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The 47 Morning Update with Ben Ferguson
The Cloakroom Preview: A response to Chief Justice Roberts
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- [00:00]
Liz Wheeler
You're listening to a special interview of the Cloakroom, a series with Liz Wheeler and Senator Ted Cruz, exclusively for Verdict subscribers. Each week, Liz is joined by Senator Ted Cruz to pull back the curtain on the philosophy that informs our political debates, the stories that are reshaping our culture, and the legal principles at play on America's stage and beyond. To hear more of the Cloakroom, become a verdict subscriber@verdictwithtetcruz.com all right, welcome back, everyone.
- [00:29]
I'm Liz Wheeler. This is the Cloakroom on Verdict Plus. I'm sitting here with Senator Ted Cruz, and this is such an amazing, insane time to be alive in our country. Roe v. Wade has just been overturned by the Supreme Court. And I don't know about you, Senator, but when I saw this news, I was obviously following the Supreme Court, issuing their opinions. And I'm on the west coast right now. I'm out in Santa Barbara, California. So it was early in the morning. It was just after 7am and I start frantically texting our producers, are you awake? Are you asleep? Do you see what's happening? This is absolutely bananas. I don't think I'm ever gonna forget that moment.
- [01:01]
Senator Ted Cruz
Yeah, no, it was extraordinary. I was in D.C. at the time. I had the night before, we had been laid on the Senate floor battling over gun control. And then after that, I had gone and filmed a verdict. So we had Thursday night, we did a verdict at 12:30 at night. So we finished at, I think I got home about 2 in the morning. And so Friday morning, I was still in D.C. i was in my apartment and saw the opinion came down. And shortly thereafter, I had a flight to Milwaukee. I'm in Milwaukee right now at a political conference to energize and mobilize grassroots activists here in Wisconsin. But my flight wasn't until late afternoon. So I actually played basketball for two hours Friday morning with several guys on my staff. And we played 3 on 3 and 4 on 4 for a couple hours. And then I jumped in the shower and went and did a fox hit talking about the Dobbs ruling, and then jumped on a plane and flew to Milwaukee.
- [02:06]
Liz Wheeler
It's your first basketball game in a post row America. Bet you never thought that that would happen.
- [02:10]
Senator Ted Cruz
There you go. And in fact, on the plane, I had with me this binder with the full text of all of Dobbs. And so I spent the entire flight just reading carefully, word for word, the opinion of Dobbs, which was. Which was pretty cool too, to. To go through it and to try to, although I will say A three ring binder on Southwest Airlines with a guy in the middle seat next to you is a little hard to like, not jab him in the leg with. So you try to somehow manage to hold it and your Diet Coke all at the same time. It wasn't easy.
- [02:41]
Liz Wheeler
That's when your Senate negotiation skills come in. You say, I'll give you the armrest if you don't mind that my binder's gonna be whacking you the whole time. I wanna talk about what the most unpopular part of this opinion, I read all 213 pages, I think it was, of the ruling as well. It's beautifully written. Not the dissent, the majority opinion's beautifully written. But I wanna talk about Robert's ruling for a second. He voted to uphold the Mississippi law which Bans abortion at 15 weeks. He voted not to overturn Roe v. Wade. His reasoning is absurd. It's ridiculous. You and Michael talked about that in depth on Verdict. I highly recommend. If anybody hasn't watched that, it's a really good episode that you guys just filmed. It hasn't aired yet, but I sat here and watched the whole thing behind the scenes. But Alan Dershowitz, Harvard law professor, went on Fox News and on Newsmax last night and said that Roberts was correct. Now, Dershowitz is the only person that I've heard in the entire country who says that Roberts is correct. But his, his reasoning is kind of legalistic and something that I want us to dig into.
- [03:44]
Senator Ted Cruz
I do, and I think it should never be done under any circumstances. But I do think the Supreme Court should never have had to reach beyond the 15 weeks. That's what was before the Supreme Court. And everybody on this show seems to think that 15 weeks is reasonable. Senator Rubio thinks 15 weeks. The Europeans think 15 weeks. Why did the Supreme Court have to jump into this and say, we're not going to decide the case before us, we're going to ban. We're going to ban Roe versus Wade, overrule it and allow states. Allow states to be sure, allow states to abolish abortion completely. That was judicial activism overreaching. And Sean, you oppose judicial activism. You should join me and agree with Justice Roberts that judicial activism was at play here and it was unnecessary. Professor, I would take issue with you Mississippi case.
- [04:37]
So, Liz, it may surprise you. I actually don't think either Roberts or Dershowitz are crazy in what they're saying. I think they have a reasonable basis for what they're saying. I don't agree with it, but it's Not a shocking thing for them to be advocating for. And the reason I say that, I mean, let's look at Roberts reasoning. Roberts approaches cases, and he's an incrementalist. And there is a principle of judicial restraint, which is that the court should not decide any more than is necessary to resolve the issue before it in the case that is being litigated. That is a sound principle of judicial restraint, and it is the right way to approach most issues. That's what Dershowitz is focusing on there as well. Now, what I especially don't agree with is Dershowitz saying this is judicial activism. I think that is. That's being provocative. And as you know, I know Dershowitz very well. He was my criminal law professor and he's a friend. I think he's being deliberately provocative with that. I don't think he's right. But the instinct of don't do more than is necessary is a sound judicial instinct. So why do I think it wasn't right here? Well, I would commend people to read the majority opinion where on pages 72 and the next several pages of the opinion, the majority opinion squarely addresses what Chief Justice Roberts advocated for, which was uphold the Mississippi statute, but don't overturn Roe. And I think the majority opinion dismantles the argument as a legal matter. What does the majority point out? It points out, number one, Roberts doesn't attempt to defend Roe's reasoning. Nobody does. Number two, Roberts doesn't even pretend to defend Cayce's reasoning. Instead, he grounds his argument on stare decisis, which Casey did as well. But stare decisis means not overturning decisions. And what Roberts advocates would overrule much of Roe. So what he says is, well, okay, Roe prohibited restrictions on abortion before viability. He said we should get rid of the viability requirement, but we should. Here's what the majority how the majority puts it. The concurrence would leave for another day whether to reject any right to an abortion at all, and would hold only that if the Constitution protects any such right, the right ends once women have had a reasonable opportunity to obtain an abortion. The concurrence does not specify what period of time is sufficient to provide such an opportunity, but it would hold that 15 weeks, the period allowed under Mississippi's law, is enough, at least absent rare circumstances. So Roberts is proposing overrule a big chunk of Roe, but create this new reasonable opportunity rule, which notably, he doesn't find anywhere in the Constitution. He doesn't find anywhere in the Supreme Court's. Precedents he doesn't find anywhere in anything resembling law. He just makes it up, says, well, gosh, if we make up this rule, then we don't have to overrule Roe.
- [08:22]
Liz Wheeler
That isn't that being a legislator though.
- [08:27]
Senator Ted Cruz
Yes, that's exactly what. And it's what Roe did. He's got a new standard. He thinks he's smarter than Harry Blackmun. He is unquestionably smarter than Harry Blackmunk. And so he likes his standard and his standard, this reasonable opportunity standard, but it is not, you know, the majority opinion points out the rule that Roberts is advocating. The concurrence would do exactly what it criticizes Roe for doing, pulling, quote, out of thin air a test that, quote, no party or amicus asked the court to adopt. So neither of the parties in this case asked for that. None of the amici. I think there were 130amici. None of them put forward this theory. But look, John Roberts is a very smart man. He came up with his own theory. He's like, well, let's go with this one instead. And it's based on the idea that they don't have to do anything that will be seen as politically as traumatic as overturning Roe. But Roberts is advocating overturning what, what the court in Casey called the central holding of Roe, which is the viability standard. And Roberts wants to get rid of the central holding. Well, if you're getting rid of the central holding of a case, you're overturning the case. Like his proposed minimalism isn't very minimal and it would create a whole new host of problems that are likewise not found in the law or the Constitution. And this is why, Liz, what Dershowitz says is wrong. He calls it activism. Activism is a court imposing its own policy preferences and not following the law.
- [10:27]
Liz Wheeler
Let me ask you about the leaker, though. This has gone out of the news very quickly. The left was not interested in discussing the identity of who this person that publicized gave to the media the draft majority opinion, which by the way, is very, very similar to Alito's final draft of his majority opinion, which I was glad to see that they weren't bullied into changing any of their verbiage, any of their language, any of their arguments based on this. What do you think the proper course of action is now regarding this leaker? Should we continue to investigate? Should the name be revealed publicly? Should they be, should this person be prosecuted and will they.
- [11:00]
Senator Ted Cruz
Yes, yes, yes. And I don't know. Look, the investigation should continue. Roberts has announced that the court has launched an investigation. The marshal's office is leading the investigation. I think it's critical that we find out who the leaker is. I think their name needs to be made public. I think they need to be criminally prosecuted to the maximum extent possible. Will it happen? I don't know. The marshal's office, generally speaking, doesn't have a whole lot of experience investigating crime. That's not their principal focus is protecting the court, which is a different. It is a law enforcement function, but it is not typically investigatory. So I don't know how effective the marshal's office will be at the investigation. I also don't know. There's been no public reports about how much the law clerks are cooperating. So, for example, it's been reported that the clerks were asked to sign a statement, presumably saying they did not hand the opinion over to anyone. I don't know if there are clerks who refused to sign it. I don't know the. And nobody knows outside the court what has happened. But I think it is critical both for the long term integrity of the court and for the rule of law that we find and prosecute the leaker. I hope that happens. On the question of prosecution, it will depend on Merrick Garland's justice department. And unfortunately, this justice department has been so political that I could easily see the department of justice refusing to prosecute it. I hope they don't, but I think that's a risk. Step number one is find the leaker, and then step number two should be ensuring that there are real and meaningful consequences for the gross violation of duty to the court and to the rule of law.
- [12:56]
Liz Wheeler
All right, Verdict clause members weigh in. Post below. Do you think that we're gonna find out who the leaker is, the identity of this person, and if so, do you think that they will be prosecuted? Do you think mayor goes Garland will do anything or not? And if so, what do you think the charges will be or should be? Comment below. Weigh in. I'm really interested in everybody's opinion. Also, a little behind the scenes going on here. The senator is at an activism conference in Wisconsin right now, and his staff is about to pull him up out of the chair because we've run so late talking about this topic. So, Senator, I'm going to let you go. Thank you, everyone, for watching. This was a really great discussion. I'm Liz Wheeler. This is the cloakroom on verdict.