Dobbs Fallout with a First Amendment Twist

Sarah and David talk more about the leaked draft opinion in Dobbs, but this time ...

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Sarah and David talk more about the leaked draft opinion in Dobbs, but this time with a First Amendment twist. Activists have encouraged protesters to demonstrate outside the homes of the conservative Supreme Court justices. Does it violate the First Amendment to ban protests outside a justice’s home? Is it dangerous and foolish even if it’s lawful? Also, they track the political fallout and discuss three very different polls. Each of them is interesting. One of them is an outlier.

Show Notes:

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  1. Joe1776

    I know this a a bit late for a comment but I don't always have the time I need to listen to these podcasts as soon as I'd like. But your podcasts age well because you both do a great job offering solid legal and political analysis. For me born in 71 overturning Roe was something that always seemed so close but then the republicans would let us down. I am happy that this abuse of power will finally come to an end.

    The Lochner cases were always mentioned in relation to Roe and substantive due process in constitutional law classes. So I assumed that would make it in the opinion. But honestly I think a persons right to sell their own labor at the price of their choosing is closer to a traditional basic right than abortion. But I believe that line of cases was overturned or FDR was threatening to pack the bench.

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  2. Robert and Kim

    Did I miss something? Where is the Thursday AO this week?

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  3. Mark Paskowitz

    Hope you don't mind a comment here that's probably more relevant to an earlier podcast....

    Philosophically, I'm very happy with the concept of unenumerated rights. The Constitution recognizes rights, it doesn't grant them? Great. The 9th Amendment even spells this out. But a few weeks ago, you were making a very persuasive argument against natural law influencing Constitutional law, and I'm having trouble seeing the difference.

    It can't just be that we trust Scalia's judgement but not Vermeule's in determining rules to apply that aren't actually spelled out in the text. Is it that natural law is mean to derive from "reason" and unenumerated rights from "history and tradition"? Seems like that still leaves an awful lot of room for "whatever the judge feels like on the day". I certainly don't want the government interfering in my "right to travel" or "right to raise my (hypothetical) children in the way I want, within reason". But I also don't want the government interfering in option to buy European baby formula or work for whatever wage I agree with an employer. And, for what it's worth, I don't want government to interfere in the option for a woman to have an abortion, at least up until some point in the 14-21 week range. But how is "unenumerated rights" a more coherent principle for putting some of these things within the power of the legislature and others outside it than "natural law"?

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  4. Mathew A

    It's Friday afternoon and no new AO. I can only assume disaster has struck. I hope everything is ok.

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    PaulH

    I think it would be interesting to delve more deeply into the constitutionality of the ban on protesters outside justices homes. Much of the law is constitutional. For example, if the protester's action are really an attempt to obstruct justice that is appropriately unlawful. Similarly, to the extent the law applies to jurors then it seems reasonable -- the First Amendment does not protect jury tampering. A similar case could be made for judges -- if we are to have rule of law then judges should be influenced only by arguments made in court proceedings, not by the passions of the mob. On the other hand, judges are public figures and, therefore, are reasonable targets of public criticism. I tend to come down on the view that the protests are undesirable and inconsistent with our system of government but probably cannot be banned.

    It is unfortunate that Psaki and Biden are unwilling to convey even that message and that the DOJ -- which is quite willing to investigate protesters at school board meetings and even the most minor of violations on Jan 6 -- does not seem to notice or care that a federal law is being blatantly violated.

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  6. Ted

    David/Sarah -- I know you both have strong views or protesting outside a person's house but would it be appropriate to protest outside of Shumer's house because of his political incompetency?

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    David Stein

    This seems like an interesting topic for the next podcast: https://www.reuters.com/legal/government/court-revives-texas-social-media-law-against-banning-users-views-2022-05-11/

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  8. Pat Ketsche

    I am a fan of the humility with which you both have podcasted over the course of the past week. We would all be better off if we adopted such a stance before broadcasting our views. I think you have treated those who might disagree with respect. Thank you.

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    Steve Gordon

    First off, Sarah and David, thanks for adding clarity and sincere discussion to a topic fraught with extreme positions. Your time and depth is discussing the leak and the potential decision was really valuable.

    I happened to be travelling abroad with a small group last week, all men, but politically and age diverse. We had only limited access to news and info, but once the leak headline came across it became a discussion point within the group over the next few days. I was able to add some points about this isn't an "abortion ban" but rather puts it to a democratic decision in the states. I also was able to discuss that as much as some feel it is a "right" being taken away, there's a majority of people in more conservative parts of the country who feel strongly that it's taking a life and want to limit it through their duly elected representatives.

    A couple of people approached me one on one to say thanks at it had expanded their thinking, even if it didn't change their minds. That's about all one can hope for. Thanks for the thoughtful treatment of a tough issue. Reminded me again why I'm a proud member of The Dispatch community (and yes, I'll be sending out some trial gift subscriptions to a few new potential members!)

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  10. Jess

    I just got the chance to listen to this and I appreciate it greatly. I always feel better about our country and its future after I listen to AO. This time, I really needed that sense of hope after reading Alito’s draft, and after everything that has flooded the zone since the leak.

    Thank you, Sarah and David for respecting all your listeners at such a charged time. It’s not common for very smart, successful, public people to also be humble. Aside from all the legal facts which you present so well, it’s helpful hearing you say that this is hard and multifaceted and emotional.

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