 Good morning here in Hawaii afternoon or evening for those in other places. Thanks so much for joining us on Think Tech Hawaii and remember this is that time of the year where Think Tech looks for help support donations so that we can keep doing these difficult conversations to make good trouble and many of them in different areas. So, thank all of you who are willing and able to support in any way you can and motivated to do so. Okay, today we have with us Professor Vernelia Randall, Professor Emerita from the University of Dayton School of Law and one leading experts on race racism and the law. Ben Davis, who's now teaching at Washington and Lee School of Law, Professor Emeritus from and duty emeritus as the t-shirt indicates from University of Toledo School of Law. David Larson at Mitchell Hamlin School of Law and chair of the American Bar Association section of dispute resolution. And Jeff Portnoy, one of our leading Hawaii lawyers and scholars on pre-pressed First Amendment rights and a range of other civil issues and topics. Well, today with this panel of legal expertise. What's going on at the US Supreme Court? Any sense of what's happening there? Professor Randall, do you want to start us off? Yeah, I think what's going on in the Supreme Court has been building for decades. My oldest son was born in 71 before Roe versus Wade and I was a single mother, single parent and had to make the choice about whether to have an abortion or not. And at the time it was illegal and I can't say that influenced me not to have an abortion, but I didn't have one. Some of my friends do and I've always been pro-choice that ultimately the final decision has to be in the hands of the woman who was pregnant. But from Roe versus Wade, from that, there has not been a year, a decade where there has been not opposition, there have been cases that have been eating at the way and the Republicans have used their ability to get the Supreme Court justice on that will overturn it. I personally think the leak is about, and I like to hear other people's opinion, I think the leak is about trying to lock the conservative justices in. The liberal justices have no reason to leak that. I mean, because even with protests, the Supreme Court is not really an institution that is open to protests. And, but I think that by leaking it in, they sort of say, they sort of lock people, anything that comes out that's less fringeant now, people will think it's because of the leak and people, I think it was done to lock people in. What's other people's opinion? I was going to say that I agree with Professor Randall that this is really an example of an effectively executed political strategy. And it's really only one part of it. One part of it was to get people on the Supreme Court that would embrace and enforce very conservative views and shouldn't be any surprised that people are voting as we would think they would vote. And this is really in combination with with concerted efforts to restrict the vote in lots of jurisdictions. It's an overall strategy that unfortunately for people that believe in democracy, it appears to be succeeding. And I think it's really troubling. And at some point, I hope people are energized to realize that they have to get engaged, they have to vote, and they've got to make sure that we have majorities in the power making institutions. Well, I think we're, you know, people are conflating to issues, the abortion issue, which is now front and center. And going back 50 years, the justification for Roe versus Wade in the first place. And it has been 50 years of constitutional debate as to whether there's a constitutional right to privacy. And Roe versus Wade was just one of several cases that were decided by the court on the basis of a inferred constitutional right to privacy, which does not appear anywhere in the 14th amendment. And, you know, it's not only Roe versus Wade, but in a marriage, gay rights were all decided in favor of those rights by an implied right of privacy. And what this court, at least in the draft opinion, abortion is really the secondary issue. If you read the draft opinion, it's based upon the conservatives view that there is no federal constitutional right to privacy. And therefore, abortion, as well as several other things we're about ready to get reversed, are going to relate back to the states. And that's really the issue that I think is being lost. And I understand why, because how emotional abortion rights are. And really, people need to look beyond this because the next thing to fall is going to be gay rights. The next thing to fall is going to be cases dealing with privacy that the court has found in favor of privacy, although cutting away over the last couple of decades. And the Trumpers have now packed the court with six people who don't believe in the right of privacy that abortion is the first brick to fall. I read the opinion to lay the groundwork for turning back all kinds of so-called privacy rights to the state. But it's hard to tell people to look beyond abortion when 50% of the population is going to be directly affected by the abortion. I think that maybe, yeah, I agree with you on that point, but I don't know that I can say to people put privacy above abortion. No, no, and I want to make myself clear on this. Clearly abortion is the hot button issue, and rightfully so. And, you know, it's just going to hopefully rely on 16 or 18 states that are going to allow abortions and to encourage people to have abortions. The court is not going to criminalize abortion, but I think when people look beyond abortion, not that it's not the major issue. They need to be even more concerned, more distressed, more scared about individual liberties, because they're going to see them cut left and right over the next three to five years or longer with this court. And by the way, who might have leaked this? My vote is Clarence Thomas' wife. So, if I could just jump in. One of the things that I think is really quite amazing reading this is we go back to this discussion of what's tradition, right? You know, I found it amazing that the traditional arguments go back to the angle of sex in a U.S. history, pre the 19th Amendment, you know, in all the period that women didn't have a meaningful participation on the whole, some places exception on the whole and any of the legislative decision making that was done. And then the second part of it was that, well, technically you could argue it goes all the way to 1965 when the voting rights act, when black women were prior to that disenfranchised from voting. And so, you know, the idea of tradition, going back, for me, has been this old canard I've always heard of the anti-abortion movement about, because there's a lot of heavy stuff in that tradition that you can pull on to do absolutely devastating things. The other thing about the quote unquote not the word abortion not being in the Constitution, you know, I was thinking like, well, you know those folks in the 1800 18th century and those folks in the 19th century, all those guys, you know, I mean, you know, surprise, you know, they didn't think about it, you know. And of course, I wrote a piece really upset with all of this that I tried to get published somewhere and they declined to publish it because I guess I'm not doing conventional legal analysis here but I would just like to say to you that, given the fact that women were not participating from 1965 before, essentially, all women were not participating in any of that prior common law or other decision making or legislative decision making or constitutional decision making. Everything that he talks about prior to 1965 is suspect. The second thing is that on the divisions that have happened since row. Anybody else remember what happened after brown. Anybody else remember the segregated academies. Anybody else remember the civil rights movement and all the division on it. I mean if you're going to talk about division being an issue. You know you got you every time you have a right given to somebody, you're going to have that kind of the situation that that are and that kind of a rationalization I find a polling. Finally, I would just like to say is that the bottom line of this. It's about people who are poor. They don't give a damn about people who are poor. Women who are rich will get their abortion. We're working for them and I don't think it's just women who are working class women, working class women won't have access to abortion. That's right. So this is just one more of these all ago kind of just get the hell with the four people. You know folks, I lived in France for 17 years alright I know what health care is. I don't care when you're a woman. I know it's amazing the backwardness that we have and so with all the. I've called this the forced pregnancy, a little draft. And I call this sanctimonious barbarity. What we're what you're watching and I don't care where you stand on it. If you know what real healthcare is. This is the sanctimonious. I heard an interesting observation, very interesting observation that most Americans support the right to choose when it's a case of rape incest or when my daughter becomes pregnant. But, but you know, the poll is deceiving, because at least in 26 states. The voting population doesn't support the right to an abortion. That's more than half the states and by the time it's over, it'll probably be two thirds one third and I point out the voting population. They have voted in wait, they have voted in legislators who are passing these very strict anti abortion law so when people say 70% of the people support abortion, it's totally misleading, because it's based upon population areas, like the East Coast and the West Coast, you have to go state by state but let me let me finish one more thought. And again I want to get away from abortion just for a second because I think that's, that's the hot button is what we're looking at now as a total shift in federalism versus states rights, we're going back to the 50s federalism became the dominant decision for federal courts that allowed all of these things to get passed. Back to states rights, where this present court is going to minimize, whether it's administrative rulings whether it's going to be privacy issues. They are going to minimize the right of the federal government to quote control our lives, and are going to say no these are issues to be decided by the states, and we know what happened in the middle 1800s. But that's what's happening with this court so federalism is going to be eaten away, and we're going back to states rights for the foreseeable future. This Madison's double security. Let me say this, this Madison's double security the rights of the people through separation of powers and federal is all right that was instructor, I'm sitting here in Charlottesville Virginia having visited his plantation. And the point that always gets missed in this is what if that structure does not protect your right. You can play the shell game of federalism or separation of power. But bottom line, if there's not the double security does not protect your right. What do you do. Justice Scalia told me I should go into the streets. When I when I raised it with him. And that what they want is that we go into the streets about these things, because if they don't protect you people will will respond. I'm sorry people will not respond they will not take this, and they'll, there will be women who will have abortions. People who will marry people that they love these things will happen, independent of whatever the superstructure tries to lay on them in this game. And, and you, they're just going to have to deal with it, because people will not. Sorry to say it like that, just bend over, because why there is that word liberty in the 14th amendment. It's there. It doesn't say like Trump's liberty. It says liberty. And that's a pretty ferocious idea for many, many, many people. I'll just say it like that. And I'll, by the way, all those people who vote for those laws and all that they're all great on it until it's their daughter. I'm sorry, just like all those people are anti gain until they had a family member who was gay. And that's the problem with them is the idea of having a little more empathy for people beyond just a few people around them. Sorry, I'm sorry, excuse me. Yeah, I believe you know I, I agree with Jeffrey's alarm with the idea that this is the beginning of a path, and that we really need to be attentive and aware of that that that a lot of things could begin falling under the same principle approach. It's not the principle we like or not, it's one that's going to be embraced, but I also agree with Professor Randall was saying earlier about the importance of recognizing abortion as a separate issue and I, I always go back to one quote from Ginsburg. I'm going back to the Ferguson case that I think sums it up where she talks about that. When you start restricting the ability to choose. It really goes to women's struggle for equality. Yes, that women's ability to realize their full potential is intimately connected to their ability to control their reproductive lives. And I think that's something that we just can't lose sight of. Absolutely, it's central. The studies all show that for black women the legalization of abortion resulted in significant educational and employment results I mean it was at the same time that the Civil Rights Act of 1964 and other things like that. And, but I don't, I think then that you're, I think that we have a society that is oppressive, and that turning in the streets is not going to change that oppression. I don't know what we'll do. I think that that the police will turn out with their bazookas that they got from them from the military with their cannons with their tanks, and that they will, it'll be done that it won't. I think the only thing that can turn, and I have no hope that this is the Democrats deciding to play tough, get rid of the filibuster pack the fucking, excuse me. You know, you know, and, and, and, and make some changes instead of incremental that the slow incremental change that comes from by design of the Constitution. We don't need slow incremental change now we need to go back immediately. It's not going to happen. It's all coming down to voting rights. I mean we have to be real. I mean, the only way things are going to get changed is through the ballot box, and then who knows. As I said, 26 states have elected legislators who have found the majority in their individual states to pass restrictive abortion rights from, you know, the obscene to, you know, something in the middle. And those people were all elected. The question is, is everybody eligible, given the opportunity to vote. This is not going to be changed, in my opinion, in the next 20 years by judicial decisions, and it's not going to happen in Congress. And it's not going to happen, because the states, the states have gerrymandered the census was was corrupted so that not all black brown native and indigenous people were counted. So, so we're underrepresented in the town. The, the, the, the states are German during the thing to wipe out black voices that current not that very much, which I'm not Florida has one or two black people, and they are changing to wipe that out. They're changing the voting so that yes, the state vote legislature voted in, but they are in, they are in power now in, and I don't see how that's going to change in the next 50 60 years, if at all, primarily because the Democrats won't fight. Democrats sit back, like, I laid a problem that Obama speak, I lay it at Obama speak, because instead of taking the Congress to court for refusal to have hearings on and protect his presidential right to appoint someone, he tried to play nice. And so now we end up with these different people. The Democrats aren't going to change. No, I don't agree. And I just wanted to say that when these harsher trigger laws go into place that this does come to being overturned. People who are going to be prosecuted are going to be black and brown women. Let us get real. Yeah, that's who's going to be prosecuted, not white women, black and brown women. And the system is going to do it same machine that it's always done with regard to that. And you know, Jeff, you went to Selma, and you saw, you saw and learn that history. And it's like that gives you just a sense of just how dark this thing truly is going, going to be. And you know what, there are plenty of people in plenty of states who are fine with that. Not, and there are plenty of people who are not fine with it. Okay, I'm going to say that they think it's outrageous to think it's wrong. But unfortunately, there are plenty of people who don't care if it's not affecting them. And as long as they can fly their daughter to some place or go across the border to Cal to Canada. They don't care. This was part of an overall strategy. And, you know, it's been really well implemented and to go with to what Professor Randall was saying, I think part of the problem is that the Democrats have not been as effective as doing this is putting in place such a comprehensive strategy to go to each branch of government and to lay out exactly what they need to do to accomplish the goals, and then executing it. And whatever you think, the Republicans have been effective doing it and the Democrats have not. They haven't laid out that strategy and pushed it and stayed with it. And as a consequence, now we're losing control of all the legislatures. And we're seen as what Jeffrey said, majorities embracing restrictive legislation. Well, don't forget the dollars. We can all express our frustrations. But the question is, how can it be fixed frustration is not going to fix that going into the street is not going to fix it. It can only be fixed in two ways, political ballot box, or judicial. And the latter, and we are what revolution. I mean, don't take that off the table. People should be serious. If the plate if it's not sufficiently, you know, the American society is built on revolution. We should not take that off the table. We saw evidence of revolution on January 6. Do we really want to see it again. I was just saying that people are already in the streets. Okay, people are already in the streets. That's not going to wait, wait, I'm sorry about that. Already in the street. And I saw one Saturday, they're going to be in the streets all over this product. You know what, so what doesn't change anything. It either has to change politically or judicially and my thought is, I like to finish it is, it's not going to happen judicially with the way the federal courts are set up both at the district level, the circuit level, and now with the Supreme Court, the only way it's going to change. And I understand, Professor Randall about your, your, your upset view of the Democrats and I certainly think they've proven to be as dysfunctional as anybody can possibly be just looked at yesterday when they couldn't even get mansion to vote on something that had no chance of passing. So, yes, they're totally dysfunctional, but you know, politically, it's the only thing that's going to work. And whether it's a constitutional amendment, or some kind of a federal statute like the Civil Rights Act, it needs leadership. And right now, there isn't any, and the Republicans have taken the lead in November, if you think things are bad now, you wait till November 2, when they take over probably both branch of both the house and the Senate and you'll see how bad things will be. Everybody will have a revolution. I don't think it can work politically. I mean, I'm serious. I don't have the Democrats have the political will to do street fighting. No, they're compromises. They like to pull, they call themselves pulling people together from all sides, and they, they don't say, wait a minute, there is only one side on this. You're going to street fight on this. You'd have to show me that I don't see that as politically happening. And what I see happening is people what's happened for the last 50 years of my life. Get out to vote, get out to vote, get out to vote. And then the Democrats. Oh, what can we do. We got Manson, we got Sonayna, we got Biden, Biden was voted anti voted on some limiting abortion right. So, the thing is, is that's not a political, that's not a solution. I don't know what in our last minute, any final words. Where can I get, if Professor Reynolds correct, where can I get my gun. These days get pretty much anywhere. One thing I say, we're not encouraging that if people go to the streets. Yes, there will be people killed. Absolutely right. That's one other thing about the United States that seems really always to have. And when people go to the street, they get killed. Wait, wait, wait, system work. Wait, my hope is overreach. Just watch how overreach is going to go because these folks the thing about them is that when they got their power thing going. They always go to to too far. And I don't know what it's going to happen. Wait, wait, wait till June when the Supreme Court makes it even easier to get a gun and to carry it out on the street because that's next. My solution is not a, it's only a middle upper middle class solution. Because not everybody can do it. Get some passports and leave the country. You know what, if you got that as an ability to do seriously, go somewhere else. Thank you all. Another lively candid discussion. Sorry, we only have a half an hour we could probably keep going on this. Jeff, David, Ben, thanks so much for joining us. Watchers, listeners support think tech Hawaii comeback. We'll be back in a couple of weeks. With more difficult conversations to hopefully make some good trouble. Take care. Don't forget to follow us on Facebook, Instagram, Twitter, and LinkedIn, and donate to us at thinktechhawaii.com. Mahalo.