The Supreme Court's decision to overturn Roe v. Wade has sent Washington
into overdrive as observers consider the political and cultural ramifications.
That brings us to the analysis of Capehart and Gerson that is Jonathan
Capehart, associate editor for The Washington Post, and his colleague
at the Post opinion columnist Michael Gerson. David Brooks is away.
And we welcome both of you to the news hour on this Friday night,
and Jonathan, I'm going to start with you with the story that is
all over the news today. And that is the Supreme Court. What do you
What is your reaction?
Well, I think I worked out my, um not not rage. But my alarm alarm
is is the right word when the leak of Justice Alito's draft opinion
overturning Roe versus Wade
It was leaked last month. And in reading it
I saw, you know row is being overturned. But a bunch of other rights
to privacy would be, um
Would be weakened if Roe were overturned
with the decision out today.
It hues closely to that draft opinion. And, you know, I'm sitting
here still trying to process what it means to live in a post roe
world because we've got states that had trigger laws that the moment
um row was overturned.
Abortion was made illegal and I my heart goes out to, um women
who now have who live in states where their right to choose their
own.
Reproductive health care is no longer there. Their decision and I
feel so in my heart goes out to those families. Because this is it's
not only a personal decision for the woman for the person who's pregnant.
It's a decision that impacts an entire family. There are men out
there who are going to be dealing with this.
As well. So in the in the hours that we've been trying to digest
all this, I'm still trying to get my head around what this means,
But this much I know it's not good.
Michael your thoughts.
Well has similar reaction in one way. I mean, I come from a personal
life background. Um
But this I found my views very mixed today. Um
We are a nation with an escalating culture war.
And placing this issue right now in the center of our national debate
in states across the country.
Is going to be deeply divisive.
It's a terrible time. You know, to talk about this set of issues.
I also thought that there were a couple of good points made in criticism
in the decision itself.
Um
One of them is by Roberts, the chief justice of the Supreme Court,
criticizing the main opinion opinion. He concurred, but criticized
its a very prickly opinion, essentially saying, I would have done
it differently.
This. You did not need to overturn Roe completely in order to answer
this Ms Mississippi case.
He actually He said that this this ruling
was a ruling all the way down to the studs. Um and that was, you
know, to see that kind of dissent within the majority was kind of
interesting.
And then there was the I thought The descent made the decision or
made the point very well. Um Toledo says in the decision that this
does not affect other cases that have to do with sexual privacy.
But he doesn't make a pretty particularly good argument about why
his reasoning would not okay. Yeah, and there could be good reasons.
Maybe John Roberts could write them, okay. But the reality is that
that was left.
A little bit blank. Um and and it. I think it's going to cause some
consternation.
What do you think this, says Jonathan about the court. What we're
what we're looking at here. I think that the credibility of the court
is now more on the line than ever. I hesitate to say that the legitimacy
of the court is in question or at risk because that's just that's
a step too far. But when you read this decision, and you read the
concurring opinions
The legitimacy of the court is going, I think will be eroded into
to Michael's point about Alito saying, Don't worry. Don't worry.
This only applies to abortion. He made that same argument in that
draft opinion, and that is what raised my alarm.
In just to put it.
Just to sort of be an exclamation point on Alito's. Don't worry.
Don't worry. You have this senior most justice Justice Clarence Thomas,
putting in writing.
In future cases. We should reconsider all of this court's substantive
due process. Precedents, including Griswald, Lawrence and Obergefell.
Burger felt the right to same sex marriage, Lawrence that guaranteed
the right to privacy to the same sex into intimate contact Griswold.
Um right of married couples to have access to contraception. These
are these all of these decisions. They're grounded Row is their foundation.
And so now as a you know, an out gay married man I'm now faced like
officially with the prospect of my marriage being rendered illegal.
Do you think this? This decision tells us something new about this
court?
Well, it's certainly given the frustration of the chief justice.
It tells us this is not the Roberts court. Okay, this is someone
else's court. It's the leadership is being you know.
Shown by the five justices themselves that not not including, um,
Roberts, and, um, you know, that's a that's an awkward position for
for him to be in, but
Even he I mean, this is a 63 decision. Um yeah, has accepted
the basic point here, which is the point of the conservative.
Legal revolution over the last several decades.
Which is if the Constitution doesn't say it. Okay. Um then
we cannot create rights, okay?
And there was an additional element here that I want to say, which
is the point. That one point that Alito makes is that there are actually
two groups with visions of human rights at stake here, Okay, not
just one.
Okay, um, and one of those groups the poor life people in America.
We're told by Roe v. Wade. You can never win. Okay, they were essentially
disenfranchised, at least in their own minds.
And that was also a source of division in our country for 50 years.
So you know, it's it's a perilous decision, whichever way you go,
But I think that there are some arguments to be made in favor of
it. Perilous, Jonathan, Um and do you see it having an a political
effect in this already fraught?
Election year. Absolutely, at a time when Democrats are facing headwinds,
historic headwinds in terms of trying to maintain control of the
House, maybe even meaning, maintaining control of the Senate, a Democratic
party base that might be frustrated because
Criminal justice reform wasn't done or voting rights. Um, wasn't
wasn't done. But now we're looking at a woman's right to choose gone
looking at other rights, potentially on the chopping block.
This is a galvanizing, galvanizing issue. I think for Republicans
and Democrats, but particularly for Democrats, because or folks who
are in favor of abortion rights, because because now they have lost
something.
And the only way to get it back is to put more Democrats in the House
put more Democrats in the Senate so that they can codify the right
to abortion.
By law. That's the only way that's going to be done now. Michael,
Do you see this energizing Democrats more than Republicans?
Probably for that very reason. I mean, this is a white right withdrawn.
Okay? It doesn't mean that abortion to legal all over the country,
but it means that it's illegal in some places.
And I think that you know it's likely to concern Democrats because
they've lost something. I think that that's exactly right. The problem
here, of course, though, not to get too much into the politics of
it.
Is the outcome of midterm elections is most directly tied to the
popularity of the sitting president. That's what you know, Gallup,
you know, runs
Their model is that if you're below 50 as president, you're going
to lose more than 30 seats. That's the history. Okay? Does this make
President Biden more popular.
I'm not sure that that's true. I mean, he's hardly a culture war
fighter on these issues. He gave a speech today that had some of
those elements.
But so I think there can be an effect on the Democratic base. But
this is still a very tough election for Democrats. Although President
Biden is not on the ballot, individual members of the housing folks
in the Senate who are running
And they can run in and say if you want to. You want to get these
things back. If you want to fortify the rights that we have, you
must elect Democrats because they are the ones who are going to do
whatever it takes if they have the big enough majorities to kind
of fire, codify abortion rights and protect
Marriage equality and protect the legal right to contraception, and
we're already seeing candidates around the country, bringing this
up saying today we're going to take this to the voters.
We're going to talk about this, Uh, Michael, I want to. We're talking
about the court. Let's talk about the other decision that the court
handed down this week, negating New York's of regulations on who
can carry guns out in the open. Um, that came down from the court.
At the same time Congress has now passed
The first Ah, any anything close to gun control legislation in decades.
Where are we on guns in this country given given all that Americans
have every right to be confused, with the courts, coming down strongly
in favor of state legislatures when it comes to abortion.
And undermining 100 year old law in the New York Legislature was
perfectly reasonable Law, okay?
Um
yeah, but it relates to the earlier question. I do think that there
is a concern
on Robert's part.
Of a judicial, um, activism on the right. Okay, So whatever
the favorite right is
the right has has found ways to do this. But I also want don't want
to downplay what the Congress did.
On this measure. This was the first of its type in 30 years.
And the reality is that it was a demonstration to some extent of
the way.
You know, Congress should work. I mean, you you make compromises
and you have incremental reform. That's what
American democracy does Okay.
And so, you know, I think there's a lot to praise there and that
included some Republicans, even though there are a lot of them not
coming back or are not running in the next year, you know.
So, but it was. It was, I think Well done. But you do have not. But
and Jonathan, you've got the court going in one direction on guns
and the congress. In this instance going in another direction. All
the the Congress is reacting to real time horrors. You've all day
buffalo, plus the 200 plus other
Mass shootings that have happened in this country since the beginning
of the year. And so the fact that they were able to do something
as incremental as it is.
It's the first time it's been done, as Michael said in 30 years,
and so this should be celebrated and should also be recognized as
an opportunity. If Congress shows that the ability to pass something
on guns, they can do it again and so but when it comes to the court's
decision,
It's another thing that that worries me. Um this idea of a reliance
on ordinary self defense. Ordinary self defense is very subjective.
And when you are a person of color
Do you get the presumption of self defense? We've seen many instances
where the answer is no a lot a lot still to interpret from that one.
Jonathan Capehart. Michael Gerson. Thank you for being with us on