Amicus With Dahlia Lithwick | "Roe v Kavanaugh"

Date: September 15, 2018
Host: Dahlia Lithwick
Key Guests: Melissa Murray (NYU Law Professor, former Berkeley interim dean), Excerpts from Justice Elena Kagan

Episode Overview

This episode examines the confirmation hearings of Supreme Court nominee Brett Kavanaugh, with a focus on the fate of reproductive rights, the meaning and fragility of legal precedent, and what Kavanaugh’s judicial record signals about the future of Roe v. Wade. It features an in-depth conversation with Professor Melissa Murray, who testified at the hearings, and illuminating comments from Justice Elena Kagan on the wider dangers facing the Court’s legitimacy.

Key Discussion Points and Insights

1. The Stakes of Kavanaugh’s Nomination

• The episode establishes that reproductive freedoms, as determined by Roe v. Wade and subsequent decisions, are at a critical juncture with Kavanaugh’s potential confirmation.
• Women’s rights groups fear Kavanaugh’s "thin and very conflicted record" on abortion signals a real threat to Roe.
• The discussion notes the currently narrow Senate balance and the intense focus on Senators Murkowski and Collins as potential swing votes. (03:00-04:00)

Quote:

“I think it’s obvious what this person will do if he’s on the Supreme Court vis a vis reproductive rights.”
— Melissa Murray (00:02, 21:56)

2. The Senate Hearings: Contrasting Narratives

• Melissa Murray emphasizes the stark contrast between Republican-called “legal experts” (Akhil Amar, Ted Olson) and Democrat-called “real people” (abortion case litigants, disability rights activists), highlighting whose experiences are foregrounded.
• The hearings also featured protesters—often women, disability rights or reproductive activists—being forcibly removed, representing the “real world impact” of judicial decisions. (05:06-07:35)

Quote:

“It's almost as though those two narratives can't even be mashed together. I mean, we can't even agree which story we want to tell.”
— Dahlia Lithwick (06:50)

3. Kavanaugh’s Approach to Precedent: "A Sleight of Hand"

• Kavanaugh repeatedly insisted, “Casey is precedent upon precedent,” yet, as Murray asserts, his rulings do not follow the full scope of relevant precedents, particularly those refining the standard for abortion restrictions (e.g., Bellotti v. Baird, Whole Woman’s Health v. Hellerstedt). (08:42-13:14)
• Murray calls Kavanaugh’s reliance on “settled law” a “total sleight of hand,” since he selectively applies or outright ignores cases that would protect abortion rights more robustly.

Quote:

“It doesn’t matter if you think Roe is settled…if you don’t follow that to its logical conclusion, which is to apply the other precedents that are on point and equally well settled.”
— Melissa Murray (11:54)

• The hosts further note the Supreme Court’s willingness to overturn long-standing precedent, referencing Janus overturning Abood, dispelling the notion that “settled law” is safe. (14:24–15:32)

4. Deep Dive: Garza v. Hargan

• Context: The case involved a 17-year-old undocumented minor held in federal custody seeking an abortion; Kavanaugh’s panel opinion imposed an extra 11-day delay to find her a “sponsor,” despite her having satisfied all Texas legal requirements, including a judicial bypass.
• Murray says this delay was not required by law and ignored the substantive burdens imposed by additional hurdles.
• Dahlia and Murray underscore that Kavanaugh’s actions in Garza ignore established law, essentially inventing a requirement that increased hardship and risk for the minor.
  (Timestamp: 15:50–22:18)

Quote:

“There’s no weighing of benefits or burdens at all in the Garza decision. … So for me, it doesn’t matter if you think Roe is settled…if you don’t apply the other precedents.”
— Melissa Murray (11:54)

• Cory Booker’s questioning at the hearings pointed out Kavanaugh’s use of the phrase “abortion on demand,” which Murray characterizes as a “dog whistle” aimed at anti-abortion activists. (23:18–23:55)

Quote:

“That was a dog whistle.”
— Melissa Murray (23:55)

5. Priests for Life & Facilitation of Rights

• In Priests for Life, Kavanaugh sided with religious objectors against the ACA contraceptive mandate’s accommodation process, deferring even to factually mistaken beliefs that filling out an objection form made them complicit in contraception provision.
• Both in Garza (opening a door = facilitating abortion) and Priests for Life (checking a box = facilitating contraception), Kavanaugh showed an “incredible solicitude” for religious objections over the rights and access of affected women. (25:46–31:39)

Quote:

“Judge Kavanaugh has such an incredible solicitude for those arguments about facilitation at the expense of, like, meaningful costs to third parties here.”
— Dahlia Lithwick (30:25)

6. The Doctrine of Unenumerated Rights and Glucksberg

• Kavanaugh refers often to Washington v. Glucksberg, which restricts recognition of new fundamental rights to those “deeply rooted in history and tradition,” a test that would imperil rights like contraception, same-sex intimacy, and abortion.
• Murray notes this “all roads lead through Glucksberg” stance is not actually settled law; it conflicts with more progressive readings found in Lawrence and Obergefell. (33:27–39:32)

Quote:

“To say that this is the test and everyone follows it and all lines lead, all roads lead to Glucksberg. I don’t know what car you’re driving.”
— Melissa Murray (39:17)

7. The Fragility of Griswold v. Connecticut

• Kavanaugh’s comments about Griswold focused on Justice Byron White’s concurrence, which would allow states to restrict contraception for the unmarried and to deter “promiscuity,” breaking with the consensus that Griswold (which established the right to contraception for married couples) is a legal bedrock. (39:32-42:39)
• The only prior nominee openly hostile to Griswold was Robert Bork—who was ultimately rejected by the Senate.

Quote:

“That’s the opinion you think is right on in Griswold? That shocked me.”
— Melissa Murray (41:50)

8. Roe’s Future: More than Overruling

• Murray and Lithwick argue it’s a false binary to focus only on whether Roe will be outright overturned; even without repeal, tightening legal standards and upholding state restrictions can “hollow out” the right to abortion until it is practically inaccessible, especially for marginalized women. (42:39–46:42)

Quotes:

“There are a million ways to kill Roe.”
— Dahlia Lithwick (43:42)

“I don’t think [Roberts] is ever going to utter the words Roe versus Wade is overruled. But it doesn’t matter, because instead he can…hollow out the existing right, introduce a reduced standard...”
— Melissa Murray (44:15)

9. Who Is Most Affected?

• The burden of restricting or ending access to abortion falls hardest on rural women, poor women, and women of color—those least able to travel long distances or find alternatives—and whose voices were least represented among Kavanaugh’s visible supporters. (46:42–48:29)

Quote:

“Those are not the people who are going to be able to drop everything and fly to Switzerland and get an abortion or go to their private doctor and figure something out. And those are the women we ought to be concerned about.”
— Melissa Murray (47:15)

10. Were the Hearings a Real Debate?

• While Murray affirms some Democratic Senators pressed hard, she expresses frustration that the process was “kind of kabuki theater”—and that this may be “the last chance, the last station for us” to truly air what is at stake for reproductive rights. (48:57–49:57)

Justice Elena Kagan on the Court’s Crisis (50:45–55:42)

Excerpts from Lithwick’s live interview with Justice Kagan underscore anxieties about the Court’s growing appearance as a political institution:

• Kagan warns of “a dangerous time for the Court” as public faith erodes:

  “I think people increasingly look at us and say this is just an extension of the political process.” (50:45)

• She reflects on predictable divisions in high-profile cases, the need sometimes for incremental or “compromise positions,” and the risks of exacerbating national polarization (51:09–53:59).

• Kagan champions the Court as a forum for fact and logic—not fiat—and highlights “listening” and real empathy as essential for trust both on the Court and in society.

  “Mostly we do our learning when we listen to other people. At the very least, I don’t think you can persuade anybody unless you listen to them, unless you figure out how the world looks standing where they’re standing.” (55:00)

Notable Quotes (with Timestamp and Attribution)

• “I think it’s obvious what this person will do if he’s on the Supreme Court vis a vis reproductive rights.” — Melissa Murray (00:02, 21:56)
• “It’s a total sleight of hand.” — Melissa Murray on Kavanaugh’s treatment of precedent (13:14)
• “There’s a million ways to kill Roe.” — Dahlia Lithwick (43:42)
• “We live in a very divided country… I don’t think that the court can play psychotherapist for the country, but I do think that we should be aware of the environment and not unnecessarily exacerbate the divisions…” — Justice Elena Kagan (53:18)
• “Mostly we do our learning when we listen to other people… At the very least, I don’t think you can persuade anybody unless you listen to them…” — Justice Elena Kagan (55:00)

Timestamps for Key Segments

• 00:02 — Melissa Murray on Kavanaugh and reproductive rights
• 05:17 — Contrasting expert vs. “real people” testimony
• 08:42 — Discussion of Casey and the meaning of precedent
• 15:50 — Deep dive into Garza v. Hargan case
• 23:18 — “Abortion on demand” as a dog whistle
• 25:46 — Priests for Life and facilitation of rights
• 33:27 — Glucksberg, unenumerated rights, and Kavanaugh’s jurisprudence
• 39:32 — Griswold v. Connecticut and Kavanaugh’s anomalous stance
• 42:39 — The ways Roe could be hollowed out without being overruled
• 47:12 — Impact of restrictions on marginalized women
• 48:57 — Reflections on the hearings’ performative aspects
• 50:45 — Justice Elena Kagan on “dangerous times” for the Court
• 55:00 — Justice Kagan on listening, learning, and empathy

Summary

This episode of Amicus unpacks the legal and substantive dangers posed by Brett Kavanaugh’s nomination to the Supreme Court, especially for reproductive rights. Professor Melissa Murray offers a trenchant analysis of Kavanaugh’s jurisprudence, warning of his selective approach to precedent, his record of privileging religious objections over women’s health, and the myriad paths the Court could take in undermining abortion access. The episode concludes with Justice Elena Kagan’s thoughtful words on the Court’s legitimacy and the civic value of listening and empathy. For anyone wanting to understand what’s at stake in this Supreme Court transition—not just for Roe v. Wade, but for the Court’s own future—this episode is essential listening.