of which made conservatives quite annoyed as well.

But Roe is really, I think,

essentially, you could say the second major case in the right to privacy line of cases under the 14th Amendment.

Yeah.

And so a lot of what you're talking about here in terms of the liberal Warren Court's interpretation of the 14th Amendment, I mean, like one of the big bugbears for Scalia was substantive due process, right?

And this is what you're describing essentially.

Yeah, that the due process clause, it's not just a guarantee of some like procedural

safeguards, that that word liberty in there has a substantive component that is capacious, right?

That's very broad.

You know, a substantive due process is very out of favor in the legal academy on the left and right.

And I think that's wrong.

I think it's like very obviously true that what the point of the Civil War amendments was, was to guarantee liberty and equality for the citizens of this country.

Including the ex-slaves.

Including the ex-slaves and from the states as well, right?

This was about proactively making sure that

your liberty is not being infringed on wherever you are, right?

It's empowering Congress to make laws.

Like, this is an aggressive amendment.

I think it's just unquestionably the correct reading of it.

And it's a shame that that's like gauche to say.

Another nerd point to make here is like, you have the Ninth Amendment, which says that just because a right is not enumerated in the Constitution doesn't mean you don't have it.

And everyone has sort of looked at that and just scratched their heads, not sure what to do with it from an interpretive perspective, and then just like put it on the shelf, right?

It's just sort of this academic novelty.

So one of the arguments for reading the 14th Amendment broadly is,

well, if you're not going to do anything with the Ninth Amendment, then you need somewhere to sort of store these general conceptions of liberty that need to be protected, right?

And it makes perfect sense for it to be the 14th Amendment.

And I'm not necessarily saying that I embrace, you know, shutting down substantive due process process and using the Ninth Amendment.

I don't particularly think it matters.

But it is very annoying to have formalists talk about how we're sort of reading too much into the 14th Amendment while they completely ignore the Ninth Amendment.

So this is sort of giving us some of the resources to think about the intellectual conservative arguments against Roe that Alito uses and that subsequent cases that sort of chip away at the constitutional right to abortion rely on.

Before we get to what I think is going to be a big part of the conversation, which is kind of how did they do it institutionally, could one or many of you describe the kind of trajectory of sort of post-Roe abortion, constitutional litigation that gets us to this point?

The really big one to keep in mind, the big case to keep in mind is Planned Parenthood v.

Casey.

That's a case that comes down in the early 90s, you know, so about almost exactly 20 years after Roe.

And conservatives had control of the court at the time, and they were completely gunning to overturn Roe.

Many conservatives, many people hoped that Planned Parenthood vKC would be the case that overturned Roe.

Instead, the moderate conservatives on the court at the time kind of band together and uphold Roe, but they do limit it in two ways.

So, first, they get rid of what's called the trimester framework from Roe.

And, like I said earlier, they say what matters is viability.

So they say that states can regulate abortions after a fetus is viable.

But before that, this is the second part of the limitation on Roe that Planned Parenthood VKC introduces, is that before viability, the question on when a state can regulate abortion is whether or not it places a so-called undue burden on the ability of a pregnant person to seek an abortion.

So, you know, the standard created in Roe was a lot stricter, that during the first trimester of a pregnancy and into the second trimester of a pregnancy, it was really hard for states to regulate abortion at all.

Here in Planned Parenthood v.

Casey, the conservative legal movement does get a smaller win than they expected, but the court is green lighting basically regulation of abortion before viability, as long as it doesn't place that undue burden on somebody.

Now, what I think is really interesting is that after this, what ends up happening, even though conservatives on the court at the time, namely Sandra Day O'Connor, is saying that because of precedent, because of the importance of star decisis, we are upholding Roe.

People have relied on this decision now.

The public is used to this, and so we have to keep it.

But what ends up happening is that like much of the following 30 years of litigation about abortion ended up being about what exactly it means to place an undue burden on the ability of someone to get an abortion, right?

And so it becomes a fight on Roe, an attack on Roe in this kind of death by a thousand cuts, right?

Conservative lawmakers in the states impose all sorts of restrictions on abortion and they're testing it out in the courts.

Is this an undue burden?

Is this an undue burden?

And conservative courts are coming back with rulings that say, no, that's not an undue burden.

That burden is very due.

Exactly, yeah.

And greenlighting more and more sort of restrictions on the abortion right.

Now, something that happens in the early 2000s, which I think is illustrative of how conservatives, even though to liberals it seemed like they were losing at the Supreme Court, they kept with this project is in the year 2000, there's this case called Stenberg v.

Carhartt, in which the Supreme Court actually strikes down a Nebraska law that banned late-term abortion procedures, which are only used really when it's dangerous for someone to give birth, you know, someone's life is in danger.

And so the court said, no, you can't ban these kinds of abortion procedures.

And then just seven years later, the court essentially overruled itself when they uphold the federal ban on late-term abortion procedures.

And they say that the 2003 Partial Birth Abortion Act is constitutional.

So the difference in that seven years, at least in the makeup of the court, is that, you know, moderate conservative Sandra Day O'Connor had retired and Mr.

Samuel Alito had taken her spot.

And you see how conservatives really bring that litigation over and over and over again, even when they were, by liberal standards, losing, they got the different outcomes that they were looking for.

It's really striking, you know, Rhianna, and your emphasis on them kind of trying again and again.

One of the things that really struck me in researching this episode was when Roe came down in the early 70s, public opinion was not really favoring the anti-abortion movement.

Even within the Republican Party, I think it wasn't until 1988 that more Democrats than Republicans favored abortion rights.

And so they were fighting an uphill battle for a long time.

And I think that's one of the most important parts of this story, their persistence against some of the unpopularity of their positions.

And I think that was a factor in them choosing a court-centered strategy, too.

The branch of government most insulated from public opinion yeah absolutely i do want to say that uh as much as i i hate the people who engineered all this and and who put so much time and effort into trying to seize control of a branch of government to impose a wildly unpopular and regressive agenda on the rest of us i do admire i do admire their dedication and i admire their organization and and their their work and can you imagine like a left equivalent uh like no exactly exactly passing like campaign finance laws over and over and over and continually bringing them up to court right

getting sued and arguing no you know what uh corporations aren't people and money isn't speech and we can do this over and over and over Edwin Meese Reagan's attorney general he said in 2000 he did an interview when he said where he said that like Planned Parenthood v.

Casey and their failure to overturn Roe v.

Wade was like their biggest failure of the Reagan legal agenda.

Can you imagine Merritt Garland in 10 years saying that about any issue, that we didn't change some Supreme Court precedent, and that was their big failure of the Biden administration?

Not getting Donald Trump three days of probation for his involvement in 1.6 was our greatest failure.

They would say that having an agenda would be a failure.

It's so fucking pathetic.

It's enraging.

It is.

It makes me so angry.

That was kind of what I was driving at, which is that it's really fascinating to me that when you really look back at this, you know, in the early 70s, the Republican Party simply wasn't a pro-life party.

It wasn't an anti-choice party.

And, you know, these people looked at the political landscape, public opinion, et cetera, and took on a project they knew was not instinctively popular.

And it's impossible to imagine Democrats looking out at the political landscape and making the same decision.

They won't won't do that for issues that are popular.

Right, right.

Imagine how hampered the conservative movement would have been if they were in the 70s trying to fight against abortion and they saw a Matt Iglesias tweet, like, I just think we should do popular things, you know?

Exactly.

The Republican strategy on abortion, the right-wing strategy on abortion, I should say, from the early 70s on, was like the opposite of popularism, which kind of popularism kind of looks at public opinion as this fixed, immovable thing, and that, well, this is the cards we're dealt.

We just got to play our hand rather than saying we could change the nature of the game, actually.

Right.

This is an interesting moment, right, where Roe has been won, but the Christian right is beginning to sort of coalesce and sort of seeing the Republican Party as a sort of vehicle for its grievances and for the project it's trying to win in the 70s and the 80s.

And one thing that I really didn't know that much about until I was reading for this episode was just how big a part of the anti-choice movement was the harassment and violence against abortion doctors and clinics.

Like the grassroots movement was really extremely radical.

And there were ways in which that was helpful for like radicalizing the base, but there were also ways in which that alienated a like potential broader coalition around anti-choice politics.

And I don't know if you've read this book by Joshua Wilson.

It's called Street Street Politics of Abortion.

But he makes this argument that at this, there's this moment where they're like, we're not going to win this either at the national level or via these like freaks who are like actually like threatening the lives of abortion doctors and bombing clinics.

And so what we need to do is use the states and the courts instead.

It's a really weird moment because on the one hand, it's like they're doing this insane, evil shit, right?

And it and it may be sort of coalescing a radical fringe of the anti-choice movement, but it's unpopular at like a mainstream political level.

I mean, well, Sam, it's so interesting to me that 1973, the same year as Roe, Paul Weirich, one of the founders of the Moral Majority, a founder of the Heritage Foundation, that's when ALEC, the American Legislative Exchange Council, is started.

It is fascinating to me that they kind of operate along the lines of the federal judiciary and then state-level legislation.

Right.

Because they can't really corral a national majority for their position on abortion.

There's also this story about how, like, some of these public interest Christian legal movement organizations are founded to defend people who do violence against abortion clinics.

I don't know.

Right.

Like, which is nuts.

Yeah.

Yeah.

No, I guess, like, so the one thing I would respond to that is, I think it's pretty common to see political movements have like a sort of paramilitary wing, right?

And I think what benefits them more than anything is not actually being distanced from those wings, but from maintaining a studied public-facing distance from those wings, right?

Like the Klan wasn't necessarily like folded into a party, or the Proud Boys aren't a wing of the Republican Party now.

You kind of have to be like, well, look,

that's not us.

We wear ties and we go and we make change in the halls of power, blah, blah, blah.

But they're very much a part of the same thing.

I don't want to let them off the hook by being like, no, they were like, let's go to the courts.

Let's not do that.

Right.

Like,

I want to be very clear on that.

I don't think it was an either or.

No, I totally agree, Michael.

I want to say one thing in response to what you just said, Michael, which is that I actually agree, in particular, because I did not know that like some of these public interest like Christian legal movement like firms were founded to defend people who were engaged in violence and harassment against the clinics.

So like it's all a piece.

It's a movement.

It's coherent.

Exactly.

They're in coalition.

Right.

Well, I think that we should kind of turn to the kind of institutional and movement response on the right that, you know, built the infrastructure that now seems on the precipice of overturning Roe.

And of course, one of the signal events in that is in 1982, the founding of the Federal Society, which is

the conservative legal organization that it provides a number of functions on the right.

And of course, the Federal Society isn't the only actor here.

As we were just kind of gesturing at, there's been any number of kind of explicitly Christian, right-wing, anti-choice, anti-abortion legal organizations.

But the Federal Society has been so successful and their role in staffing the federal judiciary, especially during the Trump administration when it was just literally a kind of list of judges that Leonard Leo gave Trump.

You know, we'd be remiss not to talk about them.

How important was Roe to their founding?

I think it was pretty important.

Part of the inciting incident for the Federal Society was this like realization on the part of of the right wing that just because Nixon won and got to appoint Supreme Court justices didn't mean that they were just going to get everything they wanted.

And that a lot of times Nixon was appointing people that they didn't think was conservative enough, or their justices didn't even have conservative clerks that they could hire.

Everybody they spoke to in their circles were liberal and they were very much on the outside looking in, right?

And so I think it was this sense that the entire legal culture and like all the legal institutions were captured by liberals to the point that even having conservatives in positions of power didn't matter that much was fertile ground for something like the federal society to grow out of, for these people to find a place where they felt at home.

So it came out of that.

It came out of Roe v.

Wade.

It came out of other conservative losses in the 70s and 60s, but it was a big part of it.

It set the stage.

Michael, one of the books that you had recommended to me to read to prepare for this was called The Line That Binds by Elise Hoag and Ellie Langford.

And one of the things they mentioned is that when it came to you know, the founding of the federal society and kind of identifying legal minds who are on board with their project, actually, you know, opposition to Roe

was a very telling indicator that they were really on board.

In fact, I'll quote them, they say, the Federal Society scoped out the legal aspect of Falwell and Paul Weyrick's new strategy, and it found that abortion proved to be an excellent litness test for likely members of the radical right.

It turned out that young and ambitious legal minds who held antipathy to Roe versus Wade were far more likely to also adhere to the broader philosophy and policy preferences of their movement.

Yeah, I think that's absolutely right.

And I think it gets to the importance of the federal society, like the role it plays in the conservative legal movement.

You know, if you ask conservatives about what started the heated confirmation wars at the courts, they'll tell you it's Robert Bork.

And liberals will roll their eyes and say, well, he got an up and down vote.

Nobody filibustered.

He lost an up and down vote.

And it was a bipartisan up and down vote.

So blah, blah, blah.

They're full of shit.

But I think it's true in the sense that like Robert Bork was very open about who he was and what he believed.

And it was rejected very publicly and obviously.

And I think the way to conceptualize the conservative legal movement in the last 30 years was, well, like, how do we fill the courts with people who believe things that Robert Bork believes

without getting slaughtered in confirmation hearings, without being embarrassments, without, you know, just losing our own members.

And

so you have all these like robots who go up there and lie through their teeth and say something is a precedent or settled law.

They go through all the same motions.

They give the same bullshit answers that everybody knows is bullshit.

And the question is, well, okay, well, if anybody can go up there and give the same bullshit answers to get through a confirmation hearing, well, how do you know that they're true believers?

Right.

That's what the federal society does.

That's what it is.

It's the mark that lets you know: well, like, whatever they say, they might not write anything controversial in law school, they might not say anything controversial as a lower court judge or whatever, and they might be very bland at their hearings, but you know, when push comes to shove, they're going to do that like heinous, unpopular shit that you really want them to do.

Yeah, their hands have been stamped.

You know,

exactly.

Yeah, and it's really telling that during the George W.

Bush administration, when Harriet Myers was proposed as a nominee, she was eventually, of course, replaced by Lido, I believe.

One of the ways that people were suspicious of her was she didn't have deep ties to the Federal Society.

She was a W person from Texas, not a Federal Society person.

And so that was like one of the marks against her.

And that was important to them because of

the lessons.

of Planned Parenthood and Casey.

Right.

And

more broadly, the sort of leftward drift of Souter, especially, but also in their minds, O'Connor and Kennedy.

And, you know, so they sort of saw these moderate conservatives band together and save Roe

and thought, well, let's not make that mistake again, right?

What apparatus needs to be in place so that we know that the next person that we green light for the Supreme Court doesn't drift left.

It's interesting.

It's like Bork gets taken down because he's been explicit about what he believes.

He's also chosen by the conservatives because they're like, he's our guy.

But you need to have a system where like you can be sure that they're your guy and they haven't said too much crazy stuff.

They just need to be credentialed and identified, stamped as our guy with minimally having to actually say, you know, what they actually believe.

Yeah, which goes back to, I think, Matt's earlier point about like a recognition, like an implicit recognition that your agenda is unpopular

and the way to enact it is by seizing control of electorally unaccountable branches of government, right?

Like that's what it is.

It's very easy to make sense of everything through that lens.

Yeah.

They build this within the kind of world of elite legal thinking.

Like they're trying to build like a conservative counter-elite within law schools.

Like what's his name?

Steve Calabresi was like one of the student organizers.

They had like a convening at Yale to start the Federal Society.

And he said later, part of Reagan's policy was to build up forces and battleground nations in order to topple enemy regimes.

And I thought of us as kind of the same equivalent in law schools.

You know, it's the beachhead strategy, right?

As opposed to the entirely alternative institution strategy, which the right does in other circumstances.

The contras of the court.

The contras of the court, right?

But like, there's this, there's this sense in this moment where we need the imprimatur of the fancy law schools.

We can't just do our own thing.

Yeah, if there's one thing that you'd point to that explains like the velocity of the rise of the federalist society, I'd say that it's like the speed and scope of elite buy-in to the project.

Yes.

Right.

Totally.

It's initiated by this handful of students, but in coordination with like prominent judges and academics, right?

Scalia and Bork are on board immediately.

That gives them credibility.

It gives them access.

They leverage that to pull in students and create inroads with the Republican Party itself to the point where, like, just a few years later, the Reagan administration is touting originalism as like official DOJ policy.

All of that is like fueled with money from the Olins and Mercers, like the usual sources of dark money on the right.

And all of them have this singular purpose, right?

From its conception, the purpose of the organization is to increase the number and volume of conservative voices in the law.

And that basic shared goal is what drives all these aspects of the organization that we now recognize as like instrumental to its success, right?

It's why they maintain this robust professional network.

It's why they promote their academic theories, why they vet judges, why they recruit in law schools.

You have a singular goal.

You have extremely powerful interests buying into it, funding it, building it out, building connections with the Republican political establishment.

And I think that's that's why this is like no ordinary organization, right?

Because immediately a lot of very important people see how much can be accomplished through an organization like this and start spending time and money and putting in effort to building it to something that looks like what it does today.

Yeah, I think we want to dwell on the Reagan administration just for a few more minutes because one of the things that was really fascinating to me,

I'm kind of ashamed I didn't know this, but I didn't realize that on the very same day that Antonin Scalia was confirmed as a Supreme Court justice by the Senate in 1986, William Rehnquist became Chief Justice, and he was actually a dissenter in Rowe.

So the Reagan era is hugely important.

You kind of get Ed Mees is the Attorney General for at least part of this time, who's a big originalist.

You have Scalia be nominated and confirmed to the court.

It's a really interesting time.

But, you know, when I go back and kind of read accounts of that period, you get the sense that the hardcore activists on the right, ultimately, it was a disappointment in a way.

They thought they'd elect Reagan and like things would just be different.

And it took longer than they thought.

So, you know, these moves they made in the 80s were hugely important and relevant, but they didn't change everything immediately.

So one of the questions I had was, so, one of the books we read in preparation for this was Amanda Hollis-Bruski's book called Ideas with Consequences: The Federal Society in the Conservative Counter-Revolution.

And, you know, she describes the way like the Federal Society was a kind of intellectual network, a political intellectual network.

And, you know, part of what they do is they're both an audience for the Supreme Court to the extent to which

there are federal society-affiliated people in elite law schools or judges.

you know, like they become a kind of audience for Supreme Court decisions.

Just to say that, like, people want to please them.

You know, like when you're writing, you're on the Supreme Court, you're writing an opinion, and you're like, who am I performing for right now?

Well, I'm performing for other people in the Federalist Society.

And if they're mad about it, like, this is one of the things that Hollis Breski is really good about is it's just like, well, they might see you at one of the Federal Society dinners, and they might come up to you and say, you know what, you fucked up.

You're fucked up.

Yeah.

I mean, there's that quote from Steve Calabresi, one of the kind of early federal society guys, who's like, after whatever decision, you know, that Scalia made that he didn't like, he's like, I told him about that in person, you know, like at one of these dinners.

But, you know, in addition to that audience function kind of related to that, it produces ideas that then the Supreme Court justices can draw on when they do something like overturn Roe.

I think like a great example is Heller, a Second Amendment case about an individual right to bear arms.

You know, like by the time some of these cases get to the Supreme Court, there's been all this intellectual spade work done historically, legally, and otherwise, on which the Supreme Court justices can draw.

So, when it comes to Roe,

what was that intellectual spade work that was done among, you know, federal society scholars and judges and

lawyers or otherwise on the right?

What were the ideas that were produced by this intellectual network that then, you know, when we're talking about Alito's opinion that was leaked, you know, the ideas he was drawing on, what he was citing, you know, what were they up to during this period in that sense?

What's interesting about this too is like, does it actually matter?

I mean, I'm interested in what it was, the arguments he made, but ultimately it's like the federal society is also the kind of like instrumental organization in making sure that there's a conservative supermajority on the court, right?

And so it does it really matter all of these, you know, conferences they've had all over the years about how we should talk about Roe and what we should, you know, is the more important thing that they have devised a strategy where we know how to credential people who we trust, who then we put into the judiciary.

I think it absolutely is.

And I was going to say, Matt, your question is giving them a lot of credit that I think they don't deserve.

I don't think there was intellectual spade work in the case of Roe because their position on Roe is where it was in 1973.

Yeah.

You know, the situation with Heller, the Second Amendment case, was very different because in the mid-80s, no one serious

thought that there was an individual right to arms in the Constitution.

And they worked tirelessly to change the public perception of that and to change the legal academic perception of that.

There was no such project in the case of abortion rights because they've been holding the same ground for so long.

Re mentioned earlier that they were sort of tinkering with that undue burden framework that came out of Casey, and they were stretching the boundaries of what an undue burden might be, and they did that so successfully that there are many states that just have one or two abortion providers, right?

They were able to legislate.

abortion nearly out of existence in many states without overturning Roe.

And I think a lot of their effort went into that.

The only other real

work that was done was, again, the basic idea behind Roe is that there's a clause in the 14th Amendment saying that states cannot violate someone's life, liberty, or property without due process.

And it's sort of understood by everyone that there are such a thing as fundamental liberties that qualify as protected by the 14th Amendment.

That's not something that the justices on the Supreme Court have taken up issue with directly.

But there is a question of how you do a drone strike on Roe without getting so much collateral damage that it becomes unpalatable.

A big part of the intellectual project

was trying to sort of float these ideas, right?

Well, what if we said it was this?

What if we said it was that?

Because otherwise you have situations where, you know, as we mentioned, contraceptive rights, rights to sexual privacy, maybe even rights to travel and parental rights, which are also considered fundamental liberties, where they're threatened.

The OG conservative view is just like, yeah, you toss all that shit out.

And at cocktail parties, that's what they say to each other, I promise.

But as those rights have gotten more popular over time, conservatives have floated various theories on how to just sort of take out what they don't like and leave everything else intact.

Frankly, I think they got nowhere because what Alito actually does is just sort of like promise that he won't overturn the other stuff.

Right, right.

But if you follow the logic of the opinion, I mean, all of that other stuff would seem to fall.

Absolutely.

Absolutely.

Right.

Well, I mean, to get to the thing we were talking about at the very start, in a country like ours, which say until the 1860s, you know, had legal slavery, what does it mean for rights to be deeply entrenched in our history?

It's kind of like, sure, like lots of rights haven't been instantiated historically in a deeply rooted way in our history, but that's not just positive of their existence.

I mean, I also think think this is like one of my pet peeves about like originalism jurisprudence is like, like they use originalism to protect like all of these like insane, like complicated corporate commerce, you know, to come down on the side of like capital, basically, in all of these cases.

It's like, there was nothing like that, right?

There were no corporations like this.

This is a completely different like material economic context.

And so I'm just to say that like, obviously, the originalism as just just like a pure intellectual exercise is not truth.

They choose the cases where it's important to think about like, well, what did the founders have in mind?

I don't know, did the founders have in mind like Amazon?

Certainly not.

But

like if a future Bernie Sanders administration was like, we're going to take over Amazon, you know, because it's like...

it's too important for the distribution of goods or something.

They would use the Constitution to say, no, you can't do that.

But like, that wouldn't be an originalist argument.

Like, there was nothing like that.

it is a ludicrous project.

And not just because

what you were saying, Sam, about how different the country was, how like a corporation like Amazon just not even didn't exist, like couldn't exist in the way it does now, but also because what they're setting out to do is ludicrous, right?

Like the goal of originalism, depending on how you conceive of it, is either to determine the intent of the people who drafted the provisions of the Constitution in question, or to understand how the average Joe Q public would understand it written at the time, which is like,

it's ludicrous.

It's ludicrous.

Today, if you like carried around like just a random line of US code or a random part of the Constitution and read it to 15 different people, you'd get 15 different answers on what precisely it means.

Absolutely.

The idea that you can do that exercise, but for someone who lived 150 years prior,

like you can somehow get a solid answer on that.

And the idea that the people who are well suited to do that really don't have any historical training or linguistic training at all, right?

It's fucking ludicrous.

It's both normatively a stupid endeavor and objectively not a feasible one, regardless.

Yes, right?

Yes.

I mean, conservatives have been looking to sort of enshrine reaction in the Constitution as a mode of interpretation, right?

And I mean, that's what Alito's doing here.

Well, if the most backwards people in 1789 didn't agree with it, then we don't either.

All it is is this roundabout way to reject progress per se, right?

To say, you know, we don't really need to worry about what modern folks say.

We can sort of dismiss this offhand, not because we don't believe in it, but because that is what we believe constitutional interpretation to be.

Yeah, and the implication is that it's almost impossible.

to overturn historical injustices.

Yeah.

I mean, not to be too trite or something, but it's just like, okay, if there's been a long-standing historical injustice, that's deeply rooted and embedded in our history.

And so by that definition, it can't be overturned.

All you got to do is just get, what, like,

three-quarters of the states to pass the constitutional law?

No big deal.

Yeah.

But it's true that this is absurd, right?

But I think this is also...

sort of gets us back to what we were talking about earlier, which is that like, obviously, the more important thing is that they won this institutional battle, right?

Because if it doesn't make any sense, that it's clearly not like they won in the marketplace of ideas in law schools or whatever, you know, they organized, right?

They created these institutions that credentialed the people that they trusted and put them into the White House council so that they're deciding who's getting nominated for judgeships.

And then also, you know, on the supply side, made sure that there's enough of these people who they know are trustworthy, right?

Like they did this whole project.

Like, you know, let's not lose sight of the fact that they won this thing and they did it by being like an ideologically coherent movement, which had the capacity to coerce its members or sort of like pressure them psychologically and sociologically, you know, to abide by these principles, right?

Like they created a system, a machine that worked.

Yes.

I always think that like the simplest way to understand the Federalist Society is as a wing of the Republican Party, right?

And there are technical ways in which that's not true, right?

Of course, they officially hold themselves out as nonpartisan, but it just,

it's a more apt description than anything else, right?

What would you do if you were trying to make conservatism as influential as possible within the law, right?

You'd provide support to academics who work on conservative legal theories.

You'd emphasize recruiting by maintaining a well-funded presence at law schools.

You'd provide law students with channels for career opportunities and facilitate connections with judges and academics and law firms and whoever else.

You host events that allow all of these stakeholders to meet and mingle and coordinate and apply social pressure to each other.

And, you know, you identify people you think are talented and make sure they succeed.

Right.

It's a well-oiled machine.

And, you know, you can see like on a small scale, you know, just to give an example, a fictitious example, if you're like a third-rate academic and you impress someone at the Federalist Society, maybe they like invite you to speak at a small conference, right?

Maybe they help you get published in a law review.

If you're good enough, they can go further, right?

Op-eds, book deals, maybe at the end of the day, a recommendation to be a federal judge, right?

They have this apparatus for recruiting, identifying, and elevating like quote-unquote talent.

at every level of the profession.

And that's really what makes them work.

But I do want to give a little bit of credit on the ideological side.

I think that they have sort of been able to very cleanly articulate their legal ideology in a way that liberals have not.

You know, a lot of conservative legal frameworks like originalism, like textualism, they present themselves as like rote and mathematical.

They promote the idea that legal questions have objective answers.

That's all very appealing to people, especially to law students and lawyers.

And liberals.

Yeah, and very much, including liberals.

You look at something like textualism and it has intuitive appeal, right?

Interpret laws according to their text.

Simple and reasonable.

You look at originalism and I think there is a surface level reasonability to it.

And it feeds into like American ego about its own founding, right?

It drives right into the center of the American id.

I like the idea with textualism that it's kind of like the classic undergraduate essay that begins with Webster's dictionary.

Merriam-Webster defines liberty as...

I mean, I think that's basically it.

I think that we believe that these frameworks are dumb as shit.

But I will say that there's really nothing on the left that's quite as

appealing at a glance.

as like textualism is.

You know, textualism is similar to originalism, something that is both normatively stupid when you start digging down and also does not accomplish what it claims to accomplish.

But at the same time, if you're just like a 1L being presented with these different ideas, it seems so simple and reasonable.

And I think that that has real draw.

That gets people into the room for the free tacos at the Federalist Society meeting.

And that's just important.

It really is.

Totally.

The first time y'all came on the podcast, we talked about the kind of intuitive force of originalism is something like, well, shouldn't judges interpret rather than make law?

You know, shouldn't they say what the law is rather than bend it to their will?

I do think that is part of the persuasive force of the conservative legal movement.

It's just like, well, you know, yeah, yeah, of course judges should interpret the law.

Isn't that reasonable?

And then when applied to Roe, it's like you start talking about penumbras and emanations.

And it's like, well, isn't this just ridiculous?

And it's kind of, you know, the right-wing move across an array of issues, which is just like,

isn't this an attempt to make things better?

Just fucking ridiculous.

You know?

Well, it's also, I do think it's also like the fact that these kinds of interpretive frameworks can be intellectually satisfying for law students and that they won't really think about like, well, what am I signing on to here?

And what are the sort of like moral implications of participating?

in this project is also just has to do with like material realities of the way that like this country is set up so that like people who are least likely to be implicated by the decisions that conservatives make on courts at every level are the kinds of people who are most likely to be in law schools, especially elite law schools.

So it's just a fun intellectual game as opposed to like a material life or death struggle.

Even with Roe, women who are wealthy will be more likely to be able to get an abortion when they need one, even in this kind of terrible patchwork system.

But women who are not will be less likely to be able to get one.

And that sort of applies across the board.

Aaron Ross Powell, yeah.

And when you talk about law students and lawyers, the sort of like debate club element of it can't be overstated, right?

A lot of the pitch for originalism and textualism are these sound bites.

Like, yeah, we can't just have judges running amok, right?

It can't just be that judges are doing whatever they want.

And your instinct is like, well, of course, but what they want you to infer is, therefore, you must be a textualist, therefore you must be an originalist, when in fact they have not solved that problem, right?

And no one has solved that problem and no one will solve that problem.

But if you're in law school, if you're on a 1L class where you have a professor firing off theoretical questions and you're arguing with your fellow students, et cetera, those sorts of talking points are very useful and powerful.

And I think it draws in students who are maybe nominally conservative or just like, you know, centrist and are very persuaded by the idea that these guys are just right.

You know, these guys are just right in this like semantic sense.

Yeah.

And, you know, I do think, so a comparison I make on, we have a Patreon-only episode that either will have just come out when this is released or will be coming out shortly after this is released.

If you don't subscribe, either way, it's only $5 away.

Please do.

But on our episode on originalism, I make this point that I think, to me, it has a couple other like obvious cousins in terms of intellectual heft that came up like in the same time, the 80s and 90s, which is like Arthur Laffer and supply-side economics and like Charles Murray and the bell curve and like the heritability of IQ, which were both like very ideologically driven, hackish intellectual movements that I think are mostly discredited within their fields.

And I think originalism is properly understood as like pretty much the same, except that for some reason, liberal legal academia has like embraced it.

It's like if Charles Murray was like on the syllabus in every sociology class, you know,

for every sociology PhD in the country.

Like it's, it's insane.

It like boggles the mind.

Well, they're, they're doing pseudoscience, but the difference between like the originalists and Murray is that in the case of the originalists, they're in a field where everyone's doing pseudoscience, so you can't really complain, right?

There you go.

Murray's answering to other sociologists, but Scalia's answering to other fake historians.

Right.

So

it seems like the principles involved in Alito's leaked opinion that overturns Roe, there's just a lot of other rights kind of on the line.

And even if Alito or other conservatives say, well, you know, this really isn't about those rights.

You know,

it doesn't necessarily overturn, say, the right to same-sex marriage.

If you extend the principles of the reasoning in that opinion to other issues, there's really no sense in which, you know, they shouldn't overturn a Bergefell or other cases that establish rights for minorities, especially if they haven't been historically that deeply rooted.

Right.

So, you know, like if the decision ends up being what we think it will be, like, what are the ramifications of it?

Well, so you mentioned the federal society and these sort of organizations in general as like sort of being, you use the phrase supply side in terms of supplying judges, you know, lists of names, but it's also supply side in the sense that they supply issues and lawsuits, right?

There are organizations that fund these lawsuits.

They find issues that they want to attack.

They buy state legislatures and pass state laws that are designed to test constitutional provisions.

They take them up to the courts, blah, blah, blah.

You know, they can go to the Northern District of Texas, get a Trump judge in federal court, get like the totally arch-conservative Fifth Circuit to rubber stamp it.

They have their glide path to the Supreme Court for any issue they want.

And they have been building to this moment for 40 years, years, 40 plus years.

Now that they have it, people, I mean, do you really think they're just going to be like, all right, you know?

Okay, job's done.

We're all going home.

Like, no, they're going to keep getting these issues.

These, all these groups are going to keep pushing.

There's always going to be another group to oppress.

There's always going to be somebody else.

There's going to be something else, another boogeyman to go after.

And they're just going to keep feeding them up there.

That's the way it's going to to be until the entire makeup of the federal court system changes.

I agree.

And I think you see in the leaked Dobbs opinion, I think you see how conservatives on the Supreme Court are communicating to their base, right?

Matt, you mentioned Obergefell, which if you follow the logic of this opinion, and, you know, Alito himself in the opinion heavily implies that Obergefell, as well as a case called Lawrence, which struck down anti-sodomy laws.

He implies that both of those were incorrectly decided.

And you see how including that in an opinion, Alito is saying to the communicating to the base, bring legal challenges to these decisions.

And he's sort of previewing how the majority would likely approach the issue, right?

There are other rights that seem to be in danger, even though Alito says they're safe.

So we've mentioned Griswold v.

Connecticut, the case that said couples at the time, it was couples, have the right to choose to use contraception.

Loving v.

Virginia, which constitutionally protected interracial marriage.

So Alito says both of those decisions are safe.

But again, if you're following the logic of the opinion, it's hard to take him at his word.

And so I would almost guarantee, you know, whether or not the Supreme Court actually takes literally a challenge to Loving v.

Virginia, I'm not sure, but I would almost guarantee that there will be challenges from ultra-conservative groups and states.

Other rights that might be in danger, you know, here in my home state of Texas, Governor Greg Abbott has said that he would like to challenge a 1982 decision called Plyler v.

Doe that says that access to public school education for children is a fundamental right, including undocumented and migrant children.

So again, you know, following the logic of Alito's opinion and Dobbs, if fundamental rights only exist if they've been recognized and protected historically, you know, that seems to indicate that this really important decision guaranteeing access to public school education for children, that that's at risk.

You know, I want to add one thing that I saw on Twitter right as this happened.

Megan McArdle tweeted, basically saying, like, you know, I think a lot of the alarmists saying that they're going to go after contraception next are just, you know, I just don't buy it.

And then someone immediately was like, well, why don't you look at these laws in like all across the South where they're passing laws banning iuds etc etc and she said well okay sure some types of contraception

and i you know i like you're literally watching the overton window move in her fucking frontal globe

and you know it it was i was like this is what the next several years are going to be like right someone being like not that come on surely not that and then it happens the only sort of silver lining we have in these cases is that Obergefell and Loving also have equal protection components, which is a different part of the 14th Amendment, and don't necessarily rest on this sort of deeply rooted fundamental liberty concept.

And there's a possibility you get someone like Gorsuch to join Roberts and

jump ship on Obergefell.

I wouldn't say that it's likely, but I do think that it's like...

It's worth noting that there might be some fishers in that area.

Gorsuch seems to have some affinities for gay rights based on his Bostock decision.

Overall, though, I think the picture is very bleak, and it's hard not to imagine that everything's on the chopping block.

It almost feels to me like this area of law, like substantive due process.

is functionally dead in the near term.

And the real question is, where does the conservative legal movement focus next, right?

Michael said, like they bring suits, right?

What's their next sort of angle?

Are they going to stick with elections, right, and focus on 2024 and making sure that there's no way for them to lose?

Or are they going to go in other directions?

Are they going to come up with whatever, you know, reactionary flavor of the week case they feel like bringing?

Like, you know, there's currently litigation about whether the First Amendment applies to Twitter, right?

That's before the court.

And Clarence Thomas has signaled that, you know, maybe it does.

Maybe we can apply the First Amendment to Twitter.

And, you know, depending on whether Donald Trump stays banned,

maybe they go in that direction.

But there's a degree to to which it's really at the whims of people within the movement.

And what kind of cases do they want to bring?

Where do they think they'll be successful?

Well, this is what I think is so interesting, because this whole conversation we're having now really indicates the way in which this is a coherent, it's a movement which is accountable, right?

Like to the grassroots and then the politicians and sort of different levels of the way that it operates.

That like, okay, Alito says, like, none of these rights that have been established by these precedents are actually in danger.

He says that explicitly, but he creates the legal pathway for that to be available.

But whether or not those rights are in danger depends more on, like, the decisions made by the grassroots and sort of, like, the infrastructure below them, you know?

Call it the supply.

Is it the supply side of it?

The demand side is Satan himself.

Okay, right.

Okay, yeah, I don't remember exactly which way he goes.

But I'm just saying that, like, it's also interesting that people like Megan McCartle or other kinds of people who write about the courts will say, well, they're not going to go, they're not going to do that.

That's crazy.

But that's also because they are bought into this idea that the court is this like principled, objective, and above politics.

Right, exactly.

Right.

But like the whole premise of your podcast, but also like of what we're describing here, that you could not come away from this discussion without knowing that like, no, there are political movements that resulted in this outcome, right?

So, like, the idea that the courts can create like a guardrail where they're like, no, we're not going to do that.

Like, that's clearly not true.

That's the big misapprehension amongst like sort of elite centrist liberal journalists about like, what's going to, what's going to happen next?

It also just points to

what we've described multiple times here, where the absolute absence of a left-wing analog.

Like, there is no accountability structure that goes from the grassroots to the like electeds to the Supreme Court on the left.

No.

Like I think these people are actually afraid.

Like the conservative Supreme Court justices, I think they actually are afraid if they don't do what the base wants.

They're afraid of them.

Like they shouldn't be.

That's the whole premise is they're not, but they are.

Yeah, I think like the Democratic Party like literally prides themselves on the fact that they aren't accountable to the base.

Like they brag about it.

They brag about it to their own voters.

Yeah, they brag about it.

This is like one of my hobby horses is like Biden and Pelosi, I think in particular, will say, we need a strong Republican Party.

It's like their favorite line.

They say it all the time.

And if you listen to them explain what they mean,

what they say is that the Republican Party needs to be able to discipline its base.

It needs to be able to prevent people like, you know, Madison Cawthorne or Donald Trump from becoming nominees and from taking over the party.

Like we do.

Right.

Implicitly like we do, right?

Like we are strong because we aren't overrun by our unruly base.

We aren't controlled by them.

We discipline them and that's what makes us strong.

Meanwhile, they control both houses of Congress and the presidency and the fucking Republican Party is running laps around them, you know, getting all their signature policy wins under a unified Democratic control of the elected branches.

And they're like patting themselves on the back for being this strong.

political party there.

That's by design.

They don't want that and they try to strangle it whenever it seems to be organically growing.

It's so funny.

This is like kind of the same place we ended with the last time you guys were on, where we're like, wow, the conservative movement is so bad.

They're so evil.

They're able to do everything they want.

And then we're like, what is anybody, what is the left doing at all to counter this problem?

Podcasting our fucking asses off.

That's where we really are.

We're doing our best.

Posting like crazy.

We are publishing on Patreon.

Oh, yeah, yeah.

Sometimes I say to Max, well, it's good I make Patreon money off of our current situation because if we want to get married, we should do it right quick.

But in all seriousness, I have asked myself that question.

Should I marry my boyfriend?

Because I don't know how long that will be possible.

Yeah.

Yeah.

I mean, I think that's really real.

I think abortion providers, abortion funds are thinking about next steps right now and what does it mean to provide safe access to abortion in a literal post-Roe world.

And I think the outlook is bleak, but I also think that like organizing and making those decisions in sort of grassroots-led movements is what really gives me any hope at all.

The people saying, well, they're not going to go farther than a Roe are naive in the same exact way that people saying three years ago, oh, they're not going to strike down Roe, were naive.

The other side of that coin is is that we should be preparing for it and thinking about what to do on a personal level, at an organizing level, etc.

What's next, right?

Not just what do we do right after Roe, but maybe what do we do after Obergefell gets struck down?

Or what do we do to make sure it doesn't happen if it's remotely possible?

Right.

I mean, but you, if you're not sort of thinking to that next step, then you're way behind them.

Yeah.

Yeah.

5-4 Tuesday mornings.

This is how all of our episodes end anyway.

We're

totally so far.

Okay.

Bye.

see you next week.

I will say one thing, though.

I'll tell you what's not the next step, which is the only thing that the Democrats have laid out so far, which is to codify Roe v.

Wade

into federal law, which is like, okay, even if you do win a few more seats in the midterms, which seems unlikely for historical political science reasons and whatever and blah, blah, blah.

Even if you do and you undo the filibuster and you codify Roe v.

Wade, the states that fucking passed this 15-week abortion ban, Mississippi, while Roe v.

Wade was still good law, they're going to ignore you just like they ignored Roe v.

Wade, right?

Like Texas, which passed SB8 while Roe v.

Wade was still good law, they're going to ignore you just like they ignored Roe v.

Wade.

And two, when that gets challenged and brought up to court and people saying, look, you know, Texas isn't in compliance with this federal law, the Supreme Court's going to strike down the federal law.

So, like, what are we doing here?

Right.

Whatever the way forward is, it's not being offered right now by the supposed opposition party.

Well, don't doesn't that mean that you have to do I mean, I actually don't know what that means.

Does that mean that you have to do it at the Supreme Court level, at the constitutional level?

I mean, obviously, it includes the fact that we need to just care for each other at the local level, but yeah, I mean, I think it I think that's a big question.

I don't think it has easy answers.

I think, yeah, it's probably a lot of local work trying to make sure that, like, in a practical sense, people can get out of state and get funding and everything they need to travel to get safe, you know, reproductive health care.

And then, yeah, the political strategy has to be much more ambitious at the federal level.

I mean, let's not get over our skis.

We're a podcast that describes problems, not solutions.

That's right.

Yeah, that's true.

Not to be too glib about it, but like we started this podcast by describing the fact that the like anti-abortion movement was at a place of total loss

after Roe was decided.

And nonetheless, they just kept chipping away at it for 50 years, and

now they now they won.

We'll have a reunion podcast in

2075 to celebrate.

Oh, I'm sorry, yeah.

We'll be holding the mics above the ocean water.

I'm sorry, yeah.

Guys, thank you so much for coming on.

Thank you.

That was very, very fun.

It was fun, as always.

I'm such a huge 5-4 fan, and I encourage our listeners to listen to both your emergency episode on Row after the Dobbs decision was leaked, but also, you know, your kind of historical episodes on Row.

And

I really do feel like you guys are kind of our sister podcast.

Yeah.

If we were smarter and legally trained, Sam and I would do a podcast about the Supreme Court that would look a lot like you guys.

I also consider you our sister podcast.

Yeah, absolutely.

I think that

we have the same types of fans, just big, big weirdo nerds.

Whose hearts are in the right place.

We love them.

They're good.

They're mostly lefties.

Obviously, you have some right-wing fringe fans.

I'm not referring to them, but lefties who embrace the movement and the ideals, but are also nerds at heart, you know?

That's an important demo to both of us.

Well, I mean, if there's anything the federal society teaches us, it's that nerds with a better vision for the future can change the world.

That's right.

That's right.

That's right.

Don't knock the nerds.

You know, they can really change things.

Well, thanks.

Thanks, everybody.

Yeah, thank you so much.

Thank you.

Bye-bye.

Bye-bye.

I was raised a demon

with a moonlight mind.

Oh, I cried in the gutter in the sunlight mold.