 Hi I'm Nick Gillespie. What's the best way to think about abortion rights and Supreme Court Justice Samuel Alito's arguments for overturning Roe v. Wade and Planned Parenthood V. Casey from a libertarian perspective? I spoke with constitutional scholar Josh Blackman, a professor at South Texas College of Law, an adjunct scholar at the Cato Institute, and a blogger at the Volick Conspiracy. Blackman is an unabashed admirer of Alito's draft, writing that it meticulously dissects and forcefully responds to every conceivable position in favor of retaining Roe v. Casey. I'm not convinced of that and in a wide-ranging conversation about the history of abortion, the changing nature of the Supreme Court, federalism, and partisan politics, we go deep on whether returning decisions about abortion to the state will increase or decrease individual liberty. This is an important discussion about a topic that's going to dominate politics for months, if not years to come. Here's my reason conversation with Josh Blackman. Josh Blackman, thanks for talking to me. Thanks, Nick. So I am talking to you the day after or within hours, let's say, of not a completely unprecedented but a very rare moment in kind of Supreme Court ania where a draft decision has been leaked by Sam Alito in which he seems to be saying that the Supreme Court is set to overturn Roe v. Wade. What's in that draft and where is it taking us? Well, again, this was a draft as of February. We have no idea if it's even current or if any change has been made. It might not even be a majority anymore. But the opinion has, I think, two primary parts. The first part of the opinion explains why Roe v. Wade was wrong as a matter of constitutional law. The second part of the opinion explains why this precedent should be discarded and why it was called sorry, decisis, the idea that courts stand by precedent. So it's about half and half. So the opinion runs about 67 pages. The last 30 pages are what we call appendixes. These are lists of various abortion laws. So we're talking about 67 pages, which I've read both. You were really following a book series like the Harry Potter series. And you got to the last book and then some jerks said, oh, here's what happens on page 734. I feel like I got cheated because I got to see the ending before it began. But the opinion walks through history, explains that from the time of the framing of the Constitution to the framing of the 14th Amendment to the middle of the 20th century state banned abortion. And there wasn't any indication that this was a right, let alone a fundamental right that ought to be protected. The Roe Court sort of said there's this right to abortion. Maybe it's in the 9th Amendment. Maybe it's in the due process clause. Who really cares, right? It doesn't really matter where this right is. But this is a very important aspect of privacy, which was the sort of mantra of the court at the time. Alito says that this has no basis in the Constitution. And I don't think people really disagree with that. Alito quoted a number of liberal scholars, Lawrence Tribe, Mark Tushnet, among others who say this right was manufactured. And of course, Ruth Bader Ginsburg also famously a critic of Roe v. Wade as well. Of course. Justice Alito, I'm sure, enjoyed quoting RBG Ruth Bader Ginsburg, who said that the Roe decision was mistake because the backlash to Roe, people only take a detour. People don't realize that in the 1960s and 70s, there was no evangelical movement against abortion. It didn't exist. In fact, states were moving towards liberalizing abortion laws. And if Roe had them and decided maybe in 10 years, most states would have allowed abortion. Ginsburg criticism was very pointed. You said by intervening in the matter quickly, the Roe Court created a backlash, the sort of opposition to abortion, which is now 50 years old and maybe might claim a victory in the very near future. Although, I mean, it's interesting because Alito, part of that argument is that like had we let the states work through this, we would have resolved this issue without the kind of actual violence. I lived in Buffalo in the 90s when there were actual violent altercations and murders of abortion providers. So there's a long history of violence that got ushered in. But part of it is because Alito also points out that when at the time of Roe, 30 states still banned abortion completely under all circumstances. So it's kind of odd to think that there was no right, but we were about to get the right and things would have been rosy. I guess I'm just challenging. One of the criticisms of Roe v. Wade, which I think makes sense is that when the Supreme Court decides something overnight and says this is the law of the land, it polarizes people. But I got a feeling that abortion as it moved forward, whether it was done state by state or not, it would have been a big, big hot button issue. Oh, of course. Alito also walks through what it means for something to be a right. And this is something that reason editors are familiar with. We have the 14th Amendment ratified in 1868. And we have the privileges or communities called ratified in the same year. We have the 9th Amendment ratified in 1791. And these are the fonts, the sources of what you might call an unenumerated right. Alito says, look, you can have rights who are not written down. The 2nd Amendment, easy, right? Free speech written down. But what about rights that are not enumerated rights who are not written down? And Alito says, for something to be an unenumerated right, it must be fundamental. It must have deep roots in history. And if the majority of states banned something at the time the 14th Amendment was ratified, maybe it was allowed, maybe it was not, but it can't be called a right. And he takes a very historical approach to rights that the modern court's been trying. Another case involving gay marriage, there was no right to gay marriage in 1868. We didn't say that. So the court here is repudiating some of the doctrines that have allowed for expansive liberty. From a libertarian perspective, this strikes me as worrisome. Regardless of whether or not Roe v. Wade was a good decision based in readings of the Constitution and whatnot, if the Supreme Court is starting to say it's kind of like a jurisprudential amish or something, saying if this technology did not exist at this point in time, we're not going to be using it. Because you mentioned Overfell or the idea of gay marriage, which the Supreme Court made law overnight. Is that also up for grabs now from the analysis that Alito is putting out there? Right. So the million dollar question is, where does this lead? The draft opinion says very clearly, we're only talking about abortion. Why? The court says abortion is unique and that's the only unidumerated right. There results in the death of another, ending another life, which is a contested point to be sure. Right. But in the original Roe decision, there's a lot of reference to potential life. Now we might talk about, or certainly pro-life people, talk about unborn children and things like that. But Roe, in the Roe decision, they were talking about potential life. Right. Alito suggested that gay marriage and perhaps contraception otherwise does not have the same sort of risk to other lives because it's over a personal decision. Maybe you don't believe them, maybe you think the next thing that's going to happen is the overall gay marriage. I think my response to that would be, there's no march on Washington every year to overall gay marriage. The decision in Obergefell is about seven or eight years old now. Opposition I think is most fated to nothing. Right. There's no march on Washington to ban contraception. My goodness. I don't think that would work very well. Not be very fun march. Right. But there is a ban on Washington, sorry, march on Washington every year for abortion. It's the singular issue I think that continues to divide, which I just don't think there's any appetite to ban gay marriage. So part of what Alito says, and I'm going to get to the discussion of star decisis in a minute, but he says there is no fundamental right. It's not a fundamental constitutional right. There's no basis in the constitution or in our history that abortion has a long history of this kind of stuff. But then he doesn't say there will be no abortion because what he's actually saying is that this gets kicked back to the states and individual states will come up with different kinds of abortion regimes. Just to clarify your understanding of that, does that mean certain states will be able to ban abortion completely and others will be able to say you can have what are sometimes called late term abortions or abortions up to the moment of delivery of the fetus of the child, whatever you want to call it. That's right. This decision would restore abortions to the political process. If California so chooses, they can allow abortion until the moment a baby takes its breath. In Texas, they can ban it from conception, although people don't even know they're pregnant right away, but they can ban it from very early juncture. And in fact, I mean, Texas right now is at six weeks, right? Correct. And it's not even clear if most people even know they're pregnant six weeks, some do, some perhaps don't. But it will be reserved to the states to decide. What's significant though is the court did not accept the fetal personhood argument, and this was bandied about. The argument goes like this. The 14th Amendment says states must provide equal protection under law, right? Failing to prohibit abortion is denying life to the unborn. And there's actually an argument that the 14th Amendment requires a ban on abortion. Nothing in the majority opinion gives any way to that position. So again, federalism, if California wants to allow abortion to the ninth month, good for you, California. If Texas doesn't, then Texas can ban them earlier. And a number of states have actually, I know I spoke recently with Colorado Governor Jared Polis. Colorado is a state that recently incorporated a kind of Roe v. Wade guarantee of a right to an abortion in their state laws. So a bunch of states have anticipated both Roe v. Wade being overturned to establish pro-life or pro-choice positions because there's also a number of states that have laws on the book saying that if Roe v. Wade is invalidated, abortion is made illegal automatically. No, I think that's exactly right. States have the power to both legislation and state constitutional law to enshrine a right to abortion. I don't know how much weight that carries, but it ensures that if a state values this, values abortion, they can protect it. Can we talk a little bit more about unenumerated rights? Because some of these, there are two broad ways of talking about unenumerated rights, right? Where you, and I'm trying to remember, I think it's Steven Macedo who talked about, who criticized Antonin Scalia decades ago saying, you know, you either think that there are rights that are islands that are surrounded by the ability of the government to do whatever it wants, or the government, you know, has these tiny places where they can call the shots, but otherwise it's all hands off. But this is that question of unenumerated rights. What are some of the unenumerated rights? You mentioned a couple, but what are they that have been recognized? And how do we, you know, how do we know it's an unenumerated right, or it's something that's up for majority rule, you know, at the state or local or federal level? Right. So, let's go back to the very beginning. It's a perfect place to start. The Slaughterhouse cases decide 1873. Louisiana and New Orleans enact a monopoly that gave one firm exclusive control over butcher shops. If you want to slaughter an animal in the city of New Orleans, you have to go to this one butcher shop, the Crescent City butcher shop, the slaughterhouse. The butchers in this town said, wait a minute, we have a right to earn our own living, right? We have a right to our livelihood. And they went to the Supreme Court and they said, we have this right protected by the privileges or communities clause of 14th Amendment. Supreme Court split 5-4 and rejected that claim. This was one of the very first arguments about unenumerated rights in the Supreme Court. They are going to think of this right to earn a living. Fast forward number of years, the Lochner case, right? New York enacted restriction on bakeries. Bakeries could only have people working a certain number of hours per week. Supreme Court 5-4 said, yes, there is a right to earn a living, the right to make contracts in the Constitution of the United States, and New York can bridge that right. Then go back to the 1930s. Supreme Court reversed that saying, no, no, no, due process plus doesn't protect this unenumerated right. And that's where things stand to this day. So if you want to ask me what is an actual unenumerated right from an originalist perspective, contract is up there, right? If you read the debates of the 14th Amendment, the Freedmen's Bureau Act, the Civil Rights Act, 1866, all these laws discuss rights of contract, rights of property. And so I'm fairly confident saying that the right to earn a living is such a right because it's historically based. But what happened in the 1950s and 60s and 70s was the Warren Court began to look to modern rights, contraception, abortion, right? These rights don't have historical pedigrees. They don't. But it's almost perverse that this idea of unenumerated rights was sort of tainted by these postmodern rights, whereas we had cases like Lochner that actually had a historical basis have been relegated to the ashes of constitutional history. But can I ask, let's talk about contraception because that is, obviously, there are contraceptive methods that have been around for as long as, I'm sure Neanderthal Mann was working on the first Trojan and things like that. But the birth control pill only came on the market in the very early 60s. Griswold v. Connecticut, which is a case about married couples having a right to contraception, which, you know, isn't it, you can't expect that to have been legislated before there was birth control pills, right? So is it, I don't know, is it kind of mendacious or kind of off kilter to say, well, you know, like, you don't have an unenumerated right to birth control pills, because, you know, when the founders were, you know, kind of putting things together, birth control pills didn't exist. The fact that people could do something with that criminal sanction doesn't make that thing a right. The reason why I'm confident about talking about rent contract is there's lots of discussions that this is a fundamental right. There's legislation guaranteeing it, right, even if abortions were allowed in various culture threat history. That doesn't mean it's a right. And I suppose this is an area in which libertarians perhaps take different positions. But when I say the word right, I mean actually recognize in judicial decisions in legislation and constitutional amendments, something, the fact that something's allowed doesn't elevate it to that. We do lots of things, lots of things we can do. But that doesn't mean the legislature couldn't change its mind tomorrow and ban that thing, right, according to the due process of law. There are, there are things that we can do today that we can't do tomorrow. Is, you know, is the fact that if Roe is up for grabs, does that mean that Griswold is up for grabs? As a constitutional matter, Griswold was an embarrassment, just as Douglas wrote his opinion where he said, well, we have this Bill of Rights, the first, not the second, the first, the third, the fourth, the fifth and sixth, seventh amendments, right. And there are these zones of privacy, these numbers from the emanations, right, it's just just absolute nonsense. And by that you just mean he's, he's kind of making it up. This is not. Well, he was actually worse than making it up. At the time, the court didn't want to say there was an unidumerated right. They said, well, it's based on the Bill of Rights. It's from these numbers. We're trying to stick to the text of the Constitution. It's incoherent. But I'll be completely frank, there's no political will to overthrow Griswold and eat and give you a fun fact, even when Griswold came up, the Connecticut legislature was trying to repeal the law. No one wanted to enforce law because it's a stupid law. Who the hell wants to go into bedrooms and check what married couples are putting on their genitalia? Yeah, I mean, there's people who are clearly interested in, in regulating, you know, in regulating sexual practice, sexual orientation, sexual discussions, right? I mean, where that's a major conversation where happens. So, well, I, again, there was a shift though, because privacy and Griswold meant what are you using in your bedroom? Where the privacy in Roe means it's a medical procedure with doctors of your shoulders. It's not an intimacy of your partner. So I think even the conception of privacy shifted, these are two different kinds of privacy at issue. Yeah. So, let's, before we move on to starting to size this, you know, what, what are the implications? Roe, you know, Roe gets overturned. You know, the Supreme Court says, okay, it's done. People like Chuck Schumer have talked about, you know, he's talked about Congress moving to pass a national legislation guaranteeing a right to an abortion. You know, is that possible? Is that likely? Will that pass judicial muster? I think that the first question, of course, is a filibuster. Are there votes for it? Probably not, but let's assume there are votes. Could the Supreme Court, could Congress even pass national legislation protecting a right to abortion, not after this decision, right? And the reason why is the case called Bernie versus City of Flores from 1995 or six, right? This case held that the Supreme Court gets to decide what the Constitution says, not Congress. If the Supreme Court says 14th Amendment does not predict abortion, then Congress would lack the power of the 14th Amendment to regulate abortion. And maybe they could try and do their commerce power or something else, but it would get stretched. So really, I think that sort of legislation is dead on arrival after the Dobs case. Okay, Eva. And so the Commerce Clause, which, you know, is used by Congress to basically pass or legitimate almost every law that they pass, that would not pass muster to say, you know, the right or, you know, the availability of abortion throughout the country would have an effect on interstate commerce. It would screw things up. I mean, you know, certainly the Commerce Clause has been used very elastically to kind of underwrite different types of things, but you think that would not work in something like this? I think it would be dead on arrival. I really do. I don't think that legislation would work. When we're talking about interstate commerce, economic activity, I suppose the Congress say every abortion is a type of economic activity because it involves the surgical tools and things of that nature, but this should pretty clearly be seen as a way of getting around the Dobs case. So I think it would probably not work. Ruth Bader Ginsburg as a lawyer for the ACLU was almost involved in an abortion case that was about to go to the Supreme Court when it was settled involving, I believe it was a woman who was in the Air Force who was pregnant. She wanted to, and at the time this woman became pregnant and she was offered either to have an abortion or to leave the service and abortion at the time was not legal. This was, I guess, around 1970, but it was on military basis. Ginsburg wanted to push the idea that there was equal treatment questions here because the woman would not be able to continue doing her job without access to an abortion. I guess what I'm getting at would the alternative argument for abortion rights that Ginsburg actually preferred to the Roe case, would that be revived, do you think, assuming Roe gets thrown out? Well, Ginsburg long argued that a ban on abortion is actually more of sex discrimination. If you saw the movie on the basis of sex, that was everything in sex discrimination. Alito addresses that. He has a name. Everybody addresses it. He says, no, no, no. The fact that an abortion ban falls only in women is just a fluke of biology. This is not a law targeting women because of women. It's targeting abortion and, well, generally women only people can have children, actually. I think even the Alito opinion undercuts the argument that Ginsburg advanced for many years, without at least naming her. How do you define your judicial philosophy in terms of unenumerated rights? If we're going on a scale of like, is anything, and maybe it's not a right, but are things mostly allowed if they are not specifically banned in the Constitution or by the legislature? Or does the government have a broad range to kind of structure people's choices and activities? You know, I sometimes feel like I'm an apostate among libertarians. I think it's more of a more narrow view. Here's what I'd say. I have a broad conception of unenumerated rights where I constrain it when it gets to the courts. If I am a judge, I'm going to be very cautious before I start declaring legislation unconstitutional unless I have a very solid basis in history. I actually prefer the framework from Washington versus Blocksburg, which again, is not popular among libertarians. Would you explain what that is? Yeah, Washington v. Blocksburg involved a right to assisted suicide. I think people said, does the Constitution protect the right to assisted suicide? Supreme Court said no, but they didn't all agree on the rationale. Chief Justice Rehnquist wrote that we only protect those unenumerated rights that are deeply rooted in history and tradition. And this is what Alito adopts, right? That lets you show some basis. Somewhere in the last 700 years of Anglo-American law, is there is existing right? Otherwise, the answer is go talk to Congress, go talk to the legislature. The reason why this opinion is now popular with libertarians is it leads to some very non-libertarian results. So I'll give you a case. It was an appellate case called Abigail Alliance on Eschbach. This was a person who wanted experimental drugs from a pharmaceutical company that had not been approved by the FDA. And this person said, look, I'm very ill. Let me try these experimental drugs that have not been approved for a million rounds of review. And this went to the courts. And the courts applied the Glucksburg case and said, well, there is no deeply rooted right, this specific right to have access to treatment. Wait a minute. Don't have a right to self-defense, right? Don't have a right to defend my own body. And the courts said, well, but that's too high of a level of generality, a more precise right that's defined. So I think at the margins, Glucksburg has some problems, right? This can you defend your own life by using experimental drugs? I'm sympathetic to the argument. But when we're talking about the road decisions, well, maybe it's the 9th Amendment, maybe it's the 14th Amendment, a little bit of country, a little bit of rock and roll, who really cares, right? I just think I'm behind that opinion. So Alito also at one point, and I would recommend anybody who's watching this actually go read it because I have a background in literary studies. So I know nothing about law, but this is eminently readable, the logic behind it, et cetera. It's obviously important stuff. But at one point, Alito says that a right to an abortion doesn't hold up. And it also because it naturally leads to a right to illicit drug use, prostitution, and the like. From a libertarian perspective, again, I'm looking at this not simply about abortion, but this seems to be the Supreme Court starting to say that your right to be left alone or your right to do whatever you want is going to be constrained in ways that are going to be serious and profound. And I mean, do we not have, is it, we don't have a right to drug use? We don't have a right to purchasing sex if it's available or anything like that? Again, we don't have a right to do it. Legislatures can allow it, but does the US Constitution mandate it? And I'm sort of the law professor coming back to that point, but libertarians, I think often speak of rights without realizing that the right may be enforced by the state constitution or by the state legislature, not by the US Constitution. Fundamentally, fundamentally, I mean, what you're talking about and what this decision is about is about whether or not the US Constitution sanctions a particular freedom, essentially, freedom from government constraint. And the argument that is not for abortion. And yeah, and this goes even further. The majority opinion repudiates Lochner, right? It repudiates the basis on which there is even historically grounded rights. I think this opinion more or less slams the door shut and what's called substantive due process. The idea that the due process clause protects these rights and it had been on life support since Justice Kennedy retired. This opinion, if it's actually adopted, slams the door shut. So can we talk a bit about that? Because I think the last time kind of non-lawyers were talking about procedural due process versus substantive due process really had to do with Robert Bork. And an idea of majoritarianism versus the idea that certain activities or certain rights that people have are not open for a vote. If substantive due process, which as I understand it is the idea that there are certain rights that can't be legislated away. If that is gone, then are we in an era of majoritarianism where suddenly 51% of the population gets to tell the other 49% what they can and cannot do? Right. And Alito actually, he addressed this in sort of a quirky way. He says, well, in Mississippi, a majority of the voters are women. So he says basically a majority of the voters in Mississippi supported this and they're women. No, I don't know how those numbers line up. Right. Well, it's also fascinating. I mean, when you look at the gender split on abortion, there's really basically men and women, they're all distributed across different positions. There's not a clear gender difference. The numbers are not where you'd expect them to be. It's fascinating. So I think what Alito is saying is, look, this is a law passed by a ruling majority in the state of Mississippi, which has majority women voters. So again, it comes back to the question of what is the right? Who gets to define it? Who gets to enforce it? But does that worry you as a libertarian? I understand that if you invoke substantive due process, and it means I get to determine what rights come before the state from God or whoever, and I like these rights, you don't, but you're out of luck. But when you're talking about majoritarianism, it just seems like a lot of bad stuff can happen that way. Well, you're presuming that the Supreme Court is libertarian, which it was for much of the 20th century. If you had a very conservative Supreme Court, I don't think you'd want them making decisions about what your rights are. You might prefer those you can elect and choose. So really, where you sit depends where you stand. Where you stand depends where you sit. It's given our current Congress, the people of California can keep their laws as liberals, they want them, the people of Mississippi can make those decisions. Look, you also vote with your feet. You don't have to live in Texas. And I think increasingly, this sort of gives a boo into federalism, that people can choose where they want to reside. And it's been very clear. These demarcations are perhaps the clearest since the Civil War, I don't know, between the North and South Split. Part of the Texas law that's in play now is that people can bring charges against people who help women get abortions, procure abortions. Is there anything in this ruling that speaks to that about the criminality of the criminalization of helping somebody get an abortion or anything like that? Right. So criminality is tricky, right? If the court actually overrules Roe, Texas's criminal abortion statute comes back to life. It was never erased in the statute book, it was just declared unconstitutional. So effective tomorrow, or not tomorrow, but effective whenever this comes out, a district attorney in Texas could prosecute somebody who procures an abortion. And that could include both the doctor performs it, person who pays for it, or even the person who gets the abortion. Generally, women were not prosecuted. It's very rare, I'm sure. I think it's happened. But the consensus was you go after the doctors. So this would, I think, I mean, as it stands now, Texas abortions function illegal. This would basically drive the last nail in that coffin. And would it do anything? An unenumerated right is a right. I mean, we have a right to travel, right, as an unenumerated right. Would this potentially restrict that if you say, hey, I'm in Texas, I'm a woman, I'm pregnant, and I'm going to Colorado to get an abortion. Would the state be able to say, you know what, you don't have the right to leave the state if it's to procure an abortion? You are looking at the next front of litigation. We'll move away from litigating what is the right to abortion to other Texas who legislate extraterritorially. That is, can Texas make it a crime to fund an abortion out of state? Could Texas make it a crime to go to another state to procure an abortion? I mean, not to use a grotesque example, but traveling across state lines to obtain an underage prostitute, right? Texas could come after you for perhaps associating prostitution elsewhere. The federal government could as well. I do think the right of travel is in the constitutional history. I think there are limits on the state's power to reach into other states. And here we have a not pleasant precedent, but Fugitive Slave Act, right? The Fugitive Slave Act was an attempt by Congress to facilitate the movement of slaves from north to south. Maryland, for example, allowed a slave catcher to go to Pennsylvania to bring back an alleged runaway slave. And Pennsylvania said, no, you're kidnapping, right? You are violating our laws. And it's one of the Supreme Court. And the Supreme Court said, no, no, no, Congress said this guy was authorized to go. So we're going to be looking at a new front of litigation about movement between states and abortion. Litigation will not end. I think it'll just simply shift nature. I also don't know. I mean, you know, this to me to go back to an earlier point, you know, kicking this to the States, I don't think it's going to minimize the, you know, the confrontations. I think it's going to incite, you know, many new and different ones, you know, in the same way that, you know, I mean, as long as we're talking about the civil war, kind of like, you know, what happened to, you know, in states with popular sovereignty, I mean, you know, when you do you start saying whether or not slavery can be decided at the local level, you know, people flood into zones in order to affect the outcome, you know, in places like Kansas, whatnot. Let's, let's talk about story to Cises and why, you know, apart, I mean, how it plays in this instance, because your analysis, I was, I was reading at the Vala conspiracy about how, you know, Roe v Wade was again, you know, most people, even if they liked the outcome, many people will grant that it was a poorly argued case. And the result is, is, you know, is open to challenge because of that. Then in the plan, Casey, Planned Parenthood, Casey decision, you know, something happens. And it has to do with star decisis and a couple of other things. Can you talk about how that is a problem as well? And that's also a major part of Alito's critique here. Right. Planned Parenthood versus Casey was a 1992 decision. This case didn't affirm Roe directly. The court said, well, we may not have decided abortion the same way 1973, but it's too late to turn back the clock. And the court said there are reliance interests that as women have come to rely on abortion. And the joint opinion said, well, if we overrule under pressure, the court will look bad, right? The court looking is responding to pressure. And Alito says, nice try, but not quite, right? The very fact that the court was looking to this pressure suggests that they were responding to the pressure that they didn't. And don't forget, Nick, the votes in Casey flipped. After conference, there were five votes over Roe v. Wade. And Justice Kennedy, O'Connor, and Souter formed this triumvirate, this plurality opinion that saved Roe. So I sometimes feel like we're living history all over again, right? Nothing ever changes, just the years and the dates. We're living the same, playing the same script. With star decisis, so I mean, and I know early on in his Supreme Court experience, Clarence Thomas was often attacked for, he would say, you know, like if something had been decided wrongly, we should not be bound by that. And that was seen as a kind of how dare you, because people were afraid he was going to overturn decisions they wanted. But is that, you know, essentially what Alito is coming to is that, you know, when decisions have been done wrongly, and if even if they're around for 20, 30, 40, 50 years, which maybe not be as long as, you know, 150 years or something like that. But, you know, star decisis is not as important, a kind of legal principle as people want it to be. Right. Justice Thomas was very clear on this point. He said that in the context of constitutional law, star decisis is not as important. It's very hard to amend the Constitution. And if we stick by precedent, the first court gets to decide everything, right? The Warren Court, overall precedent's like it was nothing, like you're flipping flapjacks, right? Well, you know, you get a precedent, overall brand, overall Gideon, right? Every case is a ruling precedent. Why do they get the last word on things? And I think what the sort of failure of the Rehnquist Court was to not only rein in these Warren Court pressants, but to overrule them. I think what we might start seeing now is actually overruling of these of these precedents from the 1960s and 70s that are still in the books. What is, what's your sense of where the court is? And you mentioned, you know, this is from February. It's that, you know, it says on it, it's the first draft or whatever. So we have no idea what's going on here. We had, you know, a couple of recent, recently appointed justices who are, you know, Republicans are appointed by Republicans who all in various ways kind of said something along the lines of, I think Roe v. Wade is, you know, they nodded or scratched their nose or whatever when they were asked, is Roe v. Wade settled law? What do you think is likely to come out of this? Well, look, if you, I watched the confirmation hearings carefully, it says very carefully scripted dance. What Kavanaugh said is we don't overrule precedents unless they're egregiously wrong. I mean, that's language use egregiously wrong. Guess what Alito said in his opinion, Roe was egregiously wrong. So there it is. And he even links to Kavanaugh. I mean, Alito, I mean, this is a number of people pointed to this. I mean, his footnotes, he's kind of stroking some of the people whose votes he's carrying, right? The phrase he's trying to hold five, right? Trying to keep his majority together. And there's little footnotes to Kavanaugh, a little bit to Barrett and a little bit to Gorsuch and a little bit to Thomas. Yeah, there's this one footnote about how abortions are predominantly performed on young black babies. I mean, that's a, that's Clarence Thomas' footnote for everyone, right? Yeah, which is also fascinating because it also, it kind of elides the idea, well, maybe black women have more reasons to have abortions, right? I mean, yeah. Yeah, I guess the other way. Yeah, no, I mean, yeah, it's just kind of like, yeah, that strikes me as an odd attempt to, you know, basically take out of, you know, take the will of the people having the abortions out of the out of the equation. Can we talk a little bit? And I am suspecting you, Josh Blackman, we're not raised Catholic. I, Nick Gillespie, I'm the son of Irish and Italian, you know, first generation Americans. So I can ask this question. I want you to answer it though. This is an extremely Catholic Supreme Court. And, you know, how does that factor into all of this stuff? Because it does seem, you know, irreducibly at some point, whether you're pro or, you know, against abortion, there's some kind of theological component there about either, you know, when life begins. And because I think everybody agrees that once, you know, once a, you know, a fetus is a person, you know, okay, no abortion, but where you locate that and how you locate that, there's a religious component to it. And what, how many people on the Supreme Court are Catholic now? It's like a majority. Well, it depends how you count, right? Just so that we always raise Catholic, but maybe use a lapsed Catholic, is that the phrase we use? Sorry, not practicing Catholic? I don't know how you described it. Look, funny story, Justice Kennedy was picked in part because he was a devout Catholic and look where that wound up. But without question, the five members of the majority are all women Catholic. And I think that it's a very easy way to sort of paint them as being led by their beliefs. I think it's more their judicial conservatives and Roe v. Wade has been the white whale for five decades. If they were, of course, it's just sort of Catholic slash process exact faith is not entirely clear. I don't think we're making a lick of a difference, which, which way they went. What do you, what do you expect to happen? You know, when, if, if it's announced that Roe v. Wade is gone, we have, you know, 20 something states, I think that will immediately invalidate abortion rights. You know, what, what's the outcome to that? Like, is that a, and this is beyond a kind of legal analysis, but you know, what, what's the social cultural kind of fall out from that? Well, I think that when you have this sort of decision, it will create immediate ripple effects. Many states have a called trigger laws in effect, which effect, we say, if Roe's overruled, we go back to a pre Roe law. And that would be, I think, just about immediate. Someone, some people might say it might take 30 days for the mandate issue. I don't think it would, I think once the court decides it, say it's going to go ahead on their own. And I suspect abortion groups have basically funds set up to transport women out of state, et cetera. But there'll be a lot of friction. There'll be a lot of conflict. I think you moved to this earlier. And Alito sort of predicts to saying, look, we can't predict what will happen. Our job ends here. And what's crazy about this leak is we know what happened, we saw the outlash, the backlash, the reaction for what even happened. So in some ways, the band-aid was ripped off, the steam was let out, this complex, we got the preview. And I think in perverse ways, the leak makes it easier to get to that result. You have kind of hypothesized about who the leaker is. And there's kind of at least three suspects, right? I mean, there's that it's a, it was some, a liberal justice or somebody in the Supreme Court, you know, kind of machinery who wanted to get this out there to kind of, you know, so people saw it coming and would start mobilizing against it. Other people say it's a conservative that did it because they're trying to especially get John Roberts, who seems to be kind of, you know, the wishy-washy center of the court to kind of steal up and be conservative. And then others, you know, that it's some other kind of troublemaker. I mean, what's your best guess? Or does that matter at all? Who leaked it? This leak isn't saying, Nick, nothing makes sense, right? So let's, let's break down the possibilities, right? A conservative might have leaked it. Why would a conservative leak alienating Brett Kavanaugh at the most important moment? This only backfires on them. Okay, let's say a liberal clerk leaked. If Kavanaugh was still in play, this was the worst way to make him move. He'll stick to where he is, right? If it finds that a liberal leak did. Nothing makes sense. I've talked to so many people, it's irrational, right? This is like the guy who sets himself on fire on the Supreme Court steps to protest climate change policy. Like what the hell, right? You're making carbon, right? But it doesn't, it doesn't, it doesn't make sense. It's completely irrational, which is why my thinking is that someone who's not a justice, it's not a clerk. It, it's irrational. Somebody wasn't thinking straight, or maybe this is like your flight 93 moment, right? Where the ship's going down. We're going to blow this mother up, right? That's reason this motherfucker up, right? We're going to just blow it up. I feel like I'm not a TV now, right? And just let the ship go down burning. You know, I don't know. You know, you're a smart dude. What do you think? Who does this help? I have no clue. I, yeah, you know, I would tend to, I think about it less in terms of who would it help and more that it happens because this is what happens now. We live in a world of kind of forced transparency, you know, with WikiLeaks and Edward Snowden and a lot, you know, the Panama Papers and, you know, revelations about the Catholic Church or about the United Way defrauding people. So this is, this type of stuff is going to come out, you know, one way or the other. And then I guess the question is, what are the effects? Not simply in like this particular decision, but you know, one of the arguments and somebody, you know, the former libertarian member of Congress, Justin Amash tweeted out, who's a lawyer by training said, you know, this type of thing is terrible because justices need to be able to kind of do draft decisions and share them with their colleagues to get the best arguments and to kind of round things out. So he's anti this kind of leak. Do you, is that a good read, do you think? Or is that, you know, special pleading? I don't know. I think, I think this opinion was probably written over the last couple years and whoever leaked it reached a point of desperation that there's no hope, right? Which is why he's the Flight 93 analogy, right? It's going down. We don't have any other option. We're going to potentially ruin my career, face criminal liability, right? People can be indicted. The FBI is probably being brought in. Before we know that the law clerks may hook up the polygraph machines. This is going to be ugly. You know, they're going to be water boarding. I don't know. They'll bring in some of the old guy from the Bush White House to start the water board. I shouldn't joke, but that's actually terrible. The joke is like, what are they going to do? These are at-will employees. They're not subject to any sort of collective bargaining. They can be terminated at will. I don't think they have any fourth limit rights in their computer stations. They might search their phones. They might search their electronic records. So there's a lot of ugliness and I'm not sure, maybe Amash is right. I don't know. You're a critic of Justice Roberts and the way that he's been running his court. I believe you wrote that he needs to have an investigation, which has been announced. If he can't find the leaker, he's got to resign. What's your thinking behind that? This is an old hobby for us. I thought Roberts has been a failure for many years. I'll be very precise. With the Obamacare decision, from what I've written, I've written a book about this, so maybe take whatever it's worth, Roberts's decision was based on his perception of politics. He wanted to issue a ruling that avoided creating a political firestorm. And once that gets out, once people know that the political process can work on the court, it can be done over and over again. There's a playbook. And I think over the ensuing decade, there have been efforts over and over again where Roberts has shown that the law comes second and public appearance comes first. So really, this leak is a manifestation of Roberts' own policy. Someone thought, well, look, you worked for the Obamacare, maybe I can flip some votes here as well. And I do think Roberts' obligation. And this is not the first leak. In 2020, CNN had a series of stories with intimate discussions of private conferences after the term was over, not before. And I said, at the time, Roberts, you have to get a hold of this. There was no statement from the court. And since that went down without any punishment, this happens. And I think one leads the next. Do you feel that that perception, trust and confidence in American institutions have been cratering for as long as Gallup has been polling people on the save the longest consecutive series of data on, do you trust the government? Do you trust the presidency? Do you trust Congress, et cetera? The Supreme Court always gets high marks, but it's been declining. Partly when you talk about the Obamacare decision, it's whatever side you're on, you realize that these guys and women are not, they're not putting on their thinking caps exclusively and trying to figure out what is the right decision. They're also, they're reading the newspaper and things like that. Do you feel like the Supreme Court has lost the trust and confidence of the American people? I do. And I think that this, this, this leak exacerbates it, right? This leak makes the public confidence worse because now the courts on offense or is on defense, which gets confused, right? Now they're getting defensive, right? They're having to defend their institution that was already under attack. So I think it unbalanced the court looks ugly after this I guess as a final question, you mentioned Mark Tushnet much earlier. I'm thinking it's like about 15 or 20 years ago almost. I interviewed Mark Tushnet who had written a book that was surprising. He's a, you know, for people who don't know, he is, is a very, you know, progressive legal scholar of considerable note. And I believe in a weird bit of kind of turn about Randy Barnett took his office at Georgetown when Mark Tushnet retired. So yeah, you know, it's like how things change, right? In academia at least. But Tushnet said that he, so he wrote a book that was actually quite, he took Clarence Thomas's judicial philosophy seriously and, you know, even if he didn't agree with it. But in talking to him about that, he said, you know, the Supreme Court people think it is the thing that changes history, but he argued that, you know, what the Supreme Court does sometimes it's a little bit ahead of where people are sometimes it's a little bit behind, but it's, you know, it isn't change, you know, it's society is changing and it gets reflected in the Supreme Court more than the Supreme Court kind of making change. You know, we're now in a situation 50 years after Roe v Wade popular opinion on abortion really hasn't changed very much the same percentages are in favor of it being illegal under all circumstances legal under some circumstances legal under all circumstances. You know, is this going to have a substantial impact on American society or will it be something when the dust settles were like, well, you know, in the same way that Roe v Wade, there was a movement, a bunch of states, including New York and California, the two most popular states at the time had liberalized abortion laws. You know, is when the dust settles, is this going to be like, well, this we're actually we were going back to a place where we're going to be more federalist about our abortion laws? I don't know what the post Roe world looks like. It's actually very hard to predict. I think in really the immediate aftermath will be moves to ban these procedures in large numbers. And look, maybe those policies aren't so popular, right? Maybe once people realize like, well, I want this. And maybe maybe there might be political shifts. It's not guaranteed that the political movement to ban abortion states it is now, right? Other countries in Europe that are not subject to Supreme Court review have crafted different balances and abortion. And maybe you need medical necessity, right? Maybe there are different procedures that are banned, right? Maybe women to get incentives to get abortions earlier rather than waiting, right? Society can sort these things out exactly how I couldn't tell you. But I wouldn't make any predictions. The human society is complex. We know this. And trying to game out something this complex is insane. I think what Alito is doing is saying, let you guys figure this crap out. It's not our problem anymore. You know, it's interesting. Most people don't realize that the United States has much more liberal abortion laws than Europe. And maybe we are coming more in accordance with Europe. But can I ask, what is the role also then of the, you know, from a libertarian perspective, you know, you can have laws, but then, you know, how do you enforce them or, you know, particularly activity that adults want to engage in? So we know that the drug law, the drug war does not work, you know, or it has effects. I mean, it creates black markets. It ramps up many of the harms related to drug use to black mar anything related to black markets. It makes treatment harder to come by and things like that. And it does reduce shoes, probably almost certainly alcohol prohibition did in the 30s. Is that going to be in play here if, you know, large parts of the country become abortion free, but then we see a rise in back alley abortions or illegal abortions and things like that. Let me take your question perhaps a little direction. About 20 years ago, my colleague, Randy Barnett, litigated the Gonzalez first rage case, right, arguing that the federal government cannot criminalize locally grown marijuana. Randy lost six to three. He only got three votes and I appreciate you bringing that up because I know. But in the, I guess we're now 17 years. So since rage, the thinking on marijuana has changed radically, right? There have been movements in states try to legalize that we're not legal. There were medicinal marijuana. There have been dispensaries, you know, you know, you know, among everyone else where this is going. So who knows, maybe in 15 years, sentence and abortions will change in the absence of Jewish review, right? Maybe the only movement to legalize more broadly. I perhaps as the, as the Burkian, maybe the Burkians pulling my strings, I would much for that change comes from some sort of democratic process of persuasion than what five or seven lawyers in the Supreme Court decided for us all. And maybe that that makes me a bad libertarian, but my constitutional bona fide has pulled me in that direction every time. Okay, you know, just a final question on that because, you know, here we are, two guys, you know, talking about abortion rights, you know, which impact women obviously much more directly than us. How do you do a calculus just generally of a kind of fierce urgency of now question, because it is, you know, it's easy for me to be like, and I'm extremely pro-choice, but, you know, I can be like, okay, yeah, I get it. You know, this is something it's going to take time, but you know, it'll be a better outcome if it works through the democratic process. And it might take 10 years, it might take 15 years. Angel Reich can just suffer a little bit more because this is a better way to do things. You know, how do you, how do you create a calculus for, no, you know what, this is something that is immediate, you know, and that needs to be dealt with in the short term because, you know, whole worlds, you know, rise and fall while we're waiting for, you know, the states to get their act together. Who am I to decide which is better? Right? I suppose that that's the answer, right? Those who say this is a better outcome, presuppose they have the right answer. And I don't think I do. I am much more willing to let other people decide the majoritarian process through democratic process, what the best answer is. I'm not a benevolent dictator. Anthony Kennedy is not an enlightened despot, right? John Robert is not an omniscient being, we're just people, right? We're individuals. And I, my sympathies go to Angel Reich significantly. And I fully supported her legal challenges. And I, I'm surprised that the federal challenges, you know, the legislation's taken so long, but I think we're moving towards the direction. Let's not forget Plesky versus Ferguson to Brown versus Port, almost half a century elapsed, right? Change doesn't happen overnight. I know people like, you know, oh, there's a meme, everything changes right away, right? Actual change, persuasion doesn't change overnight. This is a lesson Ginsburg taught when you have five lawyers in the Supreme Court make law overnight, it will not be accepted by people, right? Judicial decisions are just parchment. It's just pieces of paper, which apparently are now leaked on the internet, right? These are these are decisions are paper. Unless there's a legal basis, some, some, some political movement behind it, it will not be in track. All right, we're going to leave it there. We've been talking about Josh Blackman about the Samuel Alito draft of, you know, decision or rolling in Roe v. Wade or overthrow Roe v. Wade. Thanks so much, Josh. Thanks, Nick. Bye, everyone.