The Supreme Court confirmed that the leaked draft opinion obtained by Politico that suggests the high court is poised to overturn Roe v. Wade is authentic. 23 states in the United States could ban abortion the minute Roe is struck down. Michigan`s Democratic governor Gretchen Whitmer is asking the state supreme court to strike down the abortion ban law before it can be enforced again in a post-Roe world. Supreme Court Chief Justice John Roberts ordered an investigation into the leak of the draft abortion opinion. The draft of the abortion ruling sparked protest across the United States.
STEVE KORNACKI, MSNBC NATIONAL POLITICAL CORRESPONDENT: -- is it necessarily going to be caught in the earliest votes that were cast. But again about 15 percent in right now. Vance is off to a slight lead. Dolan is right up there, a Mandela factor.
JOY REID, MSNBC HOST: Fascinating. We will definitely keep an eye on it. Steve Kornacki, I always appreciate you, man. Thank you.
And that is tonight`s REIDOUT. "ALL IN WITH CHRIS HAYES" starts now.
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CHRIS HAYES, MSNBC HOST: Tonight on ALL IN.
SAMUEL ALITO, ASSOCIATE JUSTICE, U.S. SUPREME COURT: Roe versus Wade is an important precedent.
BRETT KAVANAUGH, ASSOCIATE JUSTICE, U.S. SUPREME COURT: It is an important precedent.
NEIL GORSUCH, ASSOCIATE JUSTICE, U.S. SUPREME COURT: Worthy as treatment of precedent.
AMY CONEY BARRETT, ASSOCIATE JUSTICE, U.S. SUPREME COURT: That doesn`t mean that Roe should be overruled.
HAYES: Nevermind what they`ve all said before. The Supreme Court confirms the draft to overturn Roe v. Wade.
SEN. ELIZABETH WARREN (D-MA): Well, I am here because I am angry and I am here because the United States Congress can change all of this.
HAYES: Tonight, the anger, the outrage and the call to action with Senator Elizabeth Warren.
Plus, Governor Gretchen Whitmer on her lawsuit to keep abortion legal in Michigan. And Melissa Murray and Laurence Tribe on why this draft shows this court will not stop with Roe when ALL IN starts right now.
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HAYES (on camera): Good evening from New York. I`m Chris Hayes. You know most news developments that we cover here impact the world in incremental or even imperceptible ways. And then there are some that cleaved the world into before and after. That was the case with the COVID 19 pandemic, with January 6, the election of Donald Trump, and now potentially the overturning of Roe vs. Wade.
Now, to be really clear as we start tonight`s program, we do not know for certain that the Supreme Court will overturn Roe. But we begin tonight`s show processing the fallout from that leaked 98-page draft from the court authored by far-right Justice Samuel Alito and published by Politico which indicates the court will overturn Roe as well as Planned Parenthood versus Casey, another key ruling that upholds abortion rights.
"We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision." Now, keep -- Chief Justice John Roberts today has confirmed the leak`s veracity, vowed to find the leaker.
According to the draft, as of now there are five of the six conservative justices who appear to want to overturn Roe, ready to do it. Right now it`s unclear how Roberts, the Chief Justice, plans on voting. If this opinion were to be issued by the Supreme Court, this draft decision would signal the end of reproductive rights for tens of millions of Americans, about half the U.S. states. And that reality has sent a shockwave throughout the United States.
Already, we`ve seen a race to donate money to local entities` abortion funds that provide reproductive health care as well as national organizations fighting for reproductive rights. Funds which help pregnant people access abortions if they so choose.
In the last hour, Vice President Kamala Harris spoke to political action committee EMILY`s list, which works to elect women candidates who are pro- abortion rights. And she spoke out forcefully against those who wish to legislate reproductive rights out of existence.
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KAMALA HARRIS, VICE PRESIDENT OF THE UNITED STATES: If the court overturns Roe v Wade, it will be a direct assault on freedom, on the fundamental rights of self-determination to which all Americans are entitled.
Those Republican leaders who are trying to weaponize the use of the law against women, what we say, how dare they? How dare they tell a woman what she can do and cannot do with her own body? How dare they? How dare they try to stop her from determining her own future? How dare they try to deny women their rights and their freedoms?
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HAYES: You have similar sentiments across the country today. Activists have been demonstrating at the Supreme Court since this story first broke a little under 24 hours ago, including a number of Democratic senators who joined the protests in solidarity.
Today, Senator Elizabeth Warren of Massachusetts who will be joining us in just a moment, delivered an impassioned speech in defense of abortion rights and called on Congress to enshrine access to abortion in federal law.
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WARREN: Well, I am here because I am angry. And I am here because the United States Congress can change all of this. Angry but permitted. Understand this, understand this, I have seen the world where abortion is illegal and we are not going back. Not ever.
UNIDENTIFIED FEMALE: No.
WARREN: So, say it with me. We are not going back.
CROWD: We are not going back.
WARREN: Not ever.
CROWD: Not ever.
WARREN: Not ever.
CROWD: Not ever.
WARREN: Not ever.
CROWD: Not ever.
(END VIDEO CLIP)
HAYES: There have been other impromptu protests across the country. Here in New York City, protests are gathered in Foley Square near a number of federal buildings including the U.S. Court of Appeals for the Second Circuit for an event to "channel rage into action."
In Boston, protesters gathered outside city hall with chants and signs supporting abortion rights. Dozens of demonstrators did the same outside of federal courthouse in Reno, Nevada. And a large group took the streets of Richmond, Virginia in support of Planned Parenthood.
There are protests in Chicago, in Columbia, Missouri, Raleigh, North Carolina, Orlando, Florida, and Austin, Texas. Texas, of course, right now, is ground zero for the fight for reproductive justice. Roe is effectively already inoperative there. It has been since October. After the Supreme Court refused to block the state`s flagrantly unconstitutional law which effectively puts $10,000 bounties on people seeking abortions, allow citizens to sue citizens or doctors.
The reality in Texas is that unless you can afford to travel to a different state, you are right now effectively unable to obtain access to an abortion, which means tens of thousands or even potentially millions of pregnant people are being forced to give birth. That`s even if their pregnancies are the result of rape or incest.
And that will be the reality for millions of more Americans if and when Roe is overturned and more than a dozen states immediately ban abortion. And to be absolutely clear, that`s the outcome Republicans and conservatives want. That is what they`ve been fighting for over the past half-century. And yet, when faced with the prospect of their imminent culminating victory, what do they do? What they do best, they whine. They whine about the process.
Today, Mitch McConnell of Kentucky, the top Republican in the Senate, did not even mention Roe or abortion in his initial remarks to reporters, instead lamenting the fact that draft decision was leaked at all. Again, this has been the desired result of McConnell`s decade-plus gamblers to stack the Supreme Court. This is one of the reasons why he took the wholly unprecedented step of blocking President Barack Obama from filling Justice Antonin Scalia seat and putting Merrick Garland on the court.
It`s why he abolished the filibuster for Supreme Court justices, one of the first things he did to push Neil Gorsuch on the court in Scalia`s place. It is why he backed Brett Kavanaugh even after he was accused of sexual assault and his accuser came and testified under oath before the United States Senate. It is why he pushed through the confirmation of Amy Coney Barrett, just days before a presidential election when Ruth Bader Ginsburg body was hardly in the ground, an election that his party lost.
He did it, Mitch McConnell. But when he face the consequences of those choices, what did he do? Justice McConnell whined like they always do about process. Today, the National Republican Senatorial Committee actually distributed three pages of talking points on this to help its members craft a coherent response to the shocking news.
Axios published a copy of that document which advises Republicans to do what McConnell did and blame the leaker. "The leak of this document is troubling and is indicative of the radical left`s mission to undermine the institution of the Supreme Court and ultimately pack the court with liberal judges who will rubber-stamp the Democrats radical agenda.
To be clear, we do not know who leaked this draft. I know nothing. None of us know anything about the provenance of this thing. I mean, it may well have been someone working for a conservative justice who wants to make sure that none of the five justices who at one point signed on to do this don`t defect, don`t go weak in the knees.
We should note, the Republican Party is not entirely united front in its opposition to abortion. There are actually two sitting Republican senators who at least on paper, in a kind of technical check out my website sense, support abortion rights, Senator Lisa Murkowski of Alaska and Senator Susan Collins of Maine. Both women supported the nomination of Neil Gorsuch and Senator Collins voted for Brett Kavanaugh as well.
Now, Susan Collins today said she would be -- "it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office. They voted to overturn Roe, which I got news for you, according the reporting, they will. No word yet on Senator Collins plans to do anything about it.
That said, the next steps for both parties are a bit unclear right now. And we`re in a very strange moment. I mean, the draft opinion is leaked. It`s there. We`ve all read it. We don`t know what`s happening behind closed doors. So, what to do about it is sort of a little up in the air.
Today, Senator Elizabeth Warren was out and angry and very clear on how Republicans have been masterminding this for years.
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WARREN: I am angry.
UNIDENTIFIED FEMALE: Angry and upset?
WARREN: Angry and upset and determined. The United States Congress can keep Roe versus Wade the law of the land. They just need to do it.
UNIDENTIFIED FEMALE: I`ve never seen you so angry. You seem to be --
WARREN: This is what the Republicans have been working toward this day for decades. They have been out there plotting, carefully cultivating these Supreme Court justices so they could have a majority on the bench who would have accomplished something that the majority of Americans do not want.
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HAYES: Joining me now, Senator Elizabeth Warren, Democrat of Massachusetts. Senator, I think a lot of you channeled the way a lot of people have been feeling in response to this. It`s why I was very excited to have you on the -- on the program tonight. It`s 24 hours since the news broke. You were out in front of the steps. You are one of 100 people in this country that has a job as a United States Senator. What is your thinking right now about -- as you process the last 24 hours, what the meaning of this is, and what is next to be done?
WARREN: Well, let`s start with what the meaning of this is. This is the culmination of decades of work by the Republicans. They`ve gotten what they want, not a little chip away at Roe, but just blasting the whole thing apart. And I think we all need to think about who`s going to be most affected by this. Who`s going to bear the brunt of this?
It`s not going to be well to do women who can afford to get on an airplane and fly to another state or shoot, could even fly to another country to get the abortion services they need. Now, who this is going to fall on? This is going to fall on poor women. This is going to fall on black women. This is going to fall on girls who have been molested by someone in their family. This is going to fall on women who have been raped.
This is going to fall on women who already are working two jobs and have -- in order to try to support their children that they have. Those are the ones who will pay the price. Those are the ones who can afford to take off work. Those are the ones who can`t tell someone that they`re pregnant until this is already gone way too far.
Those are the ones who bear the cost of the privileged in the state legislatures and privileged who sit on the United States Supreme Court and the privileged in the United States Congress who facilitate a rule that falls on them, a rule that says your dignity, your life, your future, just doesn`t matter.
HAYES: Roe was decided in 1973. And prior to that, of course, there was a patchwork of laws across the country. And in some states, it was -- it was illegal to obtain an abortion. You said today that you have seen firsthand what that`s like. And I wonder if you -- I mean, look, I haven`t. I was born after that date. A lot of people watching this probably haven`t. It`s, you know, a huge -- it`s been a fair amount of time. What does that mean, when you say you`ve seen this firsthand?
WARREN: I grew up in Oklahoma. I grew up at a time when abortion was unlawful. And that means there were women who bled to death from back alley abortions. It means there were women who ended their own lives rather than carry forward in a pregnancy that they could not bear. And that`s the world that the Republican extremists are trying to recreate.
And make no mistake about this. This is not one on which America is closely divided. This is not one that just in the last few months or even few years, we`ve all come together for a long time now. It has been the case that the overwhelming majority of Americans, by a margin of more than two to one, say that they want Roe versus Wade to continue to be the law of the land.
And that`s true in red state, blue state, young people, old people, Republicans and Democrats. That`s why the plan of the extremists has always been not a frontal assault on Roe through the legislative process, but to go to the Supreme Court and just keep pushing for a more and more and more extremist Supreme Court.
And that is why the danger that this Supreme Court now poses is out in full view for everyone. They are willing not to -- not to try to couch this in hidden language, not to say a little now and then a little next year and then a little the year after that. They are willing to come in and just blast Roe versus Wade to pieces because they have the power to do it.
Well, I got news for them. They can take away a woman`s constitutional right at least for a while, but the United States Congress can come roaring back and pass a law to protect and even do a better job of protecting anyone who needs or wants access to an abortion.
HAYES: Let`s talk about that. So there is -- there are 50 United States Democrats -- there are 50 Democrats in the Senate, there 50 Republicans. Two of those Democrats, I think, has said they are opposed to the law -- the proposed law that`s passed in the House. That`s Bob Casey in Pennsylvania and Joe Manchin. So, there`s 48 votes.
There are two Republicans who are ostensibly supporters of abortion rights, Lisa Murkowski and Susan Collins. Susan Collins said this today, "If this leaked draft opinion is the final decision and this reporting is accurate, it would completely -- it would be completely inconsistent with what Gorsuch and Kavanaugh said in their hearings, in our meetings at my office. Obviously, we won`t know each Justice`s decision and reasoning until the Supreme Court officially announces its opinion in this case."
I guess the question is like, yes, Congress does could do it. And I`ve heard a lot of people, there`s a lot of anger out there. And a lot of people saying if the Democrats send me a fundraising email about this, I`m going to lose my mind. Like, you have power, I need you to wield it. So, what do you say to that?
WARREN: So, I say this. First of all, let`s all acknowledge we do have the power to get this done. And so, our first step is going to be next week. We`re going to vote this in the United States Senate. And 50 votes plus the Vice President, that should be enough to do what the people of the United States want us to do by a margin of more than two to one.
However, we`re going to face the filibuster head on.
WARREN: And this is going to put it to everybody who tries to protect the filibuster one more time. We`re going to run right into that and we`re going to have to address this question. The filibuster is not in the Constitution of the United States. The filibuster was used for decades and decades and decades to keep us from passing an anti-lynching law over 100 years. The filibuster was used to keep us from passing voting rights and the other civil rights laws.
The filibuster has just been used this year, to prevent us from protecting the vote all across this country. So, I think part of this is going to be we`re going to have to have that fight one more time around the filibuster. And look, I look at it this way. If we don`t have enough Democrats to get that job done right now, then give us some more Democrats.
And I actually want to put it a pitch. Right now, for something everybody who`s watching this can do today, not just you know, on down the line, but right now today. There`s about to be a primary down in Texas for a congressional seat. Henry Cuellar sits in that seat. He is someone who has supported the Texas abortion ban. He is someone who has voted against federal efforts to try to over -- to protect Roe versus Wade at the federal level.
And he`s running against a young woman, Jessica Cisneros who`s terrific and who has a real chance to beat him and who will fight for a woman`s right to make her own decisions about her life. So, if you`re mad when you listen to this, send Jessica Cisneros 10 bucks. If you can afford it, send her 25 bucks. If you can afford more, send more.
But don`t talk to me about how frustrated you are because you don`t like our particular constellation of Democrats. Help us get some Democrats elected who will actually make a difference. I`m mad. I`m ready to take action. But we need this entire nation to speak out. If the vast majority of people in this country want to see Roe vs. Wade protected, then that it`s going to take all of us working on this.
And yeah, it may take a little patience, it may take some frustration, but that`s how we get there. And believe me, this is a fight worth having.
HAYES: Senator Elizabeth Warren of Massachusetts, thanks so much for your time tonight. I appreciate it.
WARREN: Thank you.
HAYES: As we were just discussing, the central looming question over all this is what can be done. In some states, that`s a really urgent and tangible question because striking down Roe would mean automatically the same day returning to anti-abortion laws that were in place before Roe, laws that are nearly 100 years old.
How one governor is fighting to keep that from happening in her state before Roe is officially decided after this.
HAYES: If or when Roe is overturned by the Supreme Court, abortion would be banned in nearly half the country. 23 states have laws that could go into effect the minute Roe is struck down including nine states Alabama, Arizona, Arkansas, Michigan, Mississippi, North Carolina, Oklahoma, West Virginia, and Wisconsin. But all of abortion bans that were on the books before Roe would go back into effect if Roe were to be overturned.
In Michigan, the law was passed in 1931. And it bans abortion unless done to save the life of the person who is pregnant and contains no exception for rape or incest. The ban never had to be repealed because Roe had made it obsolete, but it is still state law, still on the books. And with Republicans in control both Michigan`s House and Senate, unlikely to be repealed at this point.
So, now, Michigan`s Democratic governor Gretchen Whitmer is asking the state supreme court to strike down the abortion ban law before it can be enforced again in a post-Roe world. And Michigan Governor Gretchen Whitmer joins me now.
Governor, you initiated this several weeks ago before, of course, this this document was leaked. Just explain the legal situation in your state because I don`t think this is sunk into enough people how immediate the effect of the court issuing this ruling could be in a state like yours.
GOV. GRETCHEN WHITMER (D-MI): Yes, I think you`re right, Chris. I mean, so Michigan would revert overnight to a 1931 law. That would make us have one of the most extreme anti-abortion laws on the books. That means it would be a felony to receive or to perform an abortion. It means there`s no exception for rape or incest.
And so, as governor of Michigan, I have the constitutional right to bring a lawsuit to protect constitutional rights of the people of the state. I also have the ability to ask our state supreme court to take the issue up directly. And so, those are two things that I started about a month ago I filed this lawsuit because we saw where this case was going in the United States Supreme Court. And we knew we had to act to protect women in Michigan.
I don`t know if it`s going to be successful, but I`m going to use every tool I can. I`m going to fight like hell to protect this right for Michigan women.
HAYES: Just to go back. I mean, you know, the -- it would be a felony to receive an abortion under this law?
WHITMER: Oh, yes. I mean, it is criminal to act --
WHITMER: Yes, yes. And that`s why, you know, despite the fact that 70 percent of people in Michigan and across the nation support a woman`s right to make her own decisions over her health care, we see that Michigan would revert overnight to having one of the most extreme laws on the book in the nation, going from a pro-choice state right now.
And that`s why, despite how people might feel personally about abortion, the vast majority of people support a woman having this right and being able to make this choice for herself, for their trusted health care provider.
HAYES: So, you have two -- you have Republican majorities in both houses of the legislature, they obviously, and correct me if I`m wrong, they`re not going to work with you to repeal this law. This is the outcome they want to see happen. What`s the -- what are your chances in this lawsuit? Like, is this a flyer and like a last-ditch effort or is there a real case here?
WHITMER: Well, there`s a real case here. You know, my legal team worked incredibly hard to make sure that this lawsuit has merit, that we have got a legitimate effort here to ensure that our supreme court recognizes the Michigan Constitution, affords women under equal protection and due process the right to make our own choices over our healthcare and our bodies. And that`s precisely why we`re doing this.
But we need -- we need people to join the fight. And when 70 percent of people support this, that means there are Republicans who support reproductive choice. That means that there are business owners and business leaders who do as well, religious leaders. We need you to join the fight, men as well.
This is something that is crucial for women and for families and for our health care and our ability to participate as American citizens with agency over our body.
HAYES: I just want to play something said by someone who`s running to challenge you, Garrett Soldano, who`s one of 10 Republican candidates who are trying to win that Republican primary and challenge you. And again, in June, it could be the case that Roe is overturned, that 1931 law is operative legally, whether you have people in power in the state and the governor or attorney general who want to prosecute cases under that, who want to pursue resources to track down women and charge them and arrest them and bring felony crime -- criminal cases against them. That`s going to be a live question for the voters of Michigan.
Here is Soldano talking about rape victims and whether they should have access to abortion and why they shouldn`t. Take a listen.
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GARRETT SOLDANO (R-MI), GUBERNATORIAL CANDIDATE: What we must start to focus on is not only to defend the DNA when it`s created, but however -- how about we start inspiring women in the culture to let them understand and know how heroic they are and how unbelievable they are. That God put them in this moment, and they don`t know that little baby inside them may be the next president.
(END VIDEO CLIP)
HAYES: My apologies for briefly misgendering Mr. Soldano, but that was the rhetoric and I think that`s fairly common throughout the country. I mean, that is something that you`re going to be hearing, I imagined, whatever Republican faces you in this election in 2018 -- I`m sorry, in 2022.
WHITMER: Well, I think it`s important to be clear. You know, the vast majority of Republicans also support a woman`s reproductive choice. You know, when 70 percent of the population does, you know that there are people of all political stripes that understand this is a fundamental freedom that women and only women can make the decision around their health care around their bodies.
So, that kind of rhetoric is dangerous and it`s ignorant. And frankly, as a survivor, it is repugnant. That man should have no business making health care decisions for the women of Michigan or any women in this -- in this country or certainly in my state.
And that`s precisely why I`m fighting to protect this in the courts because it shouldn`t be up to a politician, it shouldn`t be up to the United States Supreme Court and individual justices. This is a decision that is squarely and soundly should be that of the woman and the woman. And if she chooses to consult a trusted health care physician, that`s the only people that should be informed in this decision.
HAYES: All right, Governor Gretchen Whitmer, thank you very much.
WHITMER: Thank you.
HAYES: Still to come, signs that Roe is just the beginning. What Alito`s draft opinions signals about what the court has in store. Plus, as reproductive rights are thrust back to the political forefront, voters are turning out in the first primary of the Midterms with the first big one. Steve Kornacki has the latest results after this.
HAYES: It is primary election day in Ohio with voters picking their party candidates for November`s general election. The Republican Senate primary is the most-watched race there. It is serving as the first big test of Donald Trump`s endorsement in 2022. Polls closed just about one hour ago. We don`t have a call in that contest, but we do have other results.
NBC News projects that Congressman Tim Ryan will win his race for the Democratic nomination for U.S. Senate and incumbent Republican Governor Mike DeWine is also projected to win his primary as well. NBC News National Political Correspondent Steve Kornacki is at the big board with the latest. Steve.
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KORNACKI: So, Chris, let`s take a look here at that Republican primary and you see J.D. Vance, again, about 16 percent of the vote in is leading early on, Josh Mandel, and then Matt Dolan, state senator here. The one candidate Dolan notably who Donald Trump has condemned and says, does not want Dolan winning this nomination.
I think there`s two dynamics that are coming into focus here right now. Number one is that Dolan`s core areas of strength are going to be the metropolitan areas. So, for instance, he`s from Cuyahoga County. This is where Cleveland is. His family owns the Cleveland guardians baseball team. What you`re seeing here basically is the early vote. This is the vote by mail. This is the early in-person vote.
You already see Dolan cleaning up with his vote. You got a lot of votes still to come in Cuyahoga County. He`s going to do very well, it looks like, in places, I`ll give you another example, the State Capitol, Franklin County, Columbus. Again, you`re looking at the early vote already. Dolan is cleaning up a lot to come. We have no vote yet at all to come out of Hamilton County. This is where Cincinnati is.
So, the metro areas, it looks like Dolan is going to do very well tonight, and it looks like there`s a lot of vote to come still from the metro areas around the state. So, opportunity as that vote comes in for Dolan to move up. For Vance, the question is going to be this. Again, basically, the rule of thumb across the state of Ohio is the first votes that get reported and that looks like basically what we`re looking at here.
The first votes that get reported are the early votes, as I say, and the mail votes. And remember, the key to Vance`s campaign is the endorsement he got from Donald Trump, the endorsement didn`t come until about 10 days into that early voting window. So, we`re getting some indications. One thing we`re looking at in these counties as the votes start to come in is we`re matching up the early vote totals with the same day totals.
And we are seeing so far -- it`s early. We haven`t got a lot of same day vote. But we are seeing a bump for Vance in the counties we`ve seen so far where he`s doing better on the same day vote, the vote that was cast today. So, there`s geographic opportunity for Dolan to move up here, just given the sheer number of votes that are still to come from the places where it looks like he`s going to clean up. And there`s an opportunity here for Vance to do better when the same day vote starts to come in right now.
So, you know, Mandel may end up getting squeezed a little bit here. And there`s a really interesting dynamic here where Vance and Mandel both really tethered themselves, tried to tether themselves to the Trump wing of the party, Dolan did not. Vance right now seems to be getting the better of Mandel slightly, but are they going to chew up so much, Vance and Mandel, so much of that hardcore Trump vote that it does create a pathway for Dolan. That`s what we`re going to be looking at over the next couple of hours, Chris.
HAYES: All right, Steve Kornacki, that was great. Thank you very much.
Next, as protests continue tonight, more on the bombshell leak from the Supreme Court. How it might have gotten out and what it reveals about the dangerous direction this conservative court is headed, after this.
HAYES: Of course, a huge news that broke last night right here == right around this hour during this program is that it appears there is a majority on the Supreme Court that will overturn the right to an abortion enshrined in Roe vs. Wade almost 50 years ago. Now, the second order news, which is also shocking in its own way, is the fact that the leaking of this draft opinion and that it is totally unprecedented in the history of the court.
Anyone who`s reported on the court or spent time around it or knows it well knows that this is an extreme violation, as extreme a violation as possible of the unwritten code of silence that hangs over the people that work in that building.
Now, last night, many people, myself included, initially assumed the most likely person to have leaked this draft would be a clerk for one of the liberal justices, which by the way, it`s not a lot of people. There`s 12 of them, OK. And it seemed logical it would probably be someone who was, you know, horrified, who wanted to send up a red flare, warning this decision was about to come down.
But I will say as the dust has settled a bit over the past 24 hours, another possibility has emerged. Former Supreme Court Clerk Amy Kapczynski, who is now a professor at Yale Law, lays out the argument for the leak coming from a conservative. One who is "fanatically committed to every word of Alito`s monstrous opinion. She continues, and I quote her, if you work inside the court, you know the most concrete impact of the leak is to lock in this opinion essentially as is. Any edits at this point reveal jockeying between the justices, undermine the majority and the court itself embarrassing the majority."
So, I`ve somewhat come around to finding this series somewhat persuasive. Again, I don`t know. No one knows who the leaker is other than the leaker, I guess. But basically, the theory goes like this. Conservatives on the court had a five-four majority to overturn Roe back in February. They took the vote of conference, the majority opinion was assigned to Samuel Alito. He drafted it. But that five-four majority may have been coming undone in the process of revisions and compromise and, you know, things happening inside behind the scenes.
And so, in an effort to corner every one of those five original votes to blow the whole thing up, someone then leaked the draft to the public. Oh, now you`re trapped, you can`t get out of it. Now, you could argue it doesn`t matter who leaked the draft or why. But again, it all comes back to the substance of this opinion. It is an extraordinarily extreme document. It goes much further than it has to.
Justice Samuel Alito in this draft opinion calls into question an entire line of legal theory around the rights guaranteed in the 14th Amendment. He writes, "Guided by the history and tradition that map the essential components of our nation`s concept of ordered Liberty, we must ask what the 14th Amendment means by the term Liberty. We engage in an inquiry in the present case to clear answers the 14th Amendment does not protect the right to an abortion."
According to Alito, a right to abortion, and this is a key phrase, is not deeply rooted in the nation`s histories and traditions, and therefore it cannot be one of the unenumerated rights protected by the 14th Amendment.
Now, the legal philosophy around those rights that the 14th Amendment protects is what protects everything from birth control, to same sex marriage, to interracial marriage. If this opinion is issued, as it`s currently written, it wouldn`t jeopardize all sorts of other key additions or at least point to the opening of those up.
Whoever leaked this opinion, whether an opposition or supportive it, wanted the world to see just how extreme it is. And we will examine this potentially wide-ranging fallout next.
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UNIDENTIFIED FEMALE: I`ve been at this for over 50 years fighting an argument I cannot believe that we have to do this all over again to re-win a right that`s ours that we`ve had. And how dare they take this away?
UNIDENTIFIED FEMALE: I got really concerned not only for myself, but like my friends and family. It just really scared me. I guess it like moved me.
UNIDENTIFIED FEMALE: As a person, you should have bodily autonomy and you should have a right to your own body.
UNIDENTIFIED FEMALE: We have the right to health care, and we have the right to decide what we want to do with our bodies.
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HAYES: It`s been 24 hours since Politico broke the seismic news of a Supreme Court draft majority opinion striking down Roe v. Wade and thousands of people across the country have taken the streets in protest. In major metropolitan hubs like Washington D.C. and New York City, but also in smaller cities like Reno, Nevada or Knoxville, Tennessee, all united by the shared fear of losing the constitutional right to legal abortion that has been guaranteed for five decades.
Melissa Murray is a Professor of Constitutional Law at New York University. She clerked for Sonia Sotomayor when Justice Sotomayor was a Federal Appeals Court Judge. And she`s written extensively on the intersection of race and abortion. She`s also the co-host of the podcast Strict Scrutiny with, full disclosure, my wife Kate Shaw and Leah Lippman.
And Laurence Tribe is a constitutional law scholar. He clerked for Supreme Court Justice Potter Stewart back in the 1960s. He is a professor emeritus for Harvard Law School where he taught for 50 years. It`s great to have you both tonight.
Melissa, let me start with you just on the opinion because it really is -- you know, it`s very rare. It`s in fact unprecedented that we have draft opinion that we`re reading out in public. And it`s a very extreme document, I think. What is your takeaway about the -- about the text of the opinion itself?
MELISSA MURRAY, CONSTITUTIONAL LAW PROFESSOR, NEW YORK UNIVERSITY: Well, this is an opinion that really leaves nothing to chance. It has covered all of its faces. It has left everything on the dance floor. Justice Alito, in writing this, has not only foreclosed and eviscerated the right to an abortion, he does so in ways that I think, actually warrant some deeper analysis and not quite as tight and analysis as he`s offered.
But he basically closes all doors going forward. He leaves a blueprint for the states to challenge other unenumerated rights like the right to same sex marriage, the right to interracial marriage and contraception and so on. And he also leaves no room in here for Congress to step in to preserve reproductive rights.
In fact, there is a Blueprint here, I think, to allow Congress to step in and nationalize the legalization of abortion by coming in with a personhood amendment or some other kind of national legislation that would foreclose this right across the country. So, the idea that this is a settlement that reserves this to the states for state-by-state deliberation, I think, that`s more gaslighting. It is something that he says here, but I think the opportunity for that is going to be relatively fleeting.
HAYES: So, there`s -- the blanket sort of abortion, you know, just the sort of covering all the bases as you said, leaving a group a blueprint for further action at the legislative level. You also mentioned the sort of other unenumerated rights, right, the tradition of jurisprudence that comes out of just substantive due process and flows down through the Griswold decision which, you know, finds a right to privacy and to the access to birth control. Obergefell, which is marriage equality.
Professor Tribe, you were -- you said, reading the draft, you quickly learned that all the rights people have taken for granted, the right to decide who to marry, whether to use birth control, with whom to have sex, how to raise your children, endless list of freedoms will no longer be protected unless you can point to language in the Constitution expressly guaranteeing those rights or convince five Supreme Court justices they are deeply rooted nation`s history and tradition and implicit in the concept order liberty. That is the new test that Alito is proposing in this majority opinion.
LAURENCE TRIBE, CONSTITUTIONAL LAW SCHOLAR: It`s a new test, and it`s a test that would turn the clock back at least half a century. In fact, it`s interesting to note that Justice Alito carefully says that the first eight amendments to the Constitution are ones we can look at in order to figure out what are the substantive rights. He conveniently doesn`t mention the ninth which specifically says that the fact that a right is not expressly listed, cannot be used to denigrate it.
It`s also amazing that he just tosses equality out the window. He says there is this argument that restrictions on abortion, especially extreme ones, deprive women of the equal protection of the laws, because guess what, it`s women who get pregnant and it is women who are at greatest risk from these strict abortion laws.
But he says, that doesn`t mean that it`s gender discrimination. Really? The reason he says that it`s not gender discrimination is guess what? We have precedents saying that it`s not gender discrimination. That`s really rich for a decision that tosses 50 years of precedent aside casually to rely on precedent to say that there`s no gender discrimination when you ban abortion. That really is the height of irony.
And it`s not just ironic, women in particular, but ultimately all of us are relegated to a society in which where you`re not genuinely free over our most intimate choices by a decision that as Melissa Murray points out, Congress could not easily overcome much as I admire people like Elizabeth Warren for saying we`ve got to do something in Congress. Do something in Congress and this court may well come back and say you`re overreaching. You don`t have the power to reaffirm rights to abortion. But maybe you have the power to ban all abortion, because it`s all commerce after all. The glass is half full and half empty at the same time.
HAYES: Yes, that`s -- I mean, that is, of course, the maddening nature of the entire originalist and textualist con that sort of, they love the text of the Constitution, and then the Ninth Amendment just like completely disappears, you know, it`s not deeply rooted. But also, we got this Loving v Virginia problem, which, clearly we don`t want to say like, it`s -- you could ban people from interracial marriage, so like we`ll just sort of kick that away.
And generally, Melissa, I wonder what you think of the theory on the leaker about -- I mean, I don`t think, again, not the most important thing, but I do think this idea of why, right? Like, the extremism of the opinion was the thing that propelled the leaker whether someone ringing the alarm bells or someone wanting to enshrine it and make sure there was no climbing down from the maximalism on display in this opinion.
MURRAY: I think it`s really the latter and not the former, Chris. I mean, this really is, I think, a circumstance of Odysseus lashing himself to the mast to resist the sirens call. There likely was someone who was in the five justice majority after the vote, but who read this opinion, which again, is not just extreme, it`s absolutist and decided, like, you know, I`m not ready to go that far yet. I`m not ready to leave the door open to overruling same sex marriage or trimming back interracial marriage or contraception. I`m not there yet.
And maybe that person was going with the Chief Justice who was much more interested at oral argument and brokering some kind of Third Way compromise that would uphold the Mississippi law but stopped short of overruling Roe and Casey, and together with the three liberals, that would have been a five justice majority.
This league essentially shows that wobbly conservative that there will be held to pay if you don`t hold the hard line on this. And the hell to pay is basically the treatment that the Chief Justice has received over and over again whenever he has departed from the conservative orthodoxy and joined the liberals in the name of institutionalism.
HAYES: Yes, again, we don`t know the answer to this. I think it`s -- there`s they`re sort of plausible cases on both sides but I find that -- that vision of things compelling. Melissa Murray and Laurence Tribe, what a -- what a pleasure and a treat to have you both tonight. Thank you very much.
TRIBE: Glad to be here.
HAYES: That is ALL IN on this Tuesday night. "MSNBC PRIME" starts right now with Ali Velshi. Good evening, Ali.