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- [00:01]
Ted Cruz
Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division. We hold that Roe and Casey must be overruled. I am not simply speaking for myself and Senator Ted Cruz. I am reading the words of Justice Samuel Alito, who is apparently writing the the majority opinion of the Court in a leaked document, a document that was leaked in what the Chief Justice John Roberts, calls a singular and egregious breach of trust on the Supreme Court. We're gonna be talking to someone who knows a whole lot about the Court, a whole lot about the issue, and a whole lot about what happens now. This is Verdict with Ted Cruz.
- [00:59]
Michael Knowles
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- [02:10]
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- [03:22]
Michael Knowles
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- [04:35]
Ted Cruz
Welcome back to Verdict with Ted Cruz. I'm Michael Knowles. Senator, I have seven bazillion questions to ask you about this. You've just come from the Capitol. We have not even had a prep call yet. We have not talked about anything. Tell me everything that I need to know about this leaked document from the Supreme Court.
- [04:55]
Unnamed Legal Expert
Well, let's start on the substance. The substance is this is A big damn deal. Assuming that the reporting that accompanied this leak is accurate, it turns out what you and I discussed on this podcast days after the oral argument appears to be exactly right. On this podcast, you and I talked about what the justices were likely to do. I had listened to the argument very carefully, and what I told you at the time is that I believe there were six votes to uphold the Mississippi law, the Mississippi law restricting abortion after 15 weeks. And I also thought there were five votes to overrule Roe versus Wade in its entirety.
- [05:35]
Ted Cruz
So there's a distinction to be had there, because the case at issue, or the law at issue, is this pro life law in Mississippi. So you could have a world in which you have different judges voting to uphold or strike down that law, then you would have to go all the way back and overrule Roe v. Wade and Planned Parenthood v. Casey, which invented the constitutional right to an abortion.
- [05:56]
Unnamed Legal Expert
That's exactly right. And what my assessment was from listening to the oral argument is that John Roberts, the Chief justice, seemed prepared to uphold the Mississippi law, but he wanted to find a way to do it without overruling Roe versus Wade. And remember, I went into this argument deeply skeptical. I was not convinced there were five votes on the court to overturn Roe. I knew there were two. I knew Justice Alito and Justice Thomas. They'd both been quite public about that. But I had real skepticism about Kavanaugh, about Gorsuch, and about Barrett. From listening to the oral argument, all three seem to be clearly leaning in. In support of overturning Roe. And from this opinion, it appears that's exactly how they voted.
- [06:43]
Ted Cruz
Well, I guess we also have to establish first, this leaked document that went to Politico on Monday night and then was released to the broader public. The document is legit, correct? Yes, this is an actual draft opinion from the Supreme Court.
- [06:57]
Unnamed Legal Expert
So it is. The Court has confirmed that. That this is a real draft opinion. And I gotta say, that is a big damn deal. Like when this came out, this came out Monday night, I was having dinner with some friends. You know me well. I am rarely at a loss for words.
- [07:18]
Ted Cruz
That is true.
- [07:19]
Unnamed Legal Expert
I was genuinely speechless. And it's difficult to convey to someone who doesn't regularly practice in front of the Court, who doesn't interact with the Supreme Court often, the magnitude of the breach this represents. It is stunning at a level that is horrifying. In over two centuries of our country's history, never, not even once, has a draft opinion leaked from the US Supreme Court. For this to happen, the Court has been, this goes right to the heart of the integrity of the Court and it goes right to judicial independence. And I promise you, this entire day has been like an earthquake at the Supreme Court because it undermines the ability of the Court to do its job. And what it means happened. I think in all likelihood, what it means is that there was a left wing law clerk who was upset at how the Justices voted and decided to leak this opinion.
- [08:34]
Ted Cruz
And just as a matter of procedure, you've got all these law clerks and what are they, Are they on an email thread or something? This draft goes back to February. So obviously the Justices and the clerks have been working on this for a long time. And is it just that any clerk can see any of these drafts? Is there gonna be any way to identify who actually did this? I guess is what I'm asking.
- [08:58]
Unnamed Legal Expert
So there may well be. So the way it works is when a case is argued shortly after the argument, either on Wednesday or Friday, the Court meets in conference. Now, conference is a special room. The conference room is actually attached to the Chief Justice's chambers. So there's a conference table in conference. It is only the nine Justices. There's nobody else in the room. There's no law clerk. There's no secretary. It is the nine justices. Actually, the door leading to the conference room, there are two doors. There's a door and then there's about three feet of space, and then there's a second door. And the junior justice is expected to get coffee for the others. And if for some reason someone needs to pass a note to the Justices, you open the outer door, you put the note on the floor, you knock on the inner door, you close the outer door, and then the junior justice goes and opens the inner door and gets the note. It's like an airlock. At conference, the Justices cast their initial votes. In this instance, assuming the reporting is accurate, six justices voted to uphold the Mississippi statute, and five justices voted to overturn Roe vs. Wade. When that happens, the senior justice in the majority assigns the majority. Given the lineup here, it appears likely that that was Justice Thomas, who was the senior justice in the majority. And he chose to assign it to Justice Alito, who's the next most senior justice in the majority. And Justice Alito is a masterful opinion writer.
- [10:36]
Ted Cruz
Do you have any sense, Senator, knowing some of the people involved here and having spent a lot of time around the Court, why would Thomas not wanna keep this for himself? This could be the most important decision in the last hundred years. I mean, this could be one of the most important decisions in American history.
- [10:50]
Unnamed Legal Expert
Yeah, look, I don't have a great answer to that. I'm actually a little bit surprised. Justice Thomas didn't assign it to himself because he had that prerogative, but he made the judgment as the Chief justice, by definition, is the most senior justice in the majority. But in this instance, he wasn't voting to overturn Roe versus Wade, so he would be writing his own independent opinion. If he could get five Justices, he could assign the majority, but he was not willing to overturn Roe, according to the reporting. And so Thomas made the assignment. Now, the way it works, once that's assigned, the justice who's assigned the majority opinion goes back to his or her chamber. And each justice has four law clerks. There will be one law clerk who is the lead law clerk on the opinion. So if there are four of you, each of you have a quarter of the cases before the term. The justice and the law clerk will work together drafting the opinion. And when you prepare an initial draft, you circulate it to all nine Justices. That's what this is. So that was the first draft. Justice Alito circulated it to all nine Justices. When that happens, at that point, nobody has joined the opinion. So it's not the opinion of the Court. It is your draft that you're circulating to the other Justices to get their opinions. What happens next is multiple iterations of edits where you'll have individual Justices that'll say, hey, I don't like this paragraph. Hey, can you change this sentence? Can you add this footnote? You delete this footnote? No, I don't like the way this is structured. And on a run of the mill opinion, you could get dozens or even hundreds of edits. On an opinion like this, of this magnitude, you would expect hundreds, if not even thousands of edits. This is for the history books. Every justice has to decide whether he or she will join the opinion. In particular, the five Justices of the majority here have to make a decision whether they will join the opinion. They may have all sorts of changes to it.
- [12:59]
Ted Cruz
And if they don't join the opinion, then they write their own concurring opinion. So they would be still voting to overrule Roe, but they might say, I just don't agree with the way Alito is going about this.
- [13:12]
Unnamed Legal Expert
Yeah, and they could do that. And you do get opinions. You get sometimes cases where you have multiple opinions, concurring opinions, dissenting opinions, concurring in part, dissenting in part. I mean, it can get complicated. In order for the opinion to be the majority opinion, the opinion of the Court. Five Justices have to join it. So it's consequential to have a majority opinion because the opinion of the Court is precedent. And in this instance, I think the five Justices who presumably are voting to overturn Roe, want there to be an opinion of the Court. So there's a high. Unless there's something you cannot live with. An opinion with five justices is qualitatively different as a legal matter than an opinion with just four. Also, in response to the opinion, other justices are working on a concurring opinion. So Roberts, assuming he wants to uphold the statute but not overrule Roe, would file a concurring opinion where he concurs in the judgment. In other words, he agrees with the judgment that the law being challenged is valid.
- [14:25]
Ted Cruz
Right.
- [14:26]
Unnamed Legal Expert
But he concurs for a different reason. So he would not overturn Roe, but for whatever reason he would lay out he thinks the law is valid. And then the dissenters, presumably the three liberals on the Court, would write one or two or even three dissents. My guess is all three will write dissents. In this case, there would probably be a lead dissent, and that's typically assigned by the senior justice in the minority. But anyone can write a dissent. And so someone is given the nod of, you be the lead dissenter. But there can be additional ones. What happened here is somebody handed over to the press the first iteration of this. You know, when you start as a clerk, your first week as a clerk, you sit down in orientation, and they stress secrecy. They stress everything done in the court is confidential. You don't talk about anything that happens at the court. You don't bring draft opinions home. You do your work in the Supreme Court building. So on any given night, the court is full of law clerks at midnight, one in the morning, working on draft opinions and doing your work, because you don't bring the opinions home. And so there is a primacy on confidentiality and trust that somebody violated in a way that is truly historic and stunning.
- [15:58]
Ted Cruz
So what is gonna happen to this person? I know that the Chief justice sent out this statement today. He said, yes, we're confirming this was a draft opinion. This is egregious. This is a singular breach of trust here. And I'm ordering the marshal of the court to launch an investigation into the source of the leak. One, is he going to be able to identify the source? And two, did this person break a law? I mean, is this going to be a little slap on the wrist by John Roberts, or are we talking about Jail time.
- [16:27]
Unnamed Legal Expert
So we're talking about something very, very serious. Let's start with the first thing. I very much hope they find out who the leaker is. I think it is incredibly important that they find this person, the marshal of the court. They have considerable resources. There's a whole police force at the court. There are about 500 officers at the court. So the Supreme Court takes separation of powers very seriously. So they don't allow Capitol Police into the Supreme Court. So the US Capitol has a whole Capitol police force, but the Supreme Court, they're a third branch of government. They're not part of the Congress. And so Capitol police, in their view, have no business in their building. You know, they don't generally handle law enforcement investigations. What the Supreme Court police typically do is stop protests and threats to the Justices of the Court. But that being said, there are pretty considerable security measures at the court and it's also a limited universe. So I had several reporters asked today, what if it was a justice that did this. I gotta tell you, I just don't believe that it is such a grotesque violation of trust. To me, it is beyond imagination that a justice would do this. To use the nuclear code example, it's like the President handing the nuclear codes to Putin. It just. I cannot believe even the most left wing justice would do this. I think it is very, very likely a law clerk, and it is very, very likely a law clerk for one of the three liberal justices. That means there are 12 human beings who are your likely suspect pool. That's not a big likely suspect pool. It is likely to be someone who is a hard partisan and who was willing to burn the place down because he or she was so upset about what happens. If I were to guess the most likely justice for whom the law clerk is clerking is Sonia Sotomayor.
- [18:38]
Ted Cruz
Why do you say that?
- [18:40]
Unnamed Legal Expert
Because she's the most partisan of the Justices and so she's the most likely to hire wild eyed partisans as clerks. I have no evidence of that. I'm just making an inference. And with respect to the chain of custody, look, the Supreme Court has technology. Actually, when you print out opinions, I don't want to get into the details of how, but they are printed out with identifying materials that forensically you can find out where they were printed out from.
- [19:21]
Ted Cruz
Huh.
- [19:22]
Unnamed Legal Expert
Whether they are able to track that down or not in this instance will depend on whether they can get a copy of the actual opinion. Politico just put up a PDF. But the Supreme Court has taken pretty significant steps towards security. So as a Law clerk, for example, when you're editing an opinion, you do it on the computer. If you print an opinion out, you can print it and read it in your office and you can edit it, but you never take it home. And when you're done with it, you throw it in a burn bag. And every law clerk has a burn bag, typically under your desk. And the burn bag is about this tall, and it's a kind of brown and red striped bag. And that bag is sealed, and then it is shredded twice, horizontally and vertically. And then it is burned and it is rendered completely unreadable before it leaves the building. And that's the level of security they take in that building. One question we don't know. Was this individual, how smart a crook were they? We know the reporters who published the story. One of the natural inquiries is going to be, particularly of the 12 likely suspects, what contacts did they have with those reporters? Did they know the reporters? Do they go to school with the reporters? Do they have emails with the reporters? Do they have phone calls with the reporters? Do they have texts with the reporters? I don't know the answer to any of that. I don't know whether these are master criminals or not. But it strikes me that it is very possible there is an electronic trail or a personal trail. Now, in terms of the consequences if they identify the perpetrator, I am confident the perpetrator would be fired on the spot, that instantaneously you would lose your job. I am also confident that the perpetrator would be disbarred, that assuming the perpetrator was already a member of the bar. Sometimes clerks are members of the bar. Sometimes they're not yet. Like I was not yet a member of the bar when I was a clerk, because I didn't. I had not yet had time to take the bar exam. I took the bar exam right when I finished my clerkship.
- [21:34]
Ted Cruz
If this clerk, you know, presumed clerk, were not yet admitted to the bar, could they be preemptively held from. From ever entering the bar?
- [21:45]
Unnamed Legal Expert
I don't think any bar would admit this person. I think this person's legal career is over if they. If they are okay. And by the way, that's a big deal. To be a Supreme Court clerk is the pinnacle of legal achievement for a student coming out of law school. There are only 36 in the entire country. You get a signing bonus at a law firm as a Supreme Court clerk. I think the current bonus is $350,000 the day you walk into the door at the law firm. When I was clerking, it was 50 grand. So you can see inflation. It makes a big difference. But at a minimum, the perpetrator would be fired and would never practice law. But there's a very real possibility. So in the course of the investigation, the investigators will question the clerks if they lie to the Federal officers. Section 1001 of the Federal Criminal Code makes it a felony to lie to a federal officer. That carries prison time. And so if they lie in the course of the investigation, I think they should be prosecuted and they should serve the maximum prison time possible if they don't lie. It's a little more complicated whether they've in fact violated a criminal prohibition or not. I've actually asked my team to try to do some deep dive research on that. But I think regardless, the penalty should be as significant as possible because the damage to the court will be far lasting. It is going to make it incredibly difficult for the Justices to trust the process of deciding cases in a collaborative manner, sharing drafts, going back and forth. If people treat it as just another political process, that does massive damage to the Court's ability to do its job.
- [23:41]
Ted Cruz
So putting this criminal aside, you know, hopefully we can deal with this person. They're disbarred, they get thrown in jail in Alcatraz and they throw away the key. I almost don't even care about that person in spite of the attacks on the court and the institutional integrity, because I care so much about the case. So I don't want them to take away the joy that pro lifers should feel here in that it looks right now like the Court is gonna overrule Roe. And Casey, this is something we've been waiting for for half a century. 62 million babies have been killed throughout since the Roe v. Wade decision. So this is huge news. Unless it isn't. This was just a draft from February. So where does the case stand?
- [24:26]
Unnamed Legal Expert
Well, that's exactly right. And that is the single most dangerous thing about this leak. The reason in all likelihood that this leak happened is a left wing law clerk was trying to direct political pressure to the five Justices to cause them to switch their vote. And Justices switch their votes all the time. It's not a majority opinion, it's not a holding of the Court until the opinion issues. At this point, it's just a draft. And this one of the things to understand about this leak. This is the most egregious manifestation of a multi year campaign by Democrats to politicize the court and, and to pressure it. And you know, look, I'll give you Some examples. So Senator Schumer stood on the steps of the Court a couple years ago, held a press conference and here's what he said. He said, quote, I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions. So you had then the Senate Minority Leader, now the Senate Majority Leader, directly threatening Justices if they didn't vote the way he wanted. Sheldon Whitehouse is a senior Democrat on the Judiciary Committee. He filed an amicus brief in the Court that stated, quote, perhaps the court can heal itself before the public demands it be restructured in order to reduce the influence of politics, particularly on the urgent issue of gun control. A nation desperately needs it to heal. These are partisan Democrats threatening and trying to intimidate the Court to decide cases the way they want. That manifested even further in the campaign to pack the court to add four new left wing justices and grow it to 13. And by the way, not just that. So there's a whole dark money network, what's called the Arabella Network, of wealthy leftists who play wage dark money campaigns on judicial confirmations. They went to Brett Kavanaugh's house trying to intimidate him personally and threaten his family with Justice Breyer. The reliably liberal Democrat, Justice Breyer. Demand justice, which is the kind of main front group for the leftists, launched a campaign to force Justice Breyer to retire, including creating a mobile billboard truck to pressure Justice Breyer. These are partisan Democrats. And so after this leak happened, let me tell you what some of these leftist activists have said. Guy named Brian Fallon, who is the executive director of Demand justice, used to work for Chuck Schumer. He tweeted out, quote, scotus leaks are good elite lawyers on both the left and right treating the Court as precious. All these years have been given cover to an institution that is wholly unaccountable. Rip the veil off. There's another guy, another leftist guy named Ian Millhiser who tweeted the following serious Seriously Shout out to whoever the hero was within the Supreme Court who said, eff it, although he didn't abbreviate F F it. Let's burn this place down. That is what the left is doing with ending the filibuster, with trying to take over federal elections. They're trying to burn the Senate down. They're trying to destroy our institutions. And this leak reflects the manifestation of that multi year campaign to burn the Court down and their activists are cheering this.
- [28:48]
Ted Cruz
So will it work, Senator? Will this pressure campaign and the leak and the whole operation here, will it work to pressure one of the five justices to flip the vote? Are we gonna see the ruling anytime soon? Are they gonna wait for a month or two or are we gonna get it? We've already seen a draft from February. What is the status of the case right now?
- [29:09]
Unnamed Legal Expert
So I don't think it will work. The Chief justice today put out a statement saying that it will not work, that it will not intimidate the court. This is an ob to pressure the justices to change their votes. And I think it is likely to backfire that it's likely to cause them to dig in even more. Because for any justice at this point, when it's publicly known that you were voting, one way for you to give in to the political pressure and flip would do possibly permanent damage to the credibility of the Court. It would be to transform the Court into a nakedly political body. Interestingly enough, I think nobody is more dismayed about this than John Roberts. Even though, according to the Politico report, he doesn't agree with overturning Roe versus Wade, he cares deeply about the institutional credibility of the Court. As you know, I know John Roberts very, very well. I am certain he is horrified. And in fact, I think I have no doubt all nine Justices are horrified. To give you a sense of the character of the place, I clerked for Chief Justice Rehnquist, 1996-1997. At the time, there was a tradition where the law clerks for each justice would go and have lunch with each of the other Justices. It's very cool tradition. So you got to go have lunch with each of the other. The other eight. At the time, I clerked Byron White, who was a retired justice, but he still went into work. And we very much wanted to have lunch with Byron White. He refused to have lunch. And the reason he wouldn't have lunch is because of the Brethren. So Bob Woodward, the reporter of Woodward and Bernstein, wrote the book the Brethren. It came out in the 70s. And it's like this tell all from within the Supreme Court with lots of gossip and lots of internal information about the deliberations of the Court. A number of law clerks, after the fact, talked with Woodward. There's speculation at least one justice, likely Potter Stewart, talked with Woodward. And it was a scandal at the Court of massive proportions. So I read the Brethren when I was in high school. I think I was 15 when I read it. And I thought, okay, this like Being a Supreme Court law clerk sounds like the most amazing job on the face of the planet. I want to do this more than anything else, and it worked out that I got to. But ever since the Brethren, Byron White said, I won't sit down and talk to other law clerks. I'll talk to my own clerk, but I won't talk to other law clerks because of the Brethren. That's. And by the way, this was decades later that White still would not have lunch with clerks from other chambers. I think the repercussions of this will also be decades long. But I also think it is likely to harden the five justices in the majority. In fact, I don't think it's impossible Roberts joins them because of this leak. I doubt it. But the chances aren't zero that Roberts writes something that said this leak is wholly unprecedented, wholly unjustified, an assault on the integrity of the court. You know, the closest analogy is the Obamacare case that upheld Obamacare. And in that case, after the decision came down, there was widespread leaking that Roberts had initially voted to strike down Obamacare and then had switched his vote to uphold it. And I have no reason to doubt that reporting now. That was, prior to this, the greatest breach that had ever happened. And it was really dismaying to see the clerks leaking like this. But that was a qualitatively different situation because those leaks all came after the fact, after the opinion was down. Just providing some explanation and context. In this instance, the leak happened before the opinion was issued, and it's an effort to intimidate the justices into changing their votes. It's why it's a threat on the independence of the judiciary, because it's designed to try to move their votes. I think the effect will be the opposite in that it will harden them because no justice wants to show that they're so unprincipled they can be moved by this.
- [33:48]
Ted Cruz
Right now, before I let you go, Senator, I know it's been a very long day and there's still much more to do, but I've got to turn to your particular branch of government now, because one of the consequences of this leak is you've got all of the elected Democrats up to and including Joe Biden saying that we need to codify Roe versus Wade into law. If the Court is going to behave in this irresponsible manner and strike down Roe v. Wade, then we need a national pro abortion law. Can Joe Biden get that done?
- [34:17]
Unnamed Legal Expert
I do not believe so. I think he can pass it through the House. They've got A majority in the House and I think the Democrats will stick together. And you may have a couple of Republicans in the House. I haven't followed the kind of abortion lines in the House, but there may well be some pro choice Republicans in the House. In the Senate. He will not get it done because to get it done will require 60 votes because of the filibuster he would get. He'll get all 50 Democrats and I'm sure we'll vote on it. He will get Susan Collins and I think he will likely get Lisa Murkowski. You get to 52. I don't know that you get any higher. The other 48 are on record that Roe is wrong in this case. I filed an amicus brief with the court along with Mike Lee and Josh Hawley arguing to the court specifically that it should overturn Roe versus Wade. I don't think there's any universe in which we get to 60 votes. So I assume the Democrats will try to force a vote on it and they'll lose the vote. Now there is some danger that Schumer in fact I think it is certain that Schumer will use this to try to end the filibuster.
- [35:27]
Ted Cruz
Right.
- [35:27]
Unnamed Legal Expert
There's some danger he succeeds and if this becomes the issue they blow up the filibuster on they will have succeeded in permanently damaging two branches of government instead of just one.
- [35:40]
Ted Cruz
So you think there is a chance that as they've already said explicitly I think that not only will they try to get rid of the filibuster on this issue, but they would actually succeed in doing so. They could get maybe a Joe Manchin or a Kirsten Cinema or who knows.
- [35:56]
Unnamed Legal Expert
I think it is possible. I don't know that it would happen but I think their plan is to try. One fast point. I don't believe any Democrat senator has condemned the leak today. If they have, I haven't seen it and I was watching for is ominous that the Democrats are not even willing to condemn the leak and it everyone should condemn the leak as grossly a gross violation of trust. And it's ominous that if Democrat senators did so I didn't see it.
- [36:31]
Ted Cruz
Wow, that is spooky and does maybe tell you something about how they're thinking about a national abortion law or ending the filibuster. On that scary note, we must leave you we will see you on Apple Podcasts, YouTube, Spotify, everywhere you get your podcasts. Make sure you subscribe to Verdict Leave a five star review if you don't mind. In the meantime, I'M Michael Knowles. This is Verdict with Ted Cruz.
- [36:58]
Unnamed Legal Expert
Foreign.
- [37:01]
Advertisement Host
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