Summary
"Politico": Draft opinion shows Supreme Court has voted to overturn abortion rights. Rep. Jamie Raskin (D-MD) is interviewed. Sen. Amy Klobuchar (D-MN) is interviewed.
Transcript
CHRIS HAYES, MSNBC HOST: But there`s a lot of wrestle with in the aftermath of this, and hopefully, you can come back as we wrestle with it.
Irin Carmon, thank you so much for joining us. I`m so glad that we had you.
IRIN CARMON, NEW YORK MAGAZINE: Thank you, Chris.
HAYES: All right. Again, I`m just sort of composing myself here as I process this. This is -- that is "ALL IN" for this evening.
"THE RACHEL MADDOW SHOW" starts right now.
Good evening, Rachel.
RACHEL MADDOW, MSNBC HOST: I am absorbing this right now as you are talking about it, Chris. This is -- I mean, you and I both need more time to process this than is afforded by the fact that we`re live on television right now, but do we share the understanding that this is the first time before a ruling has been issued, we have seen what purports to be the draft ruling ever leaked to the press?
HAYES: That is my understanding. I think "Politico" more or less indicates that. Of course, it`s always hard to prove a negative, but I think that`s - - I think that`s correct and I think you and I who are both kind of SCOTUS buffs, and, you know, I`ve always had an interest in the court. It`s just a -- it`s a sort of a resting moment because the code of Omerta around that institution is so strong and so powerful that that both the substance of what is being leaked here and then the communicative signaling happening in the fact of the leak is a very is almost sort of emotional at some deep level because of what it signifies.
MADDOW: Yeah. And I mean, when you were just speaking with Irin Carmon, as you said, you were -- you booked her today to talk about this new reporting that Republicans in Washington have been debating and planning on proposing a nationwide abortion ban, you know, a six-week abortion ban, which is effectively a complete ban on abortion in the United States.
And if this ruling is go -- if the -- if the ultimate ruling from the court is going to look anything like this and we`re going into a midterm season where the Republicans are poised to take the House and the Senate, then, you know, President Biden is still President Biden and he would presumably veto such a measure. But if the -- in the event that we had a Republican president in 2024, that`s where we`d be. We`d be at a, you know, South America style nationwide abortion ban in America.
HAYES: Just to be clear, it would be -- and I can`t you know known as the future and you I think and I agree. It would be the first bill. It would be the first bill. It would be HR-1 and it would be S-1. It would be HR-1 in the House, it would be S-1 in the Senate.
I don`t think there`s any question about that, that that would be the first bill in a Republican trifecta in a post-Roe landscape, no question.
MADDOW: And the fact that it`s being leaked -- this fact that this is being leaked now, we will have -- whatever the ruling is, we will have the ruling before the November election, I mean, this -- this is -- this is like a four-number Sudoku. This isn`t a very hard puzzle, right?
This is -- in terms of people figuring out what the stakes are of their vote in November, in terms of the midterms, putting whichever party in control of either House of Congress will among other things determine whether or not we`re about to become a country that bans abortion nationwide.
HAYES: We should also just note, I mean, and obviously, this is something you`ve reported on as well as anyone on all of television, there`s I think 25, 26 states that have trigger laws such that when Roe gets struck down, abortion becomes illegal that moment, that instant. This is not some process that`s going to play out. You can be living in a state watching this right now as a pregnant person as someone planning on getting pregnant, where the day the afternoon this happens, your state law says the ruling of the court means that abortion is now illegal after this timeline in your state.
MADDOW: And as we`ve seen abortion politics, particularly in Republican controlled states um get harder and harder and harder line in very -- over a very short timeline as they`ve gotten close to knowing that a ruling like this is likely coming, we have now started to see -- there used to be a taboo on saying that, you know, the doctors would go to prison. They`re now saying, yeah, the doctors, you know, in some states, they`re not talking about this, but oh, yeah, the doctors will go to prison.
But even more acutely, there used to be -- until very recently, there was a taboo on saying that a woman or even a child who were who was raped or was the victim of incest, at least they wouldn`t be forced by the government to give birth against their will, to carry that pregnancy to term and give birth against their will. That increasingly, literally including you know girls who are pregnant as a result of rape or incest, they aren`t those exceptions are disappearing uh with one by one with each passing week every time a Republican legislature takes up this issue. And so, we`re now at the precipice of something that`s become a much more extreme prospect becoming exceedingly likely -- both of the he radicalism and the practicality are speeding toward the same cliff.
HAYES: That`s right. Oklahoma, which signed its law very similar to Texas just a little bit ago.
[21:05:02]
Ohio, where they`re proposing legislation. In fact, there was -- you know, just some viral sound from the state senator, they`re talking about why it was okay that a woman who was a victim of rape or incest or 14 or 15 years old, it would be okay to force for the state to force them to carry that pregnancy to term. I mean, I don`t know what to say. It is -- it is -- it is the culmination of something that many people have worked against and fought against and worried about for a very, very long time.
Again, I have to say you have covered this topic as well as anyone on television by far and it`s -- it was not surprising for people to follow the court this was not the outcome that people thought was not going to happen people listen to oral arguments. The fact that they specifically asked to overturn Roe, which they didn`t have to do, the chomping of the bit that happened in oral arguments from the justices who clearly wanted to go right for the apple, none of that surprising. But to have this draft opinion there on the Internet is shocking.
HANNITY: It is shocking. As you said and as we started discussing here, it`s shocking both in substance and it is also shocking in terms of what it means about the court and what it means about the stakes here that someone was willing to do this. It is just a remarkable thing.
Chris, thank you for handling this as legitimately breaking over -- sort of overwhelming breaking news. I`m going to pick this up right now, including with the reporter who just broke this story from "Politico". Thank you, my friend.
HANNITY: I`ll watch that. Thank you.
MADDOW: All right. Before I bring on Josh Gerstein, who is the reporter who just broke this story at "Politico", let me just summarize once again this breaking news that Chris Hayes and I are both doing our best to respond to.
The headline at politico.com right now, just breaking in the last few minutes is this: The United States Supreme Court has voted to overturn abortion rights, draft opinion shows.
According to an initial draft majority opinion written by Justice Samuel Alito, circulated inside the court and obtained by "Politico", the Supreme Court has voted to strike down the landmark Roe versus Wade decision. The draft opinion is a full-throated, unflinching repudiation of the 1973 decision, which guaranteed federal constitutional protections of abortion rights. And also a subsequent 1992 decision, Planned Parenthood v. Casey, which largely maintained the right, Alito writes in this draft majority opinion, quote, Roe was egregiously wrong from the start. We hold that Roe and Casey must be overturned. It is time to heed the constitution and return the issue of abortion to the people`s elected representatives which as Chris was just mentioning there means repeat returning it to the states and in um more than two dozen states there are what are called trigger laws which would immediately uh render abortion a crime under it illegal uh immediately upon the Supreme Court issuing such a ruling.
As Josh Gerstein reports along with his colleague Alexander Ward at "Politico" tonight, quote, the immediate impact of the ruling would be to end a half-century guarantee a federal constitutional protection of abortion rights that would allow each state to decide whether to restrict or ban abortion it is unclear if there have been subsequent changes to the draft. This draft ruling that has been obtained and published by "Politico" tonight was reportedly drafted in February.
"Politico" received a copy of the draft opinion, quote, from a person familiar with the court`s proceedings in the Mississippi case the abortion case along with other details supporting the authenticity of the document. The draft opinion runs 98 pages. The document is replete with citations to previous court decisions, books and authorities, and includes 118 footnotes. The appearances and timing of this draft are consistent with court practice. The disclosure of Alito`s draft majority opinion is a rare breach of Supreme Court secrecy and tradition around its deliberations.
Joining us now is Josh Gerstein. He`s the senior legal affairs reporter for Politico. He`s one of the best political -- legal reporters and legal political explainers in the country.
He broke this story tonight, along with his colleague Alexander Ward.
Josh, thank you for coming on tonight on such short notice. I realize that you didn`t know four minutes ago that you were going to be on TV talking about this with me tonight.
JOSH GERSTEIN, SENIOR LEGAL AFFAIRS REPORTER, POLITICO: No problem, Rachel. Happy to join you.
MADDOW: I`m not going to press you, of course, on your sourcing here, but I want to press you on your confidence in your sourcing.
Obviously, this is a very unusual, if not completely historically unprecedented leak, a document that purports to be the draft majority opinion of the Supreme Court before they have issued any such ruling.
Can you just tell us about your confidence in the authenticity of the document?
GERSTEIN: Well, we`re very confident in the authenticity of this draft majority opinion, Rachel, both in the way that we obtained it and other information that we got that supports its authenticity and makes us believe that it is genuine.
Now, of course, it`s not a final opinion. It`s a draft opinion. It was circulated in the court as a first draft by Justice Alito in February, dated February 10. So it is possible there have been some changes since then. But it`s our best understanding of at least where the court stood at that time, which is about two-and-a-half months after arguments in this pivotal Mississippi abortion case.
[21:10:10]
MADDOW: And you report, Josh -- and, again, forgive me if I get any of these details wrong. I am learning this as I`m talking about it, which is always dangerous.
But you report that the court majority here is established, that there are, at least in the initial conference between the justices after the arguments, there were five votes on Justice Alito`s reported side here. And the only ambiguity, the only question is whether or not Justice Roberts would make it a 6-3 decision, or a 5-4 decision, if he chose to side with the more liberal members of the court.
Do you have any -- what can you tell us about your reporting in terms of the numbers here, in terms of how the two sides align, and whether that may still be a matter with some fluidity?
GERSTEIN: Well, it`s our understanding from a person familiar with the proceedings that Justice Alito believes and that the court has five justices that are essentially aligned with this opinion that he`s written, which is just a withering takedown of the Roe v. Wade precedent.
It pulls no punches at all. It`s pretty brutal. And in the way it`s structured, it kind of needs to be that way because of the way Alito confronts this issue of a court precedent. Stare decisis is the legal term. And something has to be really, really wrong if they want to overturn it. And that`s the case that Justice Alito makes here.
There is still some ambiguity about where Chief Justice John Roberts stands. As many people noted at the oral arguments at the beginning of December, it sounded like he was finding a way maybe to approve this Mississippi law, which is a 15-week abortion ban, without completely ripping down the Roe v. Wade precedent.
Our understanding is that most of his Republican colleagues want to go ahead and take down Roe vs. Wade. Now, that said, we`re at the beginning of May here. And this final decision likely won`t be published until the end of June, perhaps even the beginning of July. So it`s fair to say that this is a situation that is unresolved at this point.
And I can`t promise you that various things may not change between now and late June.
MADDOW: Josh, in terms of the substance of this opinion as written, again, this draft majority opinion -- and with the caveat that this is a historically unprecedented leak of what appears to be a draft majority opinion from the court before any ruling is issued, with the caveat that you just described in terms of whether or not this may go through additional changes, even potentially substantial changes, before we see the ruling from the court as published later this year.
With all those caveats intact, when you look at what Justice Alito wrote here, how does this comport with expectations in this case? Obviously, as you were just describing, the leanings of the justices on this matter, I think, to realist-minded observers were clear even before oral arguments, and certainly were clear thereafter.
But I think it was also perhaps still common wisdom that the justices would try to soft-pedal this a little bit, that they would try to undermine Roe and effectively remove the protections of Roe, without a sort of 21-gun salute, which is what this appears to be, at least in terms of the way that you have been able to describe Justice Alito`s thinking.
Is that a fair assessment of this, that this is more of a bludgeon, when it was perhaps expected to be something more of a more subtle approach?
GERSTEIN: It`s definitely a swing-for-the-fences draft majority opinion. He`s really holding nothing back here, Justice Alito.
And I know what the conventional wisdom was, Rachel, that maybe the court would try to soften the blow. But, at those arguments, there was precious little indication of that from any of the Republican-appointed justices, other, really, than Chief Justice Roberts.
And another reason to think that this may have full support from all the Republican-appointed justices except that chief is, if you go through the opinion, you will find echoes in there of views that other members of the court have stated on previous occasions.
There are parts of this opinion that sound a lot like Justice Clarence Thomas. When you read through it, you will see on a few occasions the word abortionist appears in this opinion. That`s a word that Justice Thomas has taken to using in recent years and that most of the other members of the court don`t typically use.
And there`s another passage that seems to cater to some comments that Justice Amy Coney Barrett made at the oral arguments about the way views on sort of unwed pregnancy, out-of-wedlock births and women`s rights have evolved since the Roe v. Wade was handed down in 1973. So, it really does seem that Alito is trying to cobble together a majority.
[21:15:05]
People can also look at it and see, how much do you think it does to address the concerns Chief Justice Roberts has raised about the credibility of the court and the concern about public opinion?
I think there`s portions in it that don`t seem to give full weight to the chief`s concerns, which also supports the notion that maybe he`s not expecting to be part of this opinion.
MADDOW: Josh, in terms of the likely impact of a ruling, if it does in its final form look like what you have reported and published tonight, if we had a Republican-controlled House and a Republican-controlled Senate and a Republican in the White House, is there any line in this ruling, as you read it, that would prevent the legislature and the president from establishing a new law that full-out, full-on banned abortion in its entirety in every state in the country in every instance?
GERSTEIN: Well, it`s a draft decision, and it doesn`t really get into the issue of what the federal government`s power, I think, would be in this area.
So I think it certainly leaves that open as a possibility. There might be other obstacles to that, like the legislative filibuster we still have, at least for the time being, in the United States Senate. But there are points at which Alito tries to suggest that this won`t bring all the scenery down, if we move away from abortion to other privacy-based rights, such as contraception, rights like gay marriage.
He does try to ring-fence this opinion and say, all we`re talking about is abortion. He mentions that several times. And he suggests that it shouldn`t be stretched into other areas.
That said, I`m old enough to know that the court many times has said, don`t try to apply our opinion on X to this situation Y because it`s different, and yet it often does get applied that way. But there`s no question he`s trying to keep this confined to the issue of abortion.
MADDOW: And, of course, that`s -- that`s -- I mean, that`s telling in itself, right, to be able to -- to be willing to say, like, oh, this is just about abortion, it`s not about anything important, don`t worry, tells you a lot about the frame of mind of the -- the frame of mind behind people who would make this kind of a change.
Let me just ask you about one last piece of this, Josh. Since we have been on the air since we have received your reporting tonight, since you published, we, on my show, have contacted four former clerks for Supreme Court justices, all of whom uniformly told us that the document that you have published tonight appears to be a legitimate work product of the court, meaning it just matches in form, in style, in texture the kind of product that they as clerks were used to seeing as a draft majority opinion.
That highlights, in itself, I think, the unique nature of this reporting that you have done and this leak. And I wonder if you have any reflection on what it might mean for the credibility of the court, for the legitimacy of the court for a draft majority opinion to have made its way into your hands.
This is something that has never happened before in the history of the court. And as a court observer and somebody who understands how the court fits into our politics, what sort of impact do you think this will have on the court itself?
GERSTEIN: Well, I mean, there have been leaks out of the court before, perhaps not of this magnitude, but we have all gotten kind of used to, on these big decisions such as Obamacare, such as this abortion decision, to hints, body English, I might call it.
There`s a nuanced reading of editorials that appear in different places, places like the "Wall Street Journal" editorial page, where you can often see indications that maybe the court is moving one way, and conservatives aren`t happy about it. You do see that kind of dialogue, but never accompanied by an actual opinion.
So I do think that this is groundbreaking, and it does take the court into new territory. It would certainly be very interesting to know what Chief Justice John Roberts thinks about this. Even if he doesn`t agree with this opinion. What does he think about whether this causes the court to be viewed as a political institution by some people?
That`s what we`re going to have to see how it plays out over the next couple of months, as this continues to resonate towards the final decision at the end of June.
MADDOW: Right, and the importance of Chief Justice Roberts` opinion on matters like that is not just what he thinks as a person and how it affects him personally. It`s that the court is effectively a self-regulating body that sets its own ethics and standards.
And if this is going to -- if this is going to sort of shake the foundations of the court`s -- the court and its perception and its role in politics, it -- his opinion will be more important than anybody else`s, by a considerable margin.
[21:20:11]
Josh Gerstein, senior legal affairs reporter for Politico, you will always in your entire life be the reporter who broke this story, whatever else happens in your life and everything else that you have done in the past.
I know this is a really big deal. And I really appreciate you being here tonight with us. Thank you.
GERSTEIN: Thanks so much, Rachel. Take care.
MADDOW: All right.
I will just mention let me just restate what it is that we are talking about here. Josh Gerstein, the reporter you just saw for "Politico", along with his colleague Alexander Ward has just broken this story -- this remarkable story at politico.com, Supreme Court has voted to overturn abortion rights, draft opinion shows.
The fact that a draft opinion from the United States Supreme Court is in front of us is itself as far as we know an unprecedented thing. There have been leaks in the past as Josh just mentioned about what`s happened during discussions among the justices about what may or may not have gone down in the room behind where the justices sit on the dais, we`re all so familiar with from court sketches when they sit down in conference to discuss what happens, we have had descriptions of those discussions in the past. We have never, as far as I know, had a written in this case 90-plus-page draft majority opinion released to the public through a reporter before a ruling was actually issued.
We don`t know anything about who the source is. Josh, you just heard him speak in his own words about why he and his colleagues and his editors are confident in the sourcing of this matter, it`s obviously an earthquake for all these substantive reasons. I will tell you just as a matter in terms of our confidence in the story, we`ve spoken with a number four different Supreme Court -- former Supreme Court clerks just in the last few minutes who all say that they agree with Josh and his colleagues at "Politico" that this looks like a work product from the court, whether or not it has been or will be revised before it`s ultimately published.
The bottom line here is that this is -- this would appear to be the day that -- I mean, I was born in which is the year that Roe versus Wade was passed. In my entire sentient life, women have been talking about the day that this would come and that Roe versus Wade would be overturned, and that the United States would become a country in which abortion was treated as a crime and it was the government, it was the state that is allowed to decide whether or not women give birth. It`s the state that is allowed to force women to bring unwanted pregnancies to term even if they -- for the world`s most, you know, greatest or lightest reasons don`t want to do it, putting the government in control of women`s lives in this way changes something fundamental about who we are as a country, who we`re as a culture and who we are as men and women.
And if this change is coming not as a sort of feathered in set of reforms designed to ultimately undermine the right or make it less available like we have seen even over the course of this year as Republican controlled states have been advancing these newly aggressive policies and the court`s been letting them do it. But if instead they`re just knocking it out and abortion is going to be illegal, in every state that will make that happen on their own terms, or as "The Washington Post" reported just this morning and with this headline, the next frontier for the abortion -- anti-abortion movement, a nationwide ban, "Washington Post" literally reported this morning that leading anti-abortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rules back abortion rights this summer, including a push for a strict nationwide ban on abortion if Republicans retake power in Washington.
That was the news this morning. They are working on a nationwide abortion ban to make it a crime, coast-to-coast, everywhere in the country, as soon as they`ve got power. As Chris Hayes just noted a moment ago, it would be HR-1, or Senate bill 1 if Republicans in fact get back in power. But to have that paired tonight with this draft opinion saying that the Supreme Court is about to clear the way just for that means that we are on the precipice of becoming a very different country, and our daughters and granddaughters living in a very , very different world.
We`ll be right back with much more on this breaking story. Stay with us.
(COMMERCIAL BREAK)
[21:28:25]
MADDOW: We are continuing to react to the breaking news tonight broken by politico.com, reporter Josh Gerstein and Alexander Ward, a remarkable development, a draft majority opinion appears to have been leaked from the United States Supreme Court. This is not something that has ever happened before at least that we know of.
The way that these things work in the United States Supreme Court -- and I`ve never been a clerk. I only have a layman`s understanding of these things, but part of this is described in Mr. Gerstein, Mr. Ward`s article tonight. Part of it we just know from covering so many consequential Supreme Court decisions over the time, over time, is that there`s oral arguments that happen in front of all the justices.
We`re familiar with those. We`ve heard the audio of them maybe you`ve even been lucky enough on a class trip to go to the Supreme Court and hear arguments in person. We know what those oral arguments are like.
And then shortly after the oral argument happens, the way the process usually works is that the justices get together and they hold effectively preliminary votes, saying, I think I`m going to go yes, I think I`m going to go no based on whichever side is able to cobble together what they believe is going to be the majority in the case, an individual justice will be assigned who`s an individual justice member of the majority will be assigned to write a draft majority opinion.
Now, that draft majority opinion is just a draft and it will likely change we expect, you know, just like in any kind of work -- something that you write months before and goes through another number of iterative processes with your colleagues will change. But the draft that`s been published tonight by politico.com is dated February 10, 2022 from Justice Alito circulated to all of the other justices.
[21:30:05]
It is described as a first draft, and it is a um a double-barreled shot. It is a -- it is a double-barreled elimination of the right to have an abortion in the United States. It says bluntly on page five, we hold that Roe and Casey must be overruled. The Casey decision was an important Supreme Court precedent that essentially strengthened and upheld the basic tenets of Roe and made it more practical in terms of the way that it was implemented in constraining states ability to ban abortion.
This doesn`t just overturn Roe, it overturns both Roe and Casey. 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. One paragraph down from that, it says, quote, stare decisis, the doctrine on which Casey`s controlling opinion was based, does not compel unending adherents to Roe`s abuse of judicial authority.
Roe was egregiously wrong from the start. Its reasoning was exceptionally weak and the decisions has had -- the decision has had damaging consequences.
If, in fact, this ruling survives to see the light of day, which there`s no reason to expect that it won`t at least in substance do so, from what we understand from Mr. Gerstein`s reporting tonight, this would have the effect of enacting what are so-called trigger laws in more than two dozen states in the country, more than two dozen Republican-controlled states would immediately ban abortion upon the publication of this ruling.
It would also open up the prospect for what "The Washington Post" reported just today is being discussed by Republicans at the national level, which would be a nationwide strict abortion ban. Again, "The Washington Post" reporting just this morning that that is the priority for anti-abortion groups and Republican members of Congress now. If given the leeway to act by the United States Supreme Court, they would seek a nationwide abortion ban.
We`re starting to see Republicans in states around the country drop their previous taboos around this issue. They used to say if a woman was raped, well, the government wouldn`t force a rape victim to bear the child of her rapist, they will have an exception for rape, they`re starting to drop rape exceptions. They`re starting to drop incest exceptions. They`re even starting to talk about dropping exceptions to save the life of the mother.
If those kinds of exceptions are dropped, which again Republicans are talking about in some state -- I mean, that`s a situation in which a woman if there`s no exception to protect the life or health of the mother where that`s a situation which the government would be forcing a woman to give birth, even if it kills her.
Again this is a surprise both in style, but also in substance in terms of how blunt this is.
Our friend Dalia Lithwick joins us now, and she`s a senior editor at "Slate Magazine". She writes about the court. She`s the host of their "Amicus Podcast".
Dahlia, I want you to tell me if I have said anything wrong thus far and I want you to tell me what you`re thinking.
DAHLIA LITHWICK, SENIR EDITOR AND LEGAL CORRESPONDENT, SLATE: No, I think you`ve said it right. I think Josh used swing for the fences, and this is both a swing for the fences in terms of Justice Alito`s rhetoric and language. As you noted, this is not a milquetoast opinion. This is just going for broke.
It`s also a swing for the fences in terms of the way this happened. We have never ever, ever seen a -page draft opinion or heard about deliberations who`s writing dissents. Every piece of this Rachel is astonishing and you almost can`t let the one astonishing thing which is the substance of this draft opinion over master the other astonishing thing which is that I guess all bets are off now at the court and norms and traditions that have stood intact for centuries, if not for decades are gone and now, we just leak opinions.
MADDOW: Well, let me ask you about the substance of that because I think a lot of Americans hearing this news right now, maybe even watching the show right now, are gobsmacked by the revelation that, yeah, we might have heard it was coming we might have heard the warnings, but this means that the government`s going to force women to give birth now. This is going to make abortion illegal in most of the country, in much of the country instantly and potentially, in all of the country soon. I think most people are very gobsmacked by that.
But I think you rightfully point out that this means something important in terms of the rule of law, in terms of our system of government. We`ve got the executive branch, the legislative branch and the judicial branch, and the judicial branch is headed by the Supreme Court which is a self- governing institution which does not have external ethics rules, for example, that apply to them.
These justices police themselves. They set their own mores and traditions. It`s a somewhat secretive body. It`s a certainly a very small one. It`s the smallest of all branches. If -- like you say -- all bets are off and draft opinions get leaked now and the procedural shock that we`ve got tonight also takes hold, what`s consequential about that to us as Americans?
[21:35:15]
LITHWICK: I mean, I just think this is a last bastion of how the port as you said polices itself. I mean, we did not see leaked drafts in Bush v. Gore. We did not see leaked drafts in the first Obamacare. I mean not in Heller.
It`s just not done. We certainly heard whispers occasionally but even that I think was never reliable. And so, when you`re getting as I think it`s important to say this is a first draft and it`s important to think of that as sort of a first bid, right? This is presumably going to get honed and refined. You know, people may be put off by some of the sharp language in here.
This is clearly Justice Alito giving a little something to Justice Barrett, giving her the sort of safe haven, concerns she had about dropping babies off at fire stations, the eugenics claims that those are very near and dear to Justice Thomas`s part. So he`s dumped it all in here and presumably not all of the justices we again don`t know what Chief Justice Roberts is thinking. He`s -- there`s a huge John Roberts shaped hole in this draft opinion, but I think this presumably gets buffed down somewhat.
But I think that if it is in fact the case, that the long-standing norm governing how governing how clerks conduct themselves and justices conduct themselves which is that we don`t have leaks at the U.S. Supreme Court, if that`s gone, then it`s really, really very hard to see what other rules they will be using to conduct themselves, because this is just as you said a gobsmacking, gobsmacking turn of events. And it`s very, very clear to me that it`s not just the leak that people are talking and that this is clearly being done, we don`t know by who, to either soften the blow or you know kind of inflate the blow of what`s coming in June. And so, it`s I think being done for purely political reasons, which also goes to your question about rule of law.
A court that cares about its appearance as a institution that is above politics just threw caution to the wind and made a determination to do the most brazen political act that I`ve ever seen.
MADDOW: I keep thinking about a recent article that was published about the kind of new, new right and what`s happening in terms of like eccentric right-wing, sort of, fascist-friendly billionaire Peter Thiel funding new kinds of Republican candidates. So think about that article recently in "The Atlantic", and the moment where JD Vance whose Ohio Senate primary is tomorrow is speaking on a podcast talking about what kind of politician he wants to be why he wants to join the Senate.
And he says -- at one point, he says that part of the reason he wants Trump to win run again and win again in is that he thinks that if Trump gets in there, he should fire every single federal government employee in the entire country and just fire them all at once, and he acknowledges that there are -- there are legal protections for a lot of people in those jobs and so that`s sort of a mass firing, which has been a right-wing fantasy for a long time, that would be illegal. And JD Vance sort of speculates that, you know, and, of course, that would go to the courts, and it would get to the Supreme Court and they`d rule against him, but then he should pull on an Andrew Jackson and just say, well, this the chief justice has made his ruling. Now, let him enforce it.
And that is again like sort of a sort of a right wing, you know, man on a white horse fantasy about the kind of government and the kind of governing that they want. But it also shows that the court isn`t in a safe position from the right, right now, and it`s I think come under really serious scrutiny from the left in terms of the ethics issues surrounding particular Clarence Thomas, Justice Thomas, and his wife and her involvement in political issues related to cases before her husband and the court.
The legitimacy of the court isn`t just an academic thing. It`s a question as to whether or not their rulings are followed and if they`re not they don`t have an army -- they don`t have a police force to implement these things. It does feel like this, this gets us closer to that edge too. Is that fair?
LITHWICK: Well, Rachel, the court started this term, the first Monday of October, with the lowest approval ratings since Gallup has been polling, right? So depending on the poll, it was the high 30s, the low 40s.
[21:40:02]
I know that seems astronomically high compared to other branches of government, but it`s catastrophically low for the court and it`s dropped substantially in a really compressed amount of time. And I think the thing we have to think about is that when Justice Alito or Justice Gorsuch or Justice Barrett say, oh, don`t criticize the court because you`re undermining the legitimacy of the court.
And when you hear the court say don`t impose ethics rules and standards on us, don`t force us to have meaningful recusal rules, what they`re saying is don`t criticize the court because you`re undermining the court and I think your point here is so important, which is that the court is undermining the court, whether it`s the shadow docket, as you said, the ethics violations, whether it`s reaching out to take cases that are not before it.
There`s a whole litany of things that the court has done in a really short amount of time that is horrifying objectively to anybody who cares about the court. And maybe I would just end with this because I think it`s really important -- there is a non-trivial chance that the 2024 election goes to the court and the idea that progressives and Democrats want to undermine the court because they want the court to come down with the decision we can all ignore is chilling, because as I`ve said many times there`s no plan B if we ignore the court. Plan B is the army, it`s not good.
And so we want to have a court that has neither the first nor the sword, right? That`s the Federalist Papers. But that has public respect and regard. And when the court itself is really working very, very hard to undermine that, it`s awfully hard to say that this is anything other than, A, a self-inflicted wound, and, B, a self-inflicted wound that is going to redound to the benefit of absolutely nobody when the rubber hits the road and we need a legitimate court.
MADDOW: Dahlia Lithwick, senior editor at "Slate Magazine", thank you for your time tonight, Dahlia, as we continue to respond to this breaking news. I know it`s hard to talk about something while we are still absorbing it and none of us had time to read 98 pages of this opinion, let alone the 30- something page appendix before getting on the air. Thank you for helping us as we`re learning it.
LITHWICK: Thanks, Rachel.
MADDOW: I want to bring into the conversation now, one of the members of Congress who is most qualified to talk about this matter, specifically because he is an esteemed constitutional scholar.
Maryland congressman, member of the House Judiciary Committee, Congressman Jamie Raskin was booked to be here tonight to talk about the January 6 investigation and other matters before Congress, but, Congressman, I have to start tonight at least by talking to you about this breaking news. Thanks very much for joining us.
REP. JAMIE RASKIN (D-MD): Sure, I`m delighted to be with you, Rachel.
MADDOW: Have you had a chance to look at Mr. Gerstein`s reporting at "Politico" or at all at the at the ruling that has been published tonight from the court?
RASKIN: Yes, I just sped read the decision. I found it astonishing and appalling. You know, the basic legal claim here is that the word abortion doesn`t appear in the Constitution and, of course, it doesn`t appear in the Constitution. But the Supreme Court in 1973 in Roe versus Wade hinged its reasoning on Griswold versus Connecticut, which was a 1965 decision by the Supreme Court striking down a law banning birth control, even for married couples in Connecticut, and the Supreme Court said that the due process Liberty Clause includes a right to privacy over intimate decision-making.
So the point is that Justice Alito`s decision would apply also presumably to the right to privacy in contraception and we know, of course, there is a right-wing war on contraception now. But if Casey is to fall, if Roe versus Wade is to fall, then Griswold versus Connecticut presumably is to fall as well, because the word contraception or birth control doesn`t appear in the Constitution. Indeed, the phrase right to privacy doesn`t appear in the Constitution.
So this would appear to be an invitation to have, you know, handmaid`s tale type anti-feminist regulation and legislation all over the country. And all of that is perfectly in keeping with Justice Alito`s opinion, which admittedly I just read in like the last minutes but to my mind, it situates the trajectory of the American right in where, you know, Fox News and Tucker Carlson want to go, which is to make us in the image of Hungarian illiberal democracy now to keep uh elections going where people can be whipped up about various scapegoats, but to carve out and destroy the freedoms and the rights of the people.
And that`s where the right wing seems to be going with this decision and the Supreme Court if it actually goes through with this majority draft opinion which somehow leaked out and which does look to me completely real or at least an extraordinary forgery of what a Supreme Court decision by Justice Alito looks like and sounds like.
But if it does go forward with it, I believe that the court will have returned to its historic baseline of being a reactionary conservative institution to the far right of everything else at the federal level in the government. And, you know, it`s still got this lingering faint halo around it from the Warren court period with Brown versus Board and Roe versus Wade, Griswold versus Connecticut, Miranda versus Arizona.
But for most of our history, take all the way up to the civil war, the Supreme Court for example never did anything for enslaved Americans other than to cement and constitutionalize the system of slavery in the Dred Scott decision and to declare that Americans have no rights that the white man is bound to respect and to declare that the Constitution is indeed a white man`s compact.
And then even after the Civil War and the Reconstruction Amendments, the court articulated American apartheid in Plessy versus Ferguson, approving Jim Crow arrangements throughout most of the country. So there was that brief few decade period with the war in court. But then with the Burger Court, the Rehnquist Court, now the Roberts Court, the Supreme Court has returned to that traditional baseline.
And all it means to me, at least in my mind, and admittedly I`m speaking as a person in politics, but we need to turn out the vote like we`ve never turned out the vote before. The people need to stand up and defend democratic institutions and the rights of the people because the Supreme Court is certainly not doing anything for us.
MADDOW: Congressman Raskin, let me ask you a question that I posed to Josh Gerstein, the reporter who broke this story at the top of the hour. From the ruling the way that it is written and again with the caveat that this is a -- what appears to be a first draft opinion and it will likely go through many other iterations and lots of changes before we ultimately get the ruling, but based on what we`ve got this remarkable leak of a first draft and the way that Justice Alito has constructed this argument, if this survives in -- if this sort of -- if this mostly survives intact, is there anything here that would prevent Republican-controlled states or indeed a Republican-controlled Congress and a Republican president from outlawing abortion full stop in every instance, making it a crime that, you know, put doctors in prison, potentially put women in prison? Is there any new restriction on the ability of the government to force women to give birth that is recognized here or is it an elimination entirely of that restriction?
RASKIN: It is an elimination entirely as I read it. I mean, the -- you know, the good thing about Roe versus Wade, or Planned Parenthood versus Casey, which was that it established a balance between the liberty of the woman to seek reproductive health care and consultation with her physician and her family. It was a private choice. It was not up to state legislators and to members of Congress.
But there was a balancing test against the developing fetus and so that at a certain point under Roe versus Wade, for example, in the third trimester, it could be banned entirely and the regula -- the decision could be regulated in the interests of maternal and fetal health in the second trimester.
But this abolishes the balancing test entirely and says because abortion`s not mentioned in the Constitution and presumably there is no right to privacy, according to Justice Alito, the legislatures can do whatever they want.
So, look, I serve on the Judiciary Committee and the Oversight Committee. We`ve had lots of hearings about this. The same right wing lawyers who filed all these cases and are always filing the amicus briefs, they don`t take the position that there`s any kind of balancing. They say it`s perfectly fine for the legislatures to prohibit the procedure entirely, including in cases of rape of the woman, including in cases of -- you know, problematical -- you know, problematic medical issues that might come up. They say that that`s just up to the state legislature.
So if there`s a move on right now to pass a federal law that would categorically prohibit abortion, the only thing stopping them from doing that will be the votes in the House and the votes in the Senate in the potential veto of the president of the United States because they don`t see any jurisprudential, any constitutional impediment to doing that.
MADDOW: Maryland Congressman Jamie Raskin, member of the Judiciary Committee, a constitutional scholar -- sir, thank you very much for being here.
[21:50:02]
I know we had to change gears quickly with you tonight. I really appreciate you reading the opinion and joining us on such short notice.
RASKIN: Thank you much, Rachel. I`ll take the rain check on January 6th.
MADDOW: Indeed, we`ll have you back soon, sir. Thank you.
Neal Katyal joins us now. He`s a former acting solicitor general, a role in which he served during the Obama administration.
Neal, it`s nice to see you tonight. Thanks for being here.
NEAL KATYAL, MSNBC LEGAL ANALYST: Thank you.
MADDOW: So we`ve been absorbing this developing news as it has -- as it has happened. We`ve only had this information for about an hour now.
Let me just ask if anything that you`ve heard us discussing seems wrong to you, if you think that we`ve missed anything important in terms of the implications here? Both, it`s obviously stunning for court watchers and for those of us thinking about the structure of government to have a draft opinion like this leaked out of the United States Supreme Court. But then there`s also the substance of what this opinion says, as Congressman Raskin was just explaining there, which appears to be opening the door for bans on abortion without any limits.
KATYAL: Yeah. So Rachel everything I know about the court says to me that this opinion is like a legitimate, true opinion. It`s not some sort of deep fake. It looks like a court opinion. It quacks like a court opinion. It talks like a Justice Alito opinion.
And so, I think what you`ve been saying is absolutely right. I mean put most starkly, this is the hugest step back for women in decades, the hugest step back for reproductive justice in decades, it will have profound consequences. And one thing that I don`t think has been explicit expressly mentioned so far is this telling fact about this Alito draft opinion.
The Mississippi law that it upheld has no exception for rape or incest, and this draft opinion by the Supreme Court says that is A-okay. So you can have now a flat ban on abortion if this opinion becomes the law in any state or as you were saying before the federal government. And so, it`s astounding both in terms of abortion but also kind of the brazenness that the court majority and again it`s -- you know, still a tentative opinion and we can talk about that in a minute.
But the brazenness by which it`s overruling past decisions. Remember in 1992, it was three Republican Justices O`Connor, Kennedy and Souter, that said, look, Roe might be right, it might be wrong, but we can`t overrule it because social expectations have crystallized around this decision and it`s critical to the court`s legitimacy. That was all blown off by this draft opinion.
MADDOW: And, Neal, you just suggested that this opinion will, you know, change and that`s obvious, over time, things change from first draft to final. But from what you know of the court, thinking here about what Dahlia Lithwick said earlier this hour, that some of the rough edges of this might be sort of buffed off, do you think there`s any chance that this ends up not being the majority position? Do you think there`s any chance in which we end up with this being what four judges, four justices believe and not five, and therefore this is not going to be the majority`s ruling?
KATYAL: Right, there`s always that possibility. Hope springs eternal, but I guess I disagree with Dahlia a little bit, because, you know, she was really speculating that the Chief Justice Roberts would change his opinion or vote with the dissenters or something. But the key thing here is that Chief Justice Roberts vote is now irrelevant. It`s Justice Alito, plus the four justices to his right besides Chief Justice Roberts.
So you need to flip Kavanaugh, or Gorsuch, or Thomas, and that is just -- you know, or, you know, or Amy Coney Barrett, and that is a pretty unlikely thing given the tenor of oral argument.
So, Rachel, the process here is this case was argued in December. The justices take a tentative vote right after it, and then the senior most justice and the majority assigns the opinion to whomever she or he wants. Here, it`s unlikely Roberts was in the majority because he would have probably signed the draft opinion to himself. So it`s likely Alito or Thomas was one of those two.
Alito`s now written this opinion. It`s circulated to the other justices. There`s going to be a dissent that`s prepared. Sometimes it`s possible that dissent can change the minds of those in the majority, but here you know so far we haven`t seen any indications of that from the other four. So I`m afraid to say you know and this is, of course, all this literally never happened in our history, but right now, it does look like that the Supreme Court is poised to overrule Roe versus Wade and bless flat bans on abortion in the 50 states and the federal government.
And if they can do this Rachel for this, what`s next? You know, if they can do it for the most you know probably the opinion that most Americans know by name more than anything, except maybe Brown versus board of education, they can do it for gay marriage or anything else that the court has guaranteed, and that is a very, very scary prospect.
MADDOW: Neal Katyal, former acting solicitor general -- sir, thank you for your time this evening, again joining us on short notice. I appreciate it, Neal.
Senator Amy Klobuchar, Democrat of Minnesota joins us now. She sits on the Judiciary Committee. She`s absorbing this news just as we all are.
Senator Klobuchar, thank you for being with us tonight.
Let me just get your reaction to this news again the headline tonight in "Politico", Supreme Court has voted to overturn abortion rights, draft opinion shows.
SEN. AMY KLOBUCHAR (D-MN): Now, you know, everyone`s given you the disclaimers, Rachel, and you -- we don`t know what the final opinion will be. But I will say that I have predicted this for a long time based on the court arguments and based on the hearings for these justices. I asked Amy Coney Barrett if she thought Roe v. Wade was super precedent. She did not think that it was and yet I believe the American people are with us.
So I`d like to focus a bit here on what`s going to happen if they do issue this opinion when all signs point to that they will. Not just this leak, which is unfortunate, but also what they have said in the past. If this is issued, over 20 states, there`s a trigger where abortion will automatically be banned. So it`s no longer going to be a decision between a woman and her doctor basically. I guess Ted Cruz has made this decision for people.
The second thing that we`re going to see happen is that you`re going to have individual states considering laws banning it, and meanwhile, in Washington, it`s on us now to try to codify Roe v. Wade into law. And as you know, we have two Republican senators who are with us when it comes to choice but the question is with the filibuster in place which I firmly believe we should reverse, could we ever get to 60?
So, these -- this is what we`re dealing with right now, and I cannot over emphasize how -- what a change this is, what a disregard to precedent if this is true. Yes, we can be outraged, but we also have to plan. We are going into election year. We are going into the fall, where women`s rights are going to be on the ballot.
And so, if nothing can get done in Washington because of Republican obstructionism, then the American people and women are going to have to vote and people who believe in choice are going to have to vote like they never voted before because that`s the only way we can change this up or we`re going to have a patchwork of laws across the country.
MADDOW: Senator, as you know one of the things that is most determinative of a woman`s economic freedom and self-determination is her ability to make her own decisions about when and if she has kids. If that becomes the government`s decision, if that is no longer a decision that women are allowed to make for themselves, that fundamentally changes the economic and life and cultural prospects for every woman in the country. I wonder if that stark truth about what this does to the future of American womanhood and the future of the American family the future of who we are as a culture might be enough to scare Republicans in Washington off an effort to do a nationwide ban.
I mean, as you say, those triggers -- those trigger laws don`t require any action. They`ll just go into effect in more than states. But we have reporting in "The Washington Post" today that they want a nationwide six- week flat ban. Do you think that they might be the dog that catches the car in that case they may be too scared to actually do something that radical or do you think they`d just go for it?
KLOBUCHAR: Well, I mean, obviously, they`re they are not going to be able to pass something like this in the Senate right now because Democrats have the slim 50-50, but we have the majority. But I think what you`re going to see is a discussion of this in real terms like we`ve never seen before, back alley abortions, people having to take buses to other states, people not being able as you said to make their own economic decisions, right as they`re coming out of this pandemic, where there is so much uncertainty right now and people are just trying to get their grounding and then we`re literally stripping the women of this country of their rights.
If that happens, I think you`re going to see repercussions like never before. They have basically stacked the court with these judges through various procedural games that they played in the Senate and now is the moment. And the only way this gets decided if this opinion gets issued as is. It`s going to be state by state fights about this with the automatic triggers going in place in many, and then is going to be a decision for Congress.
And it makes the election for the House and the Senate more important than any we`ve seen in our lifetime when it comes to the protection of women`s rights.
MADDOW: Senator Amy Klobuchar, a member of the Judiciary Committee representing the great state of Minnesota -- Senator, thank you for your time this evening. I know we caught you on short notice. Thank you.
KLOBUCHAR: It`s great to be on, Rachel. Thank you
MADDOW: Again, it has been um a remarkable hour. This is groundbreaking reporting from politico.com, Josh Gerstein, Alexander Ward. They have obtained -- I can`t even -- it still sounds crazy to you hear the words coming out of my mouth -- they have obtained a draft majority opinion from the United States Supreme Court, this is not a ruling that has been issued, but it has been drafted by Conservative Justice Samuel Alito which overrules Roe v. Wade and Planned Parenthood versus Casey, full stop and completely, and with an exclamation point, effectively clearing the way for Republican-controlled states and any future Republican-controlled Congress at White House to flat out and completely ban abortion in this country, making it illegal without constraint.
It will fundamentally change us as a country. It will fundamentally change the relationship between women and the government. It will fundamentally change the future of every girl in the country, for all our daughters and granddaughters, and women that come after us. Just a remarkable thing. We knew was coming, but to see it, even in draft form, in terms of this blunt, it makes it feel like a different country.
That`s going to do it for us for now. Now it`s time for `THE LAST WORD" with the great Lawrence O`Donnell.
Good evening, Lawrence.