E79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein

May 7, 2022Amy Howe politics law constitutional policy

TL;DR

Amy Howe and Tom Goldstein analyze the leaked draft opinion that would overturn Roe v. Wade, explaining the constitutional reasoning and historical context behind the decision
The overturning of Roe v. Wade sets a significant precedent for how the Supreme Court can reconsider and reverse longstanding constitutional protections
The leak itself raises serious questions about institutional integrity at the Supreme Court and how it will function as an institution going forward
There is debate about whether Chief Justice Roberts may have initially drafted a narrower decision before the court shifted toward a complete overturn
The episode explores potential downstream impacts on other constitutional rights including same-sex marriage, contraception access, and privacy rights
Discussion includes consideration of structural reforms to the Supreme Court such as term limits or age restrictions for justices

Episode Recap

In this episode, constitutional law experts Amy Howe and Tom Goldstein join the show to provide comprehensive analysis of the leaked draft Supreme Court opinion that would overturn Roe v. Wade. The discussion begins with a detailed breakdown of the constitutional arguments presented in Justice Alito's draft opinion, examining how the court reasoned that abortion rights are not protected by the Constitution and should be returned to individual states.

Howe and Goldstein explain the historical context, including how Roe v. Wade was decided in 1973 and the subsequent Planned Parenthood v. Casey decision in 1992 that attempted to establish a middle ground. They analyze the legal reasoning behind the draft opinion and discuss why the court's conservative majority concluded that precedent did not demand upholding the prior decisions.

A significant portion of the conversation focuses on the unprecedented leak itself and what it means for the Supreme Court as an institution. The leak of a draft opinion before the court's official ruling is extraordinarily rare and raises serious questions about internal security, institutional norms, and trust among the justices. The guests discuss how this event fundamentally changes the dynamics within the court and public perception of the institution.

The episode explores potential downstream impacts from overturning Roe v. Wade as precedent. Once the court demonstrates willingness to overturn a decades-old constitutional right, it opens the door for reconsideration of other established rights. Howe and Goldstein discuss the vulnerability of protections for same-sex marriage, contraception access, and privacy rights more broadly. They examine what protections currently exist for these rights and how stable those protections might be given this new willingness to reconsider settled law.

A noteworthy discussion involves Chief Justice Roberts and whether he may have initially drafted a narrower opinion that would have upheld Mississippi's 15-week abortion ban without completely overturning Roe. The guest suggest that the conservative majority may have moved toward the more aggressive position of complete reversal, potentially isolating Roberts who might have preferred incremental change.

The conversation also addresses structural questions about the Supreme Court itself, including whether there should be term limits for justices or age restrictions on service. The guests discuss how the court's current composition came about, the role of Republican appointees, and broader questions about how the court should be structured to maintain public confidence and institutional legitimacy.

Throughout the episode, Howe and Goldstein provide context about the confirmation process, the statements justices made during their hearings, and the broader political implications of the decision. They balance technical legal analysis with accessible explanations of why this moment represents a significant inflection point for American constitutional law and the Supreme Court's role in society.

Key Moments

Notable Quotes

“This is not just about abortion. Once the Supreme Court shows it's willing to overturn a long-established constitutional right, what other rights are vulnerable?”

“The leak itself is unprecedented and raises fundamental questions about the institutional integrity of the Supreme Court.”

“Chief Justice Roberts may have been seeking a narrower ruling that would have allowed the court to take incremental steps rather than completely overturning precedent.”

“The question of whether the Supreme Court should have term limits or age restrictions is now a serious policy discussion given the stakes involved.”

“This decision will likely reshape American constitutional law beyond just abortion, affecting how we think about privacy rights and other fundamental protections.”