Supreme Court Expert Calls Leaked Supreme Court Draft Sophomoric and Poorly Reasoned

By David Howard King

Supreme Court Expert Calls Leaked Supreme Court Draft Sophomoric and Poorly Reasoned

5.6.2022

By David Howard King

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Vincent Bonventre, an expert on the U.S. Supreme Court and a professor at Albany Law School, said the draft Supreme Court opinion that would overturn Roe v. Wade is off-base when it claims that the right to an abortion is not enshrined in the Constitution.

The draft opinion, which was written by Justice Samuel Alito Jr., was leaked to Politico, which published it on Monday. Chief Justice John Roberts, who has ordered an investigation into who leaked the document, said it is authentic but could still change.

On an episode of the Miranda Warnings podcast, which the New York State Bar Association published on Friday, Bonventre said he doesn’t think Alito could possibly believe that he is making a well-reasoned argument. Miranda Warnings is available on Apple Podcasts, Spotify and other major podcasting platforms.

“You know one of the first things I teach my students is I read to them what James Madison said that a lot of you are worried that if we put a Bill of Rights in the Constitution, some people are going to say, ‘Well this right isn’t in there so that people don’t have it.’ For someone as smart as Alito to say that, he knows it is nonsense.”

Bonventre and Liz Benjamin, managing director at Marathon Strategies, had a lively conversation about the legal and political implications of the draft opinion and the leak with podcast host David Miranda, the New York State Bar Association’s general counsel.

Bonventre pointed out that Alito writes that: ‘There are rights this court recognizes but they’re part of the tradition of this country.’

“Like what?” Bonventre asked sarcastically. “Like racial segregation, like treating women as a second-class citizens, like forbidding interracial marriage, like forbidding contraceptives, or any kind of sex other than for the purpose of procreation?”

Benjamin said the biggest concern is that additional rights could be undone should Alito’s draft remain intact. She felt that the opinion was written along ideological lines and has further undermined perception of the Supreme Court as an apolitical body.

“The implications for the future of the court and the courts’ decisions being seen as a serious entity has really taken a blow,” said Benjamin. “Anybody who thought it was not a political entity was living under a rock, but the veracity of and the gravitas of its proceedings and its decisions, I think, certainly have been called into question.”

Bonventre said that he would not be surprised if the tenor of the draft in this case, Dobbs v. Jackson Women’s Health Organization, is changed, and perhaps the scope of it reduced so that it does not undermine other rights. Benjamin, however, said she felt that the leak had put the justices “between a rock and a hard place” and that switching their positions or tweaking the draft significantly could earn them the rebuke of the conservative establishment.

Both agreed that the politicization of the court has taken place over the last few decades. Bonventre lamented the quality of candidates put forth by both parties.

“The current court is so partisan. It is not a matter of ideology, it is not a matter of judicial philosophy, it is partisan. Look at the way they vote, they vote like Republican politicians,” Bonventre said.

Benjamin said that despite the bleak prospects facing the court, she still hopes for change.

“I have a sliver of hope that someone like Roberts will get on—someone who got on and did things people were surprised about and said ‘Oh man, the man is an independent thinker,'” Benjamin said. “You can see that Roberts feels it’s important that the court does not in fact go down the rabbit hole of becoming a MAGA court or the conservative court. But we will see what happens, hope springs eternal that once you get on, you will start thinking for yourself.”

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FULL TRANSCRIPT

David Miranda:

This is a special addition of Miranda Warnings. Earlier this week, Politico published a draft decision written by Supreme Court Judge Sam Alito, which would overturn the 50-year-old precedent of Roe v. Wade, which found constitutional protection for a woman’s right to choose to terminate a pregnancy to fetal viability. The leaked decision has sent shockwaves across the country, not only because it involves such a significant and controversial issue, but also because of the unprecedented leak of Supreme Court deliberations prior to a final decision.

David Miranda:

For Supreme Court watchers, there’s a lot to unpack. And we’re very fortunate to have on Miranda Warnings today, two of our best Supreme Court watchers: we have Professor Vin Bonventre. He’s the Justice Robert H. Jackson Distinguished Professor of law at Albany Law School. He’s a former Supreme Court Judicial Fellow, and he’s author of newyorkcourtwatcher.com, providing commentary on the Supreme Court and the New York Court of Appeals. Welcome, Professor Bonventre.

Professor Vincent Bonventre:

Always good to be on Miranda Warnings. It’s great.

David Miranda:

And we’re also very honored to have Liz Benjamin. She’s the managing director at Marathon Strategies, a communication and strategy firm in New York, and a former reporter and former host of the daily political news show, Capital Tonight. Welcome, Liz Benjamin. Thank you for being with us.

Liz Benjamin:

Yeah, it’s my pleasure.

David Miranda:

Liz and Vin are both friends of Miranda Warnings. We’ve had you both on before. You’re both fabulous. This is obviously a bombshell. Tell us, how important is this leak of the decision, or the draft decision? Why do we care about a draft decision?

Liz Benjamin:

Well, I think that Vin can probably handle the sort of technicalities from the court standpoint, but from a political standpoint, this really can’t be undersold in terms of its importance. And whoever did it certainly had an agenda, quite clearly. And there’s been a lot of speculation as to why this leak was… what the motivation was. Was it done to strengthen the spine of individuals on the Court, potentially Kavanaugh, for example, who may have gotten cold feet about promises that were made when the Court’s more conservative appointees were put there by President Trump in particular, to overturn Roe. I mean, this has been a long time coming. It was not a surprise, certainly.

Liz Benjamin:

I think that the leak was a surprise, and the political implications are significant because now the Court finds itself a little bit between a rock and a hard place, because the various different sides, right? The true believers on both sides, this is an issue that galvanizes the grassroots on both the left and the right. So, now you’ve got people who are expecting the Court to do a certain thing, and if they don’t? They’re going to be in trouble with the right. And if they do, the left is going to get very aggressive and active. Now, there’s not a heck of a lot they can, as we are seeing now with this sort of ideological and-

Liz Benjamin:

With this sort of ideological, and really just sending a message effort by the Senate, led by Chuck Schumer, who is of course our senior Senator in New York and the majority leader of the Senate, to pass legislation protecting abortion rights or what have you. This really is going to come down to the states. There is nothing that the Congress can do because of the makeup of the political body right now. And then subsequently after the midterms, it’s going to be even more difficult for the Democrats to get anything done. So from a political standpoint, I think that this is in incredibly important.

Liz Benjamin:

And then subsequently, and I think I’ll kick to Vin for this, but the implications for the future of the court and the court’s capabilities of making decisions and being seen as a serious entity has really taken a blow. I think that people … It was always a politicized body. To anybody who thought it was not a political entity was living under a rock, but the veracity and the gravitas of its proceedings and its decisions, I think certainly have been called into question.

David Miranda:

Yeah. Vin?

Professor Vincent Bonventre:

Yeah, a few things. If we start at the beginning, this draft was dated in February, so pretty early on after oral arguments. And we said, it’s authored by Alito, and it’s not joined by Roberts, which means that Alito was assigned the opinion by somebody other than Roberts. Because if Roberts is in the majority, he’s the one that assigns the opinion. So the opinion was apparently signed to Alito by Clarence Thomas. And this draft opinion, and it’s in February, so it is just a draft. But it’s clearly Alito. It sounds like Alito, smells like Alito. It tastes like … It’s angry.

David Miranda:

Well, it also said-

Liz Benjamin:

Well, initially the chief judge has now come out and said this we is in fact … He’s authenticated the draft. Right?

Professor Vincent Bonventre:

Yes.

Liz Benjamin:

So initially there’s a question of like is this real? We don’t know.

Professor Vincent Bonventre:

No, this is real. But not only is it real, it sounds just like Alito. It sounds like an opinion would that the chief justice would not want to join, but that Clarence Thomas would want to join. This opinion is part of the lineage of those who have been very angry at the court, to be candid, since Brown versus Board of Education in 1954, and then through the 1960s where the court finally took the right seriously, and made them enforceable against the states. And there are many who have never forgiven the court for doing that. And Roe versus Wade with abortion, Loving versus Virginia with interracial marriage, certainly the gay rights cases subsequently. All the rights of the accused that were made applicable to the state, and really upset the law and order group in this country.

Professor Vincent Bonventre:

This is all part of that lineage. And you hear all of that pent up anger in this opinion. And what it does is, despite the fact that in this draft opinion, it says, “Well, this doesn’t affect any other right.” Well then that’s kind of like in Bush versus Gore, where the court said, “Well, this isn’t precedent for anything else.” Well, if you take the reasoning in this case, some of which is just moronic, there’s nothing you could say about it. It’s just moronic that the right to abortion, the right to choose is not in the text of the constitution. Oh my word. That’s one of the first things I teach my students when I read to them.

Professor Vincent Bonventre:

What James Madison said in the first Congress, he said, “I know there are a lot of you out there that are worried if we put a bill of rights in the constitution, some people are going to say, “Well, this right isn’t there. So the people don’t have it. The government could do anything.” We still get that argument today. And somebody as smart as Alito, he knows that’s nonsense. He knows that’s absolutely nonsense.

Professor Vincent Bonventre:

So he says that, but then he also says, “But then there’s also rights that sometimes this court recognizes, but they’re part of the tradition of this country.” Like what? Like racial segregation? Like treating women as second class citizens? Like forbidding interracial marriage? Like forbidding contraceptives or any kind of sex other than for the purpose of recreation? It’s just-

Liz Benjamin:

Procreation, not recreation.

Professor Vincent Bonventre:

And if you use his reasoning, that’s the same reasoning that would be used to invalidate and overrule all these other landmarks, which most of us cherish.

Liz Benjamin:

And the problem is the backing into the political argument, or back to the political problem, is that there’s not a whole heck of a lot that Congress can do. So the court ends up being the final word, which is sort of nefariously brilliant, or just plain old brilliant, depending on which side of the aisle you come down on. But the right has been systematically working towards this moment for decades, arguably. Has been working on elevating justices at all levels and on taking over legislatures, recognizing the importance of building a very strong bench, and also the longevity of the judicial branch, and the power of the judicial branch to have the final word and hamstring the legislative. And in some cases, executive branches.

Liz Benjamin:

So certainly in some cases Democrats are like, “How did this happen?” How did this happen? You’ve been asleep with the switch.

Professor Vincent Bonventre:

You’ve been sleeping.

Liz Benjamin:

That’s how it happened.

Professor Vincent Bonventre:

That’s how it happened.

Liz Benjamin:

Exactly. You were so worried about, “We have to win this particular fight or that particular fight,” and you failed to see the big picture while the right was toiling away and quietly packing the courts. And then subsequently, now we see the fruits of that effort, and it’s significant. In the midterms, if in fact the Republicans do take the House, looks that way, take the House, potentially take the Senate. There’s just no legislative remedy that’s going to be possible, if in fact, some of the future of that Vin has laid out and other individuals have laid out after reading that draft, are concerned about. Again, it’s going to really fall down to the states, which I would argue is probably exactly what … States’ rights is something that the right feels very strongly about.

Professor Vincent Bonventre:

Yep.

David Miranda:

Yeah. So there’s a lot there. So we’re talking about the politics of it, is part of it. The Supreme Court obviously is not immune to politics, but really I think had a veneer of being above the political fray. But we can see that this has changed. For example, Justice Sotomayor stated during oral arguments on this case, she said, “Will this institution,” meaning the Supreme Court, “Survives the stench that this creates in the public perception, that the constitution and its reading are just political acts.” And it seems like this draft decision, at least, if it stands, is a mere political power play here because they have the votes. That’s the answer. Professor Bonventre, you’re talking about the reasoning, but the answer that the Supreme Court is saying, “If we have the votes, we’re going to do it,” and throw reasoning and 50 plus years of precedent out the window.

Professor Vincent Bonventre:

Right. But let’s put this in context of the history of the United States Supreme Court. This is hardly the first time in the court’s history. This has been going on since the beginning. The constitution does not say what, for example, the great chief justice John Marshall said it said. He was a federalist, and he was very supportive of business interests, urban interests. He was a partisan federalist. And Jefferson was making the very same complaints about the United States Supreme Court that liberals today are making against this current conservative court.

Professor Vincent Bonventre:

And of course we had the court in the early New Deal, and prior to the New Deal, invalidating all acts of social welfare legislation, minimum wages, maximum hours, protecting children, protecting workers, social security, they kept invalidating that whether it came from the federal government, or whether it came out of the states, and then FDR changed the court. He changed the court. And the court ultimately, with the help of Brandis and Cardozo and other greats, started overruling those prior decisions.

Professor Vincent Bonventre:

And then don’t forget the ones that we happen to like, the decisions at Brown versus Board of Education, and all those decisions in the 60s, those were overruling, longstanding precedents, longstanding precedents, which said, “No.” Jury trial is not one of those rights assertable against the states. Privilege against compulsory self-incrimination, not assert against the states/ search and seizure rights, no. A whole list of them. And then the court in the 60s decided, with different justices, decided, “Oh, those rights now are fundamental, and they are assertable against the states.” And then the conservatives back then, they were very upset that the court had changed so much.

Professor Vincent Bonventre:

So the court is always political in the ideological sense. This is just nothing new. I think what is new here is that this current court is so partisan. It’s not a matter of ideology. It’s not a matter of judicial philosophy. It’s partisan. Look at the way they vote. They vote like Republican politicians. That’s the way they’re voting.

Liz Benjamin:

And just to note, this is not something that is not well known, but the appointees or the recent appointees are quite young. And so we have individuals, because they’re serving a lifetime appointment, who are going to be around for quite some time, given the average longevity of an American these days, COVID aside. But I think that has sparked a whole, and I imagine that once we get past this initial uproar of what can we do from a legislative standpoint, we were seeing at the state level in New York as well, we’re going to be … I don’t know. A whole bunch of things probably will happen. Establishing a fund to help women who need to travel from states where … I think there’s 13 trigger band states that would automatically go into effect where abortions would be banned if Roe is overturned. I don’t understand the legality of that, but I guess we can get into it.

Liz Benjamin:

But anyway, there are some states that even have pre Roe bands that are still on the books, so you are going to have a number of states where already you are seeing women flock to clinics, sort of in desperation and fear that they’re not going to be able to get the services that they need. You’ve Al also already seen one state, I’m going to say it’s Louisiana, I think pass … The Louisiana legislature pass legislation that would deem abortion murder, if I’m not mistaken. Happened just in the last week. So once we get past this, and maybe New York creates a fund to assist women to come from other states, to come here, to get the services they need, et cetera, or whatever they do, California is considering enshrining abortion rights in its state constitution. That may be something that is discussed here as well. Then I think we’re going to have another discussion about the court. The terms of the court, the number of individuals on the court. We already had that discussion. We’ve been having it on and off for a number of years now. I wouldn’t be surprised if that gets reignited.

Professor Vincent Bonventre:

Yeah. The flip side of what Liz has been pointing out is that the United States Supreme Court cannot outlaw abortion. All it can say is that these state laws that prohibit abortion, or restrict abortion, they do or do not offend the federal constitution. So the current court is saying that these prohibitions and restrictions on the right to choose don’t offend the federal constitution, but that has nothing to do with what the states may be able to do in protecting the right to choose. So if the New York legislature wants to codify the right to choose, if the New York Court of Appeals says, “Look, in New York liberty includes a woman’s bodily autonomy, including the right to choose,” then there’s nothing the United States Supreme Court can do about it. And I’m sorry, there’s nothing Alito, or Clarence Thomas, or Gorsuch can do about it. That’s one of the good things about federalism. We have choices in the different states to do things, even if the United States Supreme Court has a different view, but the Supreme Court can’t do anything about it.

Liz Benjamin:

No, but they have established a hierarchy, not withstanding, because-

Professor Vincent Bonventre:

Who has?

Liz Benjamin:

The court. If in fact they go in this direction, a hierarchy of individuals who can and cannot access these kinds of services.

Professor Vincent Bonventre:

Yes.

Liz Benjamin:

To travel from Texas, for example, to New York is not cheap. Even if somebody covers your costs, if you have your kids and you’re a single mom and you have a job, you got to take time off. What if you’re going to lose your job, you can’t come, or you’re going to stay. All of that is something that lower income individuals, and particularly women of color are going to be disproportionately impacted by this. So you set up a situation much like we had where you have a whisper capability of who knows where there are people who might be able to provide you with not necessarily a back alley abortion. I don’t think we’re going to see that. We’re going to see illegal purchases of pills on the internet, certainly. And then perhaps people get poisoned by something that isn’t real, or they think they’re getting an abortion and it’s not, because the aborta fascia that they purchase hasn’t been through the FDA, or whatever it is that happens. We’re going to see a certain degree of fallout, but it does in further, I think, deepen the divide, the socioeconomic and racial divides in this country when it comes to access to healthcare and the systemic racism inherent in the system that we have now.

Professor Vincent Bonventre:

Right. But that’s a constant phenomenon in this country, whether we’re talking about interracial marriage, or gay rights, or women’s rights, or just anything. Jury trial. No matter what we are talking about, until the United States had actually said that there was a fundamental right and states could violate it, there were states around the country that protected rights, whether or not the United States Supreme Court had. Same sex marriage, there were plenty of states who had said the right to marry extended to same sex couples, before the United States Supreme Court did. So it’s always that way that there were certain states that are more progressive, they’re more protective of civil rights and civil liberties than others.

Professor Vincent Bonventre:

And unless the United States Supreme Court recognizes a fundamental federal constitutional right protecting those civil rights and civil liberties, then the country is different depending upon what state you’re in. Which is why some of us like living in New York. I don’t want to live in some of these other states. I like living here.

David Miranda:

But the Supreme Court has recognized those rights under the constitution.

Professor Vincent Bonventre:

Yes.

David Miranda:

And if you look, again, this is a draft decision, but if you look at the reasoning that is in this draft decision, all of those rights that you just mentioned about marriage and contraception, and privacy are all potentially vulnerable, could be just as easily overturned by this reasoning.

Professor Vincent Bonventre:

With this reasoning. Yeah. With this reasoning. Because those rights are not in the text, and those rights were not part of the tradition of the United States. So that’s what I said. Alito could say all he wants, the majority could say all they want that this doesn’t apply to these other rights. But the reasoning actually is a reasoning that undermines all those other landmarks. So yeah. Whether they will go that far, I’m not sure that Kavanaugh would be willing to go that far. Should the chief justice would not be willing to go as far as overruling all those other decisions, but some of them will.

David Miranda:

Well let’s talk about that. Because there’s some discussion that this early decision was leaked because some of the judges on the right might not be willing to go-

David Miranda:

Because some of the judges on the right might not be willing to go this far. They initially had a indication that they wanted to find that the Mississippi law was not unconstitutional, but maybe they didn’t want to go as far as to overturn Roe v. Wade. You already indicated that Chief Justice Roberts was not joining in this decision at least in February. And there’s some thought that perhaps Chief Justice Roberts had a middle ground where he could say the Mississippi regulation of after 15 weeks is something that is not unconstitutional, but we don’t want to overturn Roe v. Wade. And there’s some thought that perhaps maybe Kavanaugh or Barrett or Gorsuch were getting peeled off and were going to go to the opinion by Roberts that didn’t overturn Roe, and they’ve released this to try to lock them in.

Professor Vincent Bonventre:

Well, Kavanaugh has, in the past couple of years, been joining Chief Justice Roberts in quite a few cases to give the liberals a majority. And it’s hard for me to imagine that Kavanaugh would agree with the stridency in Alito’s opinion, not Gorsuch or Barrett. I think Gorsuch or Barrett in their hearts actually, as a religious matter, agree entirely with what Alito is saying, but Kavanaugh has seemed to have been a much softer conservative than those other two. I don’t know. But, again, remember, this was a draft opinion in February. Who knows what has happened since then. I’ve seen draft opinions, and I’ve seen what happens to them after a while. So if the ultimate majority opinion is much different than this one, I’m not going to be surprised. I won’t be surprised if it’s very similar to this one, but I won’t be surprised if it’s very, very different. These things change. They get circulated. There are comments. Well, this is a little harsh. Can you soften this? Can you put this in? So what’s going to happen?

Liz Benjamin:

I don’t think… I mean, look, you know the inner working of the court better than I do, certainly. I mean, I read the nine, but I wasn’t there. So I think the politicing behind the scenes is fierce, certainly. I mean, everybody who is even sort of a casual observer is aware of that. And, really, I think this is going to be a question of how aggressive Roberts wants to get in protecting his reputation as the not Trump court, or the head of the not Trump court, which he is rapidly in danger of losing significantly. And so that sort of all mystique and what’s happening behind closed doors is certainly very interesting. But I will be surprised if what comes out does not, at least at the overarching level, overturn Roe and kick it back to the states.

Liz Benjamin:

Will it perhaps soften the language, maybe take out the stuff about, well, now we’ve put the camel’s nose under the tent, but we haven’t, but we have, for gay marriage and all the other things that are sort of hanging in the balance? That might be softened a little bit, or maybe removed entirely, but the overarching kind of thing, I don’t see it. I don’t see it reversing at this point.

Professor Vincent Bonventre:

Yeah. I don’t know. I wouldn’t be surprised either way, whether they overrule Roe entirely or whether they soften this and they just uphold the Mississippi law. I won’t be surprised either way. All I’m saying is this was written several months ago. This was written several months ago. It’s also interesting how this got to Politico, because this wasn’t sent digitally, because apparently it looks like something that was copied, was put on a copy machine. There are some indications that you had some pages that are dog-eared and it looks like it went through… I don’t know. Are they Xerox machines anymore or am I dating myself? Whatever they are.

Liz Benjamin:

No, there’s some of them. Yeah. They still exist.

Professor Vincent Bonventre:

It’s a hard copy that was then copied. So it could have been any… It could even have been one of the janitors that found one of these things in the trash can. You just don’t know.

Liz Benjamin:

Right.

Professor Vincent Bonventre:

You just don’t know. There are good reasons why a conservative clerk or justice might have wanted to leak this. Some good reasons why a liberal justice or clerk-

Liz Benjamin:

Or janitor.

Professor Vincent Bonventre:

… or somebody, some member of the staff of the court said, “Oh, Lord, do you believe this is happening?”

Liz Benjamin:

Well, you sort of touch on an interesting sidebar of this discussion and this story that’s going to play out, because now you have this special master individual who has an incredible amount of power, which I don’t think anybody, even a retired formal army colonel-

Professor Vincent Bonventre:

Oh, Colonel Curley. Yeah.

Liz Benjamin:

… who is now going to be investigating this, I mean, if I were said janitor or whoever, I’d be shaking in my shoes. And once they find that person, what are they going to do? I mean, is it a criminal offense to leak a draft document of the…

Professor Vincent Bonventre:

Years ago, there was a lawyer who was a clerk. Well, he had been a clerk for Hugo Black and a clerk to Lewis Powell. How do you know? Because I know of this lawyer who was one of the great lawyers of the last century. My wife actually worked for him when we were in Arizona, Larry Hammond. He clerked for Hugo Black. He then clerked for Lewis Powell at the time of Roe versus Wade. And he actually leaked the decision in Roe versus Wade to Time magazine, and he immediately acknowledged it. And Justice Powell said, “You better go talk to Burger,” who was livid. He spoke to Burger, and Burger was a sweetheart about it. He said, “No, don’t do it again,” and that was about it.

Liz Benjamin:

I don’t imagine… That’s not going to happen this time around. I mean, it’s just too…

David Miranda:

It was somewhat different circumstances, because that was a final decision that was about to be released, and this clerk gave a couple hours head start to Time magazine, and they promised to hold it, and they didn’t hold it. They got the jump on everybody by a couple of hours.

Liz Benjamin:

But isn’t it illegal? There’s no… I mean, you could lose your job.

Professor Vincent Bonventre:

There’s no criminal code that anybody can identify that would prohibit it. It certainly would seem to be a violation of legal ethics. But, I don’t know. I think-

Liz Benjamin:

If you’re a janitor, are you held to legal ethics? I mean, wouldn’t it depend on who did it?

Professor Vincent Bonventre:

If it’s a janitor, no, but he might well get fired, but…

Liz Benjamin:

Yeah. That individual may well not even be there anymore. I mean, who knows. In February, this person might have taken it, washed it through a number of different sources, sent it in a manila envelope to Politico. I mean, we really don’t know how. Maybe it arrived by courier. Maybe it arrived by carrier pigeon. We just have no clue how that happened. And I think at the end of the day, one might argue, well, there’s a public interest in having this story out. You could make that argument. I’m sure that the court would not. But, again, I mean, I haven’t seen much polling about the Supreme Court and how the public feels about the Supreme Court, but I think that it’s a pretty divisive topic, because if you know about the Supreme Court, which you should remember your civics classes from eighth grade or whenever it was, you realize just how much power this body has. And maybe you feel a little bit not great about that. So this may solidify those opinions.

Professor Vincent Bonventre:

The Supreme Court’s reputation is pretty much in the dumper right now, compared to what it usually is and deservedly so. Deservedly so. I mean, the appointees are not particularly good. These are not people that would’ve made anybody’s serious top 10 list or top 20 list of who ought to be on the United States Supreme Court. I mean, they’re just extreme partisans that went on the court for that reason.

Liz Benjamin:

Well, but they’re not great legal thinkers.

Professor Vincent Bonventre:

I’m sorry?

Liz Benjamin:

I think that what you also mean, because we know where you stand politically then, but I think that they’re just not great legal minds.

Professor Vincent Bonventre:

I’m not just talking about the conservative justices. The presidents, whether they were Democrats or whether they were Republicans over the last several administrations, they’re putting partisans on the court. Obama put partisans on the court. George W. put partisans on the court. Trump certainly put partisans on the court. It’s been repeated. That’s what’s going on now. It’s not a matter of, I want somebody with judicial flood that actually understands the role of a court. But, no, I want somebody that’s going to overrule Roe versus Wade, or I want somebody that wants to protect Roe versus Wade. Well, and then that’s what you get, so fine. You get somebody that’s in favor of Roe or is opposed to Roe, and that’s what you get. You’re not necessarily getting somebody that really understands the judicial role.

Liz Benjamin:

Well, and because of, I would argue, the outsized focus on abortion rights, then during the confirmation process-

Professor Vincent Bonventre:

Yes.

Liz Benjamin:

… you have a situation in which the public, and arguably the Senate, has done a serious disservice, or does a serious disservice, by spending so much time trying to tease out in 2000 versions of the same question, where do you stand on Roe? And there are so many other various different topics that we might discuss that would be equally important or more so, and yet we never get there, because we’re just so fixated on are you going to overturn Roe or not?

Professor Vincent Bonventre:

Right.

David Miranda:

What about that, though? I mean, I think that raises an interesting thought, because each one of the five that supposedly are in favor of this decision were questioned about Roe specifically. And at their confirmation hearings, they said that Roe was a precedent that deserved respect and that they had no agenda to overturn it. Each one of them said that. And then you see, including Alito, when Alito was asked about stare decisis, he didn’t say stare decisis does not compel unending adherence to Roe’s abuse of judicial authority in his confirmation hearings. I mean, so all of them were asked about this and said that they thought that Roe was precedent. That should be respected.

Liz Benjamin:

Well, what they said was it’s the law of the land. [inaudible 00:47:42].

Professor Vincent Bonventre:

I mean, it’s a truism. Roe is a precedent. That doesn’t mean I like it. I don’t like it. I’m going to vote to uphold it. I’m going to vote to get rid of it. It’s a truism. Again, they could have asked the liberal justices the same damn things in the ’60s. All these decisions, which deny women rights, African American rights, so forth and so on, are they precedents? Yeah. They’re precedent, but it sure didn’t stop the court from overruling scads of them.

Liz Benjamin:

Well, and also there’s a long-standing tradition of getting on the court and then thinking for yourself. I mean, there’s a long standing tradition.

Professor Vincent Bonventre:

Yes.

Liz Benjamin:

While I agree with you, Vin, that these appointments have been partisan, and I’m not by genetic makeup an optimist, but there is some small flicker of hope that an individual will get on. And then actually Roberts got on and actually did some things that people were surprised about and, oh, the man is an independent thinker, and he feels it’s important that the court does not in fact go down the rabbit hole of the MAGA court or the Trump court or the conservative court or whatever you have. And now he’s in danger of the others, looks like people, other justices are going to overrule him or are flexing to try and prevent him from holding firm on at least slightly right of center and not all the way to the right extreme.

Liz Benjamin:

And we’ll see, again, what happens there. But certainly, there’s always this hope springing eternal that, once you get on there, you’ll actually start thinking for yourself and not be so partisan just because it was a partisan appointment.

Professor Vincent Bonventre:

Yes. But Roberts is an exception to the rule on this court. It was pretty clear. Those who knew Roberts before he was nominated and listening to him at the confirmation proceedings, he’s much different than these other appointees have been. He’s a bright guy with an open mind, and he’s turned out to be a really fine justice. I mean, maybe the liberals don’t like him as much as a liberal justice, but he’s really a fine justice. And what that means is that he’s not necessarily going to be a hard right or a hard left like most of the others on the court are.

Liz Benjamin:

I will say, I mean, it’s not probably germane to this discussion, but a fascinating piece because I am more focused on the political side of things than I am on the sort of technical, what does this mean for the court side of things, is this sort of position that this has thrust the president into, which is uncomfortable for him, because he has never been a big champion of abortion rights.

Professor Vincent Bonventre:

Right.

Liz Benjamin:

In fact, if you read the reporting, he came in early on and didn’t want to take a position on abortion rights at all.

Professor Vincent Bonventre:

Yeah.

Liz Benjamin:

And people were like, okay, that’s a losing… You got to pick a side here. And he’s getting some blowback for his comments regarding, as a child of God he has a responsibility to talk about whatever it is. So it’s fascinating the positions to which this leak has pushed people. Some of them, very predictable. I mean, Schumer very predictable coming from New York.

Professor Vincent Bonventre:

Yeah.

Liz Benjamin:

That would be an expected sort of a move. Kathy Hochul, same. But Biden, it’s an interesting position to be in, to be at the White House in this moment for him, because it’s not a comfortable place for him to be [inaudible 00:51:15].

Professor Vincent Bonventre:

Well, of course. I mean, he’s a devout Catholic.

Liz Benjamin:

Yeah.

Professor Vincent Bonventre:

He goes to church, mass and communion regularly, and I’ve always been bewildered by how a devout Catholic, if they actually believe the teachings of the church, could actually vote to support abortion. If you think it’s murder, I just don’t understand how you could vote to support it anymore than if you believed in the sanctity of human beings, including African Americans, you couldn’t possibly have voted to uphold slavery. I mean, I just don’t see that. I think that’s a very, very difficult… And I’m sure for President Biden, because he is such a devout Catholic, and I’m sure he believes most of these doctrines of the Catholic Church, it’s a very, very difficult position for him.

Liz Benjamin:

Yeah. But certainly, people have been threading that needle for a long time. You could go back and see the writings or Mario Cuomo on that particular topic, because he was pretty outspoken about it, too.

Professor Vincent Bonventre:

Yeah. And I suspect he actually was uncertain about the issue.

Liz Benjamin:

I think he probably was.

Professor Vincent Bonventre:

Yeah. He probably was.

Liz Benjamin:

But there’s also a political reality.

Professor Vincent Bonventre:

Yes.

Liz Benjamin:

I mean, the base, it’s 51% women. Not every woman in this country of course is pro abortion rights, but still. And I’m really loath to set this up as pro-life and anti-life or choice or whatever. I think it’s just supportive of abortion rights, not supportive of abortion rights. There’s a gray area in the middle that you are supportive of some rights but not others. I mean, it’s a very nuanced situation that gets painted in a black and white manner that is not in fact black and white.

Professor Vincent Bonventre:

Yeah. I mean, there are two very serious interests here, and they’re in collision. And instead of justices on the court and politicians, at least most of the justices and most politicians, they just see one interest and not the other. And so you have this incredible polarization. I mean, you have some that see no interest on the part of government in protecting life that’s unborn at any particular stage. And then you have the others that just don’t seem to put any value on a woman’s bodily autonomy. So you just have these polar extremes. I mean, welcome to the current world.

David Miranda:

Now, if this decision stands, it says, well, this should go back to elected officials, whether it be the state or otherwise. And now, Liz, you were just talking about some politicians that are speaking out on this. It looks like we’re going to see at least some vote on federal law that would protect the right to have an abortion. That’s probably [inaudible 00:54:02].

Liz Benjamin:

I don’t think… You can’t. No.

David Miranda:

… the right to have an abortion, that’s probably [inaudible 00:54:02]

Liz Benjamin:

I don’t think … You can’t. No. You’re going to get to it. They don’t have the votes for cloture, right? So, you’re never going to even get to the actual substance of the thing. So, nobody is going to have to go on the record because …

Liz Benjamin:

Well, I don’t know where Susan Collins is … Even with that, they’re not going to have enough votes. They’re not going to have enough votes.

David Miranda:

[inaudible 00:54:20] don’t you need 60 to bring it to the floor, to vote on the [inaudible 00:54:24]

Liz Benjamin:

I don’t think we’ll get there. It’s an entirely symbolic effort, and they know that it’s an entirely symbolic effort, and that’s all that they can do, so they’re doing it. And they feel like they have to do something, right?

Liz Benjamin:

It’s kind of like when there’s a natural disaster and people feel really compelled, and so, they give money and they give blood. There are these long lines of people who are lining up because they just feel like they need to do something, and the democrats feel like they need to do something, and so, they are doing something. But is that going to have a real impact? No. No.

David Miranda:

But doesn’t it have something more than a symbolic effort? So, if there’s a vote on this, and people take a position, legislatures take a position, they’re [inaudible 00:55:09]

Liz Benjamin:

Well, they’ll use it in political advertising or in political mailers or in digital ads. It will become fodder for campaigns, certainly, if that’s what you mean. But I just … And that’s really the only way. I mean, the only way that you are able to get to a point where Congress can take action in a significant manner to sort of counter the decision that comes out, if it comes out in the way that we’re expecting it to in one version or another, is to have enough votes to do it.

Professor Vincent Bonventre:

Right. But they will have to take a vote on cloture as well.

Liz Benjamin:

Yes.

Professor Vincent Bonventre:

Right? Yeah.

Liz Benjamin:

But they don’t have the votes for cloture, so they’re never going to get to the substance, is what I’m saying.

Professor Vincent Bonventre:

Right. But, I mean, certainly those who oppose cloture, they could be criticized as-

Liz Benjamin:

Yes, they could be criticized.

Professor Vincent Bonventre:

Yeah. So, yeah.

Liz Benjamin:

But again, look no further than … I mean, this is kind of an interesting aside, and not necessarily related, but Mitch McConnell’s comment about forgiving student debt. I think he called it socialist. So, interesting, right? Because that plays to a very populous crowd because people who are … On both sides of the aisle, regardless of what your political affiliation is, “I worked hard to put my kid through college, to pay off my kid’s college debt. My kid worked three jobs,” blah, blah, blah, “and now you’re going to say to me …”

Liz Benjamin:

It’s the same argument of, “Why should we expand college education opportunities in prison?” Right? There’s an argument for it. The argument is that it reduces recidivism. It is part of the process of rehabilitation. It improves people’s lives dramatically, and that has an overall benefit for society. That’s too esoteric of an argument, and so, therefore, you go to, “I had to pay $100,000 to send my kid to college. I should have just let them get incarcerated and they could have gotten a BA for free.”

Liz Benjamin:

So, you’re talking about a lot of populism and arguments that really … It’s not all religious. There’s a class and an ethnicity and a racial overtone to this argument, in getting to the abortion situation, that really could rip this country apart.

Professor Vincent Bonventre:

Any further than it’s already ripped apart? I mean, it’s in pretty bad shape right now in terms of divisions on all these political and cultural issues, so bad that we see it in the Supreme Court as bad as we see it in the rest of the country.

Professor Vincent Bonventre:

That’s what’s really unfortunate. You would think that, at that particular level, that those individuals should be able to rise above the kind of polarization we see in this country among the voters and among the politicians, but you don’t. You just don’t. I mean, you see the exact same polarization at the court.

Professor Vincent Bonventre:

And that’s, of course, why so many of us think, “This is just an awful court. It’s just not good. It’s not a good court.” And it’s the fault of all of us because we’re the ones who voted for these presidents, and we’re the ones that were insisting that these presidents put people on the court that happen to agree with us on these cultural and political issues, as opposed to putting somebody on the court who’s just really good. You know?

Professor Vincent Bonventre:

The best justices, if you look at the ones who are considered the best … You know, I mean after a couple of generations. I don’t mean, like, “Well, Scalia just died and he’s one of the greatest,” or, “He’s one of the worst.” But after a while, historically.

Professor Vincent Bonventre:

If you look at them, who they are, whether it’s Holmes, or whether it’s Cardozo, or Frankfurter, they weren’t just of one stripe. They would be on different sides of the issue. Justice Jackson, they’d be on different sides of the issues.

Liz Benjamin:

And it’s still possible, Vin, that there will be … I know. But it’s still possible there will be an evolution. You know?

Professor Vincent Bonventre:

Oh, of course.

Liz Benjamin:

I mean, it’s very possible that people … Well, not Alito, clearly, but he’s already sort of grown and calcified to the person that he was always going to be or maybe he always has been, but these other folks who are still young and have 20, 30 years before them may well evolve, you know? In one way or another, to the right or to the left, or however. I don’t know how they will be evolving. It’s possible they …

Liz Benjamin:

But nothing is static, right? Necessarily. And also, this is morbid, but we just don’t know what’s going to happen. Things happen to people. Accidents befall individuals. People get sick. So, I don’t know what the makeup of the court is going to be in five years, in 10 years. We just don’t know. So, to get too far down the prediction road is dangerous.

Professor Vincent Bonventre:

Right. We would see transformation of justices in the past, quite a bit, right? And usually, they become more liberal, that means they’re either wiser or more senile as they get older, but ever since Sandra Day O’Connor and William Kennedy, the presidents have been much more careful in looking at the pedigree of who it is that they’re nominating, make sure these people have track records that are solidly left or solidly right. That’s what’s going on.

Professor Vincent Bonventre:

I mean, unfortunately, Merrick Garland was neither solidly right or solidly left, and Obama nominated him because Obama probably figured that was the only kind of justice he could get through the Senate, and of course, they wouldn’t even allow hearings on that.

Professor Vincent Bonventre:

But this current group, whether it’s Alito, or Thomas, or Gorsuch, or Amy Coney Barrett, they have pedigrees. It’s in their DNA. It’s in their DNA.

David Miranda:

Well, Professor Bonventre, we’re going to let you have the last word on this. We can go on all day. This has been fascinating. It’s really wonderful to have both of you, Professor Bonventre and Liz Benjamin on Miranda Warnings, giving your thoughts on this very significant and important draft decision, probably the most discussed draft decision ever [inaudible 01:01:41]. So, thank you both. We’d love to have you back. Maybe when we have a more definitive decision, we can talk about what this means for-

Liz Benjamin:

Which, we’re expecting in June, right? Is that what we’re expecting-

Professor Vincent Bonventre:

Yeah.

Liz Benjamin:

… before the court closes?

Professor Vincent Bonventre:

Yeah. Yep.

Professor Vincent Bonventre:

I’ll come back anytime you invite Liz, I’ll be back. Even if you don’t invite me, I’ll crash it.

Liz Benjamin:

Oh, that’s kind, thanks.

David Miranda:

You two are great. Just wind you up and let you go. This has been fascinating. Thank you for your insights, and we’ll hear from you soon. Thank you.

Liz Benjamin:

All right. Be well.

Professor Vincent Bonventre:

Thanks for inviting us.

David Miranda:

Okay. Thank you, both you guys.

—End Transcript—

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