Podcast appearances and mentions of justice blackmun

Last month, the U.S. Supreme Court concluded its latest Term. And over the past few weeks, the Trump administration has continued to duke it out with its adversaries in the federal courts.To tackle these topics, as well as their intersection—in terms of how well the courts, including but not limited to the Supreme Court, are handling Trump-related cases—I interviewed Professor Pamela Karlan, a longtime faculty member at Stanford Law School. She's perfectly situated to address these subjects, for at least three reasons.First, Professor Karlan is a leading scholar of constitutional law. Second, she's a former SCOTUS clerk and seasoned advocate at One First Street, with ten arguments to her name. Third, she has high-level experience at the U.S. Department of Justice (DOJ), having served (twice) as a deputy assistant attorney general in the Civil Rights Division of the DOJ.I've had some wonderful guests to discuss the role of the courts today, including Judges Vince Chhabria (N.D. Cal.) and Ana Reyes (D.D.C.)—but as sitting judges, they couldn't discuss certain subjects, and they had to be somewhat circumspect. Professor Karlan, in contrast, isn't afraid to “go there”—and whether or not you agree with her opinions, I think you'll share my appreciation for her insight and candor.Show Notes:* Pamela S. Karlan bio, Stanford Law School* Pamela S. Karlan bio, Wikipedia* The McCorkle Lecture (Professor Pamela Karlan), UVA Law SchoolPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.Sponsored by:NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.Three quick notes about this transcript. First, it has been cleaned up from the audio in ways that don't alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning. Second, my interviewee has not reviewed this transcript, and any transcription errors are mine. Third, because of length constraints, this newsletter may be truncated in email; to view the entire post, simply click on “View entire message” in your email app.David Lat: Welcome to the Original Jurisdiction podcast. I'm your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to at davidlat dot Substack dot com. You're listening to the seventy-seventh episode of this podcast, recorded on Friday, June 27.Thanks to this podcast's sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.With the 2024-2025 Supreme Court Term behind us, now is a good time to talk about both constitutional law and the proper role of the judiciary in American society. I expect they will remain significant as subjects because the tug of war between the Trump administration and the federal judiciary continues—and shows no signs of abating.To tackle these topics, I welcomed to the podcast Professor Pamela Karlan, the Montgomery Professor of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic at Stanford Law School. Pam is not only a leading legal scholar, but she also has significant experience in practice. She's argued 10 cases before the Supreme Court, which puts her in a very small club, and she has worked in government at high levels, serving as a deputy assistant attorney general in the Civil Rights Division of the U.S. Department of Justice during the Obama administration. Without further ado, here's my conversation with Professor Pam Karlan.Professor Karlan, thank you so much for joining me.Pamela Karlan: Thanks for having me.DL: So let's start at the beginning. Tell us about your background and upbringing. I believe we share something in common—you were born in New York City?PK: I was born in New York City. My family had lived in New York since they arrived in the country about a century before.DL: What borough?PK: Originally Manhattan, then Brooklyn, then back to Manhattan. As my mother said, when I moved to Brooklyn when I was clerking, “Brooklyn to Brooklyn, in three generations.”DL: Brooklyn is very, very hip right now.PK: It wasn't hip when we got there.DL: And did you grow up in Manhattan or Brooklyn?PK: When I was little, we lived in Manhattan. Then right before I started elementary school, right after my brother was born, our apartment wasn't big enough anymore. So we moved to Stamford, Connecticut, and I grew up in Connecticut.DL: What led you to go to law school? I see you stayed in the state; you went to Yale. What did you have in mind for your post-law-school career?PK: I went to law school because during the summer between 10th and 11th grade, I read Richard Kluger's book, Simple Justice, which is the story of the litigation that leads up to Brown v. Board of Education. And I decided I wanted to go to the NAACP Legal Defense Fund and be a school desegregation lawyer, and that's what led me to go to law school.DL: You obtained a master's degree in history as well as a law degree. Did you also have teaching in mind as well?PK: No, I thought getting the master's degree was my last chance to do something I had loved doing as an undergrad. It didn't occur to me until I was late in my law-school days that I might at some point want to be a law professor. That's different than a lot of folks who go to law school now; they go to law school wanting to be law professors.During Admitted Students' Weekend, some students say to me, “I want to be a law professor—should I come here to law school?” I feel like saying to them, “You haven't done a day of law school yet. You have no idea whether you're good at law. You have no idea whether you'd enjoy doing legal teaching.”It just amazes me that people come to law school now planning to be a law professor, in a way that I don't think very many people did when I was going to law school. In my day, people discovered when they were in law school that they loved it, and they wanted to do more of what they loved doing; I don't think people came to law school for the most part planning to be law professors.DL: The track is so different now—and that's a whole other conversation—but people are getting master's and Ph.D. degrees, and people are doing fellowship after fellowship. It's not like, oh, you practice for three, five, or seven years, and then you become a professor. It seems to be almost like this other track nowadays.PK: When I went on the teaching market, I was distinctive in that I had not only my student law-journal note, but I actually had an article that Ricky Revesz and I had worked on that was coming out. And it was not normal for people to have that back then. Now people go onto the teaching market with six or seven publications—and no practice experience really to speak of, for a lot of them.DL: You mentioned talking to admitted students. You went to YLS, but you've now been teaching for a long time at Stanford Law School. They're very similar in a lot of ways. They're intellectual. They're intimate, especially compared to some of the other top law schools. What would you say if I'm an admitted student choosing between those two institutions? What would cause me to pick one versus the other—besides the superior weather of Palo Alto?PK: Well, some of it is geography; it's not just the weather. Some folks are very East-Coast-centered, and other folks are very West-Coast-centered. That makes a difference.It's a little hard to say what the differences are, because the last time I spent a long time at Yale Law School was in 2012 (I visited there a bunch of times over the years), but I think the faculty here at Stanford is less focused and concentrated on the students who want to be law professors than is the case at Yale. When I was at Yale, the idea was if you were smart, you went and became a law professor. It was almost like a kind of external manifestation of an inner state of grace; it was a sign that you were a smart person, if you wanted to be a law professor. And if you didn't, well, you could be a donor later on. Here at Stanford, the faculty as a whole is less concentrated on producing law professors. We produce a fair number of them, but it's not the be-all and end-all of the law school in some ways. Heather Gerken, who's the dean at Yale, has changed that somewhat, but not entirely. So that's one big difference.One of the most distinctive things about Stanford, because we're on the quarter system, is that our clinics are full-time clinics, taught by full-time faculty members at the law school. And that's distinctive. I think Yale calls more things clinics than we do, and a lot of them are part-time or taught by folks who aren't in the building all the time. So that's a big difference between the schools.They just have very different feels. I would encourage any student who gets into both of them to go and visit both of them, talk to the students, and see where you think you're going to be most comfortably stretched. Either school could be the right school for somebody.DL: I totally agree with you. Sometimes people think there's some kind of platonic answer to, “Where should I go to law school?” And it depends on so many individual circumstances.PK: There really isn't one answer. I think when I was deciding between law schools as a student, I got waitlisted at Stanford and I got into Yale. I had gone to Yale as an undergrad, so I wasn't going to go anywhere else if I got in there. I was from Connecticut and loved living in Connecticut, so that was an easy choice for me. But it's a hard choice for a lot of folks.And I do think that one of the worst things in the world is U.S. News and World Report, even though we're generally a beneficiary of it. It used to be that the R-squared between where somebody went to law school and what a ranking was was minimal. I knew lots of people who decided, in the old days, that they were going to go to Columbia rather than Yale or Harvard, rather than Stanford or Penn, rather than Chicago, because they liked the city better or there was somebody who did something they really wanted to do there.And then the R-squared, once U.S. News came out, of where people went and what the rankings were, became huge. And as you probably know, there were some scandals with law schools that would just waitlist people rather than admit them, to keep their yield up, because they thought the person would go to a higher-ranked law school. There were years and years where a huge part of the Stanford entering class had been waitlisted at Penn. And that's bad for people, because there are people who should go to Penn rather than come here. There are people who should go to NYU rather than going to Harvard. And a lot of those people don't do it because they're so fixated on U.S. News rankings.DL: I totally agree with you. But I suspect that a lot of people think that there are certain opportunities that are going to be open to them only if they go here or only if they go there.Speaking of which, after graduating from YLS, you clerked for Justice Blackmun on the Supreme Court, and statistically it's certainly true that certain schools seem to improve your odds of clerking for the Court. What was that experience like overall? People often describe it as a dream job. We're recording this on the last day of the Supreme Court Term; some hugely consequential historic cases are coming down. As a law clerk, you get a front row seat to all of that, to all of that history being made. Did you love that experience?PK: I loved the experience. I loved it in part because I worked for a wonderful justice who was just a lovely man, a real mensch. I had three great co-clerks. It was the first time, actually, that any justice had ever hired three women—and so that was distinctive for me, because I had been in classes in law school where there were fewer than three women. I was in one class in law school where I was the only woman. So that was neat.It was a great Term. It was the last year of the Burger Court, and we had just a heap of incredibly interesting cases. It's amazing how many cases I teach in law school that were decided that year—the summary-judgment trilogy, Thornburg v. Gingles, Bowers v. Hardwick. It was just a really great time to be there. And as a liberal, we won a lot of the cases. We didn't win them all, but we won a lot of them.It was incredibly intense. At that point, the Supreme Court still had this odd IT system that required eight hours of diagnostics every night. So the system was up from 8 a.m. to midnight—it stayed online longer if there was a death case—but otherwise it went down at midnight. In the Blackmun chambers, we showed up at 8 a.m. for breakfast with the Justice, and we left at midnight, five days a week. Then on the weekends, we were there from 9 to 9. And they were deciding 150 cases, not 60 cases, a year. So there was a lot more work to do, in that sense. But it was a great year. I've remained friends with my co-clerks, and I've remained friends with clerks from other chambers. It was a wonderful experience.DL: And you've actually written about it. I would refer people to some of the articles that they can look up, on your CV and elsewhere, where you've talked about, say, having breakfast with the Justice.PK: And we had a Passover Seder with the Justice as well, which was a lot of fun.DL: Oh wow, who hosted that? Did he?PK: Actually, the clerks hosted it. Originally he had said, “Oh, why don't we have it at the Court?” But then he came back to us and said, “Well, I think the Chief Justice”—Chief Justice Burger—“might not like that.” But he lent us tables and chairs, which were dropped off at one of the clerk's houses. And it was actually the day of the Gramm-Rudman argument, which was an argument about the budget. So we had to keep running back and forth from the Court to the house of Danny Richman, the clerk who hosted it, who was a Thurgood Marshall clerk. We had to keep running back and forth from the Court to Danny Richman's house, to baste the turkey and make stuff, back and forth. And then we had a real full Seder, and we invited all of the Jewish clerks at the Court and the Justice's messenger, who was Jewish, and the Justice and Mrs. Blackmun, and it was a lot of fun.DL: Wow, that's wonderful. So where did you go after your clerkship?PK: I went to the NAACP Legal Defense Fund, where I was an assistant counsel, and I worked on voting-rights and employment-discrimination cases.DL: And that was something that you had thought about for a long time—you mentioned you had read about its work in high school.PK: Yes, and it was a great place to work. We were working on great cases, and at that point we were really pushing the envelope on some of the stuff that we were doing—which was great and inspiring, and my colleagues were wonderful.And unlike a lot of Supreme Court practices now, where there's a kind of “King Bee” usually, and that person gets to argue everything, the Legal Defense Fund was very different. The first argument I did at the Court was in a case that I had worked on the amended complaint for, while at the Legal Defense Fund—and they let me essentially keep working on the case and argue it at the Supreme Court, even though by the time the case got to the Supreme Court, I was teaching at UVA. So they didn't have this policy of stripping away from younger lawyers the ability to argue their cases the whole way through the system.DL: So how many years out from law school were you by the time you had your first argument before the Court? I know that, today at least, there's this two-year bar on arguing before the Court after having clerked there.PK: Six or seven years out—because I think I argued in ‘91.DL: Now, you mentioned that by then you were teaching at UVA. You had a dream job working at the NAACP Legal Defense Fund. What led you to go to UVA?PK: There were two things, really, that did it. One was I had also discovered when I was in law school that I loved law school, and I was better at law school than I had been at anything I had done before law school. And the second was I really hated dealing with opposing counsel. I tell my students now, “You should take negotiation. If there's only one class you could take in law school, take negotiation.” Because it's a skill; it's not a habit of mind, but I felt like it was a habit of mind. And I found the discovery process and filing motions to compel and dealing with the other side's intransigence just really unpleasant.What I really loved was writing briefs. I loved writing briefs, and I could keep doing that for the Legal Defense Fund while at UVA, and I've done a bunch of that over the years for LDF and for other organizations. I could keep doing that and I could live in a small town, which I really wanted to do. I love New York, and now I could live in a city—I've spent a couple of years, off and on, living in cities since then, and I like it—but I didn't like it at that point. I really wanted to be out in the country somewhere. And so UVA was the perfect mix. I kept working on cases, writing amicus briefs for LDF and for other organizations. I could teach, which I loved. I could live in a college town, which I really enjoyed. So it was the best blend of things.DL: And I know, from your having actually delivered a lecture at UVA, that it really did seem to have a special place in your heart. UVA Law School—they really do have a wonderful environment there (as does Stanford), and Charlottesville is a very charming place.PK: Yes, especially when I was there. UVA has a real gift for developing its junior faculty. It was a place where the senior faculty were constantly reading our work, constantly talking to us. Everyone was in the building, which makes a huge difference.The second case I had go to the Supreme Court actually came out of a class where a student asked a question, and I ended up representing the student, and we took the case all the way to the Supreme Court. But I wasn't admitted in the Western District of Virginia, and that's where we had to file a case. And so I turned to my next-door neighbor, George Rutherglen, and said to George, “Would you be the lead counsel in this?” And he said, “Sure.” And we ended up representing a bunch of UVA students, challenging the way the Republican Party did its nomination process. And we ended up, by the student's third year in law school, at the Supreme Court.So UVA was a great place. I had amazing colleagues. The legendary Bill Stuntz was then there; Mike Klarman was there. Dan Ortiz, who's still there, was there. So was John Harrison. It was a fantastic group of people to have as your colleagues.DL: Was it difficult for you, then, to leave UVA and move to Stanford?PK: Oh yes. When I went in to tell Bob Scott, who was then the dean, that I was leaving, I just burst into tears. I think the reason I left UVA was I was at a point in my career where I'd done a bunch of visits at other schools, and I thought that I could either leave then or I would be making a decision to stay there for the rest of my career. And I just felt like I wanted to make a change. And in retrospect, I would've been just as happy if I'd stayed at UVA. In my professional life, I would've been just as happy. I don't know in my personal life, because I wouldn't have met my partner, I don't think, if I'd been at UVA. But it's a marvelous place; everything about it is just absolutely superb.DL: Are you the managing partner of a boutique or midsize firm? If so, you know that your most important job is attracting and retaining top talent. It's not easy, especially if your benefits don't match up well with those of Biglaw firms or if your HR process feels “small time.” NexFirm has created an onboarding and benefits experience that rivals an Am Law 100 firm, so you can compete for the best talent at a price your firm can afford. Want to learn more? Contact NexFirm at 212-292-1002 or email betterbenefits at nexfirm dot com.So I do want to give you a chance to say nice things about your current place. I assume you have no regrets about moving to Stanford Law, even if you would've been just as happy at UVA?PK: I'm incredibly happy here. I've got great colleagues. I've got great students. The ability to do the clinic the way we do it, which is as a full-time clinic, wouldn't be true anywhere else in the country, and that makes a huge difference to that part of my work. I've gotten to teach around the curriculum. I've taught four of the six first-year courses, which is a great opportunityAnd as you said earlier, the weather is unbelievable. People downplay that, because especially for people who are Northeastern Ivy League types, there's a certain Calvinism about that, which is that you have to suffer in order to be truly working hard. People out here sometimes think we don't work hard because we are not visibly suffering. But it's actually the opposite, in a way. I'm looking out my window right now, and it's a gorgeous day. And if I were in the east and it were 75 degrees and sunny, I would find it hard to work because I'd think it's usually going to be hot and humid, or if it's in the winter, it's going to be cold and rainy. I love Yale, but the eight years I spent there, my nose ran the entire time I was there. And here I look out and I think, “It's beautiful, but you know what? It's going to be beautiful tomorrow. So I should sit here and finish grading my exams, or I should sit here and edit this article, or I should sit here and work on the Restatement—because it's going to be just as beautiful tomorrow.” And the ability to walk outside, to clear your head, makes a huge difference. People don't understand just how huge a difference that is, but it's huge.DL: That's so true. If you had me pick a color to associate with my time at YLS, I would say gray. It just felt like everything was always gray, the sky was always gray—not blue or sunny or what have you.But I know you've spent some time outside of Northern California, because you have done some stints at the Justice Department. Tell us about that, the times you went there—why did you go there? What type of work were you doing? And how did it relate to or complement your scholarly work?PK: At the beginning of the Obama administration, I had applied for a job in the Civil Rights Division as a deputy assistant attorney general (DAAG), and I didn't get it. And I thought, “Well, that's passed me by.” And a couple of years later, when they were looking for a new principal deputy solicitor general, in the summer of 2013, the civil-rights groups pushed me for that job. I got an interview with Eric Holder, and it was on June 11th, 2013, which just fortuitously happens to be the 50th anniversary of the day that Vivian Malone desegregated the University of Alabama—and Vivian Malone is the older sister of Sharon Malone, who is married to Eric Holder.So I went in for the interview and I said, “This must be an especially special day for you because of the 50th anniversary.” And we talked about that a little bit, and then we talked about other things. And I came out of the interview, and a couple of weeks later, Don Verrilli, who was the solicitor general, called me up and said, “Look, you're not going to get a job as the principal deputy”—which ultimately went to Ian Gershengorn, a phenomenal lawyer—“but Eric Holder really enjoyed talking to you, so we're going to look for something else for you to do here at the Department of Justice.”And a couple of weeks after that, Eric Holder called me and offered me the DAAG position in the Civil Rights Division and said, “We'd really like you to especially concentrate on our voting-rights litigation.” It was very important litigation, in part because the Supreme Court had recently struck down the pre-clearance regime under Section 5 [of the Voting Rights Act]. So the Justice Department was now bringing a bunch of lawsuits against things they could have blocked if Section 5 had been in effect, most notably the Texas voter ID law, which was a quite draconian voter ID law, and this omnibus bill in North Carolina that involved all sorts of cutbacks to opportunities to vote: a cutback on early voting, a cutback on same-day registration, a cutback on 16- and 17-year-olds pre-registering, and the like.So I went to the Department of Justice and worked with the Voting Section on those cases, but I also ended up working on things like getting the Justice Department to change its position on whether Title VII covered transgender individuals. And then I also got to work on the implementation of [United States v.] Windsor—which I had worked on, representing Edie Windsor, before I went to DOJ, because the Court had just decided Windsor [which held Section 3 of the Defense of Marriage Act unconstitutional]. So I had an opportunity to work on how to implement Windsor across the federal government. So that was the stuff I got to work on the first time I was at DOJ, and I also obviously worked on tons of other stuff, and it was phenomenal. I loved doing it.I did it for about 20 months, and then I came back to Stanford. It affected my teaching; I understood a lot of stuff quite differently having worked on it. It gave me some ideas on things I wanted to write about. And it just refreshed me in some ways. It's different than working in the clinic. I love working in the clinic, but you're working with students. You're working only with very, very junior lawyers. I sometimes think of the clinic as being a sort of Groundhog Day of first-year associates, and so I'm sort of senior partner and paralegal at a large law firm. At DOJ, you're working with subject-matter experts. The people in the Voting Section, collectively, had hundreds of years of experience with voting. The people in the Appellate Section had hundreds of years of experience with appellate litigation. And so it's just a very different feel.So I did that, and then I came back to Stanford. I was here, and in the fall of 2020, I was asked if I wanted to be one of the people on the Justice Department review team if Joe Biden won the election. These are sometimes referred to as the transition teams or the landing teams or the like. And I said, “I'd be delighted to do that.” They had me as one of the point people reviewing the Civil Rights Division. And I think it might've even been the Wednesday or Thursday before Inauguration Day 2021, I got a call from the liaison person on the transition team saying, “How would you like to go back to DOJ and be the principal deputy assistant attorney general in the Civil Rights Division?” That would mean essentially running the Division until we got a confirmed head, which took about five months. And I thought that this would be an amazing opportunity to go back to the DOJ and work with people I love, right at the beginning of an administration.And the beginning of an administration is really different than coming in midway through the second term of an administration. You're trying to come up with priorities, and I viewed my job really as helping the career people to do their best work. There were a huge number of career people who had gone through the first Trump administration, and they were raring to go. They had all sorts of ideas on stuff they wanted to do, and it was my job to facilitate that and make that possible for them. And that's why it's so tragic this time around that almost all of those people have left. The current administration first tried to transfer them all into Sanctuary Cities [the Sanctuary Cities Enforcement Working Group] or ask them to do things that they couldn't in good conscience do, and so they've retired or taken buyouts or just left.DL: It's remarkable, just the loss of expertise and experience at the Justice Department over these past few months.PK: Thousands of years of experience gone. And these are people, you've got to realize, who had been through the Nixon administration, the Reagan administration, both Bush administrations, and the first Trump administration, and they hadn't had any problem. That's what's so stunning: this is not just the normal shift in priorities, and they have gone out of their way to make it so hellacious for people that they will leave. And that's not something that either Democratic or Republican administrations have ever done before this.DL: And we will get to a lot of, shall we say, current events. Finishing up on just the discussion of your career, you had the opportunity to work in the executive branch—what about judicial service? You've been floated over the years as a possible Supreme Court nominee. I don't know if you ever looked into serving on the Ninth Circuit or were considered for that. What about judicial service?PK: So I've never been in a position, and part of this was a lesson I learned right at the beginning of my LDF career, when Lani Guinier, who was my boss at LDF, was nominated for the position of AAG [assistant attorney general] in the Civil Rights Division and got shot down. I knew from that time forward that if I did the things I really wanted to do, my chances of confirmation were not going to be very high. People at LDF used to joke that they would get me nominated so that I would take all the bullets, and then they'd sneak everybody else through. So I never really thought that I would have a shot at a judicial position, and that didn't bother me particularly. As you know, I gave the commencement speech many years ago at Stanford, and I said, “Would I want to be on the Supreme Court? You bet—but not enough to have trimmed my sails for an entire lifetime.”And I think that's right. Peter Baker did this story in The New York Times called something like, “Favorites of Left Don't Make Obama's Court List.” And in the story, Tommy Goldstein, who's a dear friend of mine, said, “If they wanted to talk about somebody who was a flaming liberal, they'd be talking about Pam Karlan, but nobody's talking about Pam Karlan.” And then I got this call from a friend of mine who said, “Yeah, but at least people are talking about how nobody's talking about you. Nobody's even talking about how nobody's talking about me.” And I was flattered, but not fooled.DL: That's funny; I read that piece in preparing for this interview. So let's say someone were to ask you, someone mid-career, “Hey, I've been pretty safe in the early years of my career, but now I'm at this juncture where I could do things that will possibly foreclose my judicial ambitions—should I just try to keep a lid on it, in the hope of making it?” It sounds like you would tell them to let their flag fly.PK: Here's the thing: your chances of getting to be on the Supreme Court, if that's what you're talking about, your chances are so low that the question is how much do you want to give up to go from a 0.001% chance to a 0.002% chance? Yes, you are doubling your chances, but your chances are not good. And there are some people who I think are capable of doing that, perhaps because they fit the zeitgeist enough that it's not a huge sacrifice for them. So it's not that I despise everybody who goes to the Supreme Court because they must obviously have all been super-careerists; I think lots of them weren't super-careerists in that way.Although it does worry me that six members of the Court now clerked at the Supreme Court—because when you are a law clerk, it gives you this feeling about the Court that maybe you don't want everybody who's on the Court to have, a feeling that this is the be-all and end-all of life and that getting a clerkship is a manifestation of an inner state of grace, so becoming a justice is equally a manifestation of an inner state of grace in which you are smarter than everybody else, wiser than everybody else, and everybody should kowtow to you in all sorts of ways. And I worry that people who are imprinted like ducklings on the Supreme Court when they're 25 or 26 or 27 might not be the best kind of portfolio of justices at the back end. The Court that decided Brown v. Board of Education—none of them, I think, had clerked at the Supreme Court, or maybe one of them had. They'd all done things with their lives other than try to get back to the Supreme Court. So I worry about that a little bit.DL: Speaking of the Court, let's turn to the Court, because it just finished its Term as we are recording this. As we started recording, they were still handing down the final decisions of the day.PK: Yes, the “R” numbers hadn't come up on the Supreme Court website when I signed off to come talk to you.DL: Exactly. So earlier this month, not today, but earlier this month, the Court handed down its decision in United States v. Skrmetti, reviewing Tennessee's ban on the use of hormones and puberty blockers for transgender youth. Were you surprised by the Court's ruling in Skrmetti?PK: No. I was not surprised.DL: So one of your most famous cases, which you litigated successfully five years ago or so, was Bostock v. Clayton County, in which the Court held that Title VII does apply to protect transgender individuals—and Bostock figures significantly in the Skrmetti opinions. Why were you surprised by Skrmetti given that you had won this victory in Bostock, which you could argue, in terms of just the logic of it, does carry over somewhat?PK: Well, I want to be very precise: I didn't actually litigate Bostock. There were three cases that were put together….DL: Oh yes—you handled Zarda.PK: I represented Don Zarda, who was a gay man, so I did not argue the transgender part of the case at all. Fortuitously enough, David Cole argued that part of the case, and David Cole was actually the first person I had dinner with as a freshman at Yale College, when I started college, because he was the roommate of somebody I debated against in high school. So David and I went to law school together, went to college together, and had classes together. We've been friends now for almost 50 years, which is scary—I think for 48 years we've been friends—and he argued that part of the case.So here's what surprised me about what the Supreme Court did in Skrmetti. Given where the Court wanted to come out, the more intellectually honest way to get there would've been to say, “Yes, of course this is because of sex; there is sex discrimination going on here. But even applying intermediate scrutiny, we think that Tennessee's law should survive intermediate scrutiny.” That would've been an intellectually honest way to get to where the Court got.Instead, they did this weird sort of, “Well, the word ‘sex' isn't in the Fourteenth Amendment, but it's in Title VII.” But that makes no sense at all, because for none of the sex-discrimination cases that the Court has decided under the Fourteenth Amendment did the word “sex” appear in the Fourteenth Amendment. It's not like the word “sex” was in there and then all of a sudden it took a powder and left. So I thought that was a really disingenuous way of getting to where the Court wanted to go. But I was not surprised after the oral argument that the Court was going to get to where it got on the bottom line.DL: I'm curious, though, rewinding to Bostock and Zarda, were you surprised by how the Court came out in those cases? Because it was still a deeply conservative Court back then.PK: No, I was not surprised. I was not surprised, both because I thought we had so much the better of the argument and because at the oral argument, it seemed pretty clear that we had at least six justices, and those were the six justices we had at the end of the day. The thing that was interesting to me about Bostock was I thought also that we were likely to win for the following weird legal-realist reason, which is that this was a case that would allow the justices who claimed to be textualists to show that they were principled textualists, by doing something that they might not have voted for if they were in Congress or the like.And also, while the impact was really large in one sense, the impact was not really large in another sense: most American workers are protected by Title VII, but most American employers do not discriminate, and didn't discriminate even before this, on the basis of sexual orientation or on the basis of gender identity. For example, in Zarda's case, the employer denied that they had fired Mr. Zarda because he was gay; they said, “We fired him for other reasons.”Very few employers had a formal policy that said, “We discriminate on the basis of sexual orientation.” And although most American workers are protected by Title VII, most American employers are not covered by Title VII—and that's because small employers, employers with fewer than 15 full-time employees, are not covered at all. And religious employers have all sorts of exemptions and the like, so for the people who had the biggest objection to hiring or promoting or retaining gay or transgender employees, this case wasn't going to change what happened to them at all. So the impact was really important for workers, but not deeply intrusive on employers generally. So I thought those two things, taken together, meant that we had a pretty good argument.I actually thought our textual argument was not our best argument, but it was the one that they were most likely to buy. So it was really interesting: we made a bunch of different arguments in the brief, and then as soon as I got up to argue, the first question out of the box was Justice Ginsburg saying, “Well, in 1964, homosexuality was illegal in most of the country—how could this be?” And that's when I realized, “Okay, she's just telling me to talk about the text, don't talk about anything else.”So I just talked about the text the whole time. But as you may remember from the argument, there was this weird moment, which came after I answered her question and one other one, there was this kind of silence from the justices. And I just said, “Well, if you don't have any more questions, I'll reserve the remainder of my time.” And it went well; it went well as an argument.DL: On the flip side, speaking of things that are not going so well, let's turn to current events. Zooming up to a higher level of generality than Skrmetti, you are a leading scholar of constitutional law, so here's the question. I know you've already been interviewed about it by media outlets, but let me ask you again, in light of just the latest, latest, latest news: are we in a constitutional crisis in the United States?PK: I think we're in a period of great constitutional danger. I don't know what a “constitutional crisis” is. Some people think the constitutional crisis is that we have an executive branch that doesn't believe in the Constitution, right? So you have Donald Trump asked, in an interview, “Do you have to comply with the Constitution?” He says, “I don't know.” Or he says, “I have an Article II that gives me the power to do whatever I want”—which is not what Article II says. If you want to be a textualist, it does not say the president can do whatever he wants. So you have an executive branch that really does not have a commitment to the Constitution as it has been understood up until now—that is, limited government, separation of powers, respect for individual rights. With this administration, none of that's there. And I don't know whether Emil Bove did say, “F**k the courts,” or not, but they're certainly acting as if that's their attitude.So yes, in that sense, we're in a period of constitutional danger. And then on top of that, I think we have a Supreme Court that is acting almost as if this is a normal administration with normal stuff, a Court that doesn't seem to recognize what district judges appointed by every president since George H.W. Bush or maybe even Reagan have recognized, which is, “This is not normal.” What the administration is trying to do is not normal, and it has to be stopped. So that worries me, that the Supreme Court is acting as if it needs to keep its powder dry—and for what, I'm not clear.If they think that by giving in and giving in, and prevaricating and putting things off... today, I thought the example of this was in the birthright citizenship/universal injunction case. One of the groups of plaintiffs that's up there is a bunch of states, around 23 states, and the Supreme Court in Justice Barrett's opinion says, “Well, maybe the states have standing, maybe they don't. And maybe if they have standing, you can enjoin this all in those states. We leave this all for remind.”They've sat on this for months. It's ridiculous that the Supreme Court doesn't “man up,” essentially, and decide these things. It really worries me quite a bit that the Supreme Court just seems completely blind to the fact that in 2024, they gave Donald Trump complete criminal immunity from any prosecution, so who's going to hold him accountable? Not criminally accountable, not accountable in damages—and now the Supreme Court seems not particularly interested in holding him accountable either.DL: Let me play devil's advocate. Here's my theory on why the Court does seem to be holding its fire: they're afraid of a worse outcome, which is, essentially, “The emperor has no clothes.”Say they draw this line in the sand for Trump, and then Trump just crosses it. And as we all know from that famous quote from The Federalist Papers, the Court has neither force nor will, but only judgment. That's worse, isn't it? If suddenly it's exposed that the Court doesn't have any army, any way to stop Trump? And then the courts have no power.PK: I actually think it's the opposite, which is, I think if the Court said to Donald Trump, “You must do X,” and then he defies it, you would have people in the streets. You would have real deep resistance—not just the “No Kings,” one-day march, but deep resistance. And there are scholars who've done comparative law who say, “When 3 percent of the people in a country go to the streets, you get real change.” And I think the Supreme Court is mistaking that.I taught a reading group for our first-years here. We have reading groups where you meet four times during the fall for dinner, and you read stuff that makes you think. And my reading group was called “Exit, Voice, and Loyalty,” and it started with the Albert Hirschman book with that title.DL: Great book.PK: It's a great book. And I gave them some excerpt from that, and I gave them an essay by Hannah Arendt called “Personal Responsibility Under Dictatorship,” which she wrote in 1964. And one of the things she says there is she talks about people who stayed in the German regime, on the theory that they would prevent at least worse things from happening. And I'm going to paraphrase slightly, but what she says is, “People who think that what they're doing is getting the lesser evil quickly forget that what they're choosing is evil.” And if the Supreme Court decides, “We're not going to tell Donald Trump ‘no,' because if we tell him no and he goes ahead, we will be exposed,” what they have basically done is said to Donald Trump, “Do whatever you want; we're not going to stop you.” And that will lose the Supreme Court more credibility over time than Donald Trump defying them once and facing some serious backlash for doing it.DL: So let me ask you one final question before we go to my little speed round. That 3 percent statistic is fascinating, by the way, but it resonates for me. My family's originally from the Philippines, and you probably had the 3 percent out there in the streets to oust Marcos in 1986.But let me ask you this. We now live in a nation where Donald Trump won not just the Electoral College, but the popular vote. We do see a lot of ugly things out there, whether in social media or incidents of violence or what have you. You still have enough faith in the American people that if the Supreme Court drew that line, and Donald Trump crossed it, and maybe this happened a couple of times, even—you still have faith that there will be that 3 percent or what have you in the streets?PK: I have hope, which is not quite the same thing as faith, obviously, but I have hope that some Republicans in Congress would grow a spine at that point, and people would say, “This is not right.” Have they always done that? No. We've had bad things happen in the past, and people have not done anything about it. But I think that the alternative of just saying, “Well, since we might not be able to stop him, we shouldn't do anything about it,” while he guts the federal government, sends masked people onto the streets, tries to take the military into domestic law enforcement—I think we have to do something.And this is what's so enraging in some ways: the district court judges in this country are doing their job. They are enjoining stuff. They're not enjoining everything, because not everything can be enjoined, and not everything is illegal; there's a lot of bad stuff Donald Trump is doing that he's totally entitled to do. But the district courts are doing their job, and they're doing their job while people are sending pizza boxes to their houses and sending them threats, and the president is tweeting about them or whatever you call the posts on Truth Social. They're doing their job—and the Supreme Court needs to do its job too. It needs to stand up for district judges. If it's not willing to stand up for the rest of us, you'd think they'd at least stand up for their entire judicial branch.DL: Turning to my speed round, my first question is, what do you like the least about the law? And this can either be the practice of law or law as a more abstract system of ordering human affairs.PK: What I liked least about it was having to deal with opposing counsel in discovery. That drove me to appellate litigation.DL: Exactly—where your request for an extension is almost always agreed to by the other side.PK: Yes, and where the record is the record.DL: Yes, exactly. My second question, is what would you be if you were not a lawyer and/or law professor?PK: Oh, they asked me this question for a thing here at Stanford, and it was like, if I couldn't be a lawyer, I'd... And I just said, “I'd sit in my room and cry.”DL: Okay!PK: I don't know—this is what my talent is!DL: You don't want to write a novel or something?PK: No. What I would really like to do is I would like to bike the Freedom Trail, which is a trail that starts in Montgomery, Alabama, and goes to the Canadian border, following the Underground Railroad. I've always wanted to bike that. But I guess that's not a career. I bike slowly enough that it could be a career, at this point—but earlier on, probably not.DL: My third question is, how much sleep do you get each night?PK: I now get around six hours of sleep each night, but it's complicated by the following, which is when I worked at the Department of Justice the second time, it was during Covid, so I actually worked remotely from California. And what that required me to do was essentially to wake up every morning at 4 a.m., 7 a.m. on the East Coast, so I could have breakfast, read the paper, and be ready to go by 5:30 a.m.I've been unable to get off of that, so I still wake up before dawn every morning. And I spent three months in Florence, and I thought the jet lag would bring me out of this—not in the slightest. Within two weeks, I was waking up at 4:30 a.m. Central European Time. So that's why I get about six hours, because I can't really go to bed before 9 or 10 p.m.DL: Well, I was struck by your being able to do this podcast fairly early West Coast time.PK: Oh no, this is the third thing I've done this morning! I had a 6:30 a.m. conference call.DL: Oh my gosh, wow. It reminds me of that saying about how you get more done in the Army before X hour than other people get done in a day.My last question, is any final words of wisdom, such as career advice or life advice, for my listeners?PK: Yes: do what you love, with people you love doing it with.DL: Well said. I've loved doing this podcast—Professor Karlan, thanks again for joining me.PK: You should start calling me Pam. We've had this same discussion….DL: We're on the air! Okay, well, thanks again, Pam—I'm so grateful to you for joining me.PK: Thanks for having me.DL: Thanks so much to Professor Karlan for joining me. Whether or not you agree with her views, you can't deny that she's both insightful and honest—qualities that have made her a leading legal academic and lawyer, but also a great podcast guest.Thanks to NexFirm for sponsoring the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. To explore this opportunity, please contact NexFirm at 212-292-1000 or email careerdevelopment at nexfirm dot com to learn more.Thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers. To connect with me, please email me at davidlat at Substack dot com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram and Threads at davidbenjaminlat.If you enjoyed today's episode, please rate, review, and subscribe. Please subscribe to the Original Jurisdiction newsletter if you don't already, over at davidlat dot substack dot com. This podcast is free, but it's made possible by paid subscriptions to the newsletter.The next episode should appear on or about Wednesday, July 23. Until then, may your thinking be original and your jurisdiction free of defects. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit davidlat.substack.com/subscribe

This Day in Legal History: Georgia v. McCollumOn June 18, 1992, the U.S. Supreme Court issued a landmark decision in Georgia v. McCollum, 505 U.S. 42 (1992), holding that criminal defendants cannot use peremptory challenges to exclude jurors on the basis of race. This decision extended the logic of Batson v. Kentucky—which barred prosecutors from racially discriminatory jury strikes—to defense attorneys, ensuring both sides are bound by the Equal Protection Clause. The case involved white defendants in Georgia who sought to remove Black jurors, prompting the state to challenge the defense's strikes as racially biased.The Court, in a 7–2 opinion written by Justice Blackmun, reasoned that racial discrimination in jury selection, regardless of the source, undermines public confidence in the justice system and the constitutional guarantee of a fair trial. It emphasized that the courtroom is not a private forum and that all participants—prosecutors, defense attorneys, and judges—must adhere to constitutional principles.Importantly, the decision addressed the state action requirement, acknowledging that while defense attorneys are not state actors in the traditional sense, their participation in the jury selection process is conducted under judicial supervision and is thus attributable to the state. This broadened the scope of equal protection enforcement in criminal proceedings.The ruling was a major step toward eradicating racial bias in the judicial process, reinforcing that justice must not only be impartial but also be perceived as such. By holding defense attorneys to the same standard as prosecutors, the Court ensured that the integrity of jury selection is preserved across the board. The decision also highlighted the evolving understanding of the judiciary's role in preventing systemic discrimination, even in adversarial settings.Georgia v. McCollum remains a critical precedent in both constitutional law and criminal procedure, illustrating the Court's commitment to fairness in one of the most fundamental aspects of the legal system—trial by jury.U.S. District Judge Julia Kobick expanded a prior injunction, blocking the Trump administration's passport policy that restricted transgender, nonbinary, and intersex individuals from obtaining passports reflecting their gender identity. Kobick found that the State Department's revised policy—mandating passports list only “biological” sex at birth—likely violated the Fifth Amendment by discriminating on the basis of sex and reflecting irrational bias.Initially, the injunction applied only to six plaintiffs, but Kobick's ruling now grants class-action status, halting enforcement of the policy nationwide. The policy stems from an executive order signed by Trump after returning to office in January 2025, directing all federal agencies to recognize only two sexes and abandon the gender marker flexibility introduced under the Biden administration in 2022.The ruling marks a legal setback for the administration's effort to reimpose binary sex classifications across federal documents. The ACLU, representing the plaintiffs, called it a critical win for transgender rights. The White House condemned the ruling as judicial overreach. The broader case remains ongoing.US judge blocks Trump passport policy targeting transgender people | ReutersEducational toy company Learning Resources petitioned the U.S. Supreme Court to take up its challenge to President Donald Trump's tariffs before lower court appeals conclude. The company argues that Trump's use of the International Emergency Economic Powers Act (IEEPA) to impose broad tariffs is unconstitutional and economically damaging, citing a May 29 district court ruling that found the tariffs illegal. That decision, however, is currently stayed pending appeal.Learning Resources' CEO, Rick Woldenberg, warned that delaying Supreme Court review could cost American businesses up to $150 billion due to ongoing tariff-related costs. He described the tariffs as a hidden tax and accused the government of forcing importers to act as involuntary tax collectors.Two federal courts have already ruled against Trump's interpretation of IEEPA, a law historically used for targeted sanctions, not general trade policy. The administration defends the tariffs as a legal response to national emergencies like trade imbalances and drug trafficking, though critics say the justification is legally thin and economically harmful.While rare, the Supreme Court has expedited cases of national significance in the past, such as Biden's student loan forgiveness plan. A key appeals court hearing on Trump's tariff authority is scheduled for July 31.Small business seeks early Supreme Court review of Trump's tariffs | ReutersA federal judge has also temporarily blocked the Trump administration from enforcing a new Department of Defense policy that would cap indirect cost reimbursements to universities at 15%. The move came in response to a lawsuit filed by 12 research institutions—including MIT and Johns Hopkins—as well as major academic associations. These groups argued that the cap violated existing federal regulations and congressional intent.The Department of Defense had framed the policy as a cost-saving measure, with Defense Secretary Pete Hegseth claiming it could save up to $900 million annually. However, universities rely on indirect cost reimbursements to fund infrastructure, staff, and equipment that support research across multiple projects—not just the ones directly funded.The ruling by Judge Brian Murphy, a Biden appointee, mirrors earlier judicial blocks of similar funding cuts proposed by the NIH and Department of Energy. A hearing is scheduled for July 2 to determine whether a longer-term injunction should be issued. The case highlights growing legal resistance to the administration's broader push to reduce federal spending on scientific research.US judge blocks Defense Department from slashing federal research funding | ReutersThe U.S. Supreme Court upheld Tennessee's law banning puberty blockers and hormone therapy for transgender minors in a 6–3 decision that sets a national precedent and effectively greenlights similar restrictions in over 20 states. Writing for the majority, Chief Justice Roberts concluded that the law neither classifies based on sex nor targets transgender status, and thus only required rational basis review—not heightened constitutional scrutiny. The Court accepted Tennessee's framing of the law as neutral and medically cautious, not discriminatory, citing European health policy shifts and purported uncertainty around gender-affirming care as justification.Critics, including the Court's liberal bloc, argued the law does in fact discriminate based on sex and gender identity by banning medical treatment only when it aims to affirm a transgender identity. Justice Sotomayor, in dissent, emphasized that the law's language and application plainly hinge on a minor's “sex as assigned at birth,” drawing troubling parallels to older jurisprudence that permitted covert forms of discrimination under the guise of neutrality.The ruling marks a major rollback of legal protections for transgender youth, ignoring years of precedent that increasingly recognized transgender identity as a constitutionally protected status. By lowering the scrutiny threshold and deferring to legislative “uncertainty,” the Court provided a road map for states to restrict gender-affirming care through general, non-explicitly discriminatory language. The majority's refusal to engage with medical consensus or the real-world impact on transgender youth reveals a troubling judicial posture: one that values legislative deference over individual rights, even when the stakes include physical and psychological harm to a vulnerable group.Supreme Court Upholds Curbs on Treatment for Transgender Minors This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

Who has choice? It's not women! It was only doctors who were authorized to kill, to decide when to kill and what procedures to use. Yes, in Roe v. Wade choice was given only to doctors. In this episode of Life Matters, Brian Johnston explorers the confusion that many individuals have regarding what happened onJanuary 22, 1973. The Roe v. Wade decision is actually quite direct and explicit. There is no right of a woman to a woman's own body. Justice Blackmun, the author of Roe, was not giving women the right to do whatever they want, whenever they want, and especially with a very difficult medical procedure like human abortion. Blackmun was explicit in both Roe, and in particular in Doe v. Bolton - only doctors would be authorized to kill. Specifically, they were to be free to decide when, where, how and for what reason, even for no reason in particular, to perform a human abortion. They were the ones given a choice.  Later, Justice Ruth Bader Ginsburg, attempting to teach feminists that they still had not achieve their goal, underscored that Roe and Doe did not give women the right to choose. It only gave them a right to ask. All authority of the medical decision was to be made by a medical doctor, the now killer, the abortionist.  Brian reminds listeners that because of human psychology, and, in particular, the phenomenon known as attachment theory, human beings are emotionally supportive of young creatures, particularly young mammals. The wide eyes, mewling and ‘baby sounds' bring an innate adult reaction. That would include human babies, but for some people canine babies – puppies are even more emotionally attractive!  But the crime of abortion is not that cute babies are killed and that OUR emotions are stretched by that action. The crime is that this is a human being has been killed.  That is the most startling culture change that ever hit our society.  Doctors were now to kill their fellow human beings and explicitly to ignore the Hippocratic Oath.  Western medicine was now destroyed.  The most trustworthy and honored profession in society has become the most evil and diabolical profession. Doctors, regardless of their personality, are under tremendous financial, sociological and cultural pressure to endorse, and when put upon, to end the lives of their fellow human beings.  The foundation that Western Civilization was built on - protection of innocent lives - was now terminated.   The physician was now transformed to a paid killer.   A cursory look at the current practice of medicine reminds us that there are bizarre ideas and values, and sociological confusion, allowing doctors to say and do things that are explicitly harmful to their patients, but that was not the case before January 22, 1973.  In every state, the laws of that state regarding killing or harming were reflected by the ethos and guidelines of the medical profession, and the medical regulations, the laws, of the various states fell in line with that. Before Roe v. Wade doctors didn't kill babies because doctors didn't kill anyone.    The Oath We must restore the Hippocratic Oath. We must focus on what the crime is, who the perpetrators are.   If we make the mistake of focusing only on the victims, on how old they are, when they die, on what situations (rape, incest, difficult social circumstances) if that becomes the action of the pro-life movement, we have lost our way . We must restore the Hippocratic Oath to the medical profession. The laws of Georgia in 1973 were actually very good and reasonable and did allow doctors to determine if there were unusual circumstances, because a panel of three different doctors experienced in childbirth determine if this was indeed a problem pregnancy.  They could exercise their medical judgment, and the state could still hold them responsible. That law of Georgia, which was overturned in Doe v. Bolton, was ironically one of the best state laws that protected human beings because it protected doctors from the temptation to kill.  Unless we focus on who is exercising choice, who is the perpetrator, and restore that profession to its once noble position, we cannot win.  At present, the pro-life movement is not winning. It is viewed as emotional and emotions can be arbitrary. It is viewed as religious and religious doctrines can also be confusingly arbitrary. The Hippocratic Ooath was founded on the principles of natural law and the laws of nature and nature‘s God. Coincidentally, that was also the premise that America's founders insisted be our guideline in making law.  Restore the Oath.  That should be our goal. 

For our 100th Podcast, Pam Karlan stops by Supreme Myths to discuss her clerkship with Justice Blackmun, her oral argument in Bostock, election law and much more!

The media that supports abortion (which is a large portion of popular media), has always misrepresented what Roe versus Wade did. Roe versus Wade never gave women the authority to kill their children. Roe versus Wade never ‘freed women to do as they wish.' Justice Blackmun's words were explicit, and Brian quotes directly from Roe, “…the court has never recognized such a right.” Justice Ruth Bader Ginsburg herself, in trying to explain Roe to radical feminists, reiterated that the decision never gave women the right to choose. “It was not woman-centered it was physician-centered.” But that did not stop radical feminists from claiming that right anyway. It did not stop the media from gaslighting, (lying directly and outrageously about objective facts,) in order to confuse you and the general public. The Dobbs decision of June 24, 2022 overturned Roe versus Wade and made very clear and concise what it would do. Roe had given all authority to determine which human lives should be killed in the course of abortion to doctors alone. Only the physician was given authority in the issue of abortion, not the woman.  The Dobbs decision said that authority over just life and death decisions is given by the Constitution to each and every state.  Under the Constitution, each and every state is given very specific authority. One of the primary purposes of the state is to protect the lives of those within its jurisdiction. The Constitution refers to this as the states' “compelling state interest to protect life.” There was never a constitutional right to abortion. Roe had falsely taken the authority of state government and given it to abortionists alone to decide if a child should be killed. In the Dobbs decision, the authority of each and every state was returned to that state.  It is now therefore, the responsibility of the state legislatures to determine within that jurisdiction, where and how to protect the lives of vulnerable children in the womb. Unfortunately, many do not fully understand what that means in their state. Right now there is a compelling duty of pro-life citizens to be actively and assertively involved in civics - to make sure that their state will indeed perform its duty to protect innocent human lives in the womb. This can only be affected by those who hold elective office. This can only be done by lawmakers.  The pro-life movement needs to understand the overriding importance of electing pro-life lawmakers in this election cycle.  The lies about Roe, then and now, have distorted the abortion issue.  The United States Congress controlled by Nancy Pelosi and radical pro-abortion lobbyists, has already voted to strike down the laws of each and every state and to federalize abortion far beyond what Roe v. Wade did. They have voted to prohibit states from any kind of laws that would protect mothers and their children. Fortunately, it appears the U.S. Senate will not pass this measure. But, in the election of 2022, if the Senate loses any more seats to the Democrats, that will no longer be the case in the legislative cycle of 2023! The elections of November 2022 are crucial! It is crucially important to realize - contrary to the media analysis –  that each and every pro-life law that has been proposed or passed, first and foremost protects the mother, the life of that woman and her health. In so doing, it also protects the life of a child in her womb. Every pro-life law, whether it be informed consent, parental notice before an abortion, or laws against distribution of RU-486: the abortion chemical drug, is designed to protect that vulnerable woman from the procedure that will invade her body in order to attempt to kill that child.  The abortion drug RU-486 is now being widely used but few understand that it operates by attacking the woman's body.  Powerful artificial steroids in two different procedures are used to seriously alter a woman's physiology and a very risky and in a blood inducing manner. The first dosage tells the woman's body to not allow nature to operate as it does in transforming her physical body, preparing it for motherhood.  The drug stops her body with a shock of chemical and unnatural dynamic. Days later, a second drug: progesterone, gives instructions to her body to expel anything in her uterus.  This will happen without her control. She is not in charge.  The deadly chemical will kick in with a shock to her body.  It is hoped that she at least will get to a bathroom.  Regardless, she will see the baby that is expelled. The drug can only be used after she had missed two periods - ten weeks.  She will likely be alone. Vast amounts of blood and hemorrhaging occur and  much of the blood is hers as well as the child's. Women have died from this powerful artificial steroidal concoction. But the media does not discuss this.  Pro-life laws are established first to protect mothers and secondly the obvious life at risk - the child. In this new political environment where the laws of each state determine whether certain human beings will be protected, it is not unlike our nation's history in dealing with slavery. In the Dred Scott decision, Justice Taney asserted each and every states' authority to enact laws of their jurisdiction. It also allowed slave states to enter free states, to enforce the slavery laws of that slave holding state. Similarly, the Dobbs decision, by asserting the authority of each and every state, also authorizes the intermeddling of a pro-abortion state with pro-life states. The states of California, Oregon and Washington fully intend to promote and encourage such intermeddling in pro-life states. California in particular has pledged vast sums of money to both promote and transport pregnant mothers to have their children killed within the jurisdiction of California. All expenses are paid, including missed pay and any other expense that the mother might see monetarily. This intermeddling of one state in the authority of another has grave implications for our nation and for the protection of innocent lives. The right to life debate is far from over.  

The boys drink and review 1623's Nuestro Playa, then discuss abortion and the recent SCOTUS decision. In Roe v. Wade, the court found a right to privacy in the constitution, although it wasn't exactly clear where it was. The court tried to split the difference between the interests of states in protecting life and the idea of a right to privacy. Justice Blackmun, who wrote the Roe decision, invented a trimester system. Many people thought Roe would be overturned in Planned Parenthood v. Casey, and while the trimester system was replaced with "viability," the underlying right to privacy was upheld, and finally located. In the 14th amendment. The current Supreme Court, with a bevy of new conservative justices, took up the issue in Dobbs v. Jackson. Someone at the court leaked a draft of Samuel Alito's majority decision, and the left went insane. Now we have the final decision, which sticks pretty close to the leaked draft. P&C review the main arguments in Dobbs and in the dissent.

Lectures in History is taking a break this week -- try the latest episode of the Weekly, which provides its own history lesson - on Supreme Court Associate Justice Harry Blackmun and the opinion he wrote...for Roe v. Wade. It seems that Roe v. Wade is always in the news, always a part of the political debate. It's been that way for nearly 50 years since the Supreme Court decided the landmark abortion case. Justice Harry Blackmun wrote the opinion legalizing abortion. In this episode of C-SPAN's "The Weekly" we look back at Justice Blackmun -- what he said about his legacy being forever associated with that famous opinion.... and the big prediction he flat out got wrong. Learn more about your ad choices. Visit megaphone.fm/adchoices

It seems that Roe v. Wade is always in the news, always a part of the political debate. It's been that way for nearly 50 years since the Supreme Court decided the landmark abortion case. Justice Harry Blackmun wrote the opinion legalizing abortion. In this episode of C-SPAN's "The Weekly" we look back at Justice Blackmun -- what he said about his legacy being forever associated with that famous opinion.... and the big prediction he flat out got wrong. Learn more about your ad choices. Visit megaphone.fm/adchoices

Roe v Wade was a 1971, 1973 landmark decision by the US Supreme Court. It ruled that a state law that banned abortion was unconstitutional. The 7 to 2 decision had Chief Justice Warren E Burger and six other Justices vote for "Jane Roe" and Justices William Rehnquist and Byron White vote against it. The decision divided the United States and is still controversial. People became divided into pro-life and pro-choice groups. Pro-life supporters argue that the unborn baby has the same right to life as other people, and the government should intervene to protect it. Pro-choice supporters believe that the unborn baby is not the same as a person, and the woman has the right to choose what she wants to do with her body and that the government should not intervene. Roe was limited by a later decision, Webster v Reproductive Health Services (1989), which allowed the regulation of abortion in some cases. Several states have considered laws banning abortions altogether. In May 2022, a leaked draft of the Supreme Court's decision to overrule Roe v Wade was published. Background. The case began in 1970 in Texas as a challenge against a law banning any kind of abortion unless the mother's life was in danger. A pregnant Texas woman, Norma McCorvey (alias Jane Roe), brought a lawsuit against Henry Wade, Dallas County District Attorney, in a Texas federal court. Claiming to be a single woman and pregnant, McCorvey wanted to terminate her pregnancy. She wanted it to be done safely by a doctor but said that she could not afford to travel outside Texas. She could not get a legal abortion in Texas because her life was not in danger. Her lawsuit claimed that the Texas law violated her right to privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Roe added she sued "on behalf of herself and all other women" in the same situation. The case slowly made its way to the US Supreme Court. Meanwhile, McCorvey had her baby and placed it for adoption. Majority opinion. In a 7 to 2 decision, the court held that a woman's right to an abortion was protected by her right to privacy under the Fourteenth Amendment. The decision allowed a woman to decide whether or not to have an abortion during the first trimester. That affected the laws of 46 states. Justice Harry Blackmun wrote the majority opinion. "We... acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires." — Justice Blackmun (1973).

Three Bayly brothers sat under Prof. Roger Nicole at Gordon-Conwell Theological Seminary. We'd agree he was the high point of our seminary education. Justice Harry Blackmun was the author of the Supreme Court's 1973 ruling Roe v. Wade legalizing the slaughter of the unborn. In 1994, Justice Blackmun retired and Dr. Nicole took that occasion to write Blackmun a letter. Nicole blind-copied me on his letter and I post his letter here as my commentary on the death of Sarah Weddington, the lawyer who argued Roe v. Wade who is currently being lauded by all the filthy, bloodthirsty media of the Western world.

Roe v. Wade didn't give women anything. What it did do is give doctors the right to kill babies. “Roe really isn't about the woman's choice... It's about the doctor's freedom to practice his profession as he thinks best.It was not woman centered. It was physician centered.” - Ruth Bader Ginsburg, University of Chicago lecture May 10, 2013 The media doesn't tell you this. Very few people understand Roe. It is in fact an amalgam of two separate decisions that were then ‘conjoined' by the Court. Roe v. Wade addressed a Texas law. Doe v. Bolton dismissed the abortion laws of Georgia. On Jan 22nd, 1973, they were both handed down simultaneously and “conjoined” by the Court as one ruling. Many now call this conjoined action “Roe” or “the Roe regime.” Though they dealt with two different states, and each has very different tone, the net effect of the combined decision was to strike down not only those two states' laws, but the laws of every other state as well! In the Doe portion of the decision, the author, Justice Blackmun, inserted a special ‘health exception.' He intentionally defined it in the broadest possible terms. The reasons need not be written down, but only exist, ‘in the judgement of the doctor.' If the abortionist felt there may be any sociological or psychological implications for that woman's motherhood, “all of these things may be considered health. (Roe and Doe @183).  A physically healthy child could be killed inside of a physically healthy mother – throughout pregnancy – if his judgement called for it. In dissent, Justice White summed up this late term, ‘psychobabble' exception: “… for anyone of such reasons, or no reason at all, and without asserting or claiming any threat to life or health… [it was now to be legal for] any medical advisor willing to take up the procedure…. I dissent.” (Roe and Doe dissent @221).  It's funny how media analysts avoid any discussion of this ‘little' exception.  Since then, the media narrative has reduced the debate, and simply summed all this up as, ‘a woman's choice.' The media is intent on simplifying issues for consumption. But such simplicity often comes at the cost of stultifying its consumers as well. That's us. If you examine her statement carefully, Justice Ginsburg was right: the conjoined, twin decisions of Roe and Doe are clear. The choice and decision are the abortionist's alone. The woman, even if ‘uncomfortable,' simply needs to go along with what ‘the doctor' has in mind. A killing profession was pulled from centuries of shadows. It was given license and legitimacy on that day.  For millennia, the Hippocratic Oath had unequivocally condemned this killing of vulnerable children. And legally, abortion has always been frowned on by the law since at least Common Law times and in many cases long before that. But Blackmun and his fellows declared the healing profession turned on its head. Doctors were now free to be fully licensed killers. Their personal thoughts and judgments considered supreme in life or death. The Oath and its centuries of influence on law and society were pronounced dead via Roe and Doe. ‘If babies are to be killed, then a professional will do it.'   Today's USSC In the oral arguments of this December 1st, Justice Kavanaugh very politely complimented abortion advocates, but summed up the challenge in contemplating Roe. There are two competing interests and legal principles at stake, he said. The one, “the liberty interest,” (or ‘right to choose') was forcefully and effectively presented by the Solicitor General of the United States, who was arguing the case. He gave her a ‘hat tip.' But the other competing interest is the right to life which is at stake. These two interests exist in direct variance. We cannot ‘split the difference': either one or the other will dominate. They cannot,“both win.” The other five pro-life Justices who are oft-times silent, also offered questions and comments - yes, each spoke – and confirmed their pro-life positions.  The three, abortion-supporting Justices: Kagan, Sotomayor, and Breyer, not only commented, but with acerbic resignation seemed to ooze bitterness.  Their jibes about contrary ‘political decisions,' and the ‘danger to the court;' their affection for ‘court precedence' all seemed to aim directly at influencing the Chief Justice. Their implications: 'If you do this, our Democrat Party may need to change the structure of this Court. We will pack it.' Chief Justice Roberts, known to be very susceptible to pressure regarding the image and nature of the Court, made statements that seemed to be supportive of the Mississippi law and of its 15-week limit. But this desire to ‘split the difference,' while seeming to ‘cross the line' that Roe had drawn, is in fact in direct variance with Justice Kavanaugh's open statement that you can't somehow cut the baby in two' and ‘allow both the liberty interest and the right to life be given equal weight.' While there are six openly pro-life votes on the Court, I urge you not to use the simplistic media analysis: ‘It's a black and white, apolitical-head count.'  Yes, the hearing bodes well for life. But I sat with colleagues in 1992 as we read the result of the Casey decision. Remember, that Pennsylvania law was, “going to bring down Roe.” But Casey itself was, as they say in boxing, a split decision.  Few of the judges really agreed. The result was that Casey had to be ‘cobbled together.' At the end of the day, Roe was in fact still upheld! Each of the justices had gone in different, nuanced directions.  This became what the court officially calls a “joint decision.”  Some judges upheld portions of the Pennsylvania law yet insisted on striking others.  There was no clear majority.  Justice Blackmun, Roe's author, was still on the court in 1992. Predictably, his decision in Casey proudly upheld Roe. Back in Casey, then Supreme Court Chief Justice William Rehnquist voted with a plurality - Scalia, White, and Thomas, to ‘adjust' Roe ( he did not have the votes to overturn.) But he attempted to continue to dismantle it. The Court jettisoned the false and deceptive ‘trimester' framework, (Has the media EVER told you that the trimester system was long-ago ruled meaningless and arbitrary? The Court also conceded that there was not in fact, a‘fundamental right' to abortion. Does ANY local, or even national reporter ever comment on that? Nope. The actual status of abortion law is continually misrepresented by a simplistic media.) But after Casey, and despite loss of credibility, Roe still stood. But in a simplistically meaningless salute to ‘choice' and the legal folly of stare decisis (the legal insistence that a ‘previous decision continue to stand'). Chief Justice Rehnquist stated in his ruling, “Roe continues to exist, but only in the way that a storefront on a western movie set exists: a mere façade to give the illusion of reality... Behind the façade an entirely new method of analysis without any roots in constitutional law…”   Casey Joint Decision, 1992 For us today, the question for 2022 is: What will this Court now do? You just read that Chief Justices will throw their decisions in surprisingly unlikely corners - this to help frame and ‘craft' the final decisions their colleagues may be offering.  Will Justice Roberts, widely known for such politicking, try that? Will he attempt to ‘split the difference' yet again? But with five other solid lifers, could he? I fully expect the old façade known as Roe to topple. This diseased tree will indeed fall. But in which direction?   A bigger issue, that is almost never addressed, undergirds this entire debate: “Will doctors be free to continue in their now 50-year-old license to do what they want, even to kill? Justice Ginsburg, and a handful of others, knew this issue just never gets discussed.  Whatever happens in the coming decision, you can expect the major media to enjoy the controversy. Just don't expect them to get it right. ----- Here's a nice thought: the media has stopped talking about the Texas abortion law heard by the court two weeks earlier. But that law is powerful. The Court has allowed it to remain in effect.  Abortions have come to a halt in Texas.  So, the media has joined in the terrified silence of the abortion industry regarding that law.  Wouldn't it be nice if the Court decided to rule on Texas as well? Then, as they did in 1973, perhaps issue a conjoined decision, but this time protecting the right of unborn children to be protected and honored under the law?    Brian Johnston is the author of Evil Twins - Roe and Doe: How the Supreme Court Unleashed Medical Killing available on Amazon and wherever fine books are sold.

Ben Lindbergh and Meg Rowley banter about their imperfections, follow up on flying horses, Justice Blackmun omitting Mel Ott from Flood vs. Kuhn, and a possible defense of pitcher hitters, then assess the state of the standings and playoff races, contemplate a position change for Fernando Tatis Jr., discuss the Field of Dreams Game, and […]

Cohen is read by Robert Corn-Revere, First Amendment media lawyer and partner at Davis Wright Tremaine. Legal Question: Whether arresting someone for wearing a jacket that says “Fuck the Draft” under a California statute which prohibits “offensive conduct” violated the First Amendment. Action: The application of the statute to Cohen's expression was ruled to be unconstitutional because it did not meet the standard for fighting words or obscenity. The Court also rejected the state's reasoning that they needed to protect unwilling viewers from Cohen's display, noting that viewers “could effectively avoid further bombardment of their sensibilities by averting their eyes.” Justice Harlan delivered the opinion of the Court, at 00:41 Justice Blackmun, dissenting, at 24:03 This opinion's citations have been edited down for ease of listening. For more information, visit our explanation. For more on Cohen v. California, visit FIRE's First Amendment Library. For more episodes, visit thefire.org/outloud. Chapters:00:41 MR. JUSTICE HARLAN delivered the opinion of the Court.05:55 I. In order to lay hands ...15:17 II. Against this background, the issue ...24:03 MR. JUSTICE BLACKMUN dissenting.

In this episode of Life Matters, Brian Johnston explores the more profound significance of the Roe v. Wade narrative. As has been discussed in other programs and deeply explained by other Supreme Court justices, by Justice Blackmun’s court clerks, and many other legal experts who would prefer legalized abortion, Roe versus Wade is a confusing jumble. It’s a wild story that leads us confusingly through legal and medical history, through an arbitrary division of pregnancy into trimesters and assertions of where abortion should be performed in the various trimesters. Brian explains that this narrative, this story, is a spiel. That is why other legal experts can’t get it to make sense.  It’s a story to distract us and confuse us. The new real action taken is in Doe versus Bolton, where Blackmun clearly states that he will authorize and direct doctors to now be killers and that they can use their personal medical judgment at any time in the pregnancy.  They need not answer to anyone else for that decision. The purpose of the spiel, just like the purpose of a criminal’s alibi, is to provide a justification for a crime that either has taken place or is about to take place. The spiel is a relatively common aspect of social life, used by gypsies and thieves.   Unless you are fully prepared and understand that it is designed to distract you, there is great danger in trying to follow it or believe in it. Its purpose is to sell you on a final conclusion that may indeed be to your greater harm. Roe versus Wade is exactly that. Doe versus Bolton is the deadly real result. Roe is the distracting spiel, Doe is the crime.

In this episode of Life Matters, Commissioner Johnston outlines the incredible power that language has over our thoughts and perceptions. Brian had studied Comparative Linguistics at Sonoma State University and explains a language phenomenon that many of us don’t often think about.  Just as we are unable to comprehend a completely foreign language, there is the related inability to think about or understand ideas for which we have no words. This principle also extends to deeper implications - that the meaning of words themselves can be changed simply by their usage in society. Those who control the tools of communication - major media and academic circles, are given great control over the use of language. They often create new rules and usages.   George Orwell eloquently illustrated the phenomenon in his book 1984. He had written an epilogue explaining how language is used to control the populace in collectivist-socialist cultures. Orwell’s epilogue is widely available and very recommended. It is entitled, “The Principles of Newspeak”.  Newspeak is the method by which ‘Ingsoc’, ideas of the new English socialism, would be imparted and reinforced. It resulted in the inability to think of individual freedom or previous forms of government. The meanings attached to those concepts would simply be lost. Brian further comments on the details of this phenomenon as illustrated in Comparative Linguistics.      The language principle is known as the Sapir-Whorf hypothesis. Brian had studied the comparative dialects of the Pomo Indian Tribe of Sonoma, Lake, and Mendocino Counties. Many years earlier, Edvard Sapir had studied the languages of the Aleut and Inuit tribes (formally called Eskimos). Benjamin Lee Whorf studied the Hopi Indian dialects. Each made observations regarding vocabulary (Sapir) and verb tense (Whorf). They concurred that the different aspects of language directly impacted how the language-user viewed the world around them. Brian explains how the right to life, abortion and euthanasia debates are directly impacted and even determined, by the language that is used. Obviously, abortion advocates have intentionally changed the vocabulary (choice - a concept - is used to replace the specific action of dismemberment and disposal of the human child). And this is but one example. But in a larger sense, the use of the language and the presumptions that language carries, have also quietly induced pro-life individuals to engage in the debate of ideas, but only using the premises that our current culture has made popular. Many pro-lifers feel a deep need to debate the relative merits and arguments of the Roe v. Wade decision.  But as Brian, pro-life judges, and even pro-abortion judges, have pointed out, Roe versus Wade is completely illogical in its premises, in its pattern of logic, and in its conclusions.  Again, even Justice Ginsburg, the most-radical pro-abortion Supreme Court Justice has declared that Roe v. Wade and Doe v. Bolton, have not granted women a right to choose or the right to do what they wish with their bodies. Justice Blackmun was explicit that Roe does not create an unlimited right to an abortion. Yet abortion for ‘choice’ is still considered its result.  Brian‘s point is that it is the companion decision, Doe versus Bolton, which explicitly sets aside the rambling confusion regarding pregnancy and culture and history (the actual content of Roe). It is Doe versus Bolton that explicitly allows doctors to kill, based solely on their own personal opinion, and without any further accountability.  Doe is the enactment ‘provision’ of Roe v. Wade. And by making the physician (not the woman) the designated agent and ultimate decision maker, it has brought a direct attack against the very premise of the culture in which we live, Western Civilization.  Western Civilization holds the premise that human beings are more than merely animals.  One profession was dedicated to always caring for and protecting the unique and vulnerable human person - the medical profession.  Throughout Western Civilization doctors have always sworn to never harm or kill.   It is in Doe v.  Bolton that the medical profession is explicitly empowered to kill and directed to do so at their own discretion.  Western Civilization a victim in the Roe and Doe companion decisions - they have done even more than simply authorize the killing of innocent babies. An unrestrained killing profession has now become an accepted part of our society. But language has prevented many from seeing or even thinking about what that means.

“Roe v. Wade has no foundation in either law or logic; it is on a collision course with itself.”  Edward Lazarus, a former law clerk to Roe's author, Justice Harry Blackmun, who writes: As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather. . . . . What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent. ... The proof of Roe's failings comes not from the writings of those unsympathetic to women's rights, but from the decision itself and the friends who have tried to sustain it. Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms.7 Ten Legal Reasons to Condemn Roe v. Wade 1.    The umpires are there to call balls and strikes. In real baseball they cannot be players as well.   The Roe Court far exceeded its constitutionally designated legal purpose and authority.  Under the U.S. Constitution, the power to make laws is vested in Congress and retained by state legislatures. Elected representatives are the proper ‘makers of law.’ These elected officials then answer to the voters. The role of the judiciary in constitutional review is to determine if the law being challenged infringes on a constitutionally protected right. It is not the role to then somehow come up with new laws of their own tastes and inclination. Justice O'Connor, quoting Chief Justice Warren Burger: Irrespective of what we may believe is wise or prudent policy in this difficult area, "the Constitution does not constitute us as 'Platonic Guardians' nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, 'wisdom,' or 'common sense.'"8 In Roe v. Wade and its companion, conjoined case, Doe v. Bolton, the Court struck down criminal laws of Texas and Georgia which outlawed certain abortions by finding that these laws (and those of the other 48 states) violated a "right of privacy" that "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." But such a right is nowhere mentioned in the Constitution nor even derivable from values embodied in it. It was a preference to have such a right and Justice Blackmun’s writings actually set themselves to devise the ‘rules’ that would then ‘emanate’ from such a preferred right. He simply made up new, substitutionary laws and imposed them on all the states!  In his dissenting opinion in Doe v. Bolton, Justice Byron White, joined by Justice William Rehnquist, wrote: I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers ... and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 states are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court. 2. The Roe Decision seriously misrepresents the history of medicine and society’s view of abortion. Justice Blackmun admitted to a serious fascination with the medical profession. Later in Doe v. Bolton we will see an almost passionate commitment to ‘protect the physician from the cloud of possible prosecution.’ The Mayo Clinic, for whom he served as legal counsel, admits to Blackmun’s unique obsession with the medical profession.  Proceedings of the Mayo Clinic Francis Helminski, J.D. Volume 69, Issue 7, p 698-699, July 01, 1994 Although three previous justices of the United States Supreme Court have had formal medical training, none has had more influence on medicine than Justice Harry A. Blackmun. Blackmun, a mathematics major at Harvard College, considered medical school but instead chose legal training. After becoming familiar with the legal work of the Mayo Clinic while practicing with a Minneapolis firm, he was internal legal counsel for the clinic from 1950 to 1959. Blackmun's work contributed to the development of the clinic, especially in the establishment of Rochester Methodist Hospital. As a Supreme Court Justice, Blackmun's concern for medicine was evident in many of his judicial opinions, including Roe v Wade and Regents of the University of California v Bakke. In Roe, he rested much of the constitutional foundation for legalized access to abortion on the integrity of the physician-patient relationship. The apparent purpose of the Roe opinion's long historical excursion is to create the impression that abortion had been widely practiced and unpunished until the appearance of restrictive laws in the prudishly-Victorian 19th Century. One example is adequate to show the distortion of Justice Harry Blackmun's version of history. He must overcome a huge hurdle in the person of Hippocrates, the "Father of Medicine," and his famous Oath which has guided medical ethics for over 2,000 years. The Oath provides in part: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion."9 This enduring standard was followed until the Roe era and is reflected in Declarations of the World Medical Association through 1968: "I will maintain the utmost respect for human life, from the time of conception. ..."10 But Justice Blackmun dismisses this universal, unbroken ethical tradition as nothing more than the manifesto of a fringe Greek sect, the Pythagoreans, to which Hippocrates is alleged to have belonged! 3. Roe wrongly characterizes the common law of England regarding the status of abortion. The Court's language in Roe offers a plastic analysis and conclusion – "it now appears doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus" – is patently false on its face. The Common Law drew its principles from Natural Law. Until quickening there were no objective signs that a human life was present. Quickening, the moment that movement can be detected, was considered objective scientific fact that the fetus was indeed definitively alive.11 William Blackstone's Commentaries on the Laws of England (1765-1769), an exhaustive and definitive discussion of English common law as it was adopted by the United States shows that the lives of unborn children were valued and protected, even if their beginning point was still thought to be "quickening" rather than conception: Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as the infant is able to stir in the mother's womb.    For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb ... this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.12 Until well into the 19th century, it was assumed that a child's life may not begin – and certainly could not be proven to have begun to satisfy criminal evidentiary standards – prior to the time the child’s movements were felt by the mother ("quickening"), at approximately 16-18 weeks' gestation. The science of the time was being applied to the enforcement of the law. After the invention of the modern microscope (1836) and the widespread, objective scientific revelation that mammalian life begins at conception, English law then increased the penalties for killing a child before quickening. Consistent with the principle that the law needs to follow objective, observable facts, in 1861 Parliament passed the Offences Against the Person Act. This law extended protection of the life of the child throughout pregnancy. This law was gradually whittled-away starting in the 1980’s. But the Act continued to protect pre-born life in Northern Ireland until 2019.20 The Roe Court looks at the distinction in early common law concerning abortions attempted before or after "quickening," wrongly. It falsely assumes that the law allowed women great latitude to abort their children in the early months of pregnancy. This is like saying people had an unspecified right to hack websites before such acts were criminally prosecuted. The law is designed to enforce known and demonstrable crimes. A law could not protect a human being it did not know to be alive. But as demonstrated by the Offences Against the Person Act, when the facts are known, then the law can be enforced. 4. In Roe, the Court downplays and distorts the purpose and legal weight of state criminal abortion statutes that had been deliberated and passed by the several states In the 19th Century, in virtually every state and territory, laws were enacted to define abortion as a crime throughout pregnancy. They contained only narrow exceptions, generally permitting abortion only if necessary to preserve the mother's life. The primary reason for stricter abortion laws, according to their legislative history, was to afford greater protection to unborn children. This reflected a heightened appreciation of prenatal life based on new medical knowledge. (See the Offenses Against the Person Act in the U.K.) Dr. Horatio R. Storer… etc is significant that the medical profession spearheaded efforts to afford greater protection to unborn lives than had been recognized under the common law's archaic "quickening" distinction. The existence of such laws, and their clear purpose of protecting the unborn, rebuts the Court's claim that abortion has always been considered a liberty enjoyed by women. These laws show broad acceptance of the view that the life of an unborn child is valuable and should be protected unless the mother's life is at risk. In that case, of course, both mother and child were likely to perish, given the primitive care then available for infants born prematurely. How does the Court get around the impressive body of laws giving clear effect to the state's interest in protecting unborn lives? It attempts to devalue them by ascribing a completely different purpose: the desire to protect the mother's life and health from a risky surgical procedure. Applying the maxim "if the reason for a law has ceased to exist, the law no longer serves any purpose," the Court declares that abortion is now "safer than childbirth." Therefore, laws banning abortion have outlived their purpose.   5. A privacy right to decide to have an abortion has no foundation in the text or history of the Constitution. Roe v. Wade locates a pregnant woman's "constitutional" right of privacy to decide whether or not to abort her child either "in the Fourteenth Amendment's concept of personal liberty ..., as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people." The Court does not even make a pretense of examining the intent of the drafters of the Fourteenth Amendment, to determine if it was meant to protect a privacy interest in abortion. Clearly it was not. The Fourteenth Amendment was not intended to create any new rights, but to secure to all persons, notably including freed slaves and their descendants, the rights and liberties already guaranteed by the Constitution. Several rhetorical devices are used to mask this absence of constitutional grounding. The Court mentions several specifically enumerated rights which concern an aspect of privacy, for example, the Fourth Amendment's "right of the people to be secure in their houses, papers, and effects, against unreasonable searches and seizures." However, the Court fails to connect these to the newly found "right" to abortion, because no logical connection exists. Justice Blackmun attempts to graft abortion onto the line of decisions recognizing privacy/liberty rights in the following spheres: marriage (Loving v. Virginia, striking down a ban on interracial marriage); childrearing (Meyer v. Nebraska and Pierce v. Society of Sisters, upholding parental decision-making regarding their children's education); procreation (Skinner v. Oklahoma, finding unconstitutional a state law mandating sterilization of inmates found guilty of certain crimes); and contraceptive use by a married couple (Griswold v. Connecticut). Certainly marriage, and building and raising a family are fundamental aspects of human life that predate human laws and nations. They are implicit in the concept of liberty and the pursuit of happiness, though even these rights are subject to state limitation, such as laws against bigamy, incest, and child abuse and neglect. But abortion does not fit neatly among these spheres of privacy. It negates them. Abortion is not akin to childrearing; it is child destruction. A pregnant woman's right to abort nullifies the right to procreate upheld in "Skinner." He no longer has a right to bring children into the world, but only a right to fertilize an ovum, which his mate can then destroy without his knowledge or consent. The fear of government intruding into the marital bedroom by searching for evidence of contraceptive use drove the Griswold Court to find a privacy right for couples to use contraception in the "penumbras, formed by emanations from" various guarantees in the Bill of Rights. But, however closely abortion and contraception may be linked in purpose and effect, they are worlds apart in terms of privacy. Abortions do not take place in the sacred precincts of marital bedrooms, preventing them does not require investigation of private sexual behavior, and they involve personnel other than the spouses. A "privacy right" large enough to encompass abortion could also be applied to virtually any conduct performed outside the public view, including child abuse, possession of pornography or using illicit drugs. The liberty interest to be protected from state regulation is never really defined in Roe. Instead the Court describes at some length the hardships some women face, not from pregnancy, but from raising children: Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. By this reasoning, one might argue that Roe's liberty encompasses ridding oneself of unwanted toddlers! Ordinarily, the defense of rights requires us to forgo lethal methods and use means likely to create the least harm to others. We may not, for example, surround our house and yard with a high voltage fence to deter trespassers. This principle is upended in the abortion context. Adoption, for example, would effectively eliminate all the "hardships" of raising "unwanted" children by non-lethal means. 6. Although it reads the 14th Amendment extremely expansively to include a right of privacy to decide whether to abort a child, the Court in Roe adopts a very narrow construction of the meaning of "persons" to exclude unborn children. Much is made of the fact that "person" as used elsewhere in the Constitution does not refer to unborn children when, for example, discussing qualifications for public office or census-taking. That point proves nothing. The Supreme Court has held that corporations are "persons" within the meaning of the 14th Amendment and they are not counted in the census, nor can a corporation grow up to be president. The Roe Court also ignored the clear and uncontested biological evidence before them that individual human lives begin at conception: "We need not resolve the difficult question of when life begins." This is question determined by science, not philosophers or theologians or politicians. But while seeming to sidestep the question, the Court in fact resolved the question at birth, by allowing abortion to be legal throughout pregnancy. In the same vein, the Court refers to the unborn child as only a "potential life" (indeed, an actual life) from the moment of his or her conception. The Roe opinion states that a contrary finding on "personhood" would produce the opposite result (presumably foreclosing the mother's privacy right to an abortion). One does not have to be a "person" in the full constitutional sense, however, for a state to validly protect one's life. Dogs can be protected from killing although they are not "persons."13 And under the Endangered Species Act (ESA), people are prosecuted, fined and jailed for acts that may harm creatures, such as sea turtles, that are not "persons" in the full constitutional sense. Sea turtles are protected not only after they are hatched, but even while in the egg. In fact, each sea turtle egg removed from its nest constitutes a separate violation under the ESA, regardless of whether the sea turtle egg contained an embryo that was alive or "quick" or "viable" or even already deceased at the time of the taking.   7. The Roe Court assumed the role of a legislature in establishing the trimester framework. Roe holds that in the first trimester of pregnancy, the mother's "privacy interest" in an abortion trumps state regulation. From the end of the first trimester to the child's "viability" – which the Court presumed to be no earlier than 26 weeks – the state can regulate abortion practice only in ways reasonably related to advancing the mother's health. In the final trimester, the state – in the interest of protecting the "potential life" of the child – can regulate and even proscribe abortion, except where necessary to preserve the mother's "life or health." Health (see point 8 below) is the exception that swallows the rule. Pre-decision memoranda among members of the Roe Court acknowledged the serious flaw in establishing arbitrary, rigid time frames. Justice Blackmun himself admitted it was arbitrary.14 A reply memorandum from Justice Potter Stewart stated: One of my concerns with your opinion as presently written is ... in its fixing of the end of the first trimester as the critical point for valid state action. ... I wonder about the desirability of the dicta being quite so inflexibly "legislative." My present inclination would be to allow the States more latitude to make policy judgments. ..."15 Geoffrey R. Stone, a law clerk to Justice Brennan when Roe was decided, was recently quoted as saying: "Everyone in the Supreme Court, all the justices, all the law clerks knew it was 'legislative' or 'arbitrary.'"16 Justices O'Connor, White and Rehnquist denounced the arbitrary trimester framework in O'Connor's dissenting opinion in Akron: [There] is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today. ... [That] framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated. The majority opinion of Justice Rehnquist in Webster v. Reproductive Health Services states: The key elements of the Roe framework – trimesters and viability – are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle. ... the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. As Justice White has put it, the trimester framework has left this Court to serve as the country's "ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States."   8. What Roe gives, Doe takes away. Many Americans believe that abortion is legal only in the first trimester (or first and second trimester). Many pollsters and media outlets continue to characterize Roe v. Wade as the case which "legalized abortions in the first three months after conception."17 In a recent television appearance, NOW's former president Patricia Ireland falsely claimed that "thirty-six states outlaw abortion in the third trimester." As noted above, under Roe state laws banning late-term abortions must contain a "health" exception. Health is defined in Roe's companion case, Doe v. Bolton, as including "all factors — physical, emotional, psychological, familial, and the woman's age — relevant to the wellbeing of the patient. All these factors may relate to health." This definition negates the state's interest in protecting the child, and results in abortion on request throughout all nine months of pregnancy. The fact that the Court buries its improbably broad definition of health in the largely unread opinion in Doe v. Bolton makes it no less devastating.   9. The Court describes the right to abortion as "fundamental." The Supreme Court has found certain rights fundamental. Expressed or implied in the Constitution, they are considered "deeply rooted in the history and traditions" of the American people or "implicit in the concept of ordered liberty," such as the free exercise of religion, the right to marry, the right to a fair trial and equal protection. A state law infringing on a fundamental right is reviewed under a rigorous "strict scrutiny" standard. In effect, there is a presumption against constitutionality. The Roe Court claims abortion is fundamental on the ground that it is lurking in the penumbras and emanations of the Bill of Rights or the 14th Amendment, along with privacy rights like contraceptive use. It's ludicrous to claim abortion is deeply rooted in American history or traditions or that our governmental system of "ordered liberty" implicitly demands the rights to destroy one's child, but it was an effective way to foreclose state regulations of abortion. The strict scrutiny test was later abandoned in Casey.   10. Despite the rigid specificity of the trimester framework, the opinion gives little guidance to states concerning the permissible scope of abortion regulation Abortion decisions that followed Roe chronologically have not followed Roe jurisprudentially. Many decisions have five separate opinions filed, often with no more than three justices concurring on most points. Eight separate opinions were filed in Stenberg v. Carhart (which effectively nullified laws in over two dozen states banning partial-birth abortion). The 1992 decision in Planned Parenthood of Southeastern Pa. v. Casey could have resulted in Roe's reversal. The Casey Joint Opinion (there being no majority opinion) comes close to conceding that Roe was wrongly decided: We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and, coming as it does after nearly 20 years of litigation in Roe's wake we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding. Instead they jettisoned Roe's trimester framework and standard of legislative review, but kept Roe alive: Chief Justice Rehnquist's dissent in Casey, in which he is joined in part by Justices White, Scalia and Thomas states: Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to "strict scrutiny," and could be justified only in the light of "compelling state interests." The joint opinion rejects that view. ... Roe analyzed abortion regulation under a rigid trimester framework, a framework that has guided this Court's decision-making for 19 years. The joint opinion rejects that framework. ... Whatever the "central holding" of Roe that is left after the joint opinion finishe[d] ... Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality. And later in that dissent: Roe v. Wade stands as a sort of judicial Potemkin village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the façade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor "legitimacy" are truly served by such an effort. Roe makes no legal sense whatsoever. It is Doe v. Bolton, handed down the same day, and 'interlocked' by Justice Blackmun, it is Doe that explicitly authorizes medical killing, "without the shadow of possible prosecution."

Commissioner Johnston knows attorneys who are actively involved in the abortion debate and on both sides of the issue. Many assert a mastery and working knowledge of Roe v. Wade’s intricacies. But honest lawyers will not make any such claim. Perhaps what is more frightening, he knows many more commentators and reporters who will ‘explain’ the decision at length.  The problem is, this ‘well-known’ decision cannot possibly be explained. It does not and cannot make sense.  Even liberal legal scholars like Alan Dershowitz,1 and Cass Sunstein,2 deny its ability to stand on its own merits. Progressive Professor Laurence Tribe is clear: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."3 Edward Lazarus was a Blackmun law clerk who "loved Roe's author like a grandfather." He wrote: "As a matter of constitutional interpretation and judicial method .... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."4 It is only in understanding this problem of Roe that one can see the real significance of its companion decision, Doe v. Bolton. The decisions were linked and released in tandem. In Doe, Justice Blackmun switches themes entirely. He does not focus on stages of pregnancy or the woman. He now focuses on the individual who is about to do the abortion. Doe v. Bolton, in many ways, is written for ‘the doctor.’ The state’s interest in protecting life is specifically downgraded. The Hippocratic tradition of never harming a human life: dismissed. At any time in pregnancy psychological and societal questions could be the determining factor. No physical medical conditions need be present. (Doe, 410 U.S. 191) Blackmun’s definition of the ‘health’ of the mother in gauzy, ‘gestalt’ concepts, justified a deadly surgical act. By ‘combining it’ with the confusing Roe decision, he cleans up what he quietly had admitted is an arbitrary, pregnancy-stages framework.5 In Doe he cuts through the fog. He makes the physician’s opinion the arbiter of action. Known feminist and abortion-advocate, Associate Justice Ruth Bader Ginsburg, has openly faulted the Court's approach for actually being, "about a doctor's freedom to practice his profession as he thinks best.... It wasn't woman-centered. It was physician-centered."6   It is this then, that is the real overarching issue in these decisions: legally-authorized, medical killing.   Pregnancy and abortion were confusedly and ham-handedly dealt with in Roe. But what is crisply and incisively granted to physicians in Doe is the right to use their profession to deadly effect and as they personally saw fit.  The quietly implemented, largely unexamined Doe decision is responsible for the implementation of America’s abortion practices. Three thousand years of ethical guidance had protected the physician, vulnerable patients, and civilized society from the quiet, easy way out: simply kill the human being in question. The temptation to cover mistakes; save money; accommodate coercion; reduce workload on overworked medical staff; abet antsy heirs; cease careful pain management by simply ceasing the life; diminish populations of ‘imperfect’ dependent individuals; all of these utilitarian motives are easily implemented – and quietly so - once there is no external rule or oath to never use medicine to kill. The Oath had served as the anchoring premise not only for medical doctors, but for society’s view of ‘unimportant’ human lives entrusted to them. We are now living with the ever-expanding implications of this casual and quiet dismissal of three millennia of medical ethics. As Justice Ginsburg ironically points out, this new, physician’s ‘right to choose’ is actually the only definitive, conclusive aspect of the deadly, twin decisions, Roe v Wade and Doe v Bolton.    1.Dershowitz, Alan. Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford U. Press 2001): "Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)...." 2. Sunstein, Cass. Quoted by McGuire, New York Sun (November 15, 2005)  3.Tribe, Laurence "Roe v. Wade and the Lesson of the Pre-RoeCase Law". Michigan Law Review. 77 (7): 1724–48. 4. Lazarus, Edward. "The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell's Nomination Only Underlined Them, Findlaw's Writ (October 3, 2002). 5. Blackmun’s personal note to fellow justices. Quoted in Woodward, Bob. "The Abortion Papers Archived June 14, 2008, at the Wayback Machine", Washington Post (January 22, 1989). 6.Bullington, Jonathan, (May 11, 2013) Justice Ginsburg: Roe v Wade not woman centered. Chicago Tribune   Brian Johnston is the Western Regional Director of the National Right to Life Committee. His new book, The Evil Twins: Roe and Doe; How the Supreme Court Unleashed Medical Killing will be published by New Regency Publishing and is scheduled for release on April 4, 2021.   Pre-orders available at special, pre-order pricing at New Regency, on Amazon and at AuthorStock. Mr. Johnston is available for comment and remote or in-person speaking (800) 924-2490)

In this episode of Life Matters Commissioner Johnston explores the real issues hidden deep within Roe versus Wade and Doe versus Bolton, the twin decisions handed down on January 22, 1973. Few people, even many pro-lifers are aware that abortion was legalized and the laws of all of the states overturned not by simply Roe versus Wade but by the twin conjoined decisions of Roe v. Wade and Doe v. Bolton. Roe v. Wade was addressing the abortion laws of Texas. Doe v. Bolton was addressing the abortion laws of Georgia. Brian Johnston pulls from his new book The Evil Twins Roe and Doe:  How the Supreme Court unleashed medical killing. It is scheduled for release on April 4th of this year. Mr. Johnson explains first of all what very few public commentators and the public at large understand. Roe versus Wade is not simply despised by pro-life individuals. It logically is. Roe versus Wade is despised by many of the leaders of the pro abortion movement, not least of which was actually Supreme Court Associate justice Ruth Bader-Ginsberg. Brian refers to the many attorneys who are deeply involved in the abortion debate and on both sides of the issue. Many assert a mastery and working knowledge of Roe v Wade’s intricacies. But honest lawyers will not make any such claim. Perhaps what is more frightening, “I know many more commentators and reporters who will ‘explain’ the decision at length.  The problem is, this ‘well-known’ decision cannot possibly be explained. It does not and cannot make sense." Even liberal legal scholars like Alan Dershowitz,1 and Cass Sunstein,2 deny its ability to stand on its own merits. Progressive Professor Laurence Tribe is clear: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."3 Edward Lazarus was a Blackmun law clerk who "loved Roe's author like a grandfather." He wrote: "As a matter of constitutional interpretation and judicial method .... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."4 It is only in understanding this problem of Roe that one can see the real significance of its companion decision, Doe v. Bolton. The decisions were linked and released in tandem. In Doe, Justice Blackmun switches themes entirely. He does not focus on stages of pregnancy or the woman. He now focuses on the individual who is about to do the abortion. Doe v Bolton, in many ways, is written for ‘the doctor.’ The state’s interest in protecting life is specifically downgraded. The Hippocratic tradition of never harming a human life isdismissed. At any time in pregnancy psychological and societal questions could be the determining factor. No physical medical conditions need be present. (Doe, 410 U.S. 191) Blackmun’s definition of the ‘health’ of the mother in gauzy, ‘gestalt’ concepts, justified a deadly surgical act. By ‘combining it’ with the confusing Roe decision, he cleans up what he quietly had admitted is an arbitrary, pregnancy-stages framework.5 In Doe he cuts through the fog. He makes the physician’s opinion the arbiter of action. Known feminist and abortion-advocate, Associate Justice Ruth Bader Ginsburg, has openly faulted the Court's approach for actually being, "about a doctor's freedom to practice his profession as he thinks best.... It wasn't woman-centered. It was physician-centered."6   It is this then, that is the real overarching issue in these decisions: legally-authorized, medical killing.   Pregnancy and abortion were confusedly and ham-handedly dealt with in Roe. But what is crisply and incisively granted to physicians in Doe is the right to use their profession to deadly effect and as they personally saw fit. The quietly implemented, largely unexamined Doe decision is responsible for the implementation of America’s abortion practices. Three thousand years of ethical guidance had protected the physician, vulnerable patients, and civilized society from the quiet, easy way out: simply kill the human being in question. The temptation to cover mistakes; save money; accommodate coercion; reduce workload on overworked medical staff; abet antsy heirs; cease careful pain management by simply ceasing the life; diminish populations of ‘imperfect’ dependent individuals; all of these utilitarian motives are easily implemented – and quietly so - once there is no external rule or Oath to never use medicine to kill. The Oath had served as the anchoring premise not only for medical doctors, but for society’s view of ‘unimportant’ human lives entrusted to them. We are now living with the ever-expanding implications of this casual and quiet dismissal of three millennia of medical ethics. As Justice Ginsburg ironically points out, this new, physician’s ‘right to choose’ is actually the only definitive, conclusive aspect of the deadly, twin decisions, Roe v Wade and Doe v Bolton.

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Carol Tracy, the Executive Director for the Women’s Law Project, to discuss one of today’s most polarizing issues - abortion.   One of the topics at the forefront of today’s politics, the abortion debate continues to intensify. Aaron and Carol talk about the most recent round of abortion bans in states like Alabama, Georgia and Missouri, as well as the history of abortion, the evolution of the law on abortion rights – discussing cases like Planned Parenthood v. Casey and Roe v. Wade, and ultimately what the future may look like.     Listen in as Aaron and Carol tackle the complexities surrounding the topic of abortion, discussing the implications of overturning Roe and examining the tough questions that surround this issue. Carol is a Temple Law graduate and has been a women’s rights advocate for more than 30 years.   You can find out more about Carol and the Women’s Law Project here. To read Justice Blackmun’s opinion in Roe v. Wade, please click here.   Host: Aaron Freiwald Guest: Carol Tracy   Follow Good Law | Bad Law: YouTube: Good Law | Bad Law Instagram: @GoodLawBadLaw Website: https://www.law-podcast.com

In this episode, Brian Johnston reminds us of the actual nature of the Roe versus Wade decision and the companion decision, Doe versus Bolton. Unfortunately, the major media has misrepresented these decisions since they came down on January 22, 1973.  Brian points out the amazing fact that the average person, when fully informed just how far Roe and Doe reach, does not agree with these Supreme Court findings. What that means is your neighbors, and the average person, even in California, more than seventy percent of Californians do not agree with unlimited abortion on demand. In Roe v. Wade, Justice Blackmun declared he did not know when life began, and from that point on, the entire decision refuses to recognize the life of the child or the rights of the child at any time within the womb. In Doe v. Bolton, again Justice Blackmun, the author, wrote it as a companion decision to work with Roe and it then institutionalized a new abortion law across the entire nation - overturning the laws of every state.   Such judicial legislating is in direct violation of the constitutional role of the Supreme Court.  In Doe, Blackmun does not refer to the life of the mother, but in fact explicitly instructs the abortionist regarding the “health“ of the mother. He defines health as including “familial, psychological, emotional, factors – anything that may impact the well-being of the patient.” He does not use the word “mother” as this would imply there is a child.  The generous instructions to the attending abortionist are based on the abortionist’s opinion of the well-being of the mother and not on the woman’s immediate opinion. This is significant in that there are many women who have indeed gotten up from the abortionist table to refuse an abortion. Women can be very torn about the actions at hand. Justice Blackmon is clearly stating it is the abortionist’s decision whether or not to do the abortion. He is situated to ‘guide’ the woman if her psychological ‘alarms are going off’   It is this passage in particular that has drawn great fire from radical feminists, because they believe it is not up to the abortionist, a paternalistic decision-maker, but in their mind, abortion should entirely in the realm of the woman’s decision. When the average American fully understands the far reach of Roe versus Wade, they do not agree. What that means is, our job is to explain what Roe really does. Our job is not to explain our theology or philosophy or our opinion of when life begins.  We can discuss that later.  If they agree that Roe goes too far, we should accept that wise conclusion.  They are on our side and want a pre-Roe world.  If you demand they accept all of your ideas at once you are pushing away your natural allies.   Only if they are in a more unusual position of being a judge or actual lawmaker, then extensive philosophy and proposed options to Roe should be examined. In the meantime, if you can get them to understand Roe, they are very likely to disagree with Roe.  THAT is a win, and the more folks that demand Roe’s overturn the better.  Until Roe is overturned there will be no laws written - so if they are with you, let them know they have some insight, let them know it is good to disagree with Roe.   Your job in this present moment is to restore the legal right to life.  That can only be done when Roe is overturned. Let them help!!! 

The right to life is a very specific thing. It is an assertion of a legal principle. It is not an expression of feelings, or of personal theology, but rather an assertion that the duty of government is to protect innocent lives. The abortion controversy has taken a dramatic turn in 2019 with the adoption of laws in some states and proposals in others, that abortions be legalized throughout the entire nine months of pregnancy, and in the situation where a child is born alive in the course of the abortion that that child be set aside to die. This has caused an alarm both within the pro-abortion camp as well as the pro-life camp.  The President has proposed in the Senate a measure that would assure that a child born alive in the process of abortion get full protection under the law. Numerous quotes from television and radio broadcast as well as the statements of Governor Cuomo of New York and Governor Northam of Virginia are included in today’s program.  Our host to Brian Johnston points out that this is a tremendous opportunity for the average person to learn exactly what it is that Roe versus Wade has allowed and the unlimited nature of abortion as it exists under Roe v. Wade. It is because of the soon possible demise of Roe that abortion advocates are seeking these freedoms in the various states.  Brian reminds the listeners of the real facts of Roe v. Wade and Doe v. Bolton. Under our nation’s Supreme Court abortion regimen the child has no rights whatsoever. The only reference to the child is a brief statement by Justice Blackmun in Roe, “…we don’t know when life begins.“ With that sweeping statement no legal protection is offered to the child in the womb throughout pregnancy.  In Doe v. Bolton, Blackmun offers complete license to the doctor to perform abortions through any of the trimesters, even later, based not on the mother’s life being in danger, but on a vague description of generic health. “…the medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial and the woman’s age – relevant to the well-being of the patient. All these factors may relate to health.” Roe v. Wade authorized abortion on demand but the abortion sympathetic media insists on reducing it to a matter of “choice” and misrepresenting the nature of both the Roe v. Wade and Doe v. Bolton decisions. We now have an opportunity to talk about how abortions are being done, how late they are being done and how offensive they are even to the average person who does not consider themselves to be pro-life. These are living, squirming children, big enough to hold in your arms. Now is the time to communicate just how deadly and how extensive the Roe versus Wade decision is.

Today’s show comes to you straight from the SIG Spring Summit last week in Washington DC, and features Danny Ertel, the founding partner at Vantage Partners. Danny’s practice focuses on helping buyers and providers of services enter into, manage, and when necessary, remediate their relationships. Danny is a lawyer by training, and prior to founding Vantage Partners, he served in a number of high profile roles including as a law clerk to Justice Blackmun on the U.S. Supreme Court and as a Senior Researcher at the Harvard Negotiation Project. Danny has co-authored four books, including “Getting Ready to Negotiate – The Getting to Yes Workbook” with Roger Fisher, and is frequently cited in publications such as The Economist and Harvard Business Review. I have followed Danny’s work for a long time.  He first came to my attention as a thought leader and subject matter expert when while I was a Category Manager for Outsourcing & Offshoring, and I was delighted to welcome him onto the show. We focused our conversation on ways in which we can turn around difficult relationships, both with suppliers and internal stakeholders.

The Roe v Wade decision struck down the law of all 50 states. In the decision Justice Blackmun admitted a right to an abortion was not to be found in the Constitution but instead 'emanated from a penumbra' (Latin: almost a shadow) of the Constitution. Judges who look to the Constitution will soon overturn the sweeping and controversial dismissal of human lives. Will you be ready for that? Air Date: N/A

The Serial podcast, about the 1999 murder of Hae Min Lee and subsequent conviction of Adnan Syed, has become the most popular podcast ever. In our first anniversary show — which, sure, we could have broken into two parts but consider this super-sized show our gift to you for the holidays — we talk with listeners and past guests about their own reactions to the show and to the case. We discuss reasonable doubt, race, procedure, evidence, voyeurism, what we think, what others think, and the inherent (but vastly improvable) tragedy of criminal justice. Guests: Hunt Wofford, Nathan, Anthony Kreis, Jasmine Guillory, Mehrsa Baradaran, and Dahlia Lithwick. (Several of our guests responded to a call to listeners that we posted on our Facebook and Twitter feeds. Follow us to be in on such things in the future.) This show’s links: Serial, the most popular podcast ever Willa Paskin, Totally Obsessed Christian Turner, Bet Your Life Before You Impose Death About Hunt Wofford Mythbusters Links to some Serial parodies Murder on a Sunday Morning About procedural justice About Anthony Kreis and his last appearance on our show Debra Cassens Weiss, Posner Questions Basis for ‘Archaic’ Hearsay Rule The Scottish “not proven” verdict About Mehrsa Baradaran and her first and second appearances on our show Susan Simpson, Serial: Why the Nisha Call Shows that Hae Was Murdered at 3:32 p.m. About Dahlia Lithwick and her appearance on the show Dahlia’s new podcast, Amicus, and her video interviews on SCOTUSblog Dahlia Lithwick, A Horrifying Miscarriage of Justice in North Carolina Justice Scalia’s concurrence in Callins v. Collins (criticizing Justice Blackmun for not using the McCollum case, with its brutal facts, for dissenting from the imposition of the death penalty) Justice Blackmun’s subsequent dissent in McCollum v. North Carolina, addressing Scalia’s concurrence Brandon Garrett’s page, featuring his recent books Special Guests: Anthony Kreis, Dahlia Lithwick, and Mehrsa Baradaran.

On the eve of the 38th anniversary of the Supreme Court's decision in Roe v. Wade, I realized that I had never read the full, original decision. In this podcast, I read aloud the opinion of the Court, which inquires into, ''and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitude toward the abortion procedure over the centuries.'' Justice Blackmun discusses ''Ancient Attitudes, The Hippocratic Oath, The common law, The English statutory law, The American law, The position of the American Medical Association, and The position of the American Public Health Association.'' I discovered many fascinating insights into the underpinnings of the current abortion battles still raging in 2011. Part Two to follow in the next day or so.