Another Dobbs Leak!

Infrastructure Week continues.

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203

Sarah and David respond to listener comments about last week’s Texas abortion case. Then the two discuss:

-Why to bet on the side of Jack Smith’s delay

-The “president shoots a postal worker” hypothetical

-Sarah plays detective on the second biggest SCOTUS leak

-SCOTUS appointments and holding onto power

-A right to compete but not to win?

-Please clean your washing machines

Show Notes:

-Why We Fight So Ferociously Over the Supreme Court

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Comments (203)
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  1. Avatar photo
    R.arronpowell

    Surely, someone has invented a machine to wash washing machines.. A “washing machine washing machine,” if you will…

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  2. M L

    “This isn’t STEM.”

    If software engineering counts as STEM, I can tell you that there is just as much negotiation and horse trading between advocates of different preferred solutions. The sausage making isn’t pretty, anywhere. It’s all sausage as far as the eye can see.

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  3. Sai Ayila

    No it isn't. Dobbs decision is wrong, alito opinion is pure trash even Sarah and. David said he used wrong points. So no if u go by alito reasoning it is wrong as Besides actually like Ginsburg herself said correct reasons to uphold it due to equity clause. If u think Dobbs is correct then loving v Virginia is also wrong Also just simply read Thomas unhinged opinion. Also do you want slavery to be left to the states as well? Lol

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    1. Cody Murphy

      The key distinction between Loving and Roe is that there is another life at stake whereas Loving is among two consenting adults.

      If life does not begin at conception. When? No Pro-Choicer has ever given me an intellectually consistent answer on that question. Now pregnancy complications do preside over their own ethical complications I do not discount that but that kind of balancing is better left for legislation, not judicial decree. (Just like every other Western nation that has tackled this question).

      Substantive Due Process was always playing with fire and usually only is enshrined when the political and moral consensus has been mostly resolved politically. Thats why originalists look at SDP with a degree of skepticism since the rights are not enumerated. Loving was just dragging the straggler States to where the country was. Roe only opened the debate it didnt resolve the debate. If Loving happened in 1888 shortly after Plessy unfortunately the country would not have gone along with it.

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      1. Avatar photo
        Kmregan7

        Define life. Define personhood. Is a person a person with no brain at all? We tell families they can unplug brain dead relatives because we know that brain activity is what makes a person…the person they love. Let’s say you convince millions that a four second old fertilized egg is equivalent to a born baby….do people get to use other people’s bodies and organs against their consent/will? We don’t allow that in any other circumstance (even dead people have to give consent before they die for organs to be donated or bodies to be used for research or education, etc.)
        Pregnancy increase risks for women, even healthy pregnancies….we don’t allow people to use others bodies against their will and if someone tried you’d be well within the law to kill that person in self-defense.

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        1. Cody Murphy

          And theres a long line of special legal rules when it comes to the protection of kids. Pregnancies do increase the risk to the woman. I am not discounting that. In many cases there is no great answer in what to do. Which is why there has to be a balance struck between protecting the woman AND the unborn child. SCOTUS is not the place to do that especially when the right is unenumerated. I’m Pro-Life in the David camp of “culture of life” and am throughly disgusted in what the current “Pro-Life” movement has become. But at the same time the not conception argument opens up a Pandora’s box of scenarios where if we are able to save the baby earlier and earlier in gestation does life begin earlier and earlier. There are many philosophers in an attempt to be intellectually consistent say “Yeah kill the two year old” since it cant survive without assistance. This question isnt as cut and dry most people make it out to be. I respected the Clintonian position of safe, legal and rare, I do not respect Abortion on demand.

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          1. Avatar photo
            Kmregan7

            Again- protecting kids. Kids are born. They have developed organs, they aren’t using another’s body against their will in order to do any of the things people must do (breathe, dispel waste, etc.) -which is why “kill the two year old” doesn’t work - two year olds don’t need to be attached to and inside a others body- they depend on others but not in the same way.

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      2. Sai Ayila

        Define life.? Do you know what 'life' looks like? No do you know height weight color whatever of an alleged baby? No. You cant look at the life unless it is born. If you I'll quote Shakespeare and ask you? Can u define all of the characteristics without even looking at 'life'? Which you cannot even define. In your religious belief it is life in my religious belief life doesn't begin until birth or at least until the point of viability. No lice doesn't belief at conception. Off course you must evangelical and your religious beliefs it may but. The legal question shoudnt be based on religious belief and alito did exactly that in his opinion. And yes the Dobbs decision is wrong. It had confirmed by 7 out of 9 judges who are anonymously confirmed the congress in 1973 and also 1992 decision where Anthony Kennedy himself affirmed the 1973 while reducing the viability. Also I mentioned clarence Thomas unhinged conference which you didn't mention. Thomas has the nerve to mention ogberfell should be overturned while refusing to mention loving v.virginia which allowed him to marry his wife. If roe was not in constitution so does interracial marriage. Clarence Thomas is what he is a grievance hate filled lawyer, along with the religious nut alito didn't even mention any of those. I have no problem with roe being overturned what I don't like is the lucudrious reason they used to overturn it. Had Thomas mentioned that interracial should also be left to the states then I would agree but he didn't which shows the court doesn't operate under law rather filled by their own grievances. Religious beliefs are not the same as legal beliefs. Thats exactly what happens. Also jewish beliefs are life begins at birth not at conceptions. This ruling is another clear violation of first ammendment freedom of religion which Jewish groups are suing statewide right now You cant say only Catholics and evangelical beliefs are the only ones which should be honored. The other religious beliefs should also be honored. So bottom line is there needs to be consistency in the SCOTUS ruling you can say one thing is right while ruling other thing is wrong. Like loving v. Virginia is correct but ogberfell is wrong. This is why people like Clarence Thomas has no credibility whatsoever. Nytimes did an expose on Clarence Thomas on how this guy had benefited from "affirmative action" and now ruled against it. You cant I can benefit from it but others can't. That's my beef with these two people. May be other justices options are different but based on the NYTimes report these guys didnt even deliberate and it just took 10 mins to sign on to alito's bigoted opinion shows these justices were dying to overturn it without examining any facts. Thats my two cents

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  4. Sai Ayila

    David French is correct. Like him or not he gives perspective from both sides. Sarah isgur while politically she makes good's points on the other podcast which is more enjoyable than this one but she doesn't belong advisory opinions, she is once again showing her conservative judiciary bias and pathetically sucking up to alito and Thomas. Also she blame liberal for the leak, forgetting the fact alito himself allegedly leaked the lobby draft in the past and also she conveniently ignores alito repeatedly trashing his fellow colleagues in the past thus trying to put pressure on them to agree with his opinion. Not to mention a week before the leak wsj Editorial board already posted these deliberations before politico revealed it. In other words someone already leaked the WSJ opinion to editorial board because a week exactly after that politico posted the entire draft opinion and it contains stuff that wsj supposedly speculated. Wsj is run by Murdoch and gave softball interviews with alito. Do you seriously think a liberal clerk leaks the content to wsj or politico (which is actually more friendly to republicans than democrats if you read their articles) I don't think so. If a liberal wanted to leak the draft they would leak it in February itself to MSNBC or mother Jones or daily beast or some progressive lean website not politico not wsj. They don't have to wait until may to leak. Just my opinion. It's better Sarah sticks with politics like she is doing in the other podcast and abc (which is she more enjoyable to listen) and leave 'advisory opinions' as she is not giving both sides of the case.

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    Tbrochu74

    I think Sarah's gun-to-a-three-year-old analogy fails for a reason that she almost seemed to notice, but then moved past.

    It's not self-defense to kill a child pointing a gun at you when you were the one who gave them the gun. If you actually carry out the analogy to an unborn child, then any unborn child that threatens the health of the mother was indeed "given the gun," by their own consenting parents who conceived them. If their physical existence itself is the "gun," it is their parents who caused them to exist and gave them the "gun."

    Good explanations exist for why it is morally permissible to intervene to save a mother's life and cause the death of the child as a consequence. But Sarah's analogy doesn't shed light on that.

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      Kmregan7

      IF there was consent given (it wasn’t rape). But consenting to sex isn’t consenting to pregnancy.

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    2. Pohl

      I cringe whenever they mention natural law even though I’m predisposed to welcome discussion of it. Describing it as old basically gives the game away, though. It is better to think of it as innate. It would have instant authority tomorrow for any new rational species that might emerge. The main problem with Sarah’s analogy of the child with a gun is that, unless I missed it, she didn’t mention that force in self-defense must be proportionate. You can’t just fire off a center-mass double-tap. And the moral innocence of a threat isn’t really the decisive factor. A clearer, more typical, illustration would be to just imagine a large, crack-addled home invader. You can defend yourself, even if it results in his death, if that response is proportionate and unintended.

      The problem is that the only similarity to abortion here is the principle of double effect at play in indirect abortions. The unborn are ABSOLUTELY not attackers in any sense whatsoever. But their deaths, even if foreseen though unintended, may be licit if there are proportionate reasons. Directly making a beeline for them remains illicit, just as if you shot a toddler holding a butter knife. Why did/would anyone do that?

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  6. BGraham640

    Sarah (and David if he's listening), I liked David's sample formulation for an abortion law. However, I would recommend one addition. Instead of just "is a risk to life or material risk of substantial bodily impairment beyond the risk of associated with a normal pregnancy," I would add "AND there is a reasonable medical judgement that the risk of terminating the pregnancy is lower than the risk of continuing the pregnancy." This would make it much harder for Doctors to recommend late term abortions for the "health of the mother." Just my 2 cents.

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  7. Joshua Foster

    Sarah should look into getting a toilet sprayer to reduce the poo in the washing machine.

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  8. Helbock

    Sarah, your idea is what has going on forever. Abortion was allowed to protect "the health of the mother" So all the abortion mill doctors just said the mothers mental health was at risk. It was just abortion on demand.

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      Kmregan7

      Mental health matters. It’s not a separate health- it’s just part of health.

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    Dguaspari

    Sarah said that a good feature of David's version of an abortion law is that we wouldn't know how the Texas case would have come out, since we're not doctors. Well ... not really ... because we know enough about human nature to know that a doctor could be found who would OK the abortion.

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    Michael Berkowitz

    I'm wondering at the implication that SCOTUS needs to be fixed. Was there something in the 'Times article that indicates that? I didn't catch that in the discussion. The 'Times, of course, has been delegitimizing the Court since it swung majority-conservative, but I wasn't under the impression that AO was of that opinion.

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    1. Cody Murphy

      Usually, Reform talks happen on the side that keeps losing. Not too long ago, the Right brought these reforms when the Court swung Left. AO, being the fair-minded folks that they are, is willing to entertain arguments for reform. There's plenty wrong with the Court system as it currently functions (see their arguments about always betting on delays for instance.)

      I think there is a good government argument to curtail the court's powers. But I would do something like a mandatory retirement age so we don't have these morbid talks about keeping individuals alive for stability. Canada moved from lifetime to mandatory retirement not too long ago. Personally, I'd like to see ALJs and Bankruptcy Judges move over to Article III. If we want experts resolving disputes, let's have expert judges who are actually judges.

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