E79: Analyzing the leaked draft overturning Roe v. Wade with Amy Howe and Tom Goldstein

1. 0:00 – 28:07

   Amy Howe (@AHoweBlogger) & Tom Goldstein (@SCOTUSblog) join the show to break down the leaked draft overturning Roe v. Wade

   1. JCJason Calacanis0:00

      These are back- I'm going all in. (upbeat music) Let your winners ride. Rain Man, David Sa- I'm going all in.

   2. TGTom Goldstein0:10

      And I said-

   3. JCJason Calacanis0:11

      We open sourced it to the fans and they've just gone crazy with it.

   4. TGTom Goldstein0:14

      Love you, best night.

   5. JCJason Calacanis0:15

      Queen of Quinoa. I'm going all in.

   6. DSDavid Sacks0:18

      There was a lot of big news, um, obviously this past week, uh, when a leaked draft of the Supreme Court's Roe v. Wade decision, uh, was published, uh, by Politico. The draft opinion, written by Justice Alito, uh, would turn Roe v. Wade from a federal issue to a state issue. Now, this is a bit above, uh, all of our pay grades, so Chamath had a really great idea to tap some people who are actual experts and, uh, in the Supreme Court. Uh, Chamath, maybe you could introduce our guests- I will.

   7. TGTom Goldstein0:50

      ... yeah, and queue this up for us. Thank you.

   8. DSDavid Sacks0:52

      Great. Um, so first, I'd like to introduce Amy Howe. Um, Amy, uh, until 2016, served as the editor and a reporter for SCOTUSblog, which is the, um, the premier blog that covers the Supreme Court. She continues to serve as an independent contractor and reporter for SCOTUSblog. Uh, she also writes for her blog called Howe on The Court. And before turning to full-time blogging, she was a counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court Litigation at Stanford Law School, and from '05 to '13, 2013, she co-taught a similar class at Harvard Law School. And I'd also like to introduce, um, her partner at SCOTUS and also her partner in life, Tom Goldstein, another dear friend of mine. Over the past 15 years, Tom has served as one of the lawyers for one of the parties in just under 10% of all the cases argued before the Supreme Court. He has argued 43 cases himself, and two that I think are probably a little bit near and dear to all of our hearts. Uh, in 2000, Tom served as second chair for Laurence Tribe and David Boies on behalf of Vice President Al Gore in Bush v. Gore. And most recently, he represented Google in a fair use copyright infringement case, Google versus Oracle, um, about the use of Java APIs. Um, and so Tom and Amy, thank you, guys for giving us, um, your precious time. Welcome to the pod.

   9. TGTom Goldstein2:22

      Thanks for having us.

   10. AHAmy Howe2:24

       Thanks for having us. I was a little nervous about what the introduction was gonna be like, so thank you.

   11. DSDavid Sacks2:28

       So guys-

   12. AHAmy Howe2:28

       (laughs)

   13. DSDavid Sacks2:28

       ... there's a, there's a million questions, um, to start with or that we can go, but, uh, maybe just to frame the issue, um, can you guys just first walk us through the original Roe v. Wade decision, um, how it was made, and the rights that it conferred? And then maybe we can go from there and talk about, um, what has happened as a result of the way it was written and the, and, and the, the, the judgment as it, as it stood.

   14. AHAmy Howe2:56

       Sure. Roe v. Wade, uh, back in the early 1970s, was a decision by Justice Harry Blackmun in which the Court held for the first time that there is a constitutional right to an abortion. And at that point, the Court ruled that it was regulated by time up through the trimesters. Am I getting this right, Tom?

   15. TGTom Goldstein3:18

       Yep.

   16. AHAmy Howe3:19

       Yeah. And then in 1992, in a case called Planned Parenthood versus Casey, that was an earlier effort to overrule Roe versus Wade, because abortion opponents started pretty quickly trying to overturn Roe versus Wade. And so in 1992, in a case called Planned Parenthood versus Casey, the Supreme Court did not overrule Roe, Roe, in fact, reaffirmed it, but switched the test a little bit, the constitutional test to decide whether other abortion restrictions can stand. And this was a decision by Justices David Souter, Anthony Kennedy, and Sandra Day O'Connor, who were all appointed by Republican presidents, and they said there's a constitutional right to an abortion up until the point at which the fetus becomes viable, which these days is somewhere around 24, the 24th week of pregnancy. But states can regulate abortions as long as they don't impose an undue burden on the woman's right to an abortion.

   17. TGTom Goldstein4:18

       I was just gonna tack on, like, what's si- sitting underneath Roe, because that ends up being a big deal these days. You know, where did it come from? Seven justices in Roe and Wade say there is this constitutional right to an abortion up to an, a point, and of course there's no textual reference to abortion in the Constitution. Instead, the Supreme Court drew on earlier decisions involving what th- was called the constitutional right to privacy, essentially a kind of bodily autonomy right, uh, an individual liberty principle that you're gonna control your own destiny and your own body, drawing on cases involving contraception, for example, for both married and unmarried couples. And that really is the doctrinal, the jurisprudential piece of this thing that conservatives have been after so hard. You've got kinda two branches of conservatism in play. One is, "Look, uh, kind of religious, uh, and social conservatism, that abortion is evil," and then you have a jurisprudential lawyer's kind of thing, like, "You made this up. It's not in the Constitution." And those two threads have come together and have been at the root of this 50-year battle over Roe.

   18. DSDavid Sacks5:29

       In fact, before we unpack that, maybe you wanna just define for people, as I understood as I've been learning about this this week, there's this one sort of moral spectrum between liberalism and conservatism, but then there's this orthogonal form of, like, originalism, I guess is what folks call it. Can you just define those terms so everybody understands what, what we're talking about here?

   19. TGTom Goldstein5:48

       Sure. So, you know, in ordinary politics, we do think of, um, conservativism and then kind of more libertarianism, a kind of Peter Thiel, uh, "get the government out of my life." And conservatives do believe that the government has an important role, frequently conservatives believe this, have an important role in regulating abortion and prohibiting an abortion, whereas a libertarian would be more likely to say, "No, this is my body, my choice," for example. And so that's kind of along the political spectrum. In the legal spectrum, you have this sense of peop- there are a set of conservatives in particular, principally, who think that the Constitution should be interpreted today the way that it would've been understood the day that it was enacted or that an amendment to the Constitution was enacted.... so that the 14th Amendment to the Constitution, for example, pro- prohibits depriving someone of liberty or property without due process of law. And they would say, "Well, what was due process of law at that time? What was liberty at that time?" Whereas a more progressive constitutionalist, somebody more on the left would say, "Look, no, uh, there are lots of things that aren't enumerated in the Constitution, including, you know, a right to, uh, bodily autonomy at all, the right to contraception, uh, the right even, rights even conservatives care about, the right to educate your child, uh, in the way that you see fit." And, uh, the Constitution in particular has to be able to adapt to modern circumstances, and that's why actually our constitution is so vague. There are lots of more modern constitutions, take the South African constitution, that have lots and lots and lots and lots of detailed provisions tackling all kinds of problems, including modern problems. But the view of, uh, progressive constitutionalists is that, look, uh, when the country was founded and they wrote the Constitution, they knew the country was gonna be around for centuries, and they didn't intend to capture every kind of social circumstance, they didn't intend to capture every modern problem, uh, which couldn't even be contemplated. So yeah, that's the, those are the two different kinds of conservatism we're talking about. Um, but both originalists say, look, there's no right to abortion in the Constitution, the founders of the country would have never imagined that we would, uh, strike down bans on abortion, and then social conservatives are like, well, this is a really, really important role of government, we're protecting, uh, unborn life.

   20. DSDavid Sacks7:59

       Amy, I don't know if you've had a chance to read Alito's draft opinion, but can you sort of walk us through his legal framework for coming to his conclusion that, that this thing needs to be struck down, and what, why he's saying what he's saying?

   21. AHAmy Howe8:14

       Yes. It is a 67-page opinion with another 30 pages or so in the appendix. And what... He, he tackles it in two ways. The first is kind of from this originalist perspective, he looks at the idea of whether or not the right to an abortion is something that is deeply rooted in our country's history, and he concludes that it is not. That not only was there no right to an abortion, he said, until the late 20th century when, right around the time that the Court issued its decision in Roe, but in fact, abortion was a crime in many places. And so, you know, he starts from that premise that, that there's no deeply rooted tradition of abortion being a right in, under the Constitution, and that goes to the idea of what did the framers intend? Does it fall within this fundamental right that would be protected by the Constitution even if it is not specifically enumerated in the Constitution? But then he also has to look at Roe and Casey because those laws have been in effect, th- those cases have been in effect for 50 years now. Th- the Court issued this decision in Roe in the early '70s and then reaffirmed it in Casey in 1992, because the Supreme Court and courts generally have a pr- principle called stare decisis that says that courts should not overturn their decisions just because they think the earlier decisions are wrong, that there needs to be a good reason to do that. And the Court has never said specifically exactly what you need to do to overrule a decision, but over the years they have outlined some factors that you can look at to decide whether or not you should do so. And so he walks through those factors. The idea that Roe and Casey were simply wrong when they were decided for the reasons that, that Tom's, has just discussed and that Alito discusses at great length, that there's no deeply rooted tradition of abortion being a right. The idea that... Uh, another thing that courts often look at is whether or not people have relied on the Court's decisions here in Roe and Casey. And he said that even in Casey, there wasn't this idea that people arranged their personal lives, you know, in the short term around the idea that they have a right to an abortion. They've looked at it in Casey and sort of, and people since then, in sort of the broader sense that women have made decisions abou- about their lives, so with the idea that they will have reproductive freedom. And he says that's really not the right way to look at the issue of reliance. He looks at whether or not the test that the Supreme Court has, and other courts have been using to review restrictions on abortion, uh, this undue burden standard, is wha- what he calls workable. And he concludes that it's not workable because, he says, this idea of an undue burden test is so amorphous that courts have reached all kinds of different decisions on various abortion restrictions. And so for those reasons, he says the ide- abortion is a profound and moral question, he says, but it's not one that is protected by the Constitution. It's a question that be, should be decided by the people and their representatives and should go back to the states.

   22. CPChamath Palihapitiya11:45

       Can I just follow up on that point? So I, I think a lot of people, when they read a headline like Roe v. Wade overturned, they think that the Supreme Court is directly legislating on the issue of abortion and it means abortion ban nationwide. Um, I think that may be even the popular, uh, conception of what, of what just happened. Can you just, uh, explain that a little bit more? That, you know, w- what exactly is the Supreme Court deciding on this issue, and specifically, what the Supreme Court is doing here is more deciding who gets to decide rather than issuing policy themselves. Could you just explain that for, for viewers?

   23. DSDavid Sacks12:20

       And as you do that, maybe you could just highlight the role the Supreme Court is meant to have in, in our system of government. I... Just as a basic kind of concept, which I'm not sure is, like...

   24. JCJason Calacanis12:30

       ... as clearly understood here.

   25. AHAmy Howe12:32

       Sure. So, you know, there are the three branches of government, the president, eh, the executive branch, the legislative branch, which is Congress, and the Supreme Court. And the Supreme Court's job is to, in this case, interpret the Constitution. You know, some of the cases that come to the Supreme Court are technical. They don't even involve the Constitution. You know, what did Congress mean to say when it enacted this law about bankruptcy? But then it also gets these really momentous cases like abortion, and this case is a challenge. It came... The, the actual case that came to the Supreme Court is a challenge to a Mississippi law that was passed with the idea that it could go to the Supreme Court and challenge Roe and Casey, but a Mississippi law that was passed a couple of years ago that would ban virtually all abortions after the 15th week of pregnancy, and so abortion providers in Mississippi went to court and said, "Under the Supreme Court's jurisprudence, these decisions in Roe and Casey, this law, uh, is unconstitutional." Because women, you know, as the law currently stands, have a right to an abortion up until the point at which the fetus becomes viable, which is around 24 weeks, but it's certainly, uh, well after the f- the 15th week of pregnancy. So the case made its way up there as a challenge to this Mississippi law, but the state of Mississippi, in defending the law, specifically asked the Court to overrule Roe and Casey. And so what that means is the Supreme Court's deciding whether or not this law is unconstitutional. If the Supreme Court, as the draft opinion suggests, holds that the law is conc- is constitutional, that Roe and Casey should be overruled, then the issue does go back to the states, uh, is the way that most people think of it, and each state, whet- whether it's Mississippi or Texas or Oklahoma or California, can decide for itself whether or not they want to allow abortions and, if so, on what terms. You know, I think it's a little bit... You know, it does go back to the states. The people can decide, but defenders of Roe and Casey, uh, supporters of abortion rights say that part of the Supreme Court's job is to say what the Constitution means and that there are some rights, like freedom of speech, you know, the Second Amendment, the right to bear arms, that are, that are... If they're in the Constitution, then the states shouldn't be allowed to decide that the Supreme Court's job is to protect them.

   26. JCJason Calacanis15:06

       So if they strike this down, basically all the state legislatures will start to pass their own laws that govern what happens in that state, and the federal government will not have a role or a say ultimately in state abortion laws. Is, is that, is that fair? Is that what's gonna happen next if this gets struck down?

   27. AHAmy Howe15:23

       Yes. I mean, there are already, you know, at least a dozen, if not more, states that have what's called trigger laws that have already been passed by the s- state legislature with an eye towards this decision or some other decision by the Supreme Court overruling Roe and Casey. So those states wouldn't even have to pass new laws. Those laws restricting abortion would go into effect immediately.

   28. JCJason Calacanis15:47

       And, um, can I just ask, maybe for sax too, like, why, why isn't there a constitutional amendment if this is a, a, an issue that folks feel, you know, should be kind of indoctrinated as an amendment to the Constitution, why has that not happened, and, um, you know, why do these cases kind of keep recycling and the decision-making kind of keeps going back to the states and they keep getting litigated? Why, why don't constitutional amendments get passed anymore?

   29. AHAmy Howe16:14

       It's really difficult to pass a constitutional amendment, Tommy. Oh, sorry. Go ahead.

   30. TGTom Goldstein16:19

       Oh, no, I was gonna say, yeah. The, let me just step back first on this question of states versus the federal government. So when the Supreme Court says the Constitution doesn't give you a right to an abortion, they aren't technically saying, "Okay, now it'll be up to the state legislatures." They're saying it'll be up to legislatures. So you have to pause on the fact that it is-
2. 28:07 – 43:03

   Potential downstream impacts from the precedent of overturning Roe v. Wade

   1. AHAmy Howe28:07

   2. DSDavid Sacks28:07

      So Amy, I wanna ask a jump, uh, question from here. Um, and this is an issue that's close to all of us. When we read Roe v. Wade, we were, I think we were all like a little shocked, like, "Wow, this is happening." And then the second wave of news was how this created potential to undo Obergefell, right? So the gay rights law, or even like interracial marriage. You know, Jason's in an interracial marriage. I am. You know, many of our friends are, are gay and married. How are we supposed to think about what this does precedentially, and d- does it create risk that all, those rights could be taken away from us or, or our, or people that we care about? Like, is that something that's possible here?

   3. AHAmy Howe28:50

      I mean, I do think there's... A lot of those rights are going to be challenged. Justice Alito, in this draft opinion, says, "No, those rights are different, you know, because only abortion rests on the purposeful termination of a human life." But, you know, to go back to what Tom talked about earlier, you know, those rights rest, you know, are also not in the Constitution, rest on this same sort of principle called, you know, substantive, substantive due process, you know, rest on a right to privacy. And there were definitely arguments made in the Supreme Court in the Mississippi case, not by Mississippi, but by groups supporting Mississippi, that if you overrule Roe and Casey, you do have to go back and look at these other rights.

   4. TGTom Goldstein29:37

      Yeah, I mean, the, the reasoning for overruling Roe is, by and large, the same reason that you would overrule Obergefell. And Obergefell is a much less well-settled precedent. You know, it, it hasn't been reaffirmed, uh, by the Supreme Court as opposed to Roe many, many, many times. Um, it, you can just as easily say it's, uh, an issue for the states. And when you see in Justice Alito's... What you see is two things in Justice Alito's opinion, a bunch of reasoning that would be used to strike down a bunch of other rights. Go all the way back to where does, where do we think we find the right to contraception, right? Where is that? And the Supreme Court, both with respect to married and unmarried couples have said there's a right to contraception. But it's not in the text of the Constitution. And there's a bunch of stuff that's not in the text of the Constitution. As I said, the Constitution is super vague. So you have a bunch of stuff in Alito's opinion that says, uh, all of the, the reasoning that's in those cases essentially is wrong. And then you have a paragraph that says, "But, but, but, but, but, but by the way, this is just about abortion." Why? Because it is. And the difficulty is that in a later case, it's much, much, much easier to apply all the thinking than the truism that this is just about abortion. Because this case just is about abortion. But I think what's very likely is, you know, I'm a legal realist, and that is, I think that the justices decide what they wanna do, and then they write the opinion that gets theirs.When the court voted to overrule Roe, when five justices did that after the oral argument in this Dobbs case, one or more of the justices said, "Okay, I'll join an opinion overruling Roe if it is absolutely clear that it will not lead to the overruling of these other things." And so Justice Alito put that in there. He doesn't believe it for a second that those decisions are rightly... uh, that those rulings should necessarily stand, uh, but it appears that they don't have five votes for that view. But look, they didn't have five votes for overruling Roe until very, very recently and you could put another conservative on the Court, um, or, you know, these five could end up doing it. It- it- it is very much in play that at- at the very least, you have to acknowledge that a lot of things that people thought were kind of foundational bases for, uh, how we order our lives, uh, because they were protected by the Constitution, uh, may well not be anymore.

   5. JCJason Calacanis31:58

      I mean, I- I just, like, isn't there, like, an element of compassion that has to be a part of how they're supposed to do their job? I mean...

   6. TGTom Goldstein32:05

      I know five people who disagree with you. It just so happens that they're a majority of the Supreme Court.

   7. CPChamath Palihapitiya32:10

      Let me ask a question, let me ask a question about this sort of, uh, parade of horrible. So- so Tom, I understand what you're saying that- that overturning Roe would implicate these other cases. On the other hand, and as you mentioned, Alito specifically says, well, presumably it's Alito in this Dobbs decision, those cases are not affected, so he does carve out this case specifically. But this... but separate from that, the Supreme Court just two years ago in Bostock v. uh, Clayton County, read, you know, LGBTQ rights into Title VII, and that opinion was written by Gorsuch with Roberts joining him, you know, and I think it was- that- that was a six four or a six three majority. So the idea that the Supreme Court would overturn, you know, marriage equality in Obergefell, which was just, um, written by Kennedy in 2015, I mean, e- e- I understand that you're saying it's possible, but is it really likely?

   8. TGTom Goldstein33:03

      Well look, Bostock is totally different. It's interpreting a federal statute, a law that Congress passed. That's their point, the conservatives' view is like, "Okay, Congress passes a law to protect, you know, same-sex marriage? Fantastic, have at it. And if it has passed Title VII to pro- prohibit discrimination on the basis of sexual orientation? Fine. Uh, we don't have a problem with that." But it's, our problem is interpreting the Constitution to strike down those laws. Do you say, is it likely? Ugh. You know, the, it is a, it is a bizarre circumstance, because doctrinally, when we think as lawyers, when we think as judges, it should be much harder to overturn Roe versus Wade because we do have, this is a lot of water under a lot of bridges. Whereas with same-sex marriage, it's a pretty new thing that we've recognized in the Constitution, and if you say, look, that we're gonna talk about the founders of the Constitution, we're gonna talk about originalism. I'm gonna give you two propositions, you tell me which one is more likely. And that is, in the year 1800, someone said, uh, given the choice, "Do we protect a woman's right to have an abortion, say in the instance of rape or- or incest or something like that?" Or we're gonna say that it is, there's a constitutional right for two men to marry each other. This is not close. It is just not close. Now I believe in both of those rights, but nobody seriously would say that the founders of the country, in enacting and adopting the Constitution, thought that they were protecting same-sex marriage, and if you wanna look at it from that perspective, and this opinion does, then Obergefell is just an easy target, to be honest.

   9. CPChamath Palihapitiya34:31

      In order for the- the sort of, the parade of horribles to happen though, you, there's a two-step process, right? The- the first step is the Supreme Court throws it back to the legislature, then the legislature has to do something that you think is appalling. And ultimately, the, uh, you know, the marriage equality is now popular as a position in both parties, right? So the idea that, um, even if that decision was overturned, that all of a sudden you would have a change in that law seems unlikely, right? No?

   10. TGTom Goldstein35:04

       No, no, because all that has to happen...

   11. CPChamath Palihapitiya35:05

       Ho- how do you get there?

   12. TGTom Goldstein35:06

       ...is that a court clerk in rural Texas says, "I refuse to, uh, sign this marriage certificate." Remember, a lot of these statutes haven't formally been withdrawn. They haven't been s- they're- they're sitting on the books. Uh, they're just invalid. So too with Roe, there are a bunch of statutes on the books that are abortion restrictions that everybody knows are unconstitutional, they're not enforced.

   13. DFDavid Friedberg35:27

       Those are in states, you're saying?

   14. TGTom Goldstein35:28

       Yeah, exactly.

   15. DFDavid Friedberg35:29

       Yeah.

   16. TGTom Goldstein35:29

       And so too with respect to gay marriage, and all other kinds, lots and lots of other, uh, uh, there were- there were hundreds, maybe thousands of statutes that discriminated against gay couples and gay individuals, uh, in the LGBTQ community. Uh, and there's bunches of that stuff still on the books, and all it takes is for one conservative to say, "Look, I'm gonna apply those laws. Let's go." I mean, I- I'll give you an example. The Attorney General of Texas has said, "Look, I'm now..." uh, say, "I heard what's gonna happen with Roe, I'm now looking at Plyler versus Doe." That's the st- that's the Constitutional decision that says states have to, uh, educate children no matter whether or not they're lawfully in the country or not. From a whole, this is gonna be extremely motivating and extremely animating to conservative legislatures, to conservative attorneys general in the states. Everything's now in play. It's let's go, uh, let's give it a shot, let's take it up to the Supreme Court. It can't get worse from the conservative perspective, they've already lost on some of these issues, and so it's gonna be, uh, a scary quarter century.

   17. DFDavid Friedberg36:36

       It seems to me, Amy, the, we grew up, uh, I'm of Gen X, 51 years old, with this profound respect, uh, for the Supreme Court, that it felt fair, it felt just, it felt like the one institution that was above politics, and now it feels, uh, because of flipping a 50-year-old law, a- as if it's... and these, you know, sort of, um, uh, you know, the interview process when they were being confirmed, and maybe the rug pulling there, that we can't trust it and then this leak happens, so...... now it all feels like this institution is not trustworthy, is biased, is political. So were we living under a mirage that it wasn't, or has something fundamentally changed when we look at the Supreme Court and how they're behaving now? That's one of the things I'm struggling with is, w- was I just, you know, living under a- a false vision of- of this institution and now I'm seeing reality, uh, or has something actually changed with the court? And should we, as a country, be looking at the court differently?

   18. AHAmy Howe37:36

       I mean, I think at least one thing that has changed is that right up until the point, you know, in the last 10 years when Justices David Souter and John Paul Stevens retired, and then Justice Anthony Kennedy in 2018, you know, nom- people who were sitting on the Supreme Court, you didn't always... you know, people did not always have the sense that they were voting in the same way as the party that put them on the court. You know, Justices Souter and, and Stevens really had become a- a solid part of the court's liberal wing by the time they retired. Justice Anthony Kennedy was still a conservative, but he was a conservative, you know, who provided, uh, the key votes on things like same-sex marriage, uh, and whether or not there is a right to be intimate with somebody of the same- the same gender. And so you just didn't... I think people looked at the court and didn't think those decisions are political. You know, they're not always dividing five to four on sort of so-called party lines. I think that has changed. Uh, and I think some of the- the confirmation hearings, I think, in particular, Democrats and progressives feel that at least one of the seats, either Justice Gorsuch or Justice Amy Coney Barrett, was- was stolen, in effect. Because Justice Scalia died in February of 2016, Senator- Senate Majority Leader Mitch McConnell refused to have hearings for the pre- President Obama's nominee, saying the next president had to- has to decide. You know, you can agree with that, you could disagree with that. But then Justice Ginsburg dies in September 2020, and the Republicans rush to put someone, Justice, now Justice Barrett, on the court before the presidential election. And so I think people do just... I- I think there is a general sense that it- it is more political than it used to be.

   19. DFDavid Friedberg39:29

       What about the leak, Tom? You just wrote about that, yeah.

   20. TGTom Goldstein39:31

       Yeah. Well, can I just say, uh, one other thing was happening, Jason, that was you were winning. I mean, people think the Supreme Court is political when they don't like what it's doing. And so when there was a right to an abortion, when the Affordable Care Act is being upheld, when Obergefell is being decided in favor of same-sex marriage, you and me tend to think of that as, "Oh, that's- that's just the way the Constitution should be. We've got an objective, sensible set of justices." And then we start losing, uh, and we get the perspective that the other side ideologically has had. They think the Supreme Court's been super political in, uh, Roe, in, uh, Casey, in Obergefell, and in the ACA, because they think the Constitution means the opposite and so they think they've got a bunch of... that the court has been way too liberal and way too ends-oriented. Because there's no objective answer with respect to most constitutional questions because the document's so vague, w- we have this notion of what's judicial activism. Well, judicial activism is l- is losing, because if you win, then obviously it's what the Constitution was meant to- to be from the beginning. And so we do have this... The- it- it... Our, uh... The- the perception of any individual about the Supreme Court and whether it's neutral and objective or instead political and biased tends to be rooted 95% on whether you like what it's doing or not.

   21. JCJason Calacanis40:44

       So I'd love to hear from-

   22. CPChamath Palihapitiya40:45

       I think that's a very fair observation. I mean, even its- its fans would admit the Warren court was a highly activist court, so I think you tend to th- think of the court as being activist to the extent that you don't like the results.

   23. TGTom Goldstein40:56

       Yeah.

   24. CPChamath Palihapitiya40:57

       Although, obviously, there are, um, more or less incremental approaches that one could take. Actually, in this decision, it looks like Roberts was angling for the incrementalist approach here, which was to-

   25. DFDavid Friedberg41:09

       Explain what incrementalist yeah- means in this context, yeah.

   26. AHAmy Howe41:12

       And I think incremental, there was... I- I'm not sure. I- I guess it just... you can call it whatever you want. So at the oral argument in December, one of the alternative grounds that Mississippi had offered was to still uphold their law, but not formally overrule Roe and Casey. And at the oral argument, Roberts seemed to be the only person who was interested in that alternative ground. So that would still be a major shift, uh, in abortion rights laws, uh, but it would not formally overrule Roe and Casey.

   27. DFDavid Friedberg41:47

       In that moment, and please correct me if I'm wrong, the Biden administration also said they don't want that nuanced decision. They wanted Roe voted up or down in its entirety. Is that right?

   28. AHAmy Howe41:58

       You know, I'm not... I- I'm pretty sure that- that nobody, uh, including the- the lawyers liked, like, the- the alternative ground. I think that is right.

   29. TGTom Goldstein42:07

       Yeah, 'cause it's an optical illusion. The chief is a sophisticated guy who is very aware of all these issues related to public opinion and the court. He knows wh- how strident the reaction would be and will be if Roe versus Wade is overruled, and so he'd rather take this step by step and kind of, like, turn up the temperature of the water to a slower boil, uh, so that it's less of a surprise if and when Roe versus Wade is overruled five years from now because he doesn't have to go that far today. On the other hand, uh, you know, movement conservatives realize, "Look, you know, Justice Scalia died, a lot can change. We've got our shot. Let's take it, uh, right now and are, um... at least at the- the initial vote, we're willing to be super aggressive."

   30. AHAmy Howe42:50

       Okay.
3. 43:03 – 1:05:09

   How will the leaked draft impact the Supreme Court going forward? Should there be age limits for SC justices?

   1. DFDavid Friedberg43:03

      How does this play out from here inside the court itself, and is there a chance that this draft isn't the ultimate decision?Is there a way that there can be a middle ground path? Like, what happens from here? Or is this basically a fait accompli as- as- as written right now?

   2. AHAmy Howe43:21

      So I'll let Tom talk about the- the leak, and he's got some theories about what might have happened. It- it is... This was the first draft. You can see that on the copy that Politico published, and it is from... apparently from back in February. The- the argument was in December. You know, nobody expected to get the decision in this case, in all likelihood, until late June. And so, you know, I do think that there is a chance that the opinion could change in some way. It might not have quite as strong a tone, or it... you know, it's possible that what's going on behind the scenes and we just don't know it, is some sort of effort to move justices away from this opinion to this alternative ground that the Chief was advocating for at the oral argument in December. Uh, you know, I'll let Tom talk about some of the theories that he has. You know, one of the things, as somebody who actually gets to go to the oral arguments right now, you know, when you are at the oral arguments, in any case, but in particular this case, you know, the justices are talking to the lawyers, asking the lawyers questions, trying to flesh out what their positions are, you know, what the possible resolution of the case may be. The justices are also talking to each other. And so one thing that was not a leak, but was really interesting at an oral argument on April 20th, a couple of days before the- this Wall Street Journal editorial that Tom is gonna talk about, and then a couple of weeks before Politico leaked, there was a discussion in a case involving the Miranda right. You know, you have the right to remain silent. Law- the law and order thing. Um, and the question was whether or not you can bring a lawsuit, a federal civil rights claim, if your Miranda right has been violated. And so not anything to do with abortion, but at the oral argument, Justice Kagan starts talking to the lawyer who's arguing the case about the Miranda decision. There was a Miranda decision in 2000 at which the Supreme Court, by a vote of seven to two, held that Congress cannot overrule Miranda. And she said, you know, Justice- Chief Justice William Rehnquist, the Chief Justice at the time, wrote the decision, and he was someone who made clear that he had not been, uh... he thought that Miranda was wrong, but nonetheless voted to uphold it because he knew what an effect overruling something that everyone believes is part of our constitutional landscape, so to speak, would have on the court's legitimacy. And you really had the sense at that point that she wasn't talking about Miranda, that she- she was talking about Roe versus Wade and Planned Parenthood versus Casey in this case. Because this was something that... this was an issue that Justice Kavanaugh had raised at his confirmation hearings, talking about Rehnquist and Miranda. And so you have the sense that- that maybe things still are in play behind the scenes at the Supreme Court as recently as, you know, a couple of weeks ago. She wouldn't have been necessarily trying to make this point if she thought it was set in stone.

   3. TGTom Goldstein46:34

      Yeah. So a couple of weeks ago, somebody leaked to the Wall Street Journal editorial board, and this has happened before a couple of times over the past, you know, decade-ish, that, um, five justices had voted to overrule Roe, but it was in play and that the Chief Justice was trying to pull along to a more moderate position Justices Kavanaugh and Barrett. And, uh, it wasn't styled as a leak, but we now know it was a leak, including because the Wall Street Journal editorial board said, "And we think Justice Alito is writing the opinion," uh, o- out of nowhere. Like, uh, nobody in the world would go on the record saying that was true unless they knew it. So they- they knew what was going on and that- that's a very strong indication that, uh, things are still in play. Then with respect to Politico, uh, Politico was told that five justices had voted to overturn Roe and that was the current vote, but did not say that five justices were signed on to this opinion. And that's what happened. So Justice Alito circulated this opinion in February, and then he's supposed to get memos back from his majority saying, "Hey, Sam, uh, if you make these five changes, I'll join your opinion," and boom, then you've got a- an actual majority for the court. But all that you see from February 10 is this is Sam Alito's view and it is the outcome that five people voted for at- at the Conference of the Justices. Uh, and so there's a bunch missing, uh, between February and now in terms of actually getting to a majority. So the most likely scenario right now is that it is in play. Now, what does it mean to be in play? And is it, as I said, an optical illusion? Well, i- it is not in play whether this statute's gonna be upheld. It's in- it's in... what's in play is are they going to admit to overruling Roe and how far are they gonna go in upholding... uh, doing something that would, for example, uphold a six-week ban? Like, there are sa- states with six-week ban- week bans. What about statutes that are total abortion bans? Are those now constitutional? So, you know, are we gonna go step by step and is this gonna be a five-year process or is it gonna happen on the last day of June e- of this year? That might be in play, but people ought not be, uh, misled into thinking, like, there's a real, real debate, uh, about what's going on in abortion in the Supreme Court. Roe is- is on life support, best case.

   4. DFDavid Friedberg48:44

      Is there, um, anything, uh... because the person who leaked this, we would assume, is hoping to make some change and send this out as a warning sign to the country and the people who want to preserve Roe. Would we agree on that?

   5. TGTom Goldstein48:59

      Some people think that's... I think that's true. Uh, others think that, uh, this was an effort to, uh, get Kavanaugh on record as having voted to overturn Roe and to hold his feet to the fire. That's certainly how I interpret the leak to the Wall Street er- uh, edi- Wall Street Journal editorial board. I think the release of the opinion however, the distinct... like, this piece of paper...... is intended to do what it did, which is to, you know, motivate progressive forces and say, "Wake up. Like, this is really happening. We're not kidding. You've been hearing that the Supreme Court's getting more and more conservative, but I'm telling you, in eight weeks you don't have a right to an abortion anymore. Uh, you better get your act together." So I, I think that's what happened.

   6. DFDavid Friedberg49:38

      So then the second question is, is there any chance that public sentiment could make a change in the thinking of the Supreme Court? Is that farcical for us to think or are they humans and they see this and say, "You know, we gotta dial this back," or, "We, we gotta, you know, uh, you know, uh, and somehow maybe dampen the blow of this if we are gonna overturn it?" Could protests, mass protests, and, and sentiment actually change their thinking, Amy?

   7. AHAmy Howe50:03

      It's so hard to say. I mean, I really do think it's probably... You're probably talking about just one or two justices, rather than all of the justices as a whole. You know, I j-... Because I do think that there is probably a sense among some of the more conservative justices who would have signed onto this opinion that, "We are not going to be... We're not gonna s- you know, step off the path because somebody leaked this document and people aren't gonna like it. We're gonna s- s- stay the course." But, you know, I think you're talking about, you know, in all likelihood, one or two justices. Whether they will be affected by this, I think it's just... It's so hard to know, and so much depends on what the leaker was trying to accomplish, which we don't know.

   8. TGTom Goldstein50:49

      Institutionally, they're in a, a hell of a bind. You know, right now, we know that there was this initial vote. Now, let's say that then the ultimate opinion doesn't overrule Roe and Justice Kavanaugh joins the Chief Justice to do something less aggressive. Institutionally, that sets an unbelievably bad precedent if it creates the impression that leaking documents to the public, leading to protests, causes the Supreme Court to change its mind. So that's a horrible place for the, the justices to be in, to be perceived as reacting to the leak in a way that the leaker intended. Uh, what that invites later generations of court staff to do is, is no bueno.

   9. DSDavid Sacks51:29

      It seemed like Alito almost thought it was gonna happen, because there's a section in his thing that actually speaks... Amy, you mentioned it, about being almost oblivious, maybe is the right word, to what happens on the outside, that they needed to do what's right. Almost... In, in a way, almost forecasting this. I have a question for both of you, which is more general in nature, which is, should we have age limits for Supreme Court justices? So, one of the things, and I don't mean to s-... You know, I don't s- mean to sound morbid when I say this, but, you know, these folks literally are in the chair until they die, and this is what, I think, creates some of this, um, some of these issues. Right? So, RBG, you know, there could be a claim now that if, if Ruth Bader Ginsburg had actually stepped down or tried to hold on, you know, it would, could have been a different outcome, there could have been a different person. What do you guys think about this age limit concept for Supreme Court justices and, and, and dealing with that in that way versus making these lifetime appointments?

   10. TGTom Goldstein52:27

       I'm personally strongly in favor of this, but you have to recognize that it would require changing the Constitution. Um, there are all kinds of attempted workarounds, but I'm telling you that the people who would decide the constitutionality of the workarounds are the justices themselves, and they would have no interest in accepting any limitation on their life tenure. So, you, you have to expect that, that we're talking about something that's kind of pie-in-the-sky because we're not gonna amend the Constitution to do this until we end up with a justice who's senile and who can't do the job, and the Supreme Court turns into a laughingstock. And at that point, the country will react. But we're just not good as a country at seeing this problem coming. I mean, fundamentally what happens is we're now incentivized to put people on the Supreme Court when they're in their late teens, and just get them on there as soon as you can and keep them there for 70 years. And it's not gotten terrible. Um, uh, you know, Justice Thomas was extremely young, but we seem to have settled around 50 years old. And there's nothing intrinsically wrong with having somebody on the court for 30 years or 40 years at age 50. We've been super lucky, uh, when it's come to the fact that, uh, we've... Everybody's been pretty compos mentis. We've, we've gotten... We've run good, and we could run much worse than we have. We, you know, we see this in the Senate right now, uh, that we have some problems. And it could happen with a Supreme Court justice. But the difficulty is, even assuming that some-

   11. DFDavid Friedberg53:49

       Are, are you referring to maybe they become senile, they're, they're...

   12. TGTom Goldstein53:51

       Yeah, exactly.

   13. DFDavid Friedberg53:51

       ... not all there.

   14. TGTom Goldstein53:52

       Right.

   15. DFDavid Friedberg53:52

       They could have Alzheimer's, Parkinson's...

   16. TGTom Goldstein53:53

       But... And the problem is-

   17. DFDavid Friedberg53:54

       ... whatever.

   18. TGTom Goldstein53:54

       Yeah, and then what do you do? Because you can't... You know, y- you gonna impeach them? Uh, people who like...

   19. DFDavid Friedberg54:00

       Cognitive tests?

   20. TGTom Goldstein54:00

       ... the outcomes are gonna... But what... Like...

   21. DFDavid Friedberg54:02

       Yeah.

   22. TGTom Goldstein54:02

       Only the justices themselves can decide whether they're gonna leave. So, the, the... But the problem is this. We're, we're, we're getting... We're... We have a huge incentive now to put on somebody who's very young. And the, the lead time effect of one presidency, of the Trump presidency for example, now will span, m- you know, four decades. Uh, and that I don't think the Framers intended. Remember, the, you know, the average life expectancy at the time of the Constitution's framing, when we said life tenure, was decades shorter, uh, even for people who, like Supreme Court justices back then, who had very good healthcare. And so, th- nobody contemplated this when we originally said life tenure.

   23. CPChamath Palihapitiya54:39

       There is a proposal, uh, on this that there were, uh, a few members of the House, I think including Ro Khanna and, uh, Rashid Tlaib and some other folks, but also some conservatives who support it too, for an 18-year term limit for Supreme Court justices. And I think the way it would work is basically, uh, each president would get to name two justice. So basically, every two years, you get ano- someone rolls off and then the new president gets to choose a pick. And so every president gets two. And so, yeah, basically if you think about it, there's, there's nine justices on the court, so it takes 18 years for a full cycle for it to roll over. I think it's pretty interesting, because it would take a lot o' h- the heat out of our... these sort of Supreme Court nomination battles where, you know, somebody...... dies, and now it's a nomination fight and both sides are playing for all the marbles. If you knew that every presidential election, every president meant two votes on the Supreme Court, it would sort of normalize things.

   24. TGTom Goldstein55:36

       I don't know.

   25. CPChamath Palihapitiya55:37

       I don't know, I mean, I, I, I just actually-

   26. TGTom Goldstein55:38

       It's just not what the Constitution says. (laughs) And the Constitution-

   27. AHAmy Howe55:39

       I, I agree.

   28. CPChamath Palihapitiya55:40

       Right. No, I know, I, I know we need a Constitutional amendment, but I think it's a really interesting idea.

   29. TGTom Goldstein55:43

       Yeah. I'm all for it.

   30. AHAmy Howe55:44

       Yeah. I mean, I think obviously there would still occasionally be openings that would be created if someone had to step down or were to pass away. But you're right, that it would... People would be able to plan, we would know when people were gonna be rolling on and rolling off. I do think it is, you know, it's always struck me as kind of ironic that it is, at least from a Constitutional perspective, easier to add justices to the court than to impose term limits, for which there seems to be a fair amount of, amount of support.
4. 1:05:09 – 1:19:45

   Analyzing the path forward

   1. DSDavid Sacks1:05:09

      away.

   2. DFDavid Friedberg1:05:09

      I think thinking about intellectually the, the way to, uh, resolve the issue for the country, um, or path forward, um, might be interesting to delve into here. Is there a path forward, you see, David? Um, because listen, we, it, it is one brush we paint with. You're either, and, and the language is framed as such, pro-choice or anti-choice, pro-life or anti-life. Obviously, these are loaded framings to begin with. Um, and people could be not want to see abortions occurring in the world, and they could also, uh, still be pro-choice, right? This is a very nuanced issue. And then people might have different feelings, and I know this is graphic and hard to talk about, but people might have different feelings about the second trimester, the third trimester, and very different feelings about the first trimester, and when an abortion occurs. And, and people who are pro-choice might not be for third trimester abortions, they might wanna have some basic, uh, rules, uh, around, uh, abortion. So I, I'm not putting my own personal beliefs out there right now, I'm just framing a question. What, what are your thoughts in terms of moving forward? Because this is a, could possibly be a state issue in July?

   3. CPChamath Palihapitiya1:06:17

      Yeah. Well, so, so let's assume that this is the decision, and it, it's, I guess it'll officially come down in, in June or end of June. So let's assume that this is the decision. By the way, it's still possible that Roberts could peel off a vote, and then we would get a scenario in which Roe is upheld while modifying it to allow, you know, laws like the Mississippi law. Um, but let's assume that this, this decision that appears to be written by Alito ends up being the law. What that will mean is then, like Tom said, we'll have a vote in Congress, the Democrats will see if they can basically uphold Roe by through a law which Biden would then sign. I think the issue there is they have to get enough votes to break the filibuster, and I don't know if they're willing to do that. So let's assume that fails, then it goes to the states. So in states like California where we are, there's gonna be no change whatsoever. In fact, you know, Newsom and the Democrats are saying they're gonna enshrine the, the current law in the constitution of the state. That's really, that doesn't do anything. Abortion will remain broadly legal in California and in blue states, places like New York, coastal states. So f- right off the bat, let's say in about half the states, 25 of them or so, I don't think there's gonna be a change. In about 12 states, these, um, restrictions that are already on the books are gonna go into effect, and then we're gonna have about, you know, 12 or 13 states that become battlegrounds, um, purple states basically.... and we will have, um, those states through their legislatures and through their elected representatives, are gonna have to figure out what their policy is gonna be. And that is gonna be a huge issue in those states, and I think where this will go is, I think politicians who figure out where the center is and figure out where most of the people in their state are, are the ones who are gonna benefit. And maybe the, the potentially hopeful scenario here is that it will force people to compromise. When they actually have to craft legislation, they're gonna have to work through those compromises. Until now, the issue has been so fully preempted by the Supreme Court that everybody basically was making these absolutist rights argument, right? Like one side is saying there's a right to choice, one side's saying there's a right to life. These are rights that are being framed in absolutes that broke no compromise. There was no reason to compromise because there was nothing legislatively to work through or compromise, right? It would... these were arguments being made to the Supreme Court. Uh, so no one's had to compromise, and I think when they actually start working on legislation, they start getting... working through these questions, Jason, of what you're saying, which is, should abortion be allowed in the third trimester? Okay. No. Most people would say no. Should it be allowed in the second trimester and so forth? So they're gonna have to work through those questions. By the same token, if the pro-life side refuses to make compromises for, say, rape and incest, they're gonna be punished by voters in those states. I mean, that is very unpopular. So both sides here I think are gonna have to learn to compromise, and, um, it's gonna be a messy process, but the hope would be that at the end of this, we do eventually arrive at some sort of resolution to the issue like we have in every other Western country. You know, in every other Western country, even ones that are quite religious, this is not a culture war issue, and I think you could argue that one of the reasons why it's become a culture war issue is because the Supreme Court preempted it and stopped the democratic process from working 50 years ago. And so the only way for people to express themselves is to make these, again, absolutist right- rights arguments in front of the Supreme Court. I think that when it comes to the messy issue of democracy when people actually have to work through these things through their elected representatives, who will lose elections, they will lose elections if they take ex- positions that are too extreme, I think maybe we will get to a compromise.

   4. DSDavid Sacks1:10:00

      Mm-hmm. I think you're saying something really important. You're saying had Blackmun not adjudicated Roe v. Wade in '73, it would've been up to Congress at that time. They would've passed some set of laws and- and- and over successive iterations of those laws, you're saying there would be a framework so that a moment like this didn't happen.

   5. CPChamath Palihapitiya1:10:19

      Yeah, and you know what? Th- that, exactly what you just said was written by, um, a Supreme Court justice, um, in a law review article in 1992. I'm gonna let you guess who that justice was in a second, but I can just read you a couple of statements from it. This justice said that, "Uh, no measure in motion, the Roe decision left virtually no state with laws fully conforming to the Court's delineation of abortion regulations still permissible. Around that extraordinary decision, a well-organized and vocal right to life movement rallied and succeeded for a considerable time in turning the legislative tide in the opposite direction," meaning there was already a trend before Roe towards liberalizing these abortion laws across various states. Even Ronald Reagan, our governor, had signed a law liberalizing abortion in California, and that process was halted and stopped by the Supreme Court's decision, which in one decision invalidated every single abortion law in America. And then what this justice said is that, "Roe halted a political process that was moving in a reform direction, and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue." Do you know who the justice was who said that? Ruth Bader Ginsburg. So she obviously was for the- ultimately the holding in- in Roe, but what she said she would have done was have a much more incrementalist, narrow decision that would have maybe invalidated just that Texas law, but threw it back to the legislature so they- they could then work out the issue. And instead, she felt like the Supreme Court making such a sweeping decision, it created a backlash. And I think for 50 years, we've been living with that backlash, and there's been a culture war in this country over it, while every other Western nation has gone through the democratic process of working out the messy compromise. Now, I think what Roberts was trying to do is create an incremental approach to putting it back in the hands of the legislature, and I think you could argue for the same reason that G- uh, Ruth Bader Ginsburg argues that the incrementalist approach would have been better. Um, I think it was certainly the politically shrewder move, right? It... not just throw this grenade into 50 state legislatures but to gradually move the issue back to the states. I think there's a lot of wisdom in an incrementalist approach, whether it's Roberts or Ruth Bader Ginsburg. They both are basically saying, or you can call it the stare decisis approach. You give precedent, you give weight to precedent. You don't just overrule, you know, these 50-year precedents. I think there's a lot of wisdom in that approach as well, but I think the hope here would be that by letting the legislative process work through this issue, we can hopefully eventually get to a stable, sustainable consensus.

   6. DFDavid Friedberg1:12:59

      Um, and it will be chaotic, uh, but other countries have dealt with this. Australia has... basically by the states in Australia, they have different week requirements, and Europe has, uh, certain week requirements. I- I read a New York Times article, and- and, Chamath, you- you, uh, pointed me to some of these resources. So, a possible outcome is states starting to build their own framework in terms of rape, incest, on demand, you know, on request versus a certain number of weeks, uh, and that is just gonna be an absolute amount of chaos for some number of years.

   7. CPChamath Palihapitiya1:13:41

      Yeah, look, if- if the parties don't compromise on this, voters will eventually punish them. I mean, I don't think you're gonna see, um...... you know, Glenn Youngkin-like victories by the Republican Party if they brook no compromise on, for example, the issue of, you know, rape and incest. By the same token, I think Democrats will have to... I- in a lot, in purple states, they will have to concede that there is a competing rights interest at some point on the part of this, you know, un- of the unborn baby, right? I mean, are you really gonna allow abortion into the ninth month of pregnancy if the life of the mother is not at stake? So both sides have never had to acknowledge that the other side had anything useful to say, and I think now they will. And if the absolutists in both parties refuse to do that, I think they're gonna lose elections.

   8. DFDavid Friedberg1:14:29

      Yeah. I- I- I- and it's so hard to get the proper statistics here, because I think a lot of the... I- I've been looking, trying to understand what the country actually thinks, and people do not ask very nuanced questions. Uh, are, do you believe Roe v. Wade should be overturned? People get asked that question, and the majority believe it shouldn't be. Do you believe that, you know... Like, w- we don't have all of these nuanced issues, uh, by state. It doesn't seem to be... Um, maybe people haven't even thought it through, right? Like, do most people who are pro-choice have an opinion on the third trimester, on the second trimester? Do they, do they actually have a- an idea of when they feel... And, and, and I, you know, I'll be honest, I ha- I have not given this total thought myself as to how I feel about it, obviously.

   9. DSDavid Sacks1:15:13

      Well, I- I learned a lot by reading this. Here's a, here's something that was in the opinion that I didn't know, but it says, "At the time of enactment of this Mississippi law, only six countries beside the United States permitted non-therapeutic or elective abortions on demand after the 20th week of gestation. Those other six countries were Canada, China, the Netherlands, North Korea, Singapore, and Vietnam." That's it, in the whole world. And so, you know, to your point, there's- there's all these granular details. And I think as David said, a group of politicians need to sit in a room and really think through these things and kind of try to, try to get to some kind of basis that doesn't take back something that's been in the books for 50 years, that something so fundamental.

   10. DFDavid Friedberg1:16:00

       Yeah, that's the really tragic part about this, is that-

   11. DSDavid Sacks1:16:02

       It's like, it's such a unequal thing to do.

   12. DFDavid Friedberg1:16:05

       Unfair. It feels profoundly unfair to take away after 50 years. I think that's... The Republican Party is gonna just pay such a massive price for this, um, broadly. I mean, th- is this a case where, like, the dog catches the car, bites the fender, and it's now like, "Oh my God," 'cause...

   13. DSDavid Sacks1:16:23

       Well, this is why I'm asking what is the, what is the true prioritization of things as we know how the world works today? Meaning, I understand what it means to be an originalist or a textualist. I understand that, right? And I respect people's perspectives that the Constitution should be interpreted verbatim. I understand that, and- and- and I- and I- and I respect people's ability to think that. The thing, though, Jason, to your point of like the dog (laughs) catching the car in the fender or whatever, is, okay, um, do you do that at the sake of a lack of compassion or- or a lack of empathy for how the world works today? And should we not have a point of view that says irrespective of how we decide, we should factor in what the moral temperature of the country is in that moment in which something is decided? And I- and I-

   14. DFDavid Friedberg1:17:23

       Yeah, some context. Like, there's a context here of it being law for 50 years that you cannot disregard.

   15. DSDavid Sacks1:17:30

       And that's why Obergefell took until 2015 to really happen, right? Because by that point, it was a- it was... There was this beginning of a sea change where, you know, I think it's like 70%, I think, in a Gallup poll that I saw, support, um, same-sex marriage, and I think it was about 80%, it's not 100 by the way, 80% support interracial marriage, and 92%, this is all in the same Gallup poll, 92% support, um... They- they don't think that using contracepses- contraceptives is immoral. Okay, but that still leaves 30%, 20%, and 8% that still think something that's very different, but it's such a clear majority of America. And so my- my hope is that, you know, a- as- as tragic as this ruling is, if- if this is what comes to pass, that it's narrowly defined so that, to your point, David, we don't open the Pandora's box on all of these other things that we have decided as a nation are- are very reasonable things. You know?

   16. CPChamath Palihapitiya1:18:31

       I don't think Ober- oh, Obergefell's gonna get overturned. I just don't see it. And- and the reason is because of the way the Supreme Court handled that issue. So, you know, again, go back to the early 1990s. The way that- that, um, this issue first came up is that a Hawaii court found that there was a right to- to gay marriage, and there was a huge uproar. The Supreme Court did not take up the case. They did not take the bait. So what- what happened then is Congress passed DOMA, the Defense of Marriage Act, which was huge majorities in both parties, and Bill Clinton signed it. Remember this? Stating that marriage was, you know, one man and one woman. And so if the Supreme Court had basically taken up the issue then and found a right to gay marriage, we might have had a constitutional amendment banning gay marriage by now, and we'd be trying to work our way out from under that and figuring out wh- how to get rid of that. But instead, the Court did not take the bait. They stayed out of it until 2013 when attitudes had changed substantially, and then they invalidated DOMA in 2013, and then Obergefell came along in 2015. So, I think the pattern here is that the Court has learned to stay out of these hot button issues until they become a little bit more settled, and then what they do is once the public's opinion has sort of-

   17. DFDavid Friedberg1:19:42

       Is clear.

   18. CPChamath Palihapitiya1:19:42

       ... is clear, then they enshrine it.

Episode duration: 1:25:53