Reason Podcast

Will Trump's Next SCOTUS Pick Be Able To Overturn Roe v. Wade?: Podcast

The short answer is no. The longer answer is maybe, a little at a time, and that's a problem. Plus, is 2018 turning into 1968, a year of high-profile violence?


Last week was a huge week for Supreme Court related news and on today's Reason Podcast, Katherine Mangu-Ward, Peter Suderman, Damon Root (author of 2014's highly regarded Overruled: The Long War for Control of the U.S. Supreme Court), and I work through the intricacies of Janus v. AFSCME and Carpenter v. United States and assess whether the rulings are wins or losses for liberty (both are wins!). Our regular host, Matt Welch, is on assignment covering the Libertarian Party National Convention in New Orleans.

We discuss whether Justice Anthony Kennedy, who is retiring at the end of the month, was reliably libertarian during his decades on the bench (kind of) and whether his replacement will really be able to overturn Roe v. Wade, which is literally what Donald Trump promised when he was running for president. As a bonus, I put each of the panelists on the spot to say straight up whether they think abortion should be legal and under what circumstances. We also discuss the gruesome murder of five people at Annapolis's Capital Gazette and ponder if 2018 is starting to look a lot like 1968, the year of Reason's founding, when there was music in the cafes at night and revolution in the air?

When it comes to sharing what we're reading, listening to, or watching, this week's recommendations are eclectic as hell and lead into a semi-tense discussion about whether aesthetics and ideology are linked. Suderman gives thumbs up to Kanye West's latest set of releases; Mangu-Ward admits she's reading Henry George's single-tax manifesto Progress and Poverty (it's for a conference, she says, when asked whether she's a believer!); Root, a teenage metalhead, cops to mourning the death of drummer Vinnie Paul by listening to Pantera's catalog; and I give a rave review to Be More Kind, the new album from libertarian post-punk Brit folkster Frank Turner, whom I properly describe as the Bizarro-world Billy Bragg (the guy has a tattoo of the Sumerian "amagi" and another commemorating the great English Leveller "Freeborn John" Lilburne!).

There's still time to register for the Reason Media Awards (tickets and more info here), which will be held this year at FreedomFest, the world's largest annual gathering of libertarians. It takes place in Las Vegas from July 10-14. (Tell them Reason sent you).

Subscribe, rate, and review our podcast at iTunes. Listen at SoundCloud below:

Audio production by Ian Keyser.

Relevant links from the show:

Janus v. AFSCME : Will Ending Mandatory Dues Kill Public-Sector Unions?: Podcast, Nick Gillespie

Justice Anthony Kennedy Is Retiring and All Hell Is About to Break Loose, Damon Root

Could Sen. Mike Lee Replace Justice Anthony Kennedy on the Supreme Court?, Eric Boehm

Kennedy's Departure Probably Will Give Us a Court More Inclined to Defend Gun Rights, Jacob Sullum

Willett, Bolick, Sykes: Three Great Picks to Replace Anthony Kennedy: Podcast, Nick Gillespie and Damon Root

A Post-Roe World Would Pave the Way for a New Black Market in Abortion Pills, Elizabeth Nolan Brown

Supreme Court Rejects Challenge to "Travel Ban", Jonathan Adler

How a New SCOTUS Ruling on Abortion Could Permanently Alter Economic Regulation, Elizabeth Nolan Brown

Delaware's Odd, Beautiful, Contentious, Private Utopia, Jesse Walker

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NEXT: Margaret Hoover Talks About Life on the Firing Line

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  1. Down goes Roe! Down goes Roe! Down goes Roe!

    Can’t you hear Howard Cosell proclaiming the same in the great firmament beyond when it happens?

  2. So much for my straw man, Hugh

  3. Let us hope. You don’t have to be 100% pro-life (I’m not) to understand that is one of the worst decisions in Supreme Court History. Up there with Wickard.


      Even Ginsberg criticized the rationale used. It doesn’t matter your opinion on abortion, if you read the opinion in Roe it’s not logically consistent (not to mention that the decision was moot since Roe already had the child).

    2. Brown v. Board has the worst reasoning of any Supreme Court ruling ever. While the outcome is laudable, the fucks wouldn’t admit Plessy was wrongly decided and came up with some demonstrably false psychobabble bullshit.

      1. Heller is worse. State means America?? The name of our country is literally the United STATES of America!?! But just like Brown the result of Heller is laudable.

    3. It ensured that every supreme court nominee would have to revolve around abortion, which is pretty clever by Fedgov. Fuck thinking about how to apply the 4th and 5th amendments post 9/11, fuck working out state rights vs federal rights, fuck figuring out how freedom of speech works in the age of the internet, or whether you have a right to privacy in the age of the internet. We need to pick candidates based on not upsetting the abortion apple cart – even though if Roe were reversed today, abortion would be legal in 48 states in some form by the end of the week.

      1. pro abortion nutcase keep sewing the same hackneyed bullshit while they celebrate the institutionalized infanticide of millions of babies.

        1. Translation: Robert Dear now has prison internet access and a Faecebook account, and stalks Reason as a warrior-for-the-babies sockpuppet.

          1. I have no idea who i the fuck you’re talking about. I just know that you’re a nutcase and at best, a bad libertarian. Your pro abortion ravings prove that. The simple fact that you ignore the eventual personhood, and ergo the rights of that person, that is gestating within a mother’s womb. That individual also has rights to THEIR body. That is a fact, based on science, in case you attempt your feeble condemnation of religion (I’m agnostic anyway).

            Stick to raving about 1932, or 1928, or whatever the fuck irrelevant, obscure historical period you’re jerking yourself off to today. You have no place in an adult discussion with serious people.

  4. Roe v Wade isn’t going anywhere, no more than Obamacare’s ever going anywhere. The GOP makes too much political hay railing against abortion, Dems make too much telling bogeyman stories about GOP coathangers for either of them to let it go. The dirty little secret they don’t want you to know is the clause in the Constitution that allows Congress to restrict the jurisdiction of the Supreme Court, any time one party or the other has the power they can make whatever abortion law they want and say it’s not reviewable. But that would put the responsibility squarely where it belongs and it’s much easier to let the Supremes make the call and then bitch about it like usual. “If I were in charge, I’d do something different!” Yeah, well, you are in charge, shitweasel, I don’t want to hear that crap.

    1. I’d call that cynical except I’ve heard prolifers say very similar stuff about Republicans.

      The idea of prolife voters having blind faith in Republicans is silly, prolifers don’t trust Republicans.

      Prolifers *do* trust Democrats…to be pro-abortion.

      1. Translation: by “pro-life” the writer means men with guns pointed at physicians for the coercive purpose of violating the individual rights of women.

        1. By “anti-domestic violence” the writer means men with guns pointed at other men who exercise their right to discipline their wives and girlfriends in the way which is best suited to keep them under control.

  5. Drumpf’s next pick is guaranteed to be at least as extreme as Gorsuch. According to CNN’s legal expert Jeffrey Toobin, we’re looking at an America in which abortion is banned, there are zero African American students at Ivy League schools, LGBT+ people are turned away from places of business, and none of the 50 states can enact common sense gun safety legislation.

    That’s why libertarians must join with progressives in #Resisting this radical reshaping of the Court. I urge everyone here to contact your US Senators and instruct them to prevent any more appointments until (1) we figure out the exact nature of the relationship between Drumpf and Kennedy’s son, and (2) Mueller has completed his investigation into #TrumpRussia.

    1. Don’t waste your time or breath. Relax.

      When we next have a Democratic president and Democratic Congress, the Supreme Court will be enlarged again, and America will be fine.

      Until then, the Republican Party will continue to brand itself with backwardness and bigotry for a generation, which will generate long-term benefits for thinking Americans.

      Relax. Have a sandwich, drink a glass of milk, maybe have a cream soda. Do some fucking thing other than worry about nothing.

      1. Don’t feed the troll, Rev.

        1. Let’s be real: this is the most civil response Kirkland has given to anybody in a while. Granted, it still makes my skin crawl, but if Kirkland and OBL spent all their time keeping to each other’s company, that might well be a net gain for the Reason comments section.

        2. Which one is the troll? It’s trolls all the way down.

        3. Excellent comment; beautiful use of the comma.

      2. Pack the court!


  6. We discuss whether Justice Anthony Kennedy, who is retiring at the end of the month, was reliably libertarian during his decades on the bench (kind of)



  7. It’s a bit early to predict how a justice who hasn’t yet been nominated or confirmed will influence his or her colleagues in some future case or cases.

    It is nice, though, to see the panic from the pro-choicers. I sure hope they’re right about their precious cause being In Grave Danger.

    1. Canada has NO superstitious laws denying the individual rights of women. In 1929 most of Canada had no superstitious laws making light beer a felony.

      1. And Canada has no superstitious laws giving robust protection to free speech.

        It has no superstitious laws protecting criminal defendants from double jeopardy:

        “If, on an appeal against acquittal, the Crown convinces the appeal court that there was a legal error in the trial serious enough to have affected the verdict, the appeal court may do one of two things: (1) send the case back to the trial court for a new trial to determine the charges again; or (2) substitute a conviction for the acquittal, which means that there is no new trial, you have been found guilty, and will be sentenced for the offence.”

  8. The next nominee is going to be Amy Coney Barrett. Why? She’s Catholic and it plays to every hispanic person in the US and has the effect of painting all the Ds in a nice anti-Catholic shade of green, or pink, or purple, or whatever color it’s supposed to be. It’s going to be a [cough]subtle[/cough] attempt to fracture any of the latino vote the blue team had hoped to pick up. My guess is that the pushback will be enough to have him switch to Grant, Sykes, or Ryan to hammer home the “I’m trying to pick a woman” point or Thapar “because” and if that one is shot down he’ll “settle” for a white guy.

    1. P.S. If you think he’s in a hurry and won’t milk this to the very last possible instant, why wouldn’t he?

  9. Does Nick mention that the Roe v. Wade decision of early 1973 was copied from the 1972 Libertarian Party plank on overpopulation? I’ll listen to this while riding my bike, but one would expect the way the LP platform rewrote national jurisprudence to at least merit mention in a libertarian magazine article.

  10. I’m confused why moving towards European consensus on abortion timelines is some anti-libertarian position? Shouldn’t we be for protecting of rights of “people?” Clearly, you can’t just kill a 2 year old because “womyn’s right to chuse.” Or a 1 or 0 year old. So there is obviously a principle, and last i check this was a core libertarian principle, at work.

    The only question is where to draw the line and technology is going to push that line further and further back. In “enlightened” Europe, the base rule in most places is 12-14 weeks. That seems reasonably within the “it isn’t quite a person yet” area.

    There is also a decent practical argument that goes along the lines of “if you can’t figure out to abort within 3 months suggests that you are either conflicted or too stupid to decide.” Perhaps the state should be willing to bear the marginal expenses and pay you something to deliver and give up for adoption. After all, the alternative is adopting half of Central America.

    But again, isn’t the libertarian position, and supposedly, Gillespie is a libertarian, that persons be protected from violence of others, including their mothers? Wha happen to Reason?

  11. Well, the current court can overturn Roe, so why wouldn’t any future nominee?

  12. Blumpf may potentially be able to work towards ending a hedonistic, degenerate state of affairs which is literally collapsing civilization faster than the collapse of the Roman empire? This can’t stand.

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