Best of the Program | Guests: Kelly Shackleford & Sen. Mike Lee | 5/3/22

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Hey, great program today.

Mike Lee, Roger Marshall, both senators.

Mike was great going through what everything means and Kelly Shackelford from First Liberty.

He goes a bit further.

We're not just looking at the abortion ruling in the Supreme Court, but what's coming in June.

It could change America forever, good or bad.

I guess we're the ones who are going to decide.

All on today's podcast.

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I think the Supreme Court should release this decision now.

They are, this is obviously, this was leaked to influence the decision and to put these guys in danger.

And

if they don't have full-on Secret Service protection 24-7,

I'm going to take up a fundraiser and take up a collection and we'll pay for private security.

I would feel actually more comfortable with private security at this point.

But they are in danger, and

this should just be released as official.

Why let this drag on for months and months and months now?

By the way, these states allow abortion post-viability if the mother's life or health is threatened, which is a sham.

Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New York, Virginia, and Washington.

I don't know why I feel like Howard Dean.

Yeah!

These states allow late-term abortions with no state-imposed thresholds.

Alaska, Colorado,

District of Columbia, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont.

Lawmakers in several Democratic-controlled states have now enacted legislation that explicitly protects the right of abortion if Roe falls.

For example, Massachusetts, New York, Rhode Island, and Oregon have all passed laws to ensure that abortion remains legal within their states in the event that Roe does get overturned.

New York in 2019 also expanded the conditions under which a patient can receive a late-term abortion from protecting the life of a patient to the health of a patient and reclassified abortion regulations as a public health matter rather than a criminal one.

In California, Democratic Governor Gavin Newsom aims to make the state, quote, a sanctuary for out-of-state abortion seekers, even proposing to use state funds to defray their travel costs.

Oh my gosh, get out of California.

California guarantees the right to abortion in statute and the state constitution.

It covers the cost of abortion for lower-income Californians on Medi-Cal.

It also requires private insurance to cover it, and the state has rejected the idea of requiring waiting periods or parental consent for abortion.

Those things are not going to change.

Now, some states are going to ban it outright.

I hope Texas does it,

but we'll see.

I would expect that the governor of Florida, if he hasn't already,

is

going to be announcing some things today,

I would imagine.

Pat Gray joins us now from Pat Gray Unleashed.

Here's what I'm worried about.

Back alley abortions.

Now there's going to be back alley abortions.

Dead women everywhere.

That's what they're going to start screaming.

Instead of just taking the drive?

Yeah.

The back alley thing is a better idea than taking the $4,000 from your employer and just taking a flight to a place where you can get an abortion.

Yeah.

And I don't even understand that.

Well, it's the handmaiden's tale.

Listen, this is what they were saying.

This is what women were saying on TikTok last night.

This abortion law goes beyond a woman's issue, and it goes beyond anything you can ever imagine.

The societal implications of this are going to be insane.

The amount of

pain and damage this is going to cause, and the full ability to tell a woman what she can and can't do with her body, or going back into a handmaid's tale society.

Back to it, there wasn't one

who sat home.

All you young girls, stupid fake drama, adults over 18 years old who did not go out and vote.

There's an L in Old

Testament.

Like the L Brandeis, Rachel was aborted.

Oh,

did she not look like she's been drinking We're now back in the dark ages every day of her life.

Yes.

Brace yourselves, ladies.

Brace yourselves.

Brace yourselves.

She's with you.

We're coming to get you.

She's with you.

My heart is just

broken.

Yeah, for all these babies that are coming.

They just don't understand it.

They don't.

They don't get through it.

They don't.

Well, they didn't get it.

We'll get through this.

We'll figure out a way.

How can you get through it?

I mean, you can't.

I don't see how they can.

No, they're joking about.

The babies won't get through it.

No.

No more joking about it.

It being

a handmaid's tale.

It will be.

Stop with your one reference you know.

Is the name of that clip, Handsome Women Speak Out?

It's a visual joke, unfortunately, but a fantastic one.

I think you could use your own imagination.

Yeah, yeah, you could.

I don't know how much trouble they're having in this particular world.

Well, that's what happened in Handmaid's Tale.

First, they started saying handsome women, right?

Then they were wearing red robes, red robes, just like that.

They know no.

The most frustrating part about that clip is they don't know, they know no other references.

Everyone just goes to this, okay, we got it.

You have Netflix or Hulu, whatever it is, Hulu.

I got it.

There is no world in which this is going to be the handmaid's tale.

Oh, I see religious people.

I see religious people

taking women and making them surrogates and just raping them.

Oh, at the same time.

Horrible time.

Yeah.

Yeah.

I see that happening all the time.

I mean, that's all tomorrow.

It's an uplifting show, by the way, if you haven't seen it.

By the way, the max, the max what we're looking at here is a two-hour flight that will definitely be paid for by an abortion organization.

That is the worst case scenario if you want an abortion.

This is why this does not end this.

No.

This is just the beginning.

We're not even close to the end of the fight against abortion.

It is still going to happen in large numbers.

Will it decrease?

Possibly.

But they will not.

Possibly not.

The whole thing about this ruling, if it stands, is

that

it belongs into the hands of the people.

And that the legislative arm should have the right in different areas.

Which I, by the way, I don't know about you guys, totally disagree with.

No, the legislature should not have the right to kill children.

No, they shouldn't.

However, this is an improvement as to where we've been before.

So I am with you on that because you know, I mean,

I have heard this morning, and I'm waiting for verification of this, that California and New York are already starting to put things in for afterbirth abortion.

I find that...

We talked about California

a little bit on that.

Yeah, that's.

Up to a week after.

They're denying.

That's what it is.

Crazy.

They're denying that's what it would say

or do.

But it says paranatal.

It says in the bill, which means a week after, or some people say 30 days after.

That's insanity.

That's absolutely insane.

It's evil.

It's just straight up evil.

By the way, Glenn, I think you were going through the state laws.

You mentioned Texas.

Texas does have a trigger law already in effect.

26 states have trigger laws that would outlaw at least or restrict abortion if Rogo

goes away.

So,

you know, that's

great.

You know, it would be great.

But again,

you're either, if you say Florida, which I think is questionable, and I don't know that Florida will go that far.

You know, Florida's essentially been a purple state for a long time.

Remember, Ron DeSantis was put in by like, you know,

a very couple percentage point, a couple tenths of a percent, basically.

But if you do that, you're maybe in in southern Florida, probably as far away as you can be, maybe in Louisiana.

You have a couple of hours of a flight that every organization in America that wants you to have an abortion will pay for, and you can go on a little trip and have your abortion in another state.

This is not, this is not the handmaid's tale.

And they will lie about that and say it is.

They're going to say that this eliminates abortion, which it does not.

It doesn't.

And that's why people.

But see, they need that argument.

They do.

They have to have that argument because

they're not arguing about abortion right now.

They're arguing about packing the court.

That's been the number one thing they have wanted over abortion.

They will use abortion to get to packing the court.

Ilana Mars already suggested it that they pack the court.

And she said, as we've done

numerous times before, well, it's happened six times in American history, six, and almost always less than nine.

One time it went to 10 for three years and then went back to nine in 1869.

It's been there ever since.

What dunce suggested an even number?

Yeah, I don't know.

But it didn't work out very well.

So they got rid of it after 27 years.

2077.

Yeah, right.

77

justices.

Yeah, yeah, yeah, yeah.

I mean, look, this is typical of the left, right?

Hey, this governmental body is doing something that we don't like.

Therefore, let's call them illegitimate and change all the rules.

Because that's what they want to do with a filibuster.

Normally, you'd need 60 votes

to force through a law like this.

What they want to do is get rid of the filibuster.

Bernie Sanders has already said this.

Go back to Mansion, go back to cinema, say, overturn it, at least for this one thing, because then we can pass a national law that bans, that it requires everyone to have abortions or whatever, puts governmental abortion huts on every corner.

See, this is, again,

this is the shortcut.

That's why this case, Roe versus Wade, was overturned.

If you read the decision, it was overturned because it was all shortcuts.

And the Supreme Court was like, you can't use shortcuts on this.

You have to do it the right way.

And so what do they do?

Another shortcut.

They just want their way and to impose it on other people.

Gang, that's dictatorial.

You know,

I agree with you generally, but you know what?

It's It's not wrong to impose people being allowed to live.

No, no, no.

You're saying the opposite.

I get it.

But like, I don't think this, I am really happy this is happening.

But again, overturning Roe versus Wade

is not the goal.

It's just a step.

Correct.

The goal is to do that.

But I happen to agree with the Supreme Court.

You can't force the country

to agree with that.

No, no, wait.

You can't force them,

enforce them into agreement.

No.

That's something that we have to work out as people.

Yes, that's true.

And it talks about.

It's going, you know, it went one way for a while, and now it seems to be going the other way.

And eventually we'll work this out.

But you can't

force people into a belief.

That becomes dictatorial, except in this particular case, we are talking about,

at least half of us believe, believe murder.

Murder.

Life is actually guaranteed.

Correct.

However, I will say, even that, even an overturn making it fully illegal, as we know, drugs are illegal and people do them all the time.

There are organizations set up all around

the world.

Back alley abortions.

Not even back alley abortions.

Pills can be sent in envelopes to people's houses.

Also, the flights we're talking about that go from Texas to New Mexico can also go from Texas to Mexico and they can get them there.

They can go to Canada.

Justin Trudeau is not on on the verge of overturning abortion.

I assure you.

And as long as you have your vaccine, they'll let you in and they'll give you as many abortions as you like.

This is not, it only, the only way it's won, Glenn, you're totally right on this, is by persuading people that it is a horror show, just like it was won over for, you know, slavery or interracial marriage.

When we all looked at this and said, wait a minute,

they're enslaving people.

We all look at this.

If they made slavery, if the Supreme Court came out today and said, yeah, slavery is legal again, how many people would be buying slaves?

None.

None.

Because we all think it's horrible.

Well, I can't say that anymore.

Well,

in the traditional sense.

We know that there are other slavery issues around the world.

No, and there's radicals.

I mean, I can't say that anymore.

Not just because none is probable.

I mean, I always used to think, oh, we all generally agree.

No, no, I don't think we do.

No, I don't think we do anymore.

But you have to get it to that point where it's just such a, everyone realizes it's so horrible that you know, I i mean bank robbery is illegal right you know but they still occur we all know that they're gonna back alley abortions will always be a thing look there there will always be a place where you can get an uh get to an altar to sacrifice your baby to moloch there will always be that place especially with uber now you can get around anywhere you know uh can i get to an altar at moloch

this is the best of the glenn beck program

mr kelly shackleford from First Liberty how are you sir great Glenn happy to be with you uh so

let's take this apart first of all um is it illegal to leak this document

i i am not aware of any um

uh criminal violation uh obviously it's a it's it's a really it's an attack upon the institution of the court and i i don't know if people understand i mean the court will never be the same

I don't know what they're gonna have to do now but the ability of all the all the justices have four clerks these are the some of the brightest young attorneys in the country they

bring in new ones and the ability

with your own clerks the

opinions you're working on I mean, I just think it's going to damage the court permanently.

And that's a reason why this has never happened.

And

we've crossed that Rubicon now.

I'm not sure that it would ever be the same.

I'm not sure it will change forever if they

put the hammer down on anybody that was involved.

Wouldn't that send a strong enough message to bring it back?

I hope.

I mean, you know, I mean, number one, are they going to figure out who it is?

I mean, I think it's highly likely to be one of the 12 clerks for the three liberal justices.

I mean, you know, what if God forbid it it ended up being involved with a justice I mean to me I think that's impeachable

but I just think that people don't understand the long I mean this is like sort of shooting a rocket at the Supreme Court

it it it is something that could

that we might not return from as far as the court being able to be what it was which is the ability for justices and I don't know if people know this Glenn but what happens is there's a majority and a dissent and you begin writing you know, they vote.

Just a few days after the argument, they vote.

And they start to write on the opinion.

The majority writes theirs, the dissent writes theirs, and they share those.

And people end up being convinced.

This is the marketplace of ideas in a different way, but it's very important.

They want to know what the law is.

What does the law really say?

Oh, my gosh, I didn't think of that.

And people switch.

And there's lots of that that's happened where people go to a concurrence or a dissent or a dissent to the majority.

And if you can't share the opinions and have that discussion without people taking what's being written and taking it out in public to try to use it as a political tool, I mean, you just destroyed the internal deliberations that go on and the exchange of ideas.

It's a really horrible thing what this person did.

What about the idea that it might have been a conservative clerk that thought maybe they're going to switch to the other side.

This will lock them into position.

It doesn't make sense on a lot of levels.

I understand people think that's really, really cute because it locks them in.

But I mean, number one, the whole point is that conservatives don't do that.

Conservative justices

actually restrain themselves from politics and they say, you know, no matter what I believe, I'm going to follow what Lord says.

What is the original meaning?

The whole philosophy of those people is not to warp the court into what they want it to to be.

That's

a liberal approach.

Right, and that is clear in

this ruling.

I mean, that is mentioned several times, that we are not a political body.

We can't acquiesce.

We have no idea what this is going to do with the American people, but we can't care about that.

We have to do what our job is, and that is to interpret the law against the Constitution.

And here's the thing about that, Glenn, that nobody talks about is this is a, you know, talk about populism.

This is a massive return of power to the people and away from a few oligarchs who control everything in a dark room in the Supreme Court.

They weren't supposed to.

It's not in the Constitution.

So this is a huge return of power to people of the United States to make their decision, to decide what they think is right or wrong, and not have, you know, just a handful of people tell them what morality is.

So it's not talked about that way, but it really should be.

This is what the founders meant.

It really is incredible because I saw signs last night, power belongs to the people, and they were protesting.

And I thought, no, that's what this document says.

Now,

can this go to, we know it can now go back to states, as it should be,

and they can vote and do whatever they want.

Does this, can this also just go right back to Congress and have a federal law?

They can.

They can if they can pass it.

Because, again, the Constitution doesn't speak to it, and therefore it's up to the people.

So they could pass a law, but

they would have to do one of two things.

They would have to, you know, in the Senate get 60 votes in order to, it was called the filibuster.

It's really involved cloture.

They could either get 60 votes, which they're not going to be able to do, or they could destroy the filibuster.

And that would be a permanent damaging of the Senate.

I mean, the last time they didn't have a filibuster was, you know, before Thomas Edison, you know, invented the light bulb.

So, I mean, we're talking about that this would be, you know, change the Senate forever because the reason the Senate is considered probably the most

well-known deliberative body.

in the world is because you can't just pass it with raw political power.

You have to get some consensus from the other side.

It takes that 60 votes and it slows things down so that you don't have one party taking over and flipping the country one major direction to the other.

The Senate kind of stops that and makes there be some consensus.

If you destroy the filibuster, we're going to see court packing.

We're going to see Puerto Rico becoming a state, D.C.

becoming, I mean, we're not going to recognize our country.

And I think I've mentioned this before with your audience even, Glenn, but that people don't understand how bad court, once you do court packing, once your country's over.

And so this is the kind of stuff that would happen if they do get rid of the filibuster, as Bernie Sanders and others are advocating today, because they know they'll have to do that if they're going to push through a new law, a new Roeby Wade by federal mandate.

And is court packing just one justice?

Or does it have to be several?

I mean, I don't know who would go five to five, but.

It's four.

They've already filed a bill to add four justices to the Supreme Court.

So it would add four, which would then make the liberals have the majority, and they would just start doing whatever,

basically like a super legislature.

But the problem is, once you do it once,

the court's over.

It's just, you know, a subsidiary of the majority party in power, and there is no rule of law anymore, and you don't have any rights anymore.

You have whatever right the majority party wishes for you to keep.

And that's why.

And you never really go back.

You don't.

You look at if people wonder what happened to Venezuela, that's what happened.

Argentina, we can go through lots of countries.

People don't understand, but when it happens that first time, you're done.

You're tyranny.

And really a dictatorship is where you go.

So it's something that they tried in 1936, 37, FDR did, because he did not like.

the fact that you know they were

not getting his new deal through.

But even his own party turned against him before it was over and said, This is tyranny.

We're not going to do this in this country.

And it failed.

But it's very dangerous, and it's something that they could only do if they destroyed the filibuster, which would be what they had to do to pass a new Roe v.

Wade and federal statute.

So that is the thing that

I'm looking at here.

I'm not sure they release this to do anything but to

pour fuel on the fire right now.

Why wait until summer?

Pour fuel on the fire right now to get court packing

done and the end of a filibuster.

I think it has more to do with that than the actual judgment from the court.

Would you agree?

I think it's both, probably.

They're hoping they can

intimidate one of the justices.

But this is the beginning of what I've been predicting

for months.

I think we were just together recently, and I said, I think this is coming in June when these decisions start coming down.

And I think they're going to go for court packing with a frenzy.

I think this is going to be their new election approach because they're obviously not working well under the current

polling and et cetera.

And I think this is going to be their attempt.

And we're seeing just an early sort of release of that in addition to a hope that they can intimidate one of the five justices that supposedly are on this opinion.

It only says Alito, but again, part of the leak was that four other justices, not the chief, but four of the others are with them.

So they might hope that they can pick off a Kavanaugh or a Barrett who lose their nerve.

I don't think that will happen.

I think this will entrench them even more because, yeah, it would just destroy the, I mean, everybody would know that they changed their principled opinion because of pressure.

So I don't think that's going to happen.

So I agree with you that I think long-term this is their strategy and this is what they're going to do.

Kelly Shackleford is on the board of trustees of the United States Supreme Court Historical Society.

He has earned his law degree from Baylor University, and he is also the president and CEO of First Liberty Institute.

If you are thinking about donating money to any cause, I can highly recommend First Liberty Institute.

They can use your money and they are winning and actually leaving permanent marks.

It's firstliberty.org.

So, Kelly, you have been in front of the Supreme Court, and we were talking recently, and you said to me,

we're probably more free.

By the end of summer, we'll be more free, religiously speaking, than we have been in our lifetime.

You also said, because of Roe versus Wade and the other opinions that you think are coming down the pike, that the left is going to lose their mind.

What are the other cases?

Well, you've got, obviously, you've got Dobbs, which is the Roe v.

Wade, which we're now seeing the precursors to.

But in addition, and by the way, the way this works is the court issues all of its opinions by June because the session will end and they will mostly leave the country and speak and teach and stuff at other places.

So the opinions are out by the end of June.

It's highly expected that most you would have expected Dobbs, for instance, to be issued that last week probably and

hang on let me ask you a question why don't they just finish it now and make it official they might they might I mean I don't know how far along they are because what we saw was an early draft

and so but you know if I'm the chief I think I might move it along now and say you know we're gonna get this out quickly so all this nonsense will stop

but it normally would have been late but in addition to Dobbs you've got a Second Amendment case which will be I think, in favor of the Second Amendment and against the New York restrictions on guns.

Which would do what?

It would just bolster the Second Amendment and say that these types of restrictions are unconstitutional because there is a Second Amendment right to keep and bear arms, and this violates that fundamental right.

I think you're going to get that kind of decision.

I think we're going to,

we argued a major school choice decision in December, and

it's expected the way the argument went that we're going to win that case.

Which mean what?

It will say that anytime there's any school choice program anywhere in the country, you cannot exclude religious schools or religious choices from the parents.

And that'll make clear that school choice has to be fair and that everywhere it's going on, and there's a lot of programs out there, the exclusion of the religious schools is over.

And so that will cause a lot of religious schools to come into being because now there'll be resources that the parents have to choose what they think is best for their kids.

So that'll be a big decision.

The Coach Kennedy case, which we just argued a week ago, Monday,

that's a huge case.

And it looks like it's going to be even bigger than expected.

depending upon how they write the opinion.

But again, this is a coach who was fired for going to a knee after the game to say a 20-second prayer, prayer, thanking God for the privilege of coaching the young men he coached.

And it's the first time the court has ever had a case on the free exercise of religious freedom rights of a teacher, a coach, anyone.

So there's never been a decision on this.

So it's going to affect a lot of people that way.

But what people didn't expect is during the oral argument, the court got into a discussion about possibly ending the lemon case, which has been around for 50 years.

And if people wonder why our whole lives, we've seen attacks on Nativity scenes and menorahs and veterans memorials with religious symbols and Ten Commandments monuments and all that, it's not because the founders said anything about that.

It's because of this really bad case 50 years ago.

And it's been the weapon of choice for secularists now for 50 years to try to wipe our society clean of religion.

And it's pretty clear that maybe a majority of the justices are about to say that's over.

And that's a sea change if that happens as well.

So those are just a handful.

And there's some others too.

There's a campaign finance, there's the border case that was just argued last week.

So all this stuff is coming down in the end of June.

And my guess is that

the Marxist left is not going to like these things.

It is amazing to me as we are traveling down this road where the the country seems, the government seems to be going in entirely the wrong direction, and you're kind of losing hope that the Supreme Court now rides in and is doing remarkable

things that, quite honestly, I would think would find favor in the eyes of

God.

It's, I mean, hopefully it buys us some time, Kelly.

Yeah, and, you know,

what it's doing is

these justices aren't themselves politicians.

They don't go one way or the other, but they're going back to the original meaning of the text of the Constitution, which takes us to our founding.

Kelly Shackelford, President and CEO of First Liberty Institute.

You can find it and donate at firstliberty.org.

I highly recommend that.

That's the thing about constitutionalist judges.

It doesn't always cut your way because it's all about freedom and rule of law.

The best of the Glenn Bank program.

Senator Michael, how are you, sir?

Hello.

Good to be with you, Glenn, as always.

Thank you very much.

I've got some campaign slogans for you.

What do you think?

Yeah.

Are you ready?

I'm sure they're going to make reference to how riveting I am in my presentation style.

No, I'm just, I'm just.

Well,

I'll share them some other time.

You don't seem open to ideas.

No, no, no.

I'm open.

I'm as open as can be.

Anything that you can do to make me, you know,

more cool.

Oh, this will make you much more cool.

What do you think?

Mike Lee, horrible at parties, perfect in the Senate.

I like it.

That's a good one.

Yeah, see?

See?

I can see that on the back of a bumper someplace.

All right.

I'm terrible at parties, but I know the point.

No.

So, so, Mike, thank you for joining me today.

I can't wait to hear your opinion because you are,

I think you're the strongest on the Constitution, and you should be a Supreme Court justice someday.

Tell me what, first of all,

are we going to hunt for,

find,

and I don't think it's against the law, at least kick this person out

and disbar them for leaking this?

Well, I will say this.

As a former law quirk, having clerk for Justice Alito, I can tell you lockworks are expected to keep utmost confidentiality and decorum.

It's a respectful, collegial, and even friendly work environment.

And I can't imagine the damage this leak will bring to the atmosphere and the operation of the court.

I

am confident that the court is going to look into it.

Now, what the court decides to do about it will be up to the court.

It's difficult to predict because we've never had a situation exactly like this.

You know, before the Obamacare ruling in 2012, there were leaks in the form of rumors about what the result was likely to be.

And that was scandalous at the time.

That was nearly unprecedented at the time.

And immense pressure was brought to bear on the Supreme Court justices, rumored to be in what was about to be a majority, getting ready to strike down Obamacare.

And as it turned out, it looks like those things might have made some difference.

But there's no precedent for this one where an opinion, an entire opinion,

the opinion of the court has leaked.

This is stunning.

The odds that a Supreme Court justice knew about it.

It seems unlikely.

The Supreme Court justices themselves have got to work with one another for the rest of their natural lives.

And so it seems like the cost for them would be too high.

It seems more likely that it was someone else.

Okay.

So, Mike, let's go through this ruling.

I know you've read the whole thing.

It seems extraordinarily logical and really based on this was bad law from the very beginning.

Casey then took it apart even more.

None of it makes sense.

None of it is constitutional.

And even the left and Ginsburg has said that.

These are all the things that I gleaned from it.

Is that the right analysis?

Yes, it's the right analysis.

I would add to that.

The fact that Roe versus Wade just found no grounding whatsoever in the Constitution

in hundreds of years of

jurisprudence.

It was created out of whole cloth

by the Supreme Court in 1973.

And what this did was just take away the authority of the states to protect unborn human life and to make the difficult decisions on exactly where the line is drawn and

in states that allow abortion, under what circumstances to allow it.

how long, at what stage.

All of these things were taken off the table by the Supreme Court of the United States acting without any constitutional authority because nothing in the Constitution deals with abortion.

Consequently, this is left to the states to decide.

So they made this simultaneously.

They took what should have been an issue decided by state government and made it federal and then took it away from the lawmaking process generally and made it a matter for nine lawyers wearing robes.

That's a problem.

Yeah, you know, I was amazed at seeing the people that were in front of the Supreme Court yesterday saying, you know, power to the people, you know, rights belong to the people.

And I thought, yep, that's what the Supreme Court said.

This is not taking away anyone's right to have an abortion from the Supreme Court.

It's just saying your state has to decide, correct?

Correct.

Correct.

There is nothing in this decision making abortion unlawful.

That is a fallacy, a fallacy pushed by the left to scare people.

What this is saying is that decisions regarding abortion will be made by lawmakers, primarily, almost exclusively, at the state level, not at the federal level.

So does this in any place

set it up for,

you know, go ahead in California, do your abortion laws, and then bring it back to the court and,

you know, we'll see if it stands.

Does it make a case at all that is saying that it's going to be hard to pass a bill for abortion and have it stand?

Not from what I read in this opinion.

This opinion, as drafted,

I hope and pray this is, in fact, the opinion of the court as it purports to be, because as written, it uproots

Roe and Casey, root and branch.

It doesn't leave anything left of them.

And it simply makes the case that these are decisions for state lawmakers, not decisions for federal judges.

Now,

let me take you to one of the things that I'm hearing, and they spent a lot of time talking about this.

People are saying, you know, there's 50 years now of precedent,

and

you just can't overturn that.

And they spent a lot of time talking about that.

Can you go into it?

Sure.

Now, look, I would point people to page 39 of the opinion of the court authored by Justice Alito.

The infamous decision in Plessy versus Ferguson is,

as the opinion characterizes it, one of these decisions that the Supreme Court decided and got it wrong.

Plessy versus Ferguson was terrible.

It was deeply wrong.

It was damaging.

What was it?

And

Plessy versus Ferguson was the case that set up the separate

but equal.

Okay, got it, got it, got it.

And, you know, it was evil, radically contrary to the Constitution.

And it was precedent that was in place for many, many decades, far too long.

And fortunately, the Supreme Court has acknowledged that it got it wrong.

The Supreme Court gets things wrong sometimes.

It got it wrong in Plesy versus Ferguson.

It got it wrong in Roe versus Wade.

And today, the court corrected that.

And it says that even precedent, first of all, they disregarded precedent in our country by enacting this, but also it says at no point does precedent play a role when we believe it's wrong.

Correct?

Right.

Right.

There's nothing about precedent that makes it sacrosanct.

The court follows this doctrine known as starry decisis, which basically just means we're going to stick to a ruling that we've already issued in most circumstances because it makes it more predictable for litigants and it makes it easier for the court to stand by that.

But the court also says it's not going to stick to precedent that was clearly wrong.

And particularly when you're dealing with constitutional interpretation, there's a diminished standard of deference

owed under the doctrine of sorry decisis where you're dealing with a constitutional provision.

These are things that can't just be changed by legislative bodies.

It would require an amendment to the Constitution.

And so that's why, you know, mercifully,

the court was able to change course

when it decided Brown versus Board of Education, acknowledging that Plessy versus Ferguson was wrong.

It's had other instances where it's reversed itself after interpreting the Constitution incorrectly.

So, Mike,

take me through quickly the idea of the 14th Amendment and the right to privacy.

Okay.

So

there are provisions in the Constitution that protect things that we associate with our privacy interests.

The best example

might well be the Fourth Amendment.

Right.

You know, the

government can't

search your house without a warrant, and the warrant has to be based on particular evidence providing probable cause and describing with particularity what's going to be searched.

There are other amendments that, in one way or another, another, may

also involve privacy.

The Fifth Amendment right and protection against self-incrimination, for example.

What happened is that in 1965,

the Supreme Court of the United States, in a case called Griswold versus Connecticut,

concluded that when you add all these things together, when you add up things like the Fourth Amendment and the Fifth Amendment and the Ninth and Tenth Amendments, those things themselves overlap to form emanations and penumbras which are themselves broad enough to encompass

a broad abstract right to privacy.

The court then used that to conclude that states may not restrict access to contraception by married couples.

A few years later, the Supreme Court applied that same reasoning to say it doesn't just apply to married couples, but states can't restrict access to contraception generally.

And then it was that same reasoning that the Supreme Court relied on in 1973, concluding that this abstract right to privacy imposed initially on the federal government by operation of the amendments that I described and made applicable to the states through the due process clause of the 14th Amendment, prohibit the states from unduly restricting a woman's access to an abortion.

So it required inference upon inference, and it required a lot of legal, verbal, constitutional gymnastics to get there.

At the end of the day, there was still nothing there.

Now, look, there's not a state in America today that would or should ever even consider restrictions on contraception.

And so there are those who are going to try to attack this opinion by saying, oh, this is going to undermine access to contraception.

That's nonsense.

Not a state in the country that would do that.

Right.

And it specifically says in here that this is only about abortion.

It's not to be used for any other argument.

Sure.

That's right.

And that's the way the Supreme Court works.

It deals with the facts before it rather than some other case.

So that's the point, because they try to dress it up in

language that, you know, kind of appeals to people's general sense that they have a right to privacy.

There are privacy interests protected by the Constitution.

That does not mean there's anything in the Constitution saying that a state has no authority to protect unborn human life, which is what they've been doing since 1973.

So, Mike, are they going to finalize this faster and get it out to end this

time of intimidation?

You know,

so it's not my place to tell them what to do as a lawmaker.

They're a separate coordinate branch of government.

I'll tell you what I think I would do in that circumstance,

what seems to make the most sense to me, I think they ought to issue a decision immediately.

Because look, the whole point of this, I fear, I still don't know who leaked it or what their motives were, but one could surmise that perhaps following the model from 2012, is maybe they wanted to leak it so as to make it difficult

for those justices planning on signing it.

to threaten, intimidate, and harass them.

And one could conclude that the best way for the court to deal with that and make sure that this doesn't happen again or something is leaked for purposes like that is to say, we're just going to issue this opinion right now.

Yeah.

So that there's no time for pressure to build.

So they could do that in a couple of different ways.

The Chief Justice could just say, okay, everybody, sign on to either the majority opinion or a dissent or a concurring opinion of your choosing by no later than close of business Thursday or Friday.

And then they could issue it then.

Another approach they could do is issue an order today, a per curium unsigned order of the court, announcing the results in this case and saying that an opinion would follow.

And they could do it that way.

Either way, I think it would be good for the court to signal that this

is done.

This is done.

It doesn't work.

Yeah.

Mike, how concerned are you about, because I think this really is

less about abortion and more about packing the court and the filibuster.

How concerned are you with your Senate colleagues on those two things?

Well, I'm scared to death about both of them.

Ending the filibuster would destroy the Senate as we know it.

And I believe that they might consider doing it here as a means toward the end of packing the Supreme Court.

As I've written in my forthcoming book called Saving Nine, comes out on June 7th.

In Saving 9, I explain why court backing is a terrible idea.

It's inimical to the very foundation of our Constitution.

It threatens the independence and the integrity of our courts.

It's designed to turn the courts basically into a political body.

Now, the last time they tried this, the Democrats tried this in 1937.

It failed legislatively.

But as I explained in Saving Nine,

It still left an indelible scar, one that I think has caused problems for us ever since then.

That is, it influenced the way individual Supreme Court justices were voting.

And

the result has been a government that knows no boundaries around its authority, that regulates every aspect of human existence, and has accumulated $30 trillion in debt.

Those are all, I believe, outgrowths in one way or another.

of FDR's court packing plan in 1937, the one that failed but still scared Supreme Court justices into submission.

How soon do you think we're going to see them trying to move on these things?

I think you will see, as soon as this opinion becomes final, it will not surprise me at all to see Democrats trying to get action on this immediately.

I think you'll start hearing messaging as soon as this week from some Democrats in the House and in the Senate calling for this action.

Because in their view, somehow the ends justify the means, and this is so drastic, so grave an insult that this has to be done.

But let's remember what this is and what it isn't, Glenn.

This is just the justices reaching the conclusion the Constitution doesn't deal with this.

Correct.

And consequently, this is not an issue to be decided by federal judges.

This is an issue to be decided by elected lawmakers.

Right.

It's just, it's given the House and the Senate and

our state legislatures more power.

It's just saying, take your power back.

And for some reason, they think that's draconian.

It's bizarre.

Mike Lee, thank you so much.

I appreciate it.

God bless and stay safe.

We pray for all of you in Washington on all sides of the aisle and all nine of our justices.

I believe this puts them in grave danger.

I hope our government recognizes that.

Mike Lee, you can find him

and follow him at Mike Lee.

I believe it's Mike Lee for Utah or Mike Lee for Senate.

And not only horror dinero, also,

because

of the lantern in the lab.

Vara pa pa pa.

Preci participación podem barar no puede convinars qu ninguno troferto camo mío.