justice beyer: -- justice breyer: justice breyer: what it is is that in between, during the cases on which we decided to hear, someone will make an emergency motion. now, that is what it is, an emergency motion. the country is divided. i'm in charge of the first circuit, for example. everybody is in charge of some circuit. so if there is a litigant in the first circuit who believes he needs immediate attention to issue an injunction or to stop an injunction, well, then you will file it with me and i will look at it. and most of them, there isn't much to, so it's easy to deny it, but some there is something to it, and i will refer it to the whole conference. and if i should have and didn't, he can go to any other judge and it will be referred to the whole conference. most of these that are subject of the whole conference are death cases, at the very last minute. because of covid, i think, there have been some recent cases which did not just involve the death penalty or something that was not too difficult. and there, i thought i was in a dissent in those cases. david: the most recent

there might be or there may be too liberal justices on the court. justice kagan, justice sotomayor. justice roberts -- chief justice roberts is a conservative on the court. justice thomas is not a conservative. he is a right-wing justice. he's trying to move the court. and what i will give him is that he owns up to it. he is constantly riding about this saying, we need to see what we are doing. justice thomas owns up to what he is trying to do. or he says, the court just overturned the precedent and acted like it didn't. so he is speaking with, i think, on honesty that i wish the others would. because it's not a matter of conservatism to overturn a precedent that is six or seven years old. that's the opposite of a precedent. if you are trying to move the court, just say you are trying to move the court because you think that's wrong. and it's very clear, when he's trying to move the court, he doesn't hide it. that's not a conservative position, i want to move this, because i believe that this was wrongly decided. and i think that, honestly, it's good, for the american people. i also

justice sotomayor: thank you. chief justice roberts: justice kagan? justice kagan: mr. hearron, if i could turn technical for a minute. should one of your arguments prevail or another argument in support of your position prevail, it doesn't matter exactly which argument it is to me, what exact relief are you requesting? mr. hearron: we are requesting an injunction. so we have a pending class certification motion for a defendant class against the clerks, so we would be requesting an injunction against the commencement or the docketing of lawsuits against the clerks of the state of texas, as well as injunctive relief against the state executives for their residual authority to enforce s.b. 8. justice kagan: i mean, suppose i i think, tell me if i'm wrong on this, that just the procedural morass we've got ourselves into with this extremely unusual law is that we would really be telling the fifth circuit, again, if your position prevailed, that the district court had to be allowed to continue with its preliminary injunction ruling. is that correct? mr. hearron: i think, tec

justice breyer: no. david: but you are saying since you have been on the court, 28 years, people don't yell and scream at each other? justice breyer: no. they do not insult each other and they are not rude to each other. it is a professional job. you go in and do your best, professionally. and if you want people to listen to you, the best you can do is to think through this problem. listen to where the other person is coming from. and see what you can contribute to that thought. david: sometimes, the dissents are a little bit tough on the person who wrote the majority opinion. nobody takes that personally? justice breyer: i get that question a lot, and i used to get it more when scalia was on the court. the two of us would be there and somebody would ask that question, and i would try to answer because i did not want him to. i would say, i know you are not aiming that question at me. you are aiming that question at him. i get it. but what you don't understand is that some people suffer from a disease. it

justice thomas writes -- justice scalia does not join. there were many other times were justice kalina or justice thomas was separate and might have joint. here, justice scalia does not join. it is essentially a critique of the substantial effect notion that anything that has a substantial effect on interstate commerce is regular ball under article -- is under article 1, section 8. congress may only regulate commerce among several states, but also anything that has a substantial effect. if taken to its logical extreme, this would give congress a police power over all aspects of american life. that is a theme he has returned to again and again and he returns to in his shorter, separate dissent. he is expressing this concern that if we read the commerce clause power so broadly, and the court has read it since the new deal cases, according to justice thomas, it would give the federal government unlimited power. right away, he is staking out this structural concern about the balance of powers between the federal government and the state gover

justice thomas had justice scalia. will brett kavanaugh be like justice thomas? is neil gorsuch going to be like justice thomas and justice scalia? i think that is the most significant influence they've had. >> something about these issues, i want to go back to the pressing question for you. his limitation on where the president doesn't doesn't go in is demonstrably wrong. i hear echoes of chevron. what if the historical record is ambiguous or there is conflicting evidence? what do you do then? that is the more interesting thing of dealing with the precedent that you are not going to put your foot down and say it's really wrong. maybe there is a palpable argument one way or the other. and what he tried to do is steer it back as best he could to something closer to what the right answer was, even if it wasn't the definitive absolute answer. that was equally good methodology for dealing with those spaces in between. get back to the logic in the sense of the overall structure even if you can't say for sure. >> the alternative is the supreme court's current doctrine

that will be justice breyer but before we get to that, i was struck by your scrutiny of the justices arc when he first came in, he had some very sharp elbows. he elevated chief justice roberts to in some ways as i know you've documented yourself was seen as arrogant among some of the other colleagues but that he sort of toned it down a little bit, and there is one point where you are right that he was returned, sort of returned to his old self by the end of the recent discussion. he was the first appointee but he might have been another republican president's appointee. he didn't stand out asde much as the hard right at the time and how do you understand what he is trying to do? >> i think that he is somebody that really thinks he's right and thinks that the chief justice is too much the compromise looking over the shoulder, caring about what people think aboutle the court. many of us might think that's the strength route goes with the territory if your name is on the door, but i think justice gorsuch was inpatient to to get the same things done he wanted to get done and justice alit

protecting with that fifth amendment, that's the justice department helping a former justice department official. fficial. a >> former justice apart department official that was not only very high. he was plotting a coup to take over the justice department. to take over the government. to basically wipe out the will of the american people in a free and fair election. this is really, really, deadly serious stuff. and i don't think you can just decide well, it's just too political. less the look in the rearview mirror. i think you've got to take in. and i think -- i'm not kidding here. the idea it took them weeks to charge bannon. wouldn't excuses that? all of the evidence was as plain is and those on my face. it was public evidence. so, the idea that it took so long to charge him is really a bad sign. >> senator claire mccaskill, thank you very much for joining us. really appreciate it. >> you bet. >> thank you. up next, in the last word, your tweets will be the last work. that's next. ever notice how stiff clothes can feel rough on your skin? it's because they rub against you creating f

justice breyer: yes. david: that is where i first encountered you when i was working on capitol hill. you got a very good reputation, and then something happened that was a surprise to people. president carter nominated you to be a judge on the first circuit. that is not a surprise, given your reputation and so forth, it required a republican to sign off on it. strom thurmond, one of the most conservative republicans. why did you think strom thurmond said he would let a, presumably, somewhat liberal harvard law professor get on the first circuit? justice breyer: those days it was a different day. you remember that. people did try to work together. and every single morning, ken feinberg of the judiciary committee, we would have breakfast with amory stevens, a former jag general, and it was strom thurmond's judiciary. we would plan the day. we planned out the day. we wanted no secrets. we wanted to accomplish something and we figured out how do we color it red for this party, blue for the other party, but t

maybe justice kagan, justice soda mar, chief justice roberts is a conservative on the court. justice thomas is not a conservative. he is a right wing justice. he is trying to move the court he owned up to it we need to say what we are doing. justice thomas owns up to what he is trying to do. or he said the court just overturned the precedent and acted like it didn't. he is speaking with honesty i wish the others would. it's not the matter of conservatism to overturn that six or seven years old that's not conservative that's the opposite. when you try to move the court just say i'm trying to move the court because that's wrong. and justice thomas is one that disagrees with his position is very clear he's trying to move the corporate does not try to hide it and say it's not a conservative position i want to move this because i believe this was wrong when it was decided. i honestly think good and the people also think justice should make their opinions on bigger issues accessible to the regular newspaper reading of the american public. >> you see that a little bit with gorgeous

joanne breyer was there watching justice kennedy the retired justice kennedy roberts was there how do i feel to you? what was it like for you? and everybody here. second to your question how did it feel? it felt better. [laughter] clicks it if you like business as usual to just feel you were able to get more out of the case? >> it's organized we had to tell that you know a telephone, i would do it in turn. the virtue ... that is minute we each have a turn of two or three minutes as you focus on your question and you focus on the answer. and that is helpful that's what you're supposed to do. but in addition, the negative part it's not human. you can't see what people look like, how are they reacting, he could not pick up your colleagues said so easily. what do they think of what is going on, in person is more of a human thing. there are things that make it not human to having one thing that makes it more human is a definite advantage. i would say it was a big improvement. >> could you pick up on any cues from your colleagues will was a water rights case. one was a water rights case mos

justice breyer: yes. david: that is where i first encountered you when i was working on capitol hill. you got a good reputation and then something happened that was a surprise to people. president carter nominated you to be a judge on the first circuit, not a surprise given your reputation. but it required a republican to sign off, strom thurmond, one of the most conservative republicans. why did you think strom thurmond said he would let a, presumably, liberal harvard law professor get on the first circuit? justice breyer: it was a different day. you remember that. people did try to work together. and every single morning, ken feinberg of the judiciary committee, we would have breakfast with amory stevens, a former general and was strom thurmond's judiciary. we would plan the day. we planned out the day. we wanted no secrets. we wanted to accomplish something and we figured out how do we color it red for this party, blue for the other party, but the important thing is if it is desirable, let us try to ge

the extension of justice barrett you were so close to justice ginsberg. i know that you respected her on the law and respected so much about her life. where did you end up coming down on her decision not to retire. >> well, i think that the worst that you can say is -- by that, i mean, she assumed that hillary clinton would go. so did all the rest of us. certainly the entire establishment assumed the same thing. you know, that did not happen and had she managed to hang on for another four months, the story we are talking about would have had a very different clarity. my feeling is had she retired, started telling her to retire in the beginning of president obama's second term or even towards the end of his first term, i think it was, we would have missed the entirety, just about the entirety of the notorious rpg. most of her career, she was a consensus seeker. not always a consensus builder. her belief was, speak in a modulated tone. don't go bigger than you have to. just try to bring other people along. even try to work. you can learn through him. maybe

— justice, but actually ultimately justice can be done? there is no auestion justice can be done? there is no question that. — justice can be done? there is no question that, in _ justice can be done? there is no question that, in our _ justice can be done? there is no question that, in our chris - —— from justice system, having money gives you power. i am not could be pollyanna ——iam —— i am not going to be pollyanna —ish. because ghislaine maxwell has walked free underserved 60 years —— on this she got six years of freedom, whereas i think other people who are less wealthy and powerful would have had a lot less, but it does show us there is always hope, and i want to say that before accusing testified, they are imperfect people. they admitted to drug objection, to selling sex for money, to having prior inconsistent statements, to having asserted claims for money, which i don't think is a bad thing, that was used against them. all that came out at the trial and they endured it, but you know what? the jury saw through it was not they saw you don't have to be a

justice recently quoted something from your book revised judges and justices, just do your job. by your father break cracks yes my father. >> one is do your job it is correct. the other is stay on the payroll. [inaudible] >> the larger point credits you as the docket or the shadow s knock at a some people it. trying to say when the justices issue for example in september 1 the majority led the texas abortion ban go into effect, a lot of it is necessary is business as usual in defending the process. sign a statement when the majority left texas with the abortion ban it said the decision is emblematic of too o much decision-making. every day it becomes more impossible to defend. >> did i say that? >> you did. this is another important topic. when you think of justice defense and what did you think about theou emergency process was impossible to defend? >> what did you think about that case? that's why not only wrote a dissent, but i signed the dissent. i think with the injustice read it is primarily an effort to explain what the emergency docket is and why you have to have quick d

justice sonia sotomayor made the point about how many supreme court justices including republican appointed supreme court justices have supported roe vs. wade over decades and what it will mean if the current republican supreme court justices decide to overturn it. >> the right of a woman to choose, the right to control her own body has been clearly set since casey and never challenged. you want us to reject that line of viability and adopt something different. 15 justices over 50 years have -- or i should say 30 since casey -- have reaffirmed that basic viability line. four have said no. two of them members of this court. but 15 justices have said yes. of varying political backgrounds. now the sponsors of this bill, the house bill in mississippi, said we're doing it because we have new justices. the newest ban mississippi has put in place, the six-week ban, the senate sponsor said we are doing it because we have new justices on the supreme court. will this institution survive the stench this creates in the public perception that the constitution and its reading are just political acts. i d

justice thomas. justice buyer. alito? justice sotomayor? >> thank you. >> rebuttal? >> thank you, mr. chief justice. three points in rebuttal. i'd like to begin with the point that i understood general stone to be making that if this court ultimately concludes that the providers can sue, that the authority we're claiming sue as well is extraordinary or unprecedented. and i think it is important to recognize that when the united states of america filed this suit to try to redress the harm to the supremacy of federal law in texas, the whole women's health providers didn't obtain any effective redress from the court. the law had been permitted to take effect and had its operation of chilling the exercise of constitutionally protected conduct all together so that abortions protected under roe and casey after six weeks of pregnancy could not occur at all. i think that shows the threat to the supremacy that comes from this attempted design of a law to block access to the judiciary. it may well be and i hope that this court holds in whole women's health that the providers c

chief justice. and may it please the court. petitioner's pursuiten an injunction suffers from two fundamental problems. first, none of the individuals the petitioner sued are appropriate defendants under well-established article 3 equitable principles. second, petitioners ask for expansion of access to the federal courts that only congress and not this court may provide. petitioners article 3 inadequatable problems, again, with what they really want, an injunction against sb 8, the law itself. they can't receive that because federal courts don't issue injunction against laws but against officials enforcing laws. no texas executive official enforces sb 8 either. and so no texas executive official may be enjoined. petitioners then turn to state court judges and state court clerks and apparently in this court now narrow their focus to state court clerks. even they don't suggest that either judges or clerks act unlawfully in the ordinary course by adjudicating a case or receiving a complaint. so petitio

i will point out, justice kennedy and justice scalia don't get a vote on the current court anymore. but he did persuade the two of them through the power of his ideas, that buckley should be overruled. we have been talking today a little bit about differences between justice scalia and justice thomas. scalia previously defended buckley and said it doesn't need to be overruled because nothing is wrong with it. justice thomas explained why it is not the case. eventually all three of them were signing off to justice thomas' opinion about how buckley should be overruled. they're not on the current court. but the power of his ideas and his consistency over time has really been, in these two areas, persuading is colleagues. there's one topic that might have some -- >> that's exactly where i was going to head. you alluded to the fact there are many wins with religion. what i thought i would do is actually to kind of orient us to the people that don't know about his views on partial incorporation of the religion clauses. which are unique. then maybe hit the highlight reel on the wins, which

justice sotomayor? >> i just wanted to get your quick sense of how your intermediate positions would work, if basically the viability line was discarded and undue burden became the standard overall, a standard that according to you is an unclear one, what that would leave the court with going forward? you know, i'm just sort of thinking about the great variety of regulations that states could pass, so whether one is 15 weeks, one is 12 weeks, one is 9 weeks, variation across a wide variety of other dimensions, what would that look like coming to the court? how would we -- how do you think we would be able to deal with that or how would you counsel us to deal with that if the court were to go down that road? >> well, i think -- this is not to push back against it and i will answer your question, part of why we counselled to overrule full scale that's the only way to get rid of a number of problems your honor is alluding to, when you have the undue burden standard, it's a very hard standard to apply, it's

. >> caller: i think that the court should be expanded to more justices. we had a partisan republican court that doesn't believe in the constitution. they are not for the constitution and what we need is more justices that can bring to the table more opinions from the american people. our views are not even considered. they are in there for life and they could care less about whether or not we believe in them. right now the majority don't believe in the supreme court. i believe the professor from harvard university has it right. we need at least six justices and term limits and the term limits should bee at least 18 years, no more. that way they would think hard -- >> host: sorry about that, don't know what happened there. >> guest: we started off the conversation talking about the white house commission and i think there's a lot of support behind the idea. it would make them think hard and fast about what the public thinks. so the judges can make hard decisions like desegregation which is deeply unpopular providing them it does give some kind of protectio

justice by justice. who is definitely voting to overturn roe and why and predicting the court is always a little tricky but if you had to guess today. >> we all know where justice thomas comes down on this, he's written many times he thinks roe and casey wrongly decided and he doesn't give star decisive much weight in constitutional questions, no question he will vote to overturn. justice alito spelled the argument today. is it ever okay to just overturn a case that is egregiously wrong and he eventually got them to admit plessy versus ferguson should have been over the following year and recognize how wrong the decision was and pressed hard on that. at the end of the day he also seemed to be on the same page. the more interesting comment was brett kavanaugh who had an interesting colloquy with the planned parenthood attorney in which he said you cannot accommodate the two, the woman has a right to bodily autonomy, he didn't deny that but there's a fetal right issue and those two can't be accommodated. o

that suggests four justices who think the mississippi law should stand. who's that fifth justice? who might be the fifth vote? is it amy coney barrett? is it brett kavanaugh, the chief justice john roberts? so we sort of know where the three most conservative justices are. we sort of know where the three most liberal justices are, but what about those justices potentially in the middle who could be a potential fifth vote, and what is their interest? so that's what we'll be listening for. >> barbara, we're going to talk more about the arguments in a second. i think what we're looking at at the moment is sort of setting the stakes for what we expect to come, right? the arguments happening today likely some kind of decision to come down when the court ends its term next year, and then depending on how this rules, there are these trigger laws that are in place all across the country in more conservative states, essentially ready to have those dominos fall if, in fact, the court does rule for mississippi in this instance. can you talk through the impact of that? >> in 12 states immedia

joining me now is attorney robert dunn, let's break it down justice by justice. who was definitely voting to overturn roe and y? predicting the court is always tricky left if you had to guess today. >> it's good to be with you. we all know where justice thomas comes down on this, he has written many times that he thinks roe and casey were wrongly decided and he doesn't give it much weight in constitutional questions. there is no question he will vote to overturn. justice alito if there's any doubt i think dispelled at that argument today. he pressed it very hard on the question of is it ever okay to overturn a case that is egregiously wrong. he eventually got to the u.s. solicitor to admit plessy versus ferguson should have been overruled the following year had you had new justices on the court that would have recognized how wrong that decision wasn't he pressed hard on that so i think he's in. justice gorsuch played it closer to the vest but i think at the end of the day he also seemed to be on the same page. the more interesting comment i saw was justice kavana

in fact, it was justice sonia sotomayor who spoke at length talking about the fact that 15 justices have been circled through over the past 50 years, this entire time reaffirming the constitutional right to get an abortion. justice sotomayor also talked about the fact that there are other rights that the court has recognized that haven't been specifically mentioned in the constitution itself, equating that with the fact that abortion rights have not also been mentioned in the constitution, but the solicitor general saying that's a reason that they shouldn't be recognized. so the liberal justices speaking at length at the same time that conservatives here seem to be trying to gappal with the fact that, of course, casey and roe are precedent and should the supreme court be bound by that precedent? what factors could weigh in? how could the justices overrule that precedent? in fact, amy coney barrett talks about the fact -- she talked about precedent. she said should public perception or should changing public voous way into whether or not the court may overturn precedent. a lot of talk her

but to hear all three legal justices today, tell the rest of the court, tell the other justices in the same language, in the same way, hey, if you do this this will be the end of the court as we know it. this court, which doesn't have a police force. this court which doesn't have a budget,. this court which doesn't have any way to enforce its ruling other than the fact that the american people believe that we interpret the law based on the constitution and our rulings are binding. you will weaken that and the country will no longer believe that about us as a court if you do what you are setting out to do here. to hear all three liberal justices make the argument today to their colleagues. well. do they know something we don't? about how the argument will end with their colleagues? about what those justices might be afraid of? whether those justices might actually be afraid to do what they were put there to do? we'll have some expert help on that and much more tonight, stay with us. stay with us t just a cold. unlike other cold medicines, coricidin provides powerful cold relief without

today from these justices? >> going into this case, i expected the focus to be on viability and while i was convinced the court would eventually overrule roe, i was not convinced they would do so in this case. i thought they might limit viability and then work their way up to overruling roe in a later case. what i heard today is that many of the justices seemed potentially ready to overturn roe now. amy coney barrett asked questions stating that women did not need access to abortion. i don't think these are questions you ask if you are not seriously thinking about overturning roe. judy: let's talk about some of the specifics of what we heard today. it was clear in the first few minutes of these oral arguments that this case was one of great consequence. we heard justice breyer race the critical question of overturning precedent. he spoke in reference to the 1992 abortion decision, which you just mentioned. we have an audio recording of that. he makes a comment and then you hear from the mississippi state solici

justice breyer? justice alito? >> as to the potential private plaintiffs, how can they be bound under rule 65 under the federal rules of civil procedure? with what party with they acting in concert? >> they're acting in concert with the state of texas which has created the bounty that incentivizes their conduct and created the apparatus through the enforcement proceedings -- >> with the state, not with any individual who is a party? >> that's right. we believe they act in concert with the state which is the named defendant here and bound by the injunction. >> so would any private plaintiff bringing any common law tort suit be acting in concert with the state under the laws of which that claim is asserted? >> no, but there's a world of difference between an ordinary private right of action and the exercise of that kind of private enforcement and what sb 8 contemplates -- >> i understand that. why is the question whether they're acting in concert with the state any different? here they're acting in concert with texas

roberts and justice amy comey-barrett. the new standard should be that if you ban abortions after 15 weeks, over 90% get abortions at that point and the clinic in mississippi at the heart of the case only performed one additional week. so it is pretty clear that mississippi law is going to survive and that the standard that the supreme court used for 50 years to decide when states have violating their rules on banning abortion, of viability, banning it before the fetus is viable, is dead. the only thing not clear to me is if the court will say it is overturning roe v wade, but the dividing line is now a limit. >> pete, help us understand the real world impact of that, if it is allowed to stand, what you are effectively saying is that we would see states all across the country, as many as 20, practices, if not more, potentially impose the stuff new laws. >> i think the number is probably more like at least half of the states, maybe 24 or 26. but about half of the country and about half of the country abortion would be illeg

chief justice. mr. chief justice, and may it please the court, i have the honor to present to the court the solicitor-general of the united states, the honorable elizabeth of idaho. >> solicitor-general the court welcomes you as the solicitor-general of the united states to the performance of the important office you have assumed representing the government of the united states before this court. i am pleased to note that you are the 48th solicitor-general of the united states. i also note that you are the tenth solicitor-general of justice thomas' tenure. you follow in the footsteps of other outstanding attorneys who have held your office. your commission will be duly recorded by the clerk. >> thank you, mr. chief justice. it'll be an honor to serve. >> you'll hear argument first this morning in case 21463, whole womens health versus jackson. mr. heron? >> mr. chief justice and may it please the court in enacting senate bill 8 the texas legislature not only deliberately prohibited the exercise of a

how cannot be justice? 12 detainees are innate military system that has failed time and again in sharp contrast to our criminal justice system. for instance, the case against alleged 9/11 co-conspirators is never brought to trial, more than 20 years after the attack. there's no end in sight for these military commissions. they will not provide justice or closure to the families of those who died on 9/11. at the same time, since 9/11, the department justice has successfully prosecuted nearly 1000 individuals on terrorism related charges. a been securely detained by the federal bureau of prisons. we can and must do better. president biden transferred his first detainee in july. at that pace, one detainee every 10 months, there will be dozens of detainees at one talk about even if president biden is elected to a second term. we must take a new approach. senator leahy and i sent a letter to president biden in april, laying out the key steps the administration should take to close the prison. getting this done w

justice department. according to the chief investigative counsel at the january 6th investigation, quote, the metadata in that draft letter indicates some involvement with the white house communications agency within the drafting or preparation of that letter. the would you say was involved fl that? that wasn't just this guy jeff clark drafting this letter on justice department letterhead telling georgia and other states that they needed to flip the election results? the trump white house was involved in that? here's why that's a head snapping development. after this deposition of jeffrey clark, this sort of failed deposition of jeffrey clark where he refuses to give actual testimony refuses to ask questions. he and his lawyer storm out in the middle. after the transcript of the failed deposition was released by the january 6th investigation this week including this fascinating record of everything they said in the room after jeff clark and his lawyer left, after they publicly released that document this

chief justice. mr. chief justice and may it please the court, i have the honor to present to the court the solicitor general of the united states, the honorable elizabeth marcus prelogar of idaho. >> solicitor general prelogar, the court welcomes you to the performance of the important office that you have assumed representing the government of the united states before this court. i am pleased to note that you are the 48th solicitor general of the united states. i also note that you are the 10th solicitor general of justice thomas' tenure. [ laughter ] you follow in the footsteps of other outstanding attorneys who have held your office. your commission will be duly recorded by the clerk. >> thank you, mr. chief justice, it will be an honor to serve. >> we'll hear argument first this morning in case 21463, whole women's health versus jackson. mr. hearron. >> mr. achieve justice and may it please the court, in enacting senate bill 8 the texas legislature not only deliberately prohibited the exercise of a

on the other side of the court, justices stephen breyer and elena kagan and justice sotomayor raised this issue in slightly different ways. obviously there was long arguments. there were a lot of different points made. but i was struck by the fact that sotomayor, breyer, and kagan, all made this same point, questioned their fellow justicet about what it will do to the perceived legitimacy of the court if, in fact, they would overturn roe. it would be popular. a large majority of the country has said don't overturn roe, that has been true for decades, it's still true now. the more liberal justices effectively made the argument jo that the court will have a problem on its hands if they overturn roe, not just because it's an unpopular decision, even though it would be. it would be a problem for the court if they overturned roe because roe is settled precedent. nothing about the country has changed since roe that would if meaningfully effect the terms on which roe was settled. nothing about the constitution has changed since roe that would affect the way that roe was decided. none of tho

chief justice and may it please the court. for a half century this court has correctly recognized the constitution protects a woman's right to decide whether to end a pregnancy before viability. that guarantee the state cannot force a woman to carry a pregnancy to term and give birth has societal reliance. the real world effects of overrule roe and casey would be severe and swift. nearly half of the states already have or expected to enact bans on abortion at all stages of pregnancy. many without exceptions for rape or incest. women who are unable to travel hundreds of miles to gain access to legal abortion will be required to continue with their pregnancies and give birth with profound effects on their bodies, their health, and the course of their lives. if this court renounces the liberty interest recognized in roe and reaffirmed in casey it would be a contraction of individual rights and the court has never revoked a right that is so fundamental to so many americans and so central to their ability to participate fully and e

. -- justice scalia. were you a friend of his? >> i think so. we would debate those differences and i thought we had a terrific debate. in lubbock, texas, there were several thousand students who had, in that had never seen as a marine corps justice. we would talk about -- that had never seen the supreme court justices. we would talk about our differences i said, if i had you are siri, do you think that george washington knew about the -- your theory. do you think that george washington knew about the internet for free speech? he would say, i am not saying my theory is perfect. he would say, you know the two hunters hunting bears? what is putting on his tennis shoes. where you going? he says, a bear is coming. you cannot out run a bear. yeah, but i can outrun you. that was his view of my way of deciding cases. i never and i still, 28 years now, i have never heard a voice raised in anger in that conference room. i have never heard one justice say anything mean or snide at the table or anything like that. w

on the other side of the court, justices stephen breyer and elena kagan and justice sotomayor raised this issue in slightly different ways. obviously there was long arguments, a lot of different points made. but i was struck by the fact that sotomayor, breyer, and kagan, all made this same point, questioned their fellow justices about what it will do to the perceived legitimacy of the court. a large majority of the country has said don't overturn roe, that has been true for decades, it's still true now. the more liberal justices effectively made the argument that the court will have a problem on its hands if they overturned roe, not just because it's an unpopular decision, even though it would be. it would be a problem for the court if they overturned roe because roe is settled precedent. nothing about the country has changed since roe that would meaningfully effect the terms on which roe was settled. nothing about the constitution has changed since roe that would affect the way that roe was decided. none of those things have changed in any way materially that would warrant throwing

justice ginsburg was appointed next. how had it changed? was a different and were you surprised -- was it different and were you surprised? >> it was a court with a mission. 1954, the court had decided that plessy b ferguson was down the goering -- plessy v ferguson was down the drain. it was equal protection under the law. they sent it in 1954 we all know what happened what happened in 1955. nothing. 1956, double nothing. 1957, a rather brave judge in little rock said those little rock nine, those brave students are going into that white school central high school. the governor said maybe those students have a court order but i have the state militia. they are not. eisenhower, i would like to see that at the monument that they are building for him. he called in 1000 troops from fort bragg, 101st airborne, they walk into that white school. i would like to say that is the end of the story. it was not. what happened was after a few months the troops had to withdraw. when that happened the school board said we are not going to integrate anymor

it cannot be because there are new justices on the court. so she picked up on that and basically ran with it. >> and mary, reminding us that if the court does make the kind of changes that both you and marcia say, could come from this decision, it will have a profound effect on women across the country. >> it will. i mean it will have the most obvious effect on women in the south and midwest, where we would expect to see not just entire states criminalizing abortion but functionally entire regions which will make it much harder for people without don't have a lot of money to travel to get an abortion. that would require either getting an illegal abortion medication and hoping nothing happens to you. or getting on a plane which of course is not possible for people with limited resources in some instances. it's going to have affects, i think, on people in other states as well. for example blue states like california are already expecting to see a surge in abortion patients because people in places where abortion will be illegal will be seeking

justice breyer: yes. david: that is where i first encountered you when i was working on capitol hill. you got a good reputation and then something happened that was a surprise to people. president carter nominated you to be a judge on the first circuit, not a surprise given your reputation. but it required a republican to sign off, strom thurmond, one of the most conservative republicans. why did you think strom thurmond said he would let a, presumably, liberal harvard law professor get on the first circuit? justice breyer: it was a different day. you remember that. people did try to work together. and every single morning, ken feinberg of the judiciary committee, we would have breakfast with amory stevens, a former general and was strom -- and with strom thurmond's chief person on the judiciary. we would plan the day. we planned out the day. we wanted no secrets. we wanted to accomplish something and we figured out how do we color it red for this party, blue for the other party, but the important thing i

justice breyer: yeah. david: so it has not always been that friendly, but you are saying since you have been on the court, 28 years, people don't yell and scream at each other? justice breyer: the note -- they do not insult each other and they are not rude to each other. it is a professional job. you do your best professionally and if you want people to listen to you, the best you can do is to think through this problem. listen to where the other person is coming from. and see what you can contribute to that thought. david: sometimes the dissents are a little bit tough on the person who wrote the majority opinion. nobody takes that personally? justice breyer: i get that question a lot, and i used to get it more when scalia was on the court. the two of us would be there and somebody would ask that question, and i tried to answer because i did not want him to. i would say, i know you are not aiming that question at me. i get it. but what you don't understand is that some people suffer from a disease. it is c

is still an associate justice. if you read his resignation letter, it says, if you would like to retire from active service and retain the office, this is what you do. he says i'm retiring from active service, i intend to continue to render substantial service, as an associate justice, which he still is. and it is pretty clear that he is still at least some kind of judge, because he is out there deciding cases. he is exercising the judicial power of the u.s. what she couldn't do, if he were not a federal judge -- which he couldn't do, if he were not a federal judge. i think he is a federal justice because that is what the statute says and there's actually a supreme court case on this week to bring out a lower court judge, who took senior status, then congress tried to cut his pay, and one of the other constitutional provisions that protect judicial independence says your pay cannot be reduced while you hold the office. so here's this guy who has taken senior status under the same statute that governs supreme court