The Cloakroom Preview: A response to Chief Justice Roberts

Com slash Plus. All right, welcome back everyone. I'm Liz Wheeler. This is the Cloak Room on Verdict Plus. I'm sitting here with Senator Ted Cruz and this is such an amazing, insane time to be alive in our country. Rovie Wade has just been overturned by the Supreme Court. And I don't know about you, Senator, but when I saw this news, I was I was obviously following the Supreme Court issuing their opinions. And I'm on the West coast right now. I'm out in Santa Barbara, California. So it was early

in the morning. It was just after seven am, and I start frantically texting our producers. Are you awake? Are you asleep? Do you see what's happening? This is absolutely bananas. I don't think we're going to forget that moment. Yeah, no, it was. It was extraordinary. Um. I was in DC at the time. I had the night before, we had been late on the Senate floor battling over gun control. Uh. And then after that I had gone and filmed a verdict.

So so we had Thursday night. We we did a verdict at twelve thirty at night, and so we finished at h I think I got home about two in the morning. Uh. And so Friday morning, I was still in DC. I was in my apartment and saw the opinion came down, and shortly thereafter I had a flight to Milwaukee. I'm in Milwaukee right now at a political conference to energize and mobilize grassroots activists here in Wisconsin.

But my flight wasn't until late afternoon. So I actually played basketball for two hours, uh, Friday morning with several guys on my staff, and we we did played three on three and four on four for a couple hours and then uh, and then I up from the shower and wet and did a Fox hitt talking about the DABS ruling, and then jumped on a plane and flew to Milwaukee. It's first basketball game in a post row America. But you never thought that would happen. There you go.

And in fact, on the plane I had with me this binder with the full text of all of DABS, and so I spent the entire flight just reading carefully word for word the opinion and DABS, which was which was pretty cool too to go through it and to try to although I will say a three wing binder on Southwest Airlines with a guy in the middle seat next to you is a little hard to like not jab him in the leg with, so you try to somehow managed to hold it and your diet coke call

at the same time. It wasn't easy. That's when your Senate negotiation skills come in. You say, I get I'll give you the arm rest if you don't mind that my binder is going to be blacking you the whole time. I want to talk about what the most unpopular part of this opinion. I read all two hundred and thirteen pages. I think it was of the ruling as well. It's it's beautifully written. Not the Descent the Mage already opinions beautifully written. But I want to talk about Roberts. Robert's

ruling for a second. He voted to uphold the Mississippi law which bands abortion at fifteen weeks. He voted not to overturn Rove Wade. His reasoning is absurd, It's ridiculous. You and Michael talked about that in depth on Verdict. I highly recommend if anybody hasn't watched that, it's a really good episode that you guys just filmed. It hasn't aired yet, but I said here and watched the whole

thing behind the scenes. But Alan Dershowitz, Harvard law professor, went on Fox News and on Newsmax last night and said that Roberts was correct. Now, Dershowitz is the only person that I've heard in the entire country who says that Roberts is correct. But his reasoning is kind of legalistic and something that I want us to dig into. I do, and I think it should never be done under any circumstances. But I do think the Supreme Court should never have had to reach beyond the fifteen weeks.

That's what was before the Subreme Court, and everybody on this show seems to think that fifteen weeks is reasonable. Senator Ruby thinks fifteen weeks. The Europeans think fifteen weeks. Why did the Supreme Court have to jump into this and say, we're not going to decide the case before us, We're gonna ban. We're gonna ban ROVERSUS way to overrule it and allow states, allow states to be sure, allow

states to abolish abortion completely. That was judicial activism, overreaching, and seoan you oppose judicial activism, you should join me and agree with Justice Roberts that judicial activism was at play here and it was unnecessary. I would take issue with Sippi case. So, Liz, it may surprise you. I actually don't think either Roberts or Dershowitz are crazy and what they're saying, and I think they have a reasonable

basis for what they're saying. I don't agree with it, but it's not It's not a shocking thing for them to be advocating for. And the reason I say that, I mean, let's look at Roberts's re Robert's approaches cases, and he's an incrementalist, and there is a principle of judicial restraint which is that the court should not decide any more than is necessary to resolve the issue before it in the case that is being litigated. That is a sound principle of judicial restraint and it is a

right way to approach most issues. That's what Dershawitz is focusing on there as well. Now, what I especially don't agree with is Dershawitz saying this is judicial activism. I think that is that's being provocative. And as you know, I know Dershawitz very well. He was my criminal law professor and he's a friend. I think he's being deliberately provocative with that. I don't think he's right. But the instinct of don't do more than is necessary is a

sound judicial instinct. So why do I think it wasn't right here? Well, I would commend people to read the majority opinion, where on pages seventy two and the next several pages of the opinion, the majority opinion squarely addresses what Chief Justice Roberts advocated for, which was uphold the Mississippi Statute but don't overturn rug And I think the majority opinion dismantles the argument as a legal matter. What does the majority point out? It points out Number one,

Roberts doesn't attempt to defend rose reasoning nobody does. Number two Roberts doesn't even pretend to defend Casey's reason. Instead, he grounds his argument on starry decisis, which Casey did as well. But starry decisis means not overturning decisions, and what Roberts advocates would overrule much of RUG. So what he says is well, Okay, Row prohibited restrictions on abortion before viability. He said, we should get rid of the

viability requirement, but we should. Here's what the majority. How the majority puts it. The Concurrence would leave for another day whether to reject any right to an abortion at all, and would hold only that if the Constitution protects any such right, the right ends once women have had a

quote reasonable opportunity to obtain an abortion. The Concurrence does not specify what period of time is sufficient to provide such an opportunity, but it would hold that fifteen weeks, the period allowed under Mississippi's law, is enough at least

quote absent rare circumstances. So Roberts is proposing overrule a big chunk of Row, but create this new reasonable opportunity rule, which, notably, he doesn't find anywhere in the Constitution, he doesn't find anywhere in the Supreme Courts precedence, he doesn't find anywhere in anything resembling law. He just makes it up, says, well, gosh, if we make up this rule, then we don't have to over rule Row. That isn't that being a legislator? Though, yes,

that's exactly what and it's what Row did. He's got a new standard. He thinks he's smarter than Harry Blackman. He is unquestionably smarter than Harry Blackman, and so he likes he likes his standard, and his standard, this reasonable opportunity standard. But it is not you know. The majority opinion points out the rule that Roberts is advocating. The Concurrence would do exactly what it criticizes Row for doing, pulling quote out of thin air a test that quote

no party or amicus asked the court to adopt. So neither of the parties in this case asked for that. None of the amiki, I think there were one hundred and thirty amiki, none of them put forward this theory. But look, John Roberts is a very smart man. He came up with his own theory. It's like, well, let's go with this one instead. And it's based on the idea that they don't have to do anything that will

be seen as politically as traumatic as overturning Row. But Roberts is advocating overturning what the court and Casey called the central holding of Row, which is the viability standard. And Roberts wants to get rid of the central holding. Well, if you're getting rid of the central holding of a case, you're overturning the case. Like his proposed minimalism isn't very minimal, and it would create a whole new host of problems that are likewise not found in the law or the constitution.

This is why Liz what Dershowitz says is wrong. He calls it activism. Activism is a court imposing its own policy preferences and not following the law. Let me ask

you about the leaker. Though this has gone out of the news very quickly, the left was not interested in discussing the identity of who this person that publicized gave to the media the draft majority opinion, which by the way, is very very similar to Aldo's final draft of his majority opinion, which I was glad to see that they weren't bullied into into changing any of their verbiage, any of their language, any of their arguments based on this. What do you think the proper course of action is

now regarding this leaker? Should we continue to investigate? Should the name be revealed publicly? Should they be should this person be prosecuted? And will they yes? Yes, yes, And I don't know. Look, the investigation should continue. Roberts has announced that the Court has launched an investigation. The Marshall's Office is leading the investigation. I think it's critical that we fight out who the leaker is. I think their name needs to be made public. I think they need

to be criminally prosecuted to the maximum extent possible. Will it happen? I don't know. The Marshall's Office, generally speaking, doesn't have a whole lot of experience investigating crime. That's not there. Their principal focus is protecting the court, which is a different It is a law enforcement function, but it is not It is not typically investigatory, So I don't know how effective the Marshall's Office will be at the investigation. I also don't know there's been no public

reports about how much the law clerks are cooperating. So for example, it's been reported that the clerks were at We're asked to sign a statement, presumably saying they did not hand the opinion over to anyone. I don't know if they're clerks who refused to side it don't. I don't know that, and nobody knows outside the court what has happened. But I think it is critical both for the long term integrity of the court and for the rule of law, that we find and prosecute the leaker.

I hope that happens. On the question of prosecution, it will depend on Merritt Garland's Justice Department, And unfortunately, this Justice Department has been so political that I could easily see the Department of Justice refusing to prosecute it. I hope they don't, but I think that's a risk. Step number one is find the leaker, and then step number two should be ensuring that there are real and meaningful consequences for the gross violation of duty to the court

and to the rule of law. All right, verdic Clause members wigh in post below. Do you think that we're gonna find out who the leaker is the identity of this person and if so, do you think that they will be prosecuted? Do you think Mary Garland will do anything or not, and if so, what do you think the charges will be or should be? Comment below way, and I'm really interested in everybody's opinion. Also, a little

behind the scenes going on here. The Senator is at an activism conference in Wisconsin right now and his staff is about to pull him up out of the chair because we've run so late talking about this topic. So Senator, I'm going to let you go. Thank you everyone for watching. This was a really great discussion. I'm Liz Wheeler. This is the Cloakroom on Verdict Plus