Preet Bharara:

From CAFE and the Vox Media Podcast Network. Welcome to CAFE Insider, I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

So, Joyce it’s Tuesday morning. It’s about 10:30 in the AM on May 3rd. And we had a host of topics we were going to discuss. We were going to talk about Trump being held in contempt, we’re going to talk about the Minneapolis Police Department, we’re going to talk about Marjorie Taylor Greene. And then, wow.

Joyce Vance:

Sam Alito.

Preet Bharara:

A whole ton of bricks. Sam Alito, while I was eating dinner yesterday, draft opinion, seeking to overturn Roe v. Wade, that has been the law of the land for 49 years leaks, and that’s all anyone has been able to talk about for good reasons since then. On a very trivial note, I will say that if that had happened any other night of the week, other than Monday, we probably would’ve gone into emergency podcast session. Do you agree?

Joyce Vance:

Yes.

Preet Bharara:

But since we normally tape on Tuesday, anyway, we can talk about it with a timeliness that fits our schedule, which is the only good thing I can say this morning.

Joyce Vance:

I’m glad you found a silver lining Preet because I’ve been struggling.

Preet Bharara:

As you and I were discussing before we started taping, a lot of people have been saying a lot of different things. There are a lot of smart takes. I think there’s a lot of information we don’t have. I was up until very late talking to people, texting with folks, people are debating what this means, whether this remains final. Why don’t we start with the fundamentals of what this draft opinion, if it remains in this form means, and the basic reasoning of this opinion. To set it up, Joyce, maybe you can explain it in your eloquent fashion because you’ve been talking about this for a long time, and I have been also.

Preet Bharara:

This is a case that arises out of Mississippi. And you and I for some months have been talking about the Texas case and how the court dealt with that, SB8. But we always keep mentioning this Mississippi case in which the State of Mississippi in bold fashion directly asked the court to overturn Roe. And I and some others have always speculated that, well maybe a straight ahead direct what I would say somewhat radical decision to overturn Roe outright would not have been the best approach even among justices who wanted to have that effect. They might effectively gut Row without directly overturning it. This opinion puts that speculation to rest, right?

Joyce Vance:

Well, it would seem to. I mean, I would start by saying this opinion, it’s not a done deal. This is a draft of a majority opinion. Following argument in this case, and in every case, it’s the Supreme Court’s practice to vote. And the senior judge in the majority based on that preliminary vote assigns an opinion. So likely here, Justice Thomas assigns to Justice Alito who writes this opinion. This opinion is not a final opinion, it could change. It could even become a concurrence if Roberts could attract enough votes to what’s likely at present his minority view. I’m not saying that any of this is likely, I’m just saying that we need to understand where in the process the court is here.

Joyce Vance:

Because I heard Pete Williams say something great this morning as Pete Williams at NBC news often is want to. He said, “Some of the sharp edges of these early opinions sometimes get sanded off in order to attract the necessary five votes to a majority.” And I think that’s something to keep in mind here.

Preet Bharara:

Can we ask a preliminary question first?

Joyce Vance:

Sure.

Preet Bharara:

Before jumping into the opinion and that is, let’s give our view of whether or not this is authentic. Because in the first hour after the opinion leaked, that was a question people were asking. And you heard Politico, with quite a scoop for Politico, those reporters saying to their team, and I think internally, they had vetted this very carefully based on the source of the opinion and the nature of the opinion and the detail and the opinion, it’s like 98 pages, and the style of the writing, they believed it to be authentic. Now we’re a whole half day later, do you agree there’s no reason to think this is anything other than authentic.

Joyce Vance:

If this wasn’t authentic, the court would’ve released a statement to that effect already.

Preet Bharara:

And the court has had no comment.

Joyce Vance:

No. And I think Dafna Linzer, in her first week at Politico, right, as the news director, that statement she released to their reporters internally was a very strong vouch for the authenticity of this opinion from someone I think who’s very careful about her credibility.

Preet Bharara:

Yeah. Okay, so let’s go back to what you were saying. The nature of the opinion, the directness of the opinion, can you just summarize for folks what this does?

Joyce Vance:

If this opinion stays in place, abortion rights in America are over. States will have the authority to adopt laws without exceptions for incest and rape if they choose to. They will be able to criminalize abortion. They will be able to make it a crime for a woman to obtain an abortion a step that most states haven’t taken until very recently. Laws that are already on the books that prohibit abortion, both these pre-Roe zombie laws that stayed there but haven’t been enforced. And more recently, these trigger laws that states have been passing, anticipating that Roe could be reversed. All of those laws will go into effect. So, when this opinion comes down, if it does come down in this form, the effect will be very immediate in many places.

Preet Bharara:

The trigger laws, I think my last count was 13 states, which essentially means these laws go into effect banning abortion as soon as Roe is overturned. Is that right? 13 states, you think?

Joyce Vance:

I’ve seen numbers as high as 20. The Guttmacher Institute, which is a pro-choice organization, tracks them. But I think it’s fair to say, we’re going to see a rush to put new laws on the books. And in many states, it’s not just one law, it’s overlapping laws because they’re trying to make sure that they cut off every avenue to abortion. So, a law making certain conduct a crime, a law that says you can’t get an abortion I think increasingly will see these personhood bills like the one in Alabama. Life begins at conception, which means you can’t get a prescription medication abortion anymore, which means you can’t get an early abortion, a late abortion, you can’t get a medication assisted abortion. The effort here will be to rule off all options.

Preet Bharara:

Now, in other states like New York, where I live, the right to an abortion is enshrined in statute and the overturning of Roe V. Wade won’t affect that, correct?

Joyce Vance:

That’s right and that makes it important for us to talk about something that’s had a lot of attention, the disparity issue. Which is that women who have financial means or even increasingly corporate sponsors like Amazon, which said this week, that it would fund the cost for employees who need to go out of state to obtain abortion services, women with financial capabilities will have greater access to abortion than women who are poor in America.

Preet Bharara:

Can we also state the obvious that this opinion, if it stands in this form then is joined by four other justices so you have a majority, is not appealable. That’s it. We can talk later about the possibility of the Federal Government passing a statute to protect the right to abortion and whether or not that’s viable or not. But at this moment, if this opinion stands, there’s nothing else to be done about it unless, when we’re doing this podcast in 15 or 18 years, the court has went back the other way, there’s a un-reversal of Roe or the reinstatement of this reproductive right. Is that all fair?

Joyce Vance:

That’s all fair. Of course, today, abortion is still legal in states that still have abortion clinics that are functioning. You can obtain needed services today but that won’t be true when this opinion comes down. It will be a matter that will be left up to every gerrymandered state legislature in the country.

Preet Bharara:

I want to just quote from some parts of the opinion and ask you a question. The Alito opinion is very direct. It says, “Roe must be overruled.” It says, “The constitution makes no reference to abortion.” And we can talk about the legitimacy of that argument or not and I know we both have concerns about it. He also writes that, “Roe was egregiously wrong from the start.” And he says, “Stare decisis,” which is the doctrine of precedent. “Stare decisis is not an inexorable demand,” setting up the situation for the reversal of Roe. I’ve seen some commentators say, given the leak of this draft opinion, that for various reasons, the court should issue its final opinion with dissents and concurring opinions such as they may be immediately. That harm is done to the institution and harm is done in some other way that I don’t fully understand by having this out there without hearing from the court in an official manner. What do you think the timing will be?

Joyce Vance:

Well, I think that depends on how far along the dissents are in progress. It takes time to write, people will be writing in response to this opinion. I suspect that they’re not yet complete. The final form of the vote may not be clear. It may not be entirely certain what the majority and minority look like, whether there will be concurring opinions. So, I don’t expect to see an opinion drop tomorrow. Although it’s possible that the Chief Justice might try to urge people to move more quickly than they would otherwise have been inclined to.

Preet Bharara:

You said something earlier that I wanted to pick up on and that is Pete Williams has said, and I think people who follow the court appreciate that the first draft opinion that’s circulated in private, whether it’s a majority opinion or dissent and they’re all circulated so other justices can refine their points of view and respond in their own opinion to the other side or to concurring opinions, that something like the rough edges of those opinions sometimes get buffed and removed and votes are lobbied for by removing language or adding language and so the edges get rounded a little bit. Do you think, as I think I do, that the fact of the leak of this draft opinion with its strong language and anti-abortion language, which is probably something that many conservatives who don’t believe in abortion celebrate, do you think there’s an argument that it’s going to be really hard to walk it back?

Joyce Vance:

That’s an interesting point because with the opinion out in the public, it would look like Alito had caved in on the issues if he walked this language back in a serious way. And I guess we can talk, and people are speculating about who leaked this and why we don’t know the answer to that question obviously. It creates pressure to have this opinion out in the public domain before its final from a lot of different directions. And I think this is why, frankly, something like this should never happen. I mean, I applaud Politico for their scoop and their reporting, but justice is better served when we see the court’s opinion when it’s ready to be final and ready to be the law. And I find this to be just a little bit, this is troubling because the court, the confidence that the public has in the court is really I think at an all-time low, at least in our lifetime.

Preet Bharara:

I think that’s true.

Joyce Vance:

This will further diminish the confidence people have in the court, and perhaps rightly so. Perhaps the court no longer deserves our confidence, but nonetheless, the integrity of that institution, which is so fundamental to the rule of law and to remaining cohesive as a country is going to be damaged in just an unprecedented way and I think the institution of the court will never be the same as it was before this happened.

Preet Bharara:

I think that’s right. And I think the release of this in advance will have a distorting effect and may not lead to what we would’ve otherwise gotten for good or ill. I want to go back to some of the substance of this because I know you have strong views. Among other things, Justice Alito in the draft opinion said, as I mentioned, the constitution makes no reference to abortion. He also says that, “The abortion right is not deeply rooted in the nation’s history or tradition.” And he has an appendix in which he includes anti-abortion laws going back, I think to 1800s.

Joyce Vance:

Oh yeah.

Preet Bharara:

What weight do you put on any of that?

Joyce Vance:

I am so proud to live in America, Justice Alito’s America, where the fact that men withheld these rights from women hundreds of years ago means that women can never have them.

Preet Bharara:

That’s a great way to put it.

Joyce Vance:

He covers that in some very pretty 14th amendment analysis, and he justifies it with the law, but ultimately that’s what he’s saying. So, if you’re a black person, three-fifths of a person at the founding of this country, you should maybe be a little bit concerned about what role Sam Alito thinks you should play and what sort of autonomy you’re entitled to. This is just at bottom, a deeply offensive opinion in so many ways.

Preet Bharara:

And another thing we should make clear, you’ll hear commentators say echoing Alito, stare decisis is not an inexorable demand. And conservatives will like to say, “Well, there were bad Supreme Court decisions and there became a consensus that they were bad and they were overturned.” And that happens. And that’s something that the court can do and that’s something the court has a right to do. And it’s happened before, and liberals have applauded that in the past. But the difference is this, I think it’s the case, and we have to check with scholars on this, that on every prior occasion where there was a reversal or an overturning of a Supreme Court precedent, it was in favor of the expansion of a right. And this is the first time or least the first serious time that there has been an overturning a prevailing law that is restricting a right or taking a fundamental right or something that was found to be a fundamental right away. What does that mean?

Joyce Vance:

I think that’s correct. And it’s important to underline that. This is an opinion that takes away a right that women have enjoyed for almost 50 years. And this notion that you can take rights away from people is something of a watershed moment in the court’s history. A wise judge, a civil rights area judge told me a while ago that in the ’60s, Civil Rights advocates were comfortable that they could go to the courts and ask the courts to give them a fair hearing on an expansion of rights. That’s what’s given the courts the integrity, the role, the place that they have in our society is that they guarantee our rights.

Joyce Vance:

Now the Roberts court for the first time is going to take a right, a foundational right, away from Americans. This is a right that has kept women from dying from botched procedures in alleys. This is a right that has made it possible for women to engage fully in the economy. This is a right that has permitted women to make choices about their own lives. And although, certainly not all abortions are obtained by 12-year-old victims of incest and rape, that’s not an insignificant consideration. The idea that you’re taking away from young girls, from victims of crimes and abuse, the ability to determine the course of their future, you’re taking that right away. That’s what this opinion’s about.

Preet Bharara:

And the other thing to bear in mind, and maybe we’ve mentioned it a little bit in passing is history shows that if you ban abortion, the number of abortions does not go down. It just changes the number of people who die from it and who can get it as you’ve mentioned.

Joyce Vance:

Hillary Clinton got this exactly right when she said, “Abortion should be safe, rare, and legal.” And the way you do that is by providing a safety net so that people who want to make the choice to have a child don’t have to be concerned about paying for expensive medical costs, like the cost of the birth itself, which is not insignificant. So that in states like Alabama, that have refused to expand Medicaid, women will be forced to carry babies to term, forced to take on that expense, they won’t have access to prenatal care, they won’t have access to early childhood education and a whole host of other things that a society that was truly pro-life, right? If this is about being pro-life just not pro forced birth, then you would do everything that you could to enhance the life of these babies that will be born. But that’s not what’s going on here.

Preet Bharara:

Should we talk about the implications of this with respect to other rights? And I don’t think it’s too early to talk about that. Especially given the way in which Alito says again and again that the constitution makes no reference to abortion. The constitution makes no reference to many things and many rights that we take for granted and then have been conferred on the American people for decades and decades and decades. What does this mean for marriage equality? What does this mean for the right to contraception?

Joyce Vance:

Alito repeatedly tries to distinguish Roe from substantive due process rulings on marriage, procreation, child rearing all of that by saying, well only Roe is about destroying a fetus. It’s the only one directly protecting women’s bodily autonomy would be my response to that. His effort to distinguish abortion from these other substantive due process cases really just lies flat in light of the point that you make that all of these rights, contraception I think is the big one, Griswold v. Connecticut comes from this same line of constitutional reasoning. But I don’t think it’s going too far to say that Obergefell, the marriage equality case is at risk possibly even Loving versus Virginia. The ban on anti-miscegenation laws. Loving v. Virginia is the case that legalizes interracial marriage in our lifetimes. So, I think it’s important not to be fooled by the rhetoric that this opinion stops it at Roe. The opinion is about undermining many other privacy, bodily autonomy rights that we are fortunate enough to take for granted and it will not stop with abortion.

Preet Bharara:

People sometimes will say about an issue who listen to this podcast and listen to Stay Tuned, and they want to know how big a deal something is, DEFCON one to five or on a scale of one to 10, because there are times when something happens and I will say, “A subpoena’s issued in an investigation. What does this mean? Is this a big deal?” And sometimes I think people overstate. I think it’s impossible to overstate the significance of this. This is as big a deal as anything in the law that I feel like I have addressed or covered in the four and a half years of doing these podcasts. Do you agree?

Joyce Vance:

Yeah, this is a 10 on the Richter Scale. One interesting side effect, and I don’t know if you want to go into this just yet, but one interesting impact of this opinion and you and I actually talked about this a little bit in the context of the Texas abortion case, that the Republicans were a little bit like a dog that was chasing a car and didn’t know what to do when they finally caught up with it. Well, here we are, the court is poised to reverse Roe versus Wade and the midterm elections are looming and maybe this isn’t such a great thing for Republicans.

Preet Bharara:

Look, maybe not. I mean, one of the reasons is some people speculated the opinion ultimately would be more subtle and maybe Roe wouldn’t even be overturned was a consideration of politics. And so ironically, I guess one could make the argument that the conservatives on the court don’t care as much about politics as you may think, or they may have made a calculation that it won’t have that bad an effect on Republican prospects or who knows what the reasoning is and what the thinking is and what the focus is. And different people have different things that they focus on and different motivations and different intentions.

Preet Bharara:

But it’s been 14 hours or so since this opinion leaked and I have not seen, this is a comment that you referenced that I made with respect to the Texas case, I have not seen parades of jubilant right-wing folks who have been praying for a ban on abortion for 49 years, where’s the celebration? Why aren’t we seeing that? Instead, we’re seeing on right wing TV, an obsession with the fact of the leak and an investigation of the leak and we’ll get to that in a few minutes. Why aren’t they jubilant and in the streets if this is what they’ve always wanted?

Joyce Vance:

I think they’re hoping that May is far enough away from November that by November people will be numb and that these calls in the last 24 hours for people to organize and register and vote that they’ll sort of fade away. And that’s going to be an interesting dynamic heading into the midterms.

Preet Bharara:

Yeah. I don’t know what’s going to happen.

Joyce Vance:

Because we say, we should note something that’s left open by this opinion is that Congress could come back and make Roe versus Wade the law in America. If there were votes to pass a Roe bill after the midterm elections, then Congress could do that. Would it be challenged in the courts? Of course, it would be. But they would have that authority. And so, for Democrats, it’ll be interesting to see whether they can marshal the opposition to this opinion into something that turns into stronger majorities following the midterm election

Preet Bharara:

Seems unlikely to be able to pass such a thing. And that leads me actually to another observation that’s obvious, but we should make it explicit. Just think of how powerful the court is and what a big deal the court is. You have at the moment, a Democratic majority in the House, a Democratic majority in the Senate and a Democratic president. So, both branches of government run by Democrats. And yet you can see the evisceration of reproductive rights even in that context. And even in the context in which you were citing to a poll before we started taping some 70% of Americans believe in some form of a right to abortion.

Joyce Vance:

It occurred to me as I was reading the opinion last night, and I don’t know if this is legal analysis so much as it was just something that I started to think about is that you’re right, there is a lot of support in America, not necessarily for abortion, but for permitting people who are pregnant to make that decision without any interference from the state. And yet the way this opinion is written, Alito places a lot of emphasis on the rights of states to make laws. It’s maybe a cheap shot to say that we live in a highly gerrymandered America where state legislatures don’t necessarily reflect the will of the majority as much as they reflect the will of politicians who wanted to choose their voters rather than let their voters choose them. But over and over Alito talks about, well, states can do this, and states can do that. And that flies in the face of these statistics that tell us that a really strong majority of Americans would like to see abortion remain a viable alternative for women in America.

Preet Bharara:

Yeah. Conservatives will say, when you cite to these polls, they’ll say, “Well, that’s wonderful, but the democratic process unfold and states can decide for themselves,” which the response is given how the Supreme Court has treated it as a fundamental right, that arises from the right to privacy, having a differential between Texas and New York or Oklahoma and Kansas or whatever the case may be is not justice in the country and leads inexorably to pain and suffering and even death on the part of women who live in a state where they don’t have that fundamental right. And it’s not something that should be taken away by a democratic majority like other rights.

Joyce Vance:

I’d like to be optimistic and think that there could be a coalition here of not just women, but people who also see their rights being at risk down the road and that powerful coalition could change the way America votes. But just to be honest on a day that’s already depressing enough, we haven’t seen that sort of success by Democrats at the polls. They’ve never succeeded in convincing their voters that the court is a reason for people to maybe vote for candidates that wouldn’t have been their first choice. And I’m not sure that it’s going to happen today. My fear is that people will go about their business and the concerns of today will ease some, I hope that’s not the case, frankly, what I’d like to see is people out in the streets protesting this opinion for the bad opinion that it is and beginning to figure out how voters regain the power that even Justice Alito is still willing to afford them to change this really dramatically wrong opinion.

Preet Bharara:

Yeah. My governing hypothesis has been for a long time on this issue, which date back to my time in the Senate working on Supreme Court confirmation hearings is that conservatives have cared more about the court with respect to their politics in part because they’ve been in the losing end of important issues, including the right to an abortion, right? So, if you’re a vehement strident anti-abortionist, you care about the court because you think that your side has been wronged and that an injustice is being imposed on people in the country so you’re going to work hard the theory goes to overturn that, and you’re going to vote for justice just to overturn that because that’s your long term goal.

Preet Bharara:

And on the other hand, if you’re progressive and you believe in a woman’s right to choose, the status quo is on your side and you can kind of rest a little bit easier and put your head in the sand and think, “Well, there are majorities who want the right to abortion progressives control for periods of time the house and the Senate and the presidency like we’re talking about now, and the court’s not really going to do this, it’s not really going to happen because it seems unthinkable.

Preet Bharara:

And you have these nominees parading before the committee who talk about Roe being settled law and settled precedent and they pay homage to stare decisis and it turns out that’s all wrong. And so, I wonder if the hypothesis flips once the right to abortion is taken away once Roe is overturned and the status quo switches, do then people on the left act as powerfully with respect to the Supreme court and to other judges on the bench as conservatives had for five decades, what do you think?

Joyce Vance:

Yeah. I would like to think that it flips but the reality is Democrats are a very big tent and one of the, I think, just sort of the way Democrats are organized as a coalition that comes together is to not require fealty to any strict sort of party litmus tests. Democrats include people who are both pro-choice and anti-choice. I see that even here in Alabama, where that line is not, you don’t have to pick one or the other in order to be a Democrat. So, I have this concern that Democrats won’t be able to put together and really it’s not just Democrats, right? Because they’re Republicans who favor abortion rights as well. I’m just concerned that coalition may not come together, but I’d like to be infected by a little bit of your potential optimism there.

Preet Bharara:

So the only reason we can talk about all of this and the only reason we know any of this is because what appears to be an authentic draft opinion by Justice Alito has been leaked. And let me say a couple things. There have been some obnoxious people on social media when I made mention of the leak screaming, “Who cares about the leak, who cares about the leak. The leak is not the story, the leak is not the story. It’s the taking away of fundamental rights for women.” And I agree with that, it’s not the story, but the fact of the leak and its unprecedented nature is a measure of how profound a deal this is, felt strongly by somebody on the court to make it public. So that’s reason one, it’s a story. Reason two is it may actually affect the ultimate outcome of the case so it’s relevant for that reason also. What do you think about the nature of the leak and what it means?

Joyce Vance:

You know, we’ve talked about the fact that I wished that it had not have happened, but I’m going to confess to just being really confused by this leak. It’s hard for me to imagine who thought they would benefit from leaking this decision. And I suspect that you’re going to say, “Well leaks don’t always make sense, people aren’t always thinking strategically when they decide to leak something.”

Preet Bharara:

Or they are and their strategic thinking is wrong.

Joyce Vance:

I mean, nobody in what appears to be the minority wins by leaking this opinion, all that they do is that they give the folks on the other side a talking point about how terrible leaks are and how awful it is that one of them did this. I know you and I talked earlier, we’ve seen these reports that the Chief Justice has apparently called the FBI and to investigate, I can’t figure out what the FBI is going to investigate here. Leaks are pretty American.

Preet Bharara:

Well, what’s the statute? What’s the statute that’s violate. I mean, we make clear to people just because something happens and it’s inappropriate and it violates a norm, and we’ve seen that with Donald Trump and other circumstances, doesn’t mean that there’s a law that’s been broken. This is not Grand Jury material. It is within the rules of the court that these things remain confidential. It has been the tradition in history of the court. There have been minor leaks closer in time to a decision, there’s a reminder that the ultimate decision in Roe leaked a little bit in advance of the issuing of the opinions to the public, but nothing like this.

Joyce Vance:

This leak of a full opinion is what sets this apart from any of these other internal court discussions or decisions that have been leaked.

Preet Bharara:

I’ve had a lot of debates in the last 14, 15 hours with people, including some who have clerked on the Supreme Court. And I don’t know if it’s a worthwhile exercise because it’s all ranked speculation, but some of the people I’ve talked to have said, “There’s no way that a clerk would’ve leaked an entire opinion like this without the blessing of the Justice for whom they worked.” I don’t know if I buy that. And do you have a view or some speculation about whether or not it was a justice or a clerk or some other employee of the court who might be responsible?

Joyce Vance:

I had the same conversations last night with a couple of friends who were adamant that it wouldn’t be a clerk. And part of that stems from what you just referenced. The fact that the decision in Roe itself was leaked a little bit ahead of schedule. As it turned out, that was a clerk who came forward and it was apparently an inadvertent matter involving timing and a clerk who was trying to give information to a reporter who was going to write the story just to make sure that what they had was accurate.

Joyce Vance:

So one suspects that in the wake of that, and maybe some other incidents that the justices have made it really clear to clerks what will happen to them if they leak. They’ll be fired, they’ll be blackballed, they’ll never get a job. You would have to be awfully committed to leaking this opinion in order to run that gamut of impacts. But it’s also really hard to contemplate that a justice would see value in leaking this. I mean, I wish I had a more informed or a better assessed judgment about what’s going on here. I just don’t understand who benefits by leaking this, at least on the liberal side of the equation.

Preet Bharara:

I don’t fully agree with that and I’m not sure what the right analysis is. And I think there’s been a lot of speculation on this point in the way that I’m going to describe. But you could see someone on the liberal side, someone on the dissenting minority side believing correctly or incorrectly that they should raise an alarm bell about Alito’s full frontal assault on Roe and hope against hope that the resulting outcry from the public would do something in the nature of trying to encourage or influence Alito to walk it back in the face of so much outrage and outcry. I’m not saying that’s a good analysis, but I can see the analysis being done. And by the way, on the right, what I think is unfortunate is particular clerks for particular justices are being identified by name as possible suspects in the leak based on no evidence that I’m aware of.

Joyce Vance:

It seems to me that anyone who’s spent any time around Justice Alito, which most of the clerks have likely done at this point in the term, is aware that he’s beyond shame, that public disapproval of his opinions only leads him to believe more firmly that he’s right. And I don’t understand and like you say, it could be an irrational judgment or an incorrect judgment, I just don’t see someone leaking early an opinion that many people believed was a strong possibility anyhow, I don’t see how anyone could think that would move the needle at all. Especially when you’ve got folks who just were very clear about their views, right? Alito, Thomas, very clear about their views on this issue. Gorsuch in many ways, relatively clear. And I think all you have to do is take the former President at face value when he said he wouldn’t put anyone on the court who wouldn’t vote to reverse Roe to appreciate where Kavanaugh and Barrett were likely to land on this one.

Preet Bharara:

With respect to any investigation of the leak, they thought it shouldn’t be that difficult because draft opinions of this nature are kept so confidential in such tight hold that there’s good information as to who opens a document, who prints a document, who emails a document, and it would’ve been a bit of nifty espionage to be able to get away with this undetected. Do you know anything about that or has anybody suggested that to you,

Joyce Vance:

Russian hackers? I think that’s right. And again, that just makes me think it’s so unlikely that a clerk would’ve been the one to leak this. What I wonder is whether we’ll get to the bottom of this mystery and how long it will take. One suspects that if it really was a clerk or a court employee, that the court will have the means to identify that relatively quickly. But that also suggests that nobody in that position would’ve leaked because they would’ve known it would come to light. The court really does have a special jurisprudence for abortion, a sharp analysis that they don’t use in other areas. For instance, this is a court that has weighed in favor of qualified immunity. And perhaps I need to go back and read the constitution more carefully, but I don’t think the constitution explicitly provides for qualified immunity.

Joyce Vance:

So, this notion that just because the constitution doesn’t explicitly say something means it’s not a right, is sort of a shabby analysis. And I know we’ve gotten away from a 9th amendment analysis of these sorts of issues. Originally when Roe came down, it was this sort of penumbra right created from any number of different amendments, the 1st, the 4th, the 9th, the 14th. But what Alito is saying here, and let me just read it because he says it early on. “In 1973, this court decided Roe versus Wade. Even though the constitution makes no mention of abortion, the court held that it confers a broad right to obtain one.” That’s his almost his opening shot over the bow. That means that a lot of the Republicans sacred cows by that same sort of logic should be vulnerable to attack. But I don’t think that will happen that’s not a realistic possibility. It just indicates that there was a faction on the court that was so result oriented when it came to doing away with abortion, that they were willing to make arguments that they won’t make in regards to other issues.

Preet Bharara:

Yeah. I think that the reverberations of a decision that remains in the form of this Alito majority draft opinion cannot fully be assessed. And I think it’s dramatic with respect to the future decision making of the court and rights that are implicated for targeting by folks on the right. And there’s no telling how bad it will be.

Joyce Vance:

Originally when Mississippi briefed this case, what they asked for was a ban on abortion at 15 weeks. And of course, in Mississippi, clinics only performed abortions up until 16 weeks. It was seen on the right as a modest request. But then as Trump appointed more and more justices and the Supreme Court’s new conservative majority took shape, Mississippi changed course and asked in briefs for an outright ban on abortion. That’s how we end up where we are today. And the question is, will that stick and what are the implications for other rights? Given the apparent view that this Supreme Court is at least willing to consider this very novel, this very first-time sort of approach of becoming a court that takes away rights, not helping to guarantee them to Americans.

Preet Bharara:

Yeah, I think that’s right. So, Joyce, you and I will be talking about this and following this obviously for a long time. We’re really curious to know what you think and what questions you have. This is all very recent, we’re still processing it. It’s a long opinion and there are a lot of opinions about the opinion. So do us a favor and send your questions or your comments or your thoughts to us letters@cafe.com.

Joyce Vance:

Please do this is an issue where we’ll all be learning from each other as we move forward. We look forward to answering your questions and discussing your suggestions.

Preet Bharara:

That’s it for this week, CAFE insider is presented by CAFE Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The technical director, who’s David Tatasciore. The senior producers are Adam Waller and Matthew Billy. And the CAFE Team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Sean Walsh, and Namita Shah. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider Community.