The Megyn Kelly Show - 20220504_dems-new-abortion-push-and-scotus-leaker-fallout-w
Aired: 2022-05-04
Duration: 01:37:17


=== Constitutional Limits on Abortion (14:48) ===

[00:00:30]  Welcome to the Megan Kelly Show, your home for open, honest, and provocative conversations.
[00:00:42]  Hey everyone, I'm Megan Kelly.
[00:00:43]  Welcome to the Megan Kelly Show.
[00:00:45]  There is new political and legal fallout after the leak of a draft decision indicating the U.S. Supreme Court is set to overturn Roe versus Wade and the decision that affirmed it in part, Casey versus Planned Parenthood, recognizing the constitutional right to abortion.
[00:01:04]  The court prepared to now say there is no such right and the court never should have found otherwise.
[00:01:09]  And we have an amazing lineup of guests to cover it all.
[00:01:12]  Next hour, Jay Seculo will be here.
[00:01:15]  My old pal Jay Seculo used to talk all the time on Fox whenever he had a big case going up to the Supreme Court.
[00:01:21]  He has argued before the Supreme Court more than a dozen times, and two of the cases are actually cited in Justice Alito's leaked opinion.
[00:01:32]  So Jay's had a pretty big hand in what this decision wound up being.
[00:01:37]  And we'll talk to him about where he sees this going and whether he thinks any of these justices may waver in light of the leak.
[00:01:45]  He says if the decision becomes final, it will be gratifying, but he also calls the leak an internal insurrection.
[00:01:51]  And he knows the Supreme Court very well.
[00:01:53]  And by the way, this morning, there's an interesting new theory about who the leaker is.
[00:01:58]  Yesterday on our program, former Attorney General Bill Barr made news when he suggested the leaker should face criminal charges and that the FBI should get involved in this.
[00:02:08]  Glenn Greenwald does not agree.
[00:02:09]  He's here to explain why.
[00:02:10]  He's also a lawyer, in addition to being a journalist, Pulitzer Prize winner.
[00:02:14]  But first, Vice President Harris is the latest Democrat with an over-the-top reaction, screaming last night, How dare they?
[00:02:21]  Those Republican leaders who are trying to weaponize the use of the law against women will we say, How dare they?
[00:02:32]  How dare they tell a woman what she can do and cannot do with her own body?
[00:02:38]  How dare they?
[00:02:41]  How dare they try to stop her from determining her own future?
[00:02:46]  How dare they try to deny women their rights and their freedoms?
[00:02:56]  Okay, so she's pulling a page out of the Greta Turnberg book.
[00:03:01]  How dare you?
[00:03:02]  How dare you?
[00:03:03]  Here to respond to that, and also to JD Vance's big win in Ohio's Senate primary is Senator Josh Hawley of Missouri.
[00:03:16]  Welcome back to the show.
[00:03:17]  Senator Holly, great to have you here.
[00:03:18]  Thanks so much for having me, Megan.
[00:03:20]  Well, you're the perfect guest because not only did you back JD Vance in Ohio, so I'd love to get your reaction on that, but you clerked for Justice Roberts, Chief Justice Roberts, when you got out of Yale Law School, and you know what it's like to be a Supreme Court clerk.
[00:03:33]  So that's who the speculation is may have leaked this.
[00:03:36]  So, okay, let's get into it.
[00:03:38]  Let's start with Kamala Harris because she says that what the Republicans are trying to do, and listen, maybe if she's talking about the court, she's dead wrong.
[00:03:44]  The Supreme Court isn't weaponizing the use of law against anyone.
[00:03:48]  They're deciding what the Constitution says or doesn't say.
[00:03:52]  But it is true that at least 13 states have a trigger law that would make abortion illegal in those states if this decision comes down pretty much as it was written in the draft.
[00:04:03]  So to those Republicans in those states who are behind that trigger legislation, who do want to regulate what a woman can and cannot do with her body, is she wrong?
[00:04:14]  What say you?
[00:04:15]  Well, I think the people who are behind any laws that are in the states that are on the books or that have been in the constitutions, the state constitutions, Megan, or have been passed by state referenda is the voters, the people.
[00:04:27]  So, you know, if she wants to say that the people should not have a voice in this issue, in this, it's a great moral issue of our time, the issue of abortion.
[00:04:36]  I would hope everybody would be able to recognize that.
[00:04:38]  And to continue to say that the American people should have no voice.
[00:04:40]  That's what Joe Biden said yesterday.
[00:04:42]  He said that this is too important an issue to be entrusted to the whims of the people.
[00:04:46]  You know, the people, those folks who actually run this country, you know, the sovereigns of this nation.
[00:04:51]  I think the Democrats forget they're not the sovereigns of the nation.
[00:04:53]  The people are.
[00:04:54]  And overturning Roe, if that's indeed what the Supreme Court does, and I hope they do, that is about allowing the people to actually have a say in all 50 states in this country.
[00:05:05]  And I think that's what should happen.
[00:05:07]  The people are so annoying.
[00:05:08]  The people always want to be heard.
[00:05:10]  God, it must drive you nuts.
[00:05:12]  Democracy is such a drag, Megan.
[00:05:13]  I mean, you know, when the people won't do what you want them to do, it's all such a drag.
[00:05:17]  That's basically the line of this administration.
[00:05:19]  It must drive you nuts as an elected representative.
[00:05:22]  Okay, so now there's talk in Democratic circles of, okay, we know this is coming.
[00:05:28]  Let's assume nobody's going to fold and it's going to be a five-four or, you know, sort of five in the majority at least opinion.
[00:05:35]  We don't know what Roberts is going to do.
[00:05:36]  CNN supplemented the political report that had the draft opinion by saying our sources tell us you got the five conservatives against the three liberals and then you got Chief Justice John Roberts, your old boss, trying to find a middle ground saying, let's uphold the Mississippi law, which said can't have an abortion after 15 weeks, but not strike down Roe.
[00:05:55]  There's no reason to overrule these precedents.
[00:05:58]  Anyway, it doesn't look like he's got the votes on his side.
[00:06:01]  So now there's a push by the Dems to codify Roe.
[00:06:04]  That's what they're saying.
[00:06:05]  Codify Roe.
[00:06:07]  So you in the Senate and your brethren in the House need to pass a federal law that would recognize abortion as legal at the federal level, which would basically mean the states can't countermand that.
[00:06:23]  Is that going to happen?
[00:06:25]  No, it's not going to happen.
[00:06:26]  And Megan, I'm not sure that there's a constitutional basis for it happening anyway.
[00:06:30]  I mean, the Supreme Court actually has been clear on this, that the Congress does not get to determine the bounds of the Constitution.
[00:06:37]  The Supreme Court is the final say in the judiciary on what the Constitution means.
[00:06:42]  Now, obviously, the people can change the Constitution, absolutely, certainly, but Congress can't change the Constitution.
[00:06:49]  So I don't know that there's any basis for Congress to come in and say, oh, we'll tell you, we'll tell you what the states can and cannot do.
[00:06:55]  We'll tell you what voters can and cannot say with regard to abortion.
[00:06:59]  I just don't think that Congress has that kind of power.
[00:07:02]  All right, but let me jump in and ask you this.
[00:07:05]  So what's to stop Congress from saying abortion affects interstate commerce?
[00:07:10]  So, you know, women now, if it's illegal in 13 states plus, because it'll be more than 13 eventually, they're going to have to travel cross straight lines and so on to get abortions if they want them.
[00:07:20]  And so it's in our power to regulate this issue.
[00:07:24]  And we would like to regulate it by saying it's legal, that there is a national right to an abortion.
[00:07:30]  Yeah, that's certainly something they could try, Megan.
[00:07:34]  But if you can do that, then there is no right that Congress can't redefine.
[00:07:39]  There is no right that Congress can't come back and say that, well, we don't like the Supreme Court's opinion on this, so we're just going to change it just by legislative fiat.
[00:07:47]  I mean, the court famously, infamously, in my view, had a ruling years ago, the Smith case, religious liberty case, in which the court, I think, wrongly narrowed the rights of religious liberty in this country.
[00:07:57]  Congress passed legislation to try to expand the right, and the Supreme Court struck that down and said, no, You can't come in and say that now the amendment means something different.
[00:08:07]  So I think the Democrats are going to run into that problem with abortion.
[00:08:10]  But regardless, Megan, here's my bottom line.
[00:08:11]  I'd obviously vote no on any attempt to mandate abortion on demand across this country.
[00:08:17]  I think that's the wrong policy.
[00:08:19]  I think it's immoral.
[00:08:20]  I think it's up to the people.
[00:08:21]  The bottom line is, is that the people ought to have an opportunity now to weigh in on this in all 50 states and actually have their voices heard.
[00:08:30]  And that's what overturning Roe would mean.
[00:08:32]  The truth is they don't have the votes to do it.
[00:08:36]  So they can have, I mean, senator after senator and a Democratic pundit after another has come out saying, codify Roe, codify Roe.
[00:08:45]  They don't have the votes, as even Jen Saki admitted, I think it was this morning on Air Force One.
[00:08:51]  Listen to her.
[00:08:52]  The president's position is that we need to codify Roe, and that is what he has long called on Congress to act on.
[00:09:00]  What is also true is that there has been a vote on the Women's Health Protection Act, which would do exactly that.
[00:09:06]  And there were not even enough votes, even if there was no filibuster, to get that done.
[00:09:12]  So I would note in his written statement that we released this morning, I'm just going to reiterate what he said in this statement.
[00:09:18]  He said, if the court does overturn Roe, it will fall on our nation's elected officials at all levels of government to protect a woman's right to choose.
[00:09:27]  So much for Chuck Schumer, who's out there, you know, the Democratic majority leader in the Senate saying it's our intention for the Senate to hold a vote on legislation to codify the right to an abortion in law.
[00:09:40]  Yeah, I mean, we've done this.
[00:09:42]  He's done this before.
[00:09:42]  We've taken votes on it before, Megan.
[00:09:45]  It has failed.
[00:09:46]  It's going to fail.
[00:09:47]  And his own party has been clear that they're not willing on the Senate side to blow up the filibuster in order to take this down to a 50-vote threshold.
[00:09:55]  And that's as it should be.
[00:09:56]  I mean, the rules of the Senate say you need at least 60 votes here to break a filibuster.
[00:09:59]  They don't have those votes.
[00:10:01]  And this is, it is wrong to try and bully the Supreme Court.
[00:10:04]  Let's be clear about what's going on here, Megan.
[00:10:06]  This is an attempt by the Democrats to bully the Supreme Court into changing their opinion.
[00:10:11]  They know the vote will fail in the Senate.
[00:10:13]  The idea is to try and create public pressure on the court now to switch midstream and change the opinion.
[00:10:19]  That's wrong.
[00:10:20]  That is an attempt to interfere in the judicial process.
[00:10:23]  And I hope the justices will resist it.
[00:10:24]  I think they will.
[00:10:25]  Well, she's saying Jen Saki's admission is significant because she's acknowledging even if we got rid of the filibuster, which would be an act even more extreme than the leak of a Supreme Court opinion, it would change America fundamentally.
[00:10:40]  Even with that, if we eliminate the filibuster, we don't have the votes to pass a national codification of Roe versus Wade.
[00:10:48]  So let's talk turkey.
[00:10:50]  And that's why Joe Biden was out there yesterday saying, elect Democrats, elect pro-choice Democrats to the Senate, to the House.
[00:10:56]  That's what we need to do.
[00:10:57]  We need to flood the field with more pro-choicers.
[00:11:00]  So that's step one.
[00:11:01]  We'll get the people in there who would vote for this.
[00:11:04]  And step two is we'll try to get around the Supreme Court telling us we don't have this power.
[00:11:08]  Yeah, this is clearly what they want to talk about.
[00:11:10]  They think, Megan, going into these next few months and into the midterm elections, they were going to want to make it an abortion referendum.
[00:11:16]  I just, I don't think that's going to work for them.
[00:11:18]  I mean, because listen, the American people, those who are opposed to abortion, who vote for Republicans, by the way, are going to welcome this decision.
[00:11:26]  If this is in fact the decision of the court, I hope it is.
[00:11:28]  They're going to welcome this decision.
[00:11:30]  This will be the culmination of decades, decades of fighting for the innocent unborn.
[00:11:35]  They're going to be really energized.
[00:11:36]  Those on the Democrat side who are in favor of abortion, they're obviously going to be very depressed by this and they'll probably be energized to get out and vote, but they weren't going to vote for Republicans anyway.
[00:11:46]  So I think that the Democrats' idea that somehow they'll turn this into a referendum on abortion, I mean, fine, go right ahead, but I don't think it's going to work.
[00:11:54]  I think that the American people see this for what it is.
[00:11:56]  What the Democrats are really saying is, let us tell you what to think on this issue.
[00:12:01]  If you disagree and want to have a say in this issue, you're wrong.
[00:12:04]  You should shut up and you should allow nine justices to make up their minds, your mind for you.
[00:12:10]  And I just don't think that's what most Americans want.
[00:12:12]  Yeah, you're somehow anti-Democratic.
[00:12:15]  Meanwhile, just so the audience understands, when they tried to pass that Women's Health Protection Act, which would have not exactly codified Roe, but kind of, you had Manchin and Cinema, two Democratic senators, refusing to lift the filibuster.
[00:12:28]  They were saying, look, we don't, the filibuster is there to protect minority rights.
[00:12:32]  And even Kirsten Sinema, who's very pro-choice, was saying, I've used the filibuster.
[00:12:37]  I've seen it used many times by Democrats to prevent Republicans from pushing through more abortion restrictions than we'd like.
[00:12:45]  So careful what you wish for.
[00:12:47]  This is not the solution to this current problem.
[00:12:51]  And yet you get, you know, Elizabeth Warren, end the filibuster, codify Roe versus Wade, expand the Supreme Court.
[00:12:58]  We're back to that.
[00:12:59]  Just for the record, is there any way they could actually do that between, I don't know, now and the end of Joe Biden's term?
[00:13:06]  No, not without breaking the filibuster, Megan.
[00:13:09]  The only way they could expand the Supreme Court.
[00:13:11]  You can do it by law.
[00:13:12]  I mean, Congress has the ability to change the number of justices, but you'd have to break the filibuster to do it.
[00:13:19]  And I just say to my Democrat colleagues out there, if you break the filibuster, it's gone forever.
[00:13:24]  And I got news for you.
[00:13:25]  You ain't going to be in the majority after November.
[00:13:27]  So I'd be careful.
[00:13:28]  I'd be real careful what you wish for because once it's gone, it is gone.
[00:13:32]  There is not a world in which you can eliminate it for this thing or for that thing.
[00:13:36]  Once it's gone, it's gone.
[00:13:38]  So this is a dangerous game that they're playing.
[00:13:41]  But I come back to the fact, Megan, what they're really doing right now is threatening the court.
[00:13:46]  That's what all this rhetoric is about.
[00:13:47]  They know that they're not going to be able to break the filibuster.
[00:13:50]  Their own party won't go along with it.
[00:13:52]  What they want to do is threaten the justices.
[00:13:55]  What they want to do is bring public pressure to bear on the justices, including protesting them, including threats made to them and their families.
[00:14:02]  You see that stuff from leftist activists online.
[00:14:05]  That's what they're trying to do here.
[00:14:07]  And that's wrong.
[00:14:08]  That is an assault on the independence of an Article III branch of an independent branch of government.
[00:14:13]  It's wrong.
[00:14:13]  Now, what do you make of the criticisms now by people like Susan Collins of Maine saying, I was lied to?
[00:14:21]  Brett Kavanaugh, I think Justice Gorsuch was the other one saying they misled me in my private office and during the confirmation hearings about their respect for precedent.
[00:14:32]  I mean, to me, I kind of laughed because it's like, okay, first of all, they all have to mislead a little because they're not supposed to tell you how they're going to vote on something that's going to come before the court.
[00:14:42]  So they all do a little dance there.
[00:14:44]  But I thought it was kind of rich that she was saying it.
[00:14:46]  It led to an attack by AOC kind of saying, hey, you don't get to play the victim now.
[00:14:51]  You listen to them and you put them on the court and you can't, you know, the first time in my life, I agreed with AOC.
[00:14:56]  You know, you voted for it.
[00:14:58]  You knew exactly what they were going to do.
[00:14:59]  We all knew what they were going to do.
[00:15:00]  For her to now be like, I'm shocked, shocked that they, who is she kidding?
[00:15:04]  Well, I can't speak to what these justices said, or at the time, I guess they were just nominees, but what they said to any senator in private meetings, and I wasn't there for that.
[00:15:13]  But I have seen what they said in public and seen what they said during their hearings, what they said to the whole country.

=== Justice Kavanaugh's Clerk Controversy (12:10) ===

[00:15:19]  And what Justice Kavanaugh and Justice Gorsuch said to the country and their hearings is, is that, sure, they'd have respect for precedent.
[00:15:25]  And you're a lawyer, Megan.
[00:15:26]  You know this.
[00:15:27]  That means that you have to go through the test for starry decisis.
[00:15:30]  That means you have to ask, well, what are the reliance interests?
[00:15:33]  You know, who would be harmed?
[00:15:34]  Who would benefit from overturning the decision?
[00:15:36]  You have to ask about what was the legal reasoning?
[00:15:39]  Was it good?
[00:15:40]  Was it weak?
[00:15:41]  There's a whole series of tests.
[00:15:42]  And guess what?
[00:15:43]  This opinion does that at length.
[00:15:45]  This draft opinion we saw leaked, it has page upon page of analysis about the starry decisis factors.
[00:15:53]  And to my mind, that's exactly what Justice Kavanaugh and Justice Gorsuch promised in their hearings.
[00:15:57]  And again, what they said to individual senators in their offices, I don't know.
[00:16:01]  But in their hearing, what they're doing now is totally consistent.
[00:16:05]  There's no way they said to her, I promise you I won't overrule Roe versus Wade, or I will treat it as, quote, a super precedent that cannot be overruled.
[00:16:15]  I'm sure they said respect for precedent.
[00:16:18]  Yes, Roe versus Wade is a super precedent.
[00:16:20]  You know, that's one thing.
[00:16:21]  That doesn't mean it can never go away.
[00:16:23]  That just doesn't mean that there are no promises, as Ruth Bader Ginsburg said.
[00:16:27]  You know, no hints, no forecasts, and no guarantees.
[00:16:30]  We all know that.
[00:16:31]  So she's her feigning indignance over this is just kind of falls on deaf ears.
[00:16:38]  Let's talk about the leaker.
[00:16:39]  We don't know who it was, but I think the vast majority of people have concluded the most likely candidate is a Supreme Court clerk.
[00:16:47]  I just can't see any one of the nine justices doing this.
[00:16:50]  Let me ask you because you're a lot closer to them than I ever have been.
[00:16:54]  I'd be shocked if it's a justice.
[00:16:56]  I mean, that would really shock me, Megan.
[00:16:57]  I just, I suppose anything is possible, but I doubt it.
[00:17:00]  My thought would be it probably is a clerk.
[00:17:02]  There are 36 clerks on the court, as you know, and those clerks would have access to this draft opinion.
[00:17:09]  Also, notice in the original report from Politico that the person who leaked all this material also knew what the vote count was on the day the justices took the vote, which is way back in December.
[00:17:19]  I mean, most people don't know that you take the justices take the vote right after the argument, either immediately after, depending on what day of the week it is, or on the Friday that follows.
[00:17:29]  So very close in time.
[00:17:31]  The point is, is that for months now, people close inside the court have known what the working count is on that vote, but there are only a few people who would know that.
[00:17:41]  The justices would know and the clerks would know.
[00:17:44]  So I think it's likely it's a clerk.
[00:17:46]  Obviously, I don't know.
[00:17:46]  Hope that we find out.
[00:17:47]  I mean, it's important that this be stopped because if the court is going to constantly leak its decisions, if the court's just going to turn into, if this is going to be a referendum on every major opinion, well, let's set it out to the public and let's bring public pressure to bear, then we don't really have an independent judiciary anymore.
[00:18:04]  Who would know what the vote count was?
[00:18:06]  Is there any way an administrative staffer would know that?
[00:18:10]  Possible, but unlikely, I think.
[00:18:12]  And the other telling piece of information, Megan, was that the individual who leaked this to the press also knew what the vote count was as of this week.
[00:18:20]  So this is somebody who's following the back and forth of the draft opinions.
[00:18:24]  And again, you know, the way this works inside the court is that opinion, draft opinions get circulated and the justices look at those and sometimes they do change their votes.
[00:18:32]  And it sounds like Justice Roberts did it, the Chief Justice, didn't commit himself.
[00:18:37]  Again, this is just based on the reporting.
[00:18:38]  It doesn't sound like he committed himself to one side or another very clearly.
[00:18:43]  And this person knew that and said that as of this week, he had not yet joined either side.
[00:18:48]  I mean, that is pretty closely held information.
[00:18:51]  And again, the person who, the people who are most likely to know that, besides the justices, would be the clerks.
[00:18:57]  How does it work?
[00:18:58]  Because the clerks are not in the meeting that the nine justices go into.
[00:19:03]  They don't, only the nine go in there, which is why the most recently confirmed justice has to fill the water bottles.
[00:19:10]  And it's so fun that you think about like the youngest justice going in there, most recent, I guess I should say, and being sort of the low person on the totem pole.
[00:19:18]  Soon it'll be Katanji Brown Jackson who's got to do it.
[00:19:21]  They all go through it.
[00:19:22]  So nobody else is in there, not even somebody who could fill up the water bottle.
[00:19:27]  So what happens?
[00:19:28]  They go back to chambers and would like when it was Chief Justice and John Roberts and you, would he then say, okay, here's what happened?
[00:19:34]  Like, how do the clerks get their info?
[00:19:36]  Usually, you know what the justices would tell the clerks what the vote was on a given case because you would need to know that in order to help draft the opinion.
[00:19:46]  And so you would say that, well, okay, you know, in this case, the Dobbs case that we're talking about, the vote was five to three, five, three, one, with the Chief Justice, you know, not committed to either side.
[00:19:56]  So that means that the most senior justice in the majority will assign the opinion.
[00:20:01]  In that case, that'd be Justice Thomas.
[00:20:03]  And so it'd be natural for Justice Thomas to go back to his clerks and say, all right, well, the vote was five to three.
[00:20:07]  That means we get to assign the opinion.
[00:20:09]  I've decided to assign it to Justice Alito.
[00:20:12]  So he'll be doing the first draft.
[00:20:14]  So the clerks that are working on this, you know, prepare to see a draft from his chambers on this.
[00:20:18]  And so it's that kind of a back and forth.
[00:20:20]  The clerks kind of have to know if they're going to help with the opinion drafting.
[00:20:24]  They've got to know who's writing and why they're writing.
[00:20:27]  And so that's how the information gets shared.
[00:20:29]  But Megan, that is very closely held information.
[00:20:31]  I mean, the clerks understand.
[00:20:33]  They are told explicitly that they are not to discuss this with anyone.
[00:20:37]  They're not to share it with anybody.
[00:20:39]  And obviously, votes can change and they do change.
[00:20:42]  So this kind of a leak is really unprecedented for those reasons.
[00:20:45]  There's one clerk.
[00:20:46]  I'm not going to get into names or anything like that, but there's one clerk today who's been clerking for Breyer, who's outgoing.
[00:20:52]  He's the one that Katanji Brown Jackson will replace.
[00:20:54]  And she's apparently married to a reporter who used to work at Politico.
[00:20:59]  Are you allowed to share any information with your spouse?
[00:21:02]  No, no, no, you're not.
[00:21:04]  And, you know, I've seen all kinds of speculation, Megan, similarly about different clerks.
[00:21:08]  And I don't want to point fingers at anybody because I don't know.
[00:21:12]  I don't have any information whatsoever.
[00:21:14]  None of us do.
[00:21:15]  None of us know.
[00:21:15]  But I'm glad the Chief Justice is going to have an investigation to find out.
[00:21:19]  I mean, we need to find out.
[00:21:20]  And listen, if this was a clerk or any member of the bar, they need to be disbarred.
[00:21:25]  This is a very serious breach of confidentiality and of your duties as a lawyer.
[00:21:30]  And they should be disbarred, whoever it was.
[00:21:34]  Explain why it matters.
[00:21:35]  There's an article.
[00:21:37]  Who is it?
[00:21:37]  Jack Fowler?
[00:21:38]  I'm trying to remember today.
[00:21:39]  Saying, so what?
[00:21:41]  So it was a leak.
[00:21:42]  You know, why should the Supreme Court, who is Jack Schaefer, not Fowler, who said, why should the Supreme Court be treated any differently than Congress?
[00:21:50]  You know, who cares if we see one of your draft bills?
[00:21:52]  Who cares if we see the draft opinion?
[00:21:54]  Why are they in such ivory tower that we have to freak out over a leak to the press?
[00:21:58]  Well, because it's a court.
[00:22:00]  It's not a legislative assembly.
[00:22:01]  It's made up of judges who are determining what the law means, what it's going to say and what it's going to hold, not representatives who are elected by the people and accountable.
[00:22:11]  Here's why that matters, Megan.
[00:22:12]  Imagine a case, imagine the Obamacare case, which would have a major effect on health care, on the insurance industry, on the daily lives of everyday Americans.
[00:22:23]  Imagine if an opinion there leaked early and it had an effect on the markets.
[00:22:28]  It had an effect on the availability of health care.
[00:22:30]  It had an effect on health insurance.
[00:22:32]  I mean, this is, you can imagine if this became normal, then the Supreme Court, it would be really hard to do its basic job.
[00:22:39]  And the amount of, frankly, power that the Supreme Court has, which I'd like to say for the record, I think is way too much, but the power that they have to determine the law ultimately in case after case is really enormous.
[00:22:51]  And if that's going to be a matter of public discussion, A, but then also public debate and pushback, then we're looking at a whole new court.
[00:22:58]  And that's the last point I would make on this, Megan, is that having a national referendum on every opinion the court has while it's in draft, I mean, that's a really dangerous thing.
[00:23:08]  If we're going to do that, then we may as well elect the justices so that we know exactly what they're doing and there's some accountability.
[00:23:14]  And that's really, I think, why all of this is so dangerous.
[00:23:16]  It's an attempt to shift the court.
[00:23:18]  It's an attempt to influence the court and to do it outside of the legal channels of argument and submitting briefs and actual deliberation.
[00:23:28]  And it's actually even worse because in the process of doing it, it endangered the court.
[00:23:34]  It endangers the sitting justices.
[00:23:35]  It's just such an egregious breach of ethics and a moral compass that this person apparently doesn't have.
[00:23:41]  Here's a last point here before I ask you about JD in Ohio.
[00:23:45]  Former Attorney General Bill Barr was on the program yesterday.
[00:23:48]  Andy McCarthy of National Review, former federal prosecutor, shares the same opinion.
[00:23:52]  This person should be prosecuted.
[00:23:53]  The FBI should be appointed immediately to investigate this as a potential obstruction of justice, perhaps theft of government property, which the opinion would be, because it's that serious and the consequences are that dire of what this person has done to the Supreme Court and the trust and so on.
[00:24:10]  Do you agree?
[00:24:12]  I'd say I'm not real crazy about what the FBI has been doing with its power recently.
[00:24:16]  And I'm not real crazy about its track record right now in terms of what it has done to courts, how it has misled courts, including in the 2016 campaign.
[00:24:25]  So I'm a little cool to that suggestion, I have to say.
[00:24:28]  I do think there needs to be an investigation.
[00:24:30]  The court has its own security force.
[00:24:32]  It has its own police force, the U.S. Marshals, the Marshal of the Court, several hundred officers strong dedicated just to the court.
[00:24:39]  And my understanding is the Chief Justice has asked them right now to stand up an investigation.
[00:24:44]  I know, but the Marshal, like the Marshal who's supposed to oversee it, like her duties are like she yells, Oye, Oye, Oye, before the court starts.
[00:24:53]  I realize it goes beyond that.
[00:24:54]  It's not just that, but I'm thinking I'd be a lot more scared of the FBI than I would be of Oye if I were the leaker.
[00:25:04]  There are, though, Megan, beneath the Marshal in terms of on the org chart, so to speak, there are several hundred police officers, law enforcement officers, U.S. Marshals who, or marshals of the court, who are law enforcement officers.
[00:25:18]  And, you know, I think having them in the first instance, my bottom line is that I'm...
[00:25:22]  So you're open to keep it to looking at it as a criminal matter.
[00:25:25]  You just don't have to.
[00:25:26]  Oh, absolutely.
[00:25:27]  Oh, absolutely.
[00:25:28]  Listen, I think you got, yeah, you got to follow this wherever it goes.
[00:25:31]  And I think you've got to figure out who, first of all, who is it?
[00:25:33]  And what did they do?
[00:25:34]  What are the circumstances?
[00:25:36]  Once we know the circumstances, we'll know whether or not there was a federal crime or some other kind of crime.
[00:25:40]  At the very least, as I said, if you're a member of the bar, this is grossly unethical behavior and they should be disbarred.
[00:25:46]  That's the starting point.
[00:25:48]  I'm just saying on the FBI, like maybe it's just that I don't trust the FBI.
[00:25:51]  Find a different cop, you're saying.
[00:25:53]  All right, I know you got to go because you got important work to do, but can I just ask you quickly your thoughts on JD's victory last night?
[00:25:58]  Huge victory.
[00:25:59]  Huge victory.
[00:25:59]  I mean, listen, I encourage J.D. to get in this race to begin with.
[00:26:03]  I'm proud to have supported him and I'm just proud of him.
[00:26:05]  This is a big deal for the future of the Republican Party.
[00:26:08]  JD represents, I think, what the party has to become, Megan.
[00:26:12]  We've got to be a party of working people, working class people from all ethnic backgrounds, from all geographic backgrounds.
[00:26:22]  But we have got to be a party that speaks out again, as we were historically, by the way, Megan.
[00:26:26]  This is historically in our DNA as Republicans.
[00:26:29]  We are the party of working people who believe in having working class jobs in this country, not in China, not in Mexico or anywhere else in this country, and also a coalition of families and people of faith.
[00:26:41]  And JD really represents that.
[00:26:43]  And I think he spoke to that out on the campaign trail.
[00:26:46]  Now, listen, he's not done.
[00:26:47]  He's got to go run the general election now.
[00:26:48]  So I don't want to jinx him.
[00:26:50]  He's got work to do, but I just am, I'm so happy for him and I'm happy about what it represents.
[00:26:55]  The other guy, the Democrats, got a big war chest, but Ohio has been leaning red for a while now.
[00:26:59]  So you'd have to put your money on JD Vance.
[00:27:02]  It's exciting to see just as a human story to him.
[00:27:05]  If you read Hillbilly Elegy, you know how he grew up.
[00:27:08]  It remains my favorite interview I did while I was at NBC.
[00:27:12]  It's just such a pick yourself up by the bootstraps and try to make life happen despite so many things being thrown at him story.
[00:27:18]  So it can't help but cheer him on and to be thinking about his family today, his sister Lindsay, so sweet.
[00:27:24]  Anyway, thanks for coming on and thanks for your thoughts on all of it.
[00:27:27]  Thanks for having me, Megan.

=== Whistleblower Leaks and Criminalization (15:18) ===

[00:27:30]  Okay, so we're going to come right back with our pal, Glenn Greenwald, who's got different thoughts about the leaker.
[00:27:34]  Let's not forget this is a guy who won a Pulitzer Prize for his reporting based on leaked documents.
[00:27:39]  So he's got a different view, which we want to hear.
[00:27:44]  Welcome back to the Megan Kelly Show.
[00:27:45]  Joining me now, our friend Glenn Greenwald, Pulitzer Prize-winning journalist, and now on Substack for your enjoyment.
[00:27:53]  Glenn, so much to go over with respect to this story.
[00:27:56]  And we'll get to the leaker and all that.
[00:27:58]  And I want to talk about your opinions on the actual freak out on the opinion by the left as well, because I know you've got thoughts on that.
[00:28:04]  So, but let's just start with whether you think this is a crime.
[00:28:08]  You're a lawyer.
[00:28:08]  I'm a lawyer.
[00:28:09]  I had Bill Barr on the show yesterday who said, I think this could be a crime.
[00:28:12]  He said, I'd want to pour over the obstruction statute more, more closely.
[00:28:17]  But he said, you know, my instincts say this is obstruction of justice.
[00:28:20]  And then Andy McCarthy, who I really respect, you know, I don't agree with everything he writes, but I really respect his opinion.
[00:28:25]  He's like, absolutely, this is obstruction.
[00:28:29]  And this is, he says, I'll just give you what he says.
[00:28:31]  He says, it's a crime to embezzle government records or to convert them to one's own use.
[00:28:36]  The leaker, he says, has stolen a record and converted it to his or her own use for political purposes.
[00:28:43]  That is a crime.
[00:28:45]  Deceptive acts that are intended to have and can have the effect of undermining government processes are illegal.
[00:28:51]  It's a conspiracy to defraud as well, he says.
[00:28:55]  And the leak was intended to undermine Supreme Court opinions or the process for its opinions and so on.
[00:29:01]  So he thinks it's a crime on multiple levels, not just obstruction.
[00:29:05]  What do you think?
[00:29:06]  That seems like a huge stretch to me.
[00:29:09]  They're both obviously very smart and well-qualified lawyers.
[00:29:13]  They're also both prosecutors and tend to see the criminal law in particular in a broader way than perhaps others who say would be defense lawyers or well, Alan Dershowitz was on the show after Barr and he said it's not a crime to your point.
[00:29:28]  Yeah, and I would say I find it very, very difficult to see it as being one.
[00:29:33]  Obviously, the classic case when a leak is a crime is when someone who's inside the government leaks classified information.
[00:29:40]  That is explicitly a crime.
[00:29:42]  I think a lot of times it's justifiable to do that, but it's nonetheless illegal under the clear terms of the law.
[00:29:49]  I think you have to use a lot of penumbras and interpretive tricks to read the criminal law to say that anytime a government employee leaks any government record to the media for whatever purposes, that becomes a crime.
[00:30:05]  Think about how much of an abuse that could lead to.
[00:30:08]  That would mean that most leaks on which we rely for transparency in our government, not just leaks classified information, but almost any time a government employee leaks a draft or a memo or anything that reveals wrongdoing or criminality or corruption or deceit on the part of government officials, that would now become a crime.
[00:30:26]  I think it's a very dangerous interpretation.
[00:30:28]  Now, this brings me to the DOJ apparently has offered some guidance on when it thinks one should go after a leaker.
[00:30:37]  You know, the statutes are the statutes, but what its guidance says is: quote, it's ill-advised to prosecute anyone who obtained or used the property primarily for the purpose of disseminating it to the public.
[00:30:53]  This is when you're talking about what, what is theft of government property and when should you go after them?
[00:30:58]  And they say the reason is to protect whistleblowers, people whose primary purpose is public exposure.
[00:31:06]  So that's, they're trying to get to that.
[00:31:08]  Like if there's some person who wants to expose something bad the government's doing, they're not going to go prosecute that person just because they technically violated a theft law.
[00:31:18]  But I'm not sure this person's going to fall within that policy.
[00:31:22]  How is this person a whistleblower?
[00:31:25]  Well, so as I understand, and I haven't read that memo, so, but I bet having listened to what you just said, I don't think it used the word whistleblower, at least in the past you read me.
[00:31:35]  It talked about the motive, didn't it?
[00:31:37]  It does.
[00:31:37]  It has says like, for an example, a whistleblower.
[00:31:40]  So it's, it is in there.
[00:31:43]  I think they're thinking.
[00:31:44]  This is the distinction I think they're trying to draw.
[00:31:46]  And I'll just use my experience with the Snowden case.
[00:31:49]  Yes.
[00:31:50]  Obviously, can you just remind people about, remind people what?
[00:31:53]  Sure.
[00:31:53]  So in 2013, Edward Snowden was working inside the National Security Agency, actually for a private contractor that had been contracted to work for the NSA.
[00:32:03]  And he heard James Clapper go before the Senate and falsely deny that the NSA was collecting dossiers and records on millions of American citizens.
[00:32:12]  And he was holding in his hand the information that proved that Clapper lied.
[00:32:15]  And even though those documents were classified, meaning it was a crime to disseminate them or leak them, he nonetheless called me and provided me with these documents along with my colleagues so that we could alert the world to what the government was doing in terms of spying.
[00:32:30]  Now, obviously, there was a lot of controversy over what Snowden did.
[00:32:34]  A lot of people think he's a criminal or a traitor.
[00:32:36]  A lot of people think he's a hero and a whistleblower.
[00:32:38]  But the key distinction to me here was, you know, what the kind of classic spies, the Cold War spies used to do would be if you were an American working within a spy agency and you wanted to harm the United States and say, help the Soviet Union, you didn't go to a reporter and ask them to publicize the information.
[00:32:58]  You would pass it to an enemy government or sell it to an enemy government.
[00:33:02]  That was always, I emphasize, not Snowden's motive.
[00:33:05]  He could obviously have sold the documents to become very rich to the Iranians, the Russians, or the Chinese or private hacker groups or terrorist groups.
[00:33:15]  But instead, he wanted to show it to the public.
[00:33:17]  He wanted it disseminated to the public because he thought it was important that the public know what the government was doing.
[00:33:22]  I think this is the dichotomy of intent that memo is describing.
[00:33:27]  If you're somebody who works inside the government and you find a memo and you don't sell it for your private use or for nefarious purposes, but you believe the public should see it to learn what their government is doing about an important matter like Roe versus Braden abortion.
[00:33:41]  I think they're saying that given that intent, that should not be prosecuted as a crime when it's not classified information as this wasn't.
[00:33:50]  If though that person were to sell it, you know, to say a news outlet or to some political operatives, the motives then would be different.
[00:33:58]  And this, I take all of what you said, and I actually agree with everything you said.
[00:34:02]  And you are the perfect person to discuss it with it because you've lived it.
[00:34:05]  I mean, Snowden was in such a different position than this leaker.
[00:34:10]  I mean, he really was a whistleblower and thought we were being lied to and thought this controversial program needed to be exposed.
[00:34:17]  And we were being lied to.
[00:34:18]  There was no question that our leaders were lying under oath to our elected representatives.
[00:34:22]  This is nothing like that.
[00:34:25]  This is the Supreme Court working as exactly as it's supposed to work with the confidentiality that it's always insisted upon and that this clerk, if that's who it was, agreed to protect.
[00:34:36]  And it was a decision that was coming out anyway.
[00:34:38]  There was no cover up.
[00:34:39]  There's no, everything's working the way it was supposed to be working.
[00:34:42]  This person just wanted to leak.
[00:34:44]  They were excited to paint themselves, is my speculation, as the heroine or hero of the left who was going to give people an advance peek at something they found controversial.
[00:34:55]  It's a possibility it was a conservative who was trying to jar a wobbly moderate into staying on team Alito.
[00:35:02]  I make room for that too.
[00:35:04]  Either way, it was somebody who was trying to manipulate the process.
[00:35:08]  Hence, the obstruction of justice claim is a little bit more attractive because you and I were discussing theft of government property and that thing I read to you where they do mention whistleblower.
[00:35:17]  And if the purpose was really just to expose to the public this document as opposed to keeping it for themselves or whatever, they're saying we won't go after that.
[00:35:25]  So that was in the theft crime.
[00:35:27]  But when it comes to obstruction, Andy's point is this is literally the attempt to obstruct justice.
[00:35:35]  You know, he says they don't call it justice for nothing.
[00:35:38]  Like this is the Supreme Court trying to tell us what the law of the land is.
[00:35:42]  And there's no reason for this person to have exposed this document other than to try to change the outcome.
[00:35:48]  Right.
[00:35:48]  So I think there's validity in that.
[00:35:51]  I guess I would emphasize two points.
[00:35:53]  One is there's a big distinction in my mind and an important one between describing an act as unethical or ill-advised or harmful and saying, let's call in the FBI because this was a major crime.
[00:36:08]  Those are two different things.
[00:36:09]  Lots of unethical acts are not crimes under the U.S. code.
[00:36:13]  True.
[00:36:14]  And so when I say I don't think it's a crime, it doesn't mean I support or endorse what the person did.
[00:36:22]  The other thing is I do think the fact that we don't know who the person was who leaked and therefore obviously don't know the motives can only speculate makes the discussion even more difficult.
[00:36:33]  But I agree with you that it's very hard for me to see how this person could be a whistleblower, exactly for the reason that you said we're going to find out what the ruling is in two months and the Supreme Court should be allowed to follow its normal process.
[00:36:46]  And they did kind of subvert that by either trying to generate political pressure against one of the justices in the majority to change their mind or conversely to lock them in by having people know that if they do jump ship, they will have, they were originally in the majority.
[00:37:01]  So I think either way, it's hard to see this person as a whistleblower.
[00:37:04]  They clearly seem intent on manipulating the process to their liking.
[00:37:10]  I just, I'm going to have a very hard time calling that a crime because you know, Megan, from your work as a journalist, that so often sources have very mixed motives.
[00:37:18]  You know, like the sources that leaked to the Washington Post about Watergate weren't really that noble.
[00:37:23]  They were angry that they were passed over for a promotion and are angry that some person, you know, was put into line in front of them and were trying to get vengeance.
[00:37:31]  And that's a lot of the motives often have mixed or impure motives.
[00:37:35]  Leakers do.
[00:37:35]  And I think it's very dangerous to expand when leaking becomes a crime, given how important leaks are for us to know about a government that often hides behind secrecy.
[00:37:48]  No, these are all good points.
[00:37:49]  You know, the thing that gets me, Glenn, is this person endangered the lives of the sitting justices.
[00:37:55]  It's unforgivable.
[00:37:56]  And there's no question that this person leaked this.
[00:37:59]  Tell me why that is.
[00:38:02]  Why did this endanger their lives in a way that the decision itself in two months wouldn't?
[00:38:06]  Because they weren't prepared for it.
[00:38:08]  Because it just got sprung on them.
[00:38:10]  Because when a decision like this is going to come down, you know, the justices layer up in terms of their security and making sure that they're adequately protected.
[00:38:19]  That's why they have all the marshals and so on that Josh Holly was just talking about.
[00:38:23]  They understand what the business they're in.
[00:38:26]  For this to be dropped at 845 on a whatever night, Monday night, Sunday night, unexpectedly by a political reporter, that's they didn't have time.
[00:38:35]  They didn't have, even if they had a moment's heads up, like, hey, this is me from Politico.
[00:38:40]  I want to let you know I've got your opinion.
[00:38:41]  Any comment?
[00:38:42]  How long does that give them?
[00:38:44]  It's totally irresponsible.
[00:38:46]  And I do think that it actually does endanger, in particular, the conservative justices who are joining the majority, but potentially all of them.
[00:38:54]  Megan, do we mean, yeah, I mean, there's obviously a lot of, you know, passion on both sides.
[00:39:00]  I mean, doctors who perform abortions have been killed before by pro-life activists.
[00:39:04]  Exactly.
[00:39:04]  There's a lot of passion on both sides, right?
[00:39:06]  So I think it's a danger to everyone on one way or the other.
[00:39:10]  Do we know for sure that Politico did not inform the court or seek comment from the court prior to publishing?
[00:39:17]  I don't know either way.
[00:39:18]  I can't remember whether they said in their report, we reached out for comment.
[00:39:21]  I mean, it would be extraordinary for them not to reach out for comment, right?
[00:39:24]  But either way, I mean, that's not the kind of thing you do a day in advance.
[00:39:30]  I'm sure it was shortly before publication.
[00:39:33]  And everybody's left scrambling.
[00:39:35]  There's no question in my mind that he or she, whoever the leaker is, endangered them.
[00:39:39]  And that needs to be met.
[00:39:41]  To me, that goes higher than disbarment.
[00:39:42]  Just the disclosure is disbarment.
[00:39:45]  And so that's the thing I think is most persuasive in the Treat It Like a Crime column.
[00:39:48]  But I'm not totally sold yet either.
[00:39:50]  I'd like to pour over the statutes more closely and look at precedents, like who else has been prosecuted and what did they do?
[00:39:56]  Right.
[00:39:56]  And theoretically, you know, every time there's a leak that's important and that makes the public informed about a matter they care about, theoretically, it could create the same danger.
[00:40:07]  You know, if you expose that a particular official lied to the public about the Vietnam War, say the way the Pentagon papers did, it told the country you've been sending your sons to a war that Pentagon officials are publicly saying we're going to win, but privately are acknowledging they're never going to win.
[00:40:24]  At most, they can fight to a stalemate and in fact will probably lose this kind of deceit.
[00:40:28]  That probably generates a lot of anger, severe anger, especially on the part of people who lost their kids in a war that the government was lying about.
[00:40:37]  So again, I'm just concerned that if you create theories for this one case, which does seem pretty egregious, my concern is that the theory then becomes so broad that it starts to have the potential to engulf any kind of leaker who can become criminalized.
[00:40:52]  Because as we know, government officials hate leakers precisely because often they do play a valuable role in shining a light on what the public should know.
[00:41:00]  I just feel like the combination, though, of like justice, obstruction of justice, it's like, and the endangerment of justice and justices.
[00:41:10]  That's literally what's happened here.
[00:41:11]  And the nerve of it, Glenn, think about this.
[00:41:14]  This person not only cared not at all for the safety of these justices who gave him or her, if it's a law clerk, the opportunity of a lifetime, of a lifetime, but they have effectively smeared all of their other law clerks and the justices and even the staff that work at the U.S. Supreme Court because everyone's a suspect now.
[00:41:33]  There's some smarmy little disgusting, spineless, pathetic soul walking around the Supreme Court who didn't have the balls to say it was, it was I. You know, Crack Hour, my executive producer goes, I feel like we're like one week away from the op-ed.
[00:41:48]  I leaked the draft Dobbs decision and here's why I did it.
[00:41:52]  And he may be right, which is also gross, but to let it linger right now and let the stank go all over everyone is equally gross.
[00:42:00]  No, you know, it's funny that you say that because one of the things I most respected about Snowden from the beginning was it's customary when someone leaks classified information that subjects them to a life in prison.
[00:42:11]  They obviously want to hide what they did.
[00:42:13]  And from the beginning, he said, I'm not hiding in part because I don't feel like I've done anything wrong.
[00:42:18]  I owe the public an explanation.
[00:42:19]  I want to come forward immediately and say, here's who I am and here's why I did it.
[00:42:23]  But he also was very worried that if he didn't do that, if he did hide, it was going to subject his colleagues to all kinds of suspicion and intrusive investigations, having their lives turned upside down, maybe someone being falsely accused.
[00:42:35]  And he assumed responsibility for what he did.
[00:42:38]  He actually wanted to do it in the very first story.
[00:42:40]  We persuaded him to let us wait a few days just so the attention stayed focused on the revelations and not him.
[00:42:45]  But I always found that very noble for that reason.

=== Norms Broken by Political Violence (05:03) ===

[00:42:48]  And I think you're right.
[00:42:49]  In this case, you know, this person definitely put the entire institution in jeopardy.
[00:42:54]  Let me just quickly say, I think in part this is part of this new ethos where people believe that, you know, the Trump presidency, the Trump movement poses such an existential threat to all things decent.
[00:43:07]  We've talked about this before, that norms no longer need to be observed, that everything and anything a person does to fight against what they regard as a bad political event, maybe such as say overturning Roe versus Wade, becomes justified because the cause and their benevolence outweighs all other considerations.
[00:43:25]  And it seems very likely that that mentality was at play here.
[00:43:30]  You may have seen on Twitter at Yale Law School where several of these clerks, current clerks went, there is a graffiti on the wall there that reads, we are the law, not your effing court.
[00:43:41]  And that is truly the mindset of a lot of these young people today.
[00:43:45]  Like, we don't care, like, we'll tell you what the law is.
[00:43:48]  We'll, you know, violence, words are violence in the whole bit.
[00:43:52]  We'll see about that.
[00:43:53]  I think this person is, they're lucky if they don't wind up in prison.
[00:43:56]  They're definitely going to lose their law degree and then they're going to have to lament that as they take their MSNBC contributorship.
[00:44:03]  Yeah.
[00:44:06]  I still, I mean, maybe I'm assigning more probability than you are to the potential.
[00:44:10]  It is a conservative trying to lock in a wobbly, you know, Brett Kavanaugh or somebody.
[00:44:18]  But if I had to bet my money, it would be on a liberal trying to alert the public to something they regarded as so hideous and awful that nothing was unjustifiable in the name of stopping it.
[00:44:28]  That would be my bet.
[00:44:29]  All right, let's get to the total misunderstanding of democracy.
[00:44:33]  The majority supports Roe versus Wade.
[00:44:38]  They don't want to see it reversed.
[00:44:40]  Here's a sampling of that.
[00:44:43]  The majority of Americans do not want.
[00:44:45]  69% of people across this country, a majority of Americans do not want to see Roe v. Wade all return.
[00:44:52]  I've heard from nonstop from people who are very anxious about their future.
[00:44:56]  People who are scared and frustrated, people who, like the majority of Americans, want to protect Roe.
[00:45:02]  75% of Americans believe that this decision should be made between a woman and her doctor.
[00:45:10]  75% of Americans.
[00:45:11]  Red states and blue states, old people and young people want Roe versus Wade to maintain this long handling.
[00:45:20]  We need to remove.
[00:45:21]  The majority wants it, Glenn.
[00:45:23]  The majority wants it.
[00:45:24]  I mean, first of all, Megan, the whole narrative collapses on itself.
[00:45:28]  If overwhelming majorities of everybody, red state, blue state, old, young, are all in favor of abortion, then why are they afraid of putting it back into the democratic process?
[00:45:37]  How can they simultaneously insist that everybody favors abortion and at the same time tell women that this decision means they're all going to be back in the handmaid's tail?
[00:45:45]  It makes no sense.
[00:45:46]  That's a good point.
[00:45:46]  And the other point of it, of course, is the whole reason there's a Supreme Court and a constitution is because sometimes what the majority wants is wrong and not just wrong, but a violation of basic rights.
[00:45:59]  So some of the decisions that the Supreme Court has issued that are considered the most shameful, like Plessy versus Ferguson or approving FDR's internment of Japanese American citizens were very popular at the time.
[00:46:11]  But the Supreme Court is expected to be the bulwark against majoritarian tyranny.
[00:46:16]  That's the reason Supreme Court justices have life tenure.
[00:46:20]  So they're immunized from political pressure.
[00:46:22]  They're not supposed to worry about polls because they are expected to uphold minority rights and minority views against majority will.
[00:46:31]  And so the people support it lie is that that doesn't work with the Supreme Court, even if it's true.
[00:46:38]  Even if you have huge numbers supporting it, it doesn't matter.
[00:46:41]  It's not the Supreme Court's job.
[00:46:43]  Yeah.
[00:46:43]  I mean, if you were to put, if you were to ask people, for example, do you think in the 1950s that communists should have the right to politically organize and to speak?
[00:46:52]  Many people would say no.
[00:46:53]  I think communists are such a danger and a threat that they don't have free speech rights.
[00:46:56]  And yet the Supreme Court overruled the majority will for people on the left for a long time.
[00:47:01]  Those decisions were considered heroic, protecting minority rights.
[00:47:05]  Or if you were to say, should we shut down Fred Phelps' church because he holds signs saying God hates fags, people would say, Yeah, let's shut down that religion.
[00:47:13]  It's nothing but hateful.
[00:47:13]  And yet the Supreme Court said, We don't care if you all hate that religion.
[00:47:17]  He has the right, like everybody else, to the free exercise of religion.
[00:47:19]  That's the role of the court.
[00:47:21]  It's the reason there's a Bill of Rights.
[00:47:23]  The only point of the Bill of Rights is to say, if these laws get passed with majority support, they're still invalid because they violate basic fundamental rights, which the majority doesn't have the right to do.
[00:47:34]  You don't have the right to put terrible criminals in prison without due process and subject them to cruel and unusual punishment, even if you think their crimes are uniquely atrocious, because the Constitution is there to protect people's rights from being infringed that way.
[00:47:47]  That's the whole point of why we're a republic and not a democracy.

=== Last Minute Pressure on Justices (14:42) ===

[00:47:51]  That's exactly it.
[00:47:53]  That's exactly it.
[00:47:54]  That last line says everything.
[00:47:55]  Glenn Greenwald, always a pleasure.
[00:47:57]  Thank you so much.
[00:47:59]  Good to be with you, Megan.
[00:48:00]  Coming up, Jay Seculo, a man who was on the inside of this whole case.
[00:48:05]  Don't miss him.
[00:48:09]  Welcome back to the Megan Kelly Show.
[00:48:10]  We are excited to have an attorney with a connection to the Supreme Court story and how in the news this week.
[00:48:16]  Jay Seculo is chief counsel for the American Center for Law and Justice.
[00:48:21]  Two cases he argued before this U.S. Supreme Court were cited in Justice Alito's draft opinion.
[00:48:29]  He's been before the Supreme Court more than a dozen times as counsel.
[00:48:32]  Impressive lawyer, impressive guy.
[00:48:34]  Jay, great to have you.
[00:48:35]  How are you?
[00:48:36]  Hey, thanks for having me, Megan.
[00:48:37]  I appreciate it.
[00:48:38]  Must have been quite a thing to read.
[00:48:40]  First, we'll get to like the reaction to seeing that it was leaked, but it must have been quite a thing to see your cases.
[00:48:45]  I mean, you've been advocating against abortion as a constitutional right for a long, long time to see your cases, your arguments cited in the decision overturning Roe.
[00:48:56]  You know, it was interesting because I, but, you know, with all the news with the leak and whether it was real or not, I was very, I mean, I think you and I talked, I'm or text, I was very concerned about saying anything about this opinion because it wasn't verified or authenticated that it in fact was the draft opinion, which means could have changed many times since then.
[00:49:14]  So at about 11:30 at night, I said, well, I'm just going to read it.
[00:49:17]  And it's 68 pages plus about a 30-page appendix.
[00:49:21]  So I'm reading through the pages.
[00:49:22]  And as I get to M. Ron, I think it was page 17 or 18, and they're talking about the underlying right.
[00:49:27]  And the argument being that the pro-abortion groups have been arguing that opposition to abortion constitutes invidious discrimination against women.
[00:49:35]  Well, I argued a case, I mean, a long time ago, 1992, a case that I had argued twice.
[00:49:41]  And actually, John Roberts was my co-counsel in it.
[00:49:44]  He represented the United States.
[00:49:45]  We're on the same side in the case.
[00:49:47]  And we won that case.
[00:49:49]  And the court specifically said that men and women of good conscience are on both sides of the abortion debate and that opposition to abortion does not constitute invidious discrimination against women as a class.
[00:50:01]  And then I'm reading the opinion and there it is.
[00:50:04]  So that was, it was, yes, it was, I mean, who knows if it's still in there.
[00:50:08]  That's the court.
[00:50:08]  You hope it still is.
[00:50:09]  I don't know if that's the case, but it was nice that it was there.
[00:50:13]  That was a positive.
[00:50:15]  And then on another case, it's actually lost at the Supreme Court.
[00:50:19]  Nobody likes to talk about cases that didn't win, but we didn't win this case.
[00:50:21]  It was a free speech case.
[00:50:22]  And later in the opinion, Justice Salitos talks about that the effect that the abortion decisions have had on other areas of the law.
[00:50:31]  And it's how it's distorted other areas of the law.
[00:50:33]  And he says, like in the First Amendment, see Hill versus Colorado.
[00:50:37]  And that was a free speech case I had where a 5-4 majority ruled against my client, but it wasn't distorted.
[00:50:42]  And since then, it's kind of been tacitly overturned over the years.
[00:50:45]  But yeah, that part was great.
[00:50:47]  I'm, you know, we'll get into the leak aspect, which is horrifying to me that this has happened.
[00:50:52]  But no, it was an interesting read and it's a well-reasoned opinion.
[00:50:56]  And of course, you know what's going on right now outside that court.
[00:50:59]  Yeah, well, it's on inside, too.
[00:51:02]  There's so much to go on, to go over with.
[00:51:04]  And you actually know what you're talking about.
[00:51:06]  You've actually been living this case and litigating this case and filed, as I understand it, three amicus briefs, meaning friends of the court briefs in this case.
[00:51:13]  And so, you know, unlike most of these people, you actually understand what's at issue, what the arguments were, what the meaning of this draft opinion really is.
[00:51:21]  So let's kick it off.
[00:51:22]  We'll just get the leaker out of the way, but it's an important piece of the story.
[00:51:26]  But, you know, one of the things we're not discussing, and I realize it's not the most important piece, but I think about guys like you who devoted your whole life to fighting for to get rid of this.
[00:51:36]  It really isn't made up right in the Constitution.
[00:51:37]  It just is.
[00:51:38]  Even if you're pro-choice, if you're honest, you admit it's not in there.
[00:51:41]  They made it up right now.
[00:51:42]  I just said it was not grounded in the privacy claims that Justice Blackman found.
[00:51:48]  Exactly.
[00:51:48]  And he's as far left as they come.
[00:51:50]  And he's cited in the U.S. Supreme Court opinion by Alito, the draft as well.
[00:51:54]  But anyway, kind of took away the, you know, the moment, at least for now, of like celebration.
[00:51:59]  You know, it's like you could still have the football pulled away from you by little Lucy.
[00:52:04]  You know, you could still be Charlie Brown.
[00:52:06]  And so it's kind of a confusing time, I'm sure, for people like you.
[00:52:10]  Well, you know, it's a decision is not a decision until the ink is on the paper and it's distributed and announced from the bench or released, if the court's not in session, released by the clerk of the court.
[00:52:22]  So I don't, look, I've had plenty of five, four cases where I know after the fact you learn that justice is switched at the last minute.
[00:52:29]  Sometimes it's my advantage, sometimes not.
[00:52:31]  So it happens.
[00:52:32]  So I don't think you can celebrate this draft decision, draft opinion of the court.
[00:52:41]  I was very skeptical the first day because I've, I mean, in our lifetime, and then I researched it.
[00:52:46]  This has never happened where an opinion has been leaked to the court.
[00:52:50]  Leaked, meaning someone stole this inside the court and gave it to a reporter.
[00:52:56]  And it says draft.
[00:52:59]  So that was February.
[00:53:00]  This is May.
[00:53:01]  I mean, three months, a lot of things can change.
[00:53:03]  Although in the political report, it says that I guess it said that the five justices are still lined up that way.
[00:53:09]  That's not particularly shocking based on the oral argument.
[00:53:12]  But the fact that this has been done this way has, I think, a very sinister motivation on three different levels, actually.
[00:53:20]  What do you think it is?
[00:53:21]  I think number one, it's to put pressure on justices that maybe aren't on the fence.
[00:53:26]  For instance, it's striking that there's no mention in the, we don't have anything indicating where the chief justice is, Chief Justice Roberts.
[00:53:36]  Some have said, well, he must be with the dissent.
[00:53:38]  I don't tend to take that view.
[00:53:39]  I mean, I don't know.
[00:53:40]  Only his office knows, or maybe other members of the court now know, but I tend to think he's going to probably find that the law in Mississippi was constitutional, but you didn't have to overturn Roe to get there.
[00:53:51]  I could be wrong on that.
[00:53:52]  So you don't know where he is on this.
[00:53:54]  So that's kind of number one thing.
[00:53:55]  So it's a pressure point.
[00:53:57]  Can they put pressure on justices that are either on the fence or indicated when they voted they were going one way, but now maybe put this kind of pressure on them, show these protests, which immediately ginned up.
[00:54:08]  I mean, within hours of this happening, the barricades go up, the protesters come out, and I understand the protesters are still out as you and I are talking about this.
[00:54:17]  So that's number one, put pressure on the justices.
[00:54:19]  Number two, motivate the Congress to try to federalize statutorily a constitutional right to abortion, which may, or not a constitutional right, a statutory right to abortion, which may mean getting rid of the filibuster.
[00:54:33]  They would basically take what's called the nuclear option and end the legislative filibuster to do it.
[00:54:38]  You have to have 60 votes to get legislation to the fore.
[00:54:40]  There's not 60 votes on this, but would they get rid of the filibuster in order to do this?
[00:54:46]  And if you listen to Chuck Schumer and if you listen to Bernie Sanders, and if you listen to Nancy Pelosi, it sounds like they might well do that.
[00:54:55]  So I think the whoever did this, the saboteur who did this is thinking also, well, yeah, I can get legislation through.
[00:55:04]  They think they're a hero, I'm sure.
[00:55:05]  And number three is going to be a attempt to say, okay, and it's already being discussed, of course, again.
[00:55:12]  We need to stack the court.
[00:55:13]  In other words, pack the court to get justices more aligned with President Biden's judicial philosophy or a left-leaning judicial philosophy, even though Justice Ginsburg, the late Justice Ginsburg, said nine was a good number.
[00:55:24]  But I think, look, I think the person that did this wanted all three of these things to happen.
[00:55:30]  And in a sense, they are.
[00:55:31]  We don't know the extent that the justice, I think it's going to backfire.
[00:55:34]  I think it's going to double down on the justices.
[00:55:36]  But I think what's happened here is, Megan, I think it's an institutional insurrection inside the institution itself.
[00:55:46]  How so?
[00:55:47]  Why do you use that word?
[00:55:49]  Because this was the one bastion of a branch of government that operated with rules and regulations that everybody abided by.
[00:55:58]  Whether you were on one side of the case or another, you still called the lawyer on the other side, my friend.
[00:56:04]  I mean, this is just, there's a lot of tradition that goes with the Supreme Court.
[00:56:08]  You start your arguments with Mr. Chief Justice and may it please the court.
[00:56:12]  I mean, there's a lot of tradition here.
[00:56:14]  One of those traditions is, and the chief justices over the years have said this to the clerks.
[00:56:18]  Don't give out information.
[00:56:20]  This is confidential.
[00:56:21]  You are an officer of the court.
[00:56:25]  You and I are officers of the court as lawyers.
[00:56:27]  That's right.
[00:56:28]  So we can't do this.
[00:56:29]  So this is someone inside is trying to cause basically a delegitimization of the Supreme Court of the United States.
[00:56:37]  And apparently inside the, it has to be inside.
[00:56:39]  There's no one outside the court that would have this that I can imagine.
[00:56:42]  So, you know, I'm sure by now they probably know who it is.
[00:56:45]  They're 100% catching the person.
[00:56:47]  I have zero doubt.
[00:56:49]  I was saying yesterday to Bill Barr when he's on the show.
[00:56:51]  If you told me this person, like that they chose the Supreme Court clerks from like, you know, the Bronx or Yorktown Heights, I'd be like, we're dead.
[00:56:58]  Those people know how to street fight.
[00:56:59]  They can cover their tracks.
[00:57:00]  I used to date a guy.
[00:57:02]  No way would he get caught.
[00:57:03]  These ivory tower little Yale graduates, they're going down.
[00:57:07]  They may know who they are.
[00:57:08]  As a guy born in Brooklyn, I'll take that as a kind of compliment.
[00:57:12]  Totally.
[00:57:13]  My dad was from Brooklyn.
[00:57:14]  That's the old Brooklyn, though, Jay.
[00:57:15]  The current Brooklyn, no, they'd get caught in two minutes.
[00:57:18]  No, I get, I know, it's a whole different volume.
[00:57:20]  But here's the thing.
[00:57:21]  Just think about what has happened here, that they did this.
[00:57:24]  And the left is not saying anything about the horrendous nature of what took place here.
[00:57:29]  They're talking about this purported opinion, which may not even be the final opinion.
[00:57:33]  Yeah.
[00:57:33]  But this is what's happened.
[00:57:34]  Yeah.
[00:57:35]  So I do wonder whether you see a difference between, I just had a long debate with Glenn Greenwald on whether is this just a whistleblower?
[00:57:45]  Is this somebody who is, you know, shining a light on a very powerful institution?
[00:57:51]  And, you know, it's not nice when somebody leaks, but it's really not criminal.
[00:57:56]  And maybe she's like, or he is like a Snowden type.
[00:58:01]  Or is this in its own category?
[00:58:03]  I think it's in its own category because this person, apparently, is an officer of the court if they're a lawyer or a law clerk.
[00:58:11]  So they had to follow, they took an oath to defend the Constitution of the United States to follow the rules and regulations of the institution.
[00:58:18]  And as an officer of the court, they are to respect the court's institutions, rules, regulations, and traditions.
[00:58:24]  And this person did not.
[00:58:26]  And you could call them a whistleblower if you're being nice or a saboteur if you're being honest.
[00:58:31]  And I think they're a saboteur.
[00:58:33]  If this came from whatever side it came from, this is totally wrong.
[00:58:37]  First of all, as you know, it's a deliberative process that goes on inside the court.
[00:58:41]  So they voted after the oral argument in December.
[00:58:44]  This opinion then evidently gets signed by whoever the presiding, the highest ranking, most senior justice.
[00:58:51]  So if it was, and if John Roberts was not writing the opinion, it would have gone to Clarence Thomas.
[00:58:56]  He decides.
[00:58:57]  He then gives it to Justice Alito.
[00:58:59]  Justice Justice Alito over about a two-month period writes a first draft that is circulated among the chambers.
[00:59:06]  And then come May, six weeks before the court, seven weeks before the court probably ends its term, somebody leaks the draft of the opinion and states at the same time that, by the way, that five justices that Alito is working with to overturn Roe are still with him on this as of this week, as of two days ago when this came out.
[00:59:30]  So look, I don't think you can, a whistleblower would be way too kind, in my view, on what happened here.
[00:59:36]  I would be aggravated on this.
[00:59:38]  Listen, according to this opinion, my side won the case.
[00:59:42]  We should be rejoicing, right?
[00:59:44]  Of course, I know, number one, things changed.
[00:59:46]  Number two, that this is an early opinion.
[00:59:49]  So who knows what it's going to look like at the end?
[00:59:50]  And number three, you don't do this.
[00:59:53]  Well, number four, let's not forget, you know, John Roberts, infamously or famously, depending on your point of view, switched on Obamacare.
[01:00:01]  The reports were that he was getting ready to strike it down altogether, as the other conservatives on the court were ready to do, saying there's no Commerce Clause power to pass this law.
[01:00:10]  The law fails.
[01:00:11]  And then at the last minute, the reports are that John Roberts decided, okay, I'll go along with that, but, but there's the taxing power and they have the right under the taxing power.
[01:00:21]  Exactly.
[01:00:21]  And I remember, I was reporting live for Fox News the day this happened.
[01:00:24]  I was on the set and everybody was like, no, no power under the Congress, under the Commerce Clause.
[01:00:28]  No power, no power.
[01:00:29]  They're throwing out Obamacare.
[01:00:30]  And, you know, from years of doing what we do, I kept reading and alive on the air, I said, hold on.
[01:00:39]  There's another thing here.
[01:00:40]  There's a piece of the opinion where they're saying Chief Justice Roberts has saved it because he says they can do it under the taxing power.
[01:00:46]  So he did switch.
[01:00:48]  And according to the reports, he switched at the last minute.
[01:00:50]  And because he's an institutionalist and he wants to uphold the Supreme Court is not doing anything radical to change the will of the people.
[01:00:55]  So who knows?
[01:00:57]  They do switch and they switch at the last minute and do it for reasons that are unpredictable.
[01:01:02]  I mean, I had it happen.
[01:01:03]  We know it after the fact because Justice Blackman's papers later came out.
[01:01:06]  And I had a case where Justice Brennan was writing the majority opinion on a free speech case in my paper.
[01:01:12]  And you looked at the who had opinions left that term.
[01:01:17]  Everybody thought it was Brennan.
[01:01:19]  And apparently it was Justice Brennan was writing the majority.
[01:01:23]  And then it looks like Sandra Day O'Connor switched at the end.
[01:01:25]  I mean, like a week before it came out.
[01:01:28]  And my majority opinion became a dissent.
[01:01:31]  So, I mean, yes, it does happen.
[01:01:32]  That's why you can't, I mean, I think the celebration factor on this should be really muted right now.
[01:01:39]  It's a very well-drafted opinion.
[01:01:41]  It's very Alito-like in its tone.
[01:01:44]  Clear.
[01:01:45]  It's very direct.
[01:01:46]  It's clear, concise, and thorough.
[01:01:48]  It covers every area.
[01:01:49]  It gets rid of some of these arguments about how this is going to affect other rights and clearly says it does not because this is a unique situation where there's another life involved.
[01:01:58]  These other cases, all the social cases they talk about, the main issues, they don't have the same impact.
[01:02:05]  So I think that, you know, again, it's what has happened here.
[01:02:08]  Now, it's also a political point.
[01:02:11]  And that is, you know, if you're a Democratic consultant right now, you're thinking we got a really tough midterm coming up.
[01:02:17]  I mean, really bleak.
[01:02:19]  Inflation, war in Eastern Europe.
[01:02:21]  I mean, unrest.
[01:02:23]  But now they got an potential abortion overturning of Roe, and they're going to run on that.
[01:02:29]  And they're going to try to galvanize their base.
[01:02:31]  It also galvanizes the Republican base too.

=== Investigating the Opinion Leak (12:44) ===

[01:02:33]  So again, we're not going to know until we know.
[01:02:36]  I would hope, and I know this is a difficult situation for the court.
[01:02:39]  I mean, I can't even imagine what's going on internally right now.
[01:02:42]  But I would hope that what they would do, and including the judges that are in dissent, if they still are in dissent, would be to get this opinion out.
[01:02:49]  The country doesn't need to be stirring this up for eight weeks.
[01:02:54]  So if they can get that opinion out, it's been, it was argued December, early December, December 1st.
[01:02:59]  It's May.
[01:03:01]  Get the opinion out.
[01:03:02]  You don't have to wait till the end of June.
[01:03:04]  You could get, if it's ready, get it out, get the opinion out.
[01:03:07]  And this way, it'll be the news it'll be and then hopefully settles down and people will react, whether at the ballot box or any way they want.
[01:03:14]  Well, the timing of it is curious because you point out that the opinion that's been leaked, the draft was dated February.
[01:03:21]  They would have had their vote in December.
[01:03:24]  Now here we are May and the person finally leaks it.
[01:03:27]  So why now?
[01:03:27]  I mean, given your years of experience litigating these cases, how does now make sense?
[01:03:34]  Like if we had a midterm coming up at the end of May before we expected this Supreme Court decision to come out, which would typically be in June, then I'd kind of get it, right?
[01:03:46]  Like this person wants the voters to know this before the  ⁇ but like, what's the difference between May 1st and June 1st?
[01:03:53]  Like, I don't totally know.
[01:03:55]  Congress is still in.
[01:03:56]  Megan Congress is still in session.
[01:03:58]  We know they leave for their summer recess in what, August.
[01:04:01]  Things slow down drastically, as you know, in June.
[01:04:05]  So they're going to try.
[01:04:06]  They're talking about getting legislation on the books next week.
[01:04:09]  So the desired effect could take place next week.
[01:04:15]  But is the saboteur an idiot?
[01:04:16]  Because like, you don't get to be a Supreme Court clerk by being an idiot.
[01:04:19]  Because, I mean, literally today, Jensaki said on Air Force One, we don't have the votes to codify Roe at the federal level, even without the filibuster.
[01:04:28]  That came, she said, we'd love to do it.
[01:04:30]  Believe me, we'd love to.
[01:04:32]  I don't know if she's right on that.
[01:04:33]  I mean, Murkowski and Collins have introduced legislation that would have codified Roe.
[01:04:38]  It did not pass last time.
[01:04:40]  But again, there's been changes to it now.
[01:04:44]  I wouldn't rest so sure on that.
[01:04:45]  But I think that the person that did this, look, the desired result's already happening.
[01:04:50]  You and I are talking about this on your large broadcast.
[01:04:54]  It's being discussed almost wall to wall.
[01:04:56]  It's almost replaced the war in Eastern Europe, as the lead news story probably has.
[01:05:01]  It's drowning out everything else and understandably.
[01:05:05]  And so the person that he or she that did this, they may be really smart.
[01:05:11]  They may be a real ideologue, obviously.
[01:05:14]  But you know what they did?
[01:05:16]  Besides putting their entire legal career, if it's a law clerk in jeopardy, because I would say they should be disbarred wherever they're barred.
[01:05:22]  Yep, they have to be.
[01:05:25]  But look what it's done to the country.
[01:05:27]  And now look what it's done to the institution of the Supreme Court.
[01:05:30]  So if you want to cause kerfuffle, if you want to cause unrest, if you want to cause a questioning of the institution, they've been very effective.
[01:05:40]  Burn it down.
[01:05:41]  That's what they say.
[01:05:41]  These young kids today, they say burn it all down.
[01:05:44]  And these are leftists.
[01:05:44]  You know, these law clerks, you know, they're 24, 3, 25 years old.
[01:05:48]  Yeah.
[01:05:49]  And so, I mean, yeah, that's the tragedy of all this.
[01:05:52]  So when you say, and also it would make sense to release it now if you do want to exert pressure on one of those justices.
[01:05:57]  It's like, okay, I thought I hoped maybe they would change between February and May.
[01:06:02]  Now here we go.
[01:06:03]  Decisions are getting finalized.
[01:06:04]  You know, at this point, you've got to get it.
[01:06:06]  I think that's probably a lot to do with it.
[01:06:07]  Yeah.
[01:06:08]  You got the dissenters writing their draft saying that we dissent and this is why.
[01:06:11]  And so it's getting close to game time and nothing's changed.
[01:06:15]  And the person could be freaking out that nothing's changed.
[01:06:17]  Of course, it's all speculation.
[01:06:19]  That person should be freaking out that their law license, if they're a law clerk, is now gone.
[01:06:22]  It's done.
[01:06:23]  It is in jeopardy.
[01:06:24]  But you know what?
[01:06:24]  They may not care because the new left, the new ideologue doesn't look at the consequences because they think they'll be idolized as a hero for pointing, for leaking this information.
[01:06:35]  And they might be for 10 minutes or 10 weeks, but they're not going to be three years from now.
[01:06:39]  Nobody's going to know about them.
[01:06:40]  But change.
[01:06:41]  That's the thing.
[01:06:41]  They've given up their entire career.
[01:06:43]  That's part of the stupidity.
[01:06:44]  And back to the reason of why.
[01:06:46]  If they manage to sway somebody, if Kavanaugh jumps ship and suddenly is a dissenter and it goes the other way, then yes, then the person's going to run to the microphones and say, I was the one.
[01:07:00]  But she'll already have been caught here or she.
[01:07:03]  But if nobody switches, and I believe no one's going to switch, I know, you know, you don't want to really opine on it because you got a case before them.
[01:07:09]  This is your case.
[01:07:10]  But I will say I doubt any of these justices will switch.
[01:07:14]  I believe all five of these are ideologically committed to reversing Roe, which most conservatives or people who are of the Federalist Society think was an absolutely absurd decision.
[01:07:22]  It's not even, I hate abortion.
[01:07:24]  It's this is an abomination of a peace.
[01:07:26]  We made up a constitutional right that doesn't exist.
[01:07:28]  So I don't think they're going to be scared by the Georgetown Cocktail Party out of this one.
[01:07:33]  I think this one is too important.
[01:07:36]  So then what does she get?
[01:07:38]  Or what does he get?
[01:07:39]  Like they get nothing.
[01:07:40]  You leaked it.
[01:07:41]  So we got like an advanced peak when you lift up the skirt a little.
[01:07:45]  Then that's it.
[01:07:46]  Nothing changed.
[01:07:48]  No, and you know, but I'm not sure they're thinking about the consequences of this.
[01:07:52]  I think this was an act of, in one sense, it had to be an act of desperation.
[01:07:56]  I think you hit something very important here, Megan, that not a lot of people are talking about.
[01:07:59]  Probably what has happened.
[01:08:01]  We know this individual has probably had this, you know, we don't know this, but I suspect this individual has had the draft opinion for a while.
[01:08:08]  And why in May?
[01:08:09]  Well, because now we are getting near the end of the term of the Supreme Court, like you said, and the dissenters are probably writing, probably circulating their dissents right now.
[01:08:17]  I'm sure that's going on within the chambers.
[01:08:20]  And this act of desperation is, I'm running out of time.
[01:08:24]  If there's any chance of swaying a justice or if there's any chance of getting legislation, or if we're really going to talk about adding justices to the court, this is going to be the moment because it's going to be out and then people go for the summer and they're gone.
[01:08:35]  So, but again, I mean, to put your career at jeopardy over this, if it is in fact a clerk of the Supreme Court, we don't know that yet.
[01:08:44]  But if it's a clerk at the Supreme Court of the United States, first of all, think about what that does to the justices involved and their colleagues, the other justices, even the ones that they disagree with.
[01:08:54]  They generally have a very, as you know, a cordial relationship with each other.
[01:08:58]  Yes.
[01:08:58]  And this has got to put a tremendous strain on the institution.
[01:09:02]  And that is not healthy for a constitutional republic to have the judiciary at the highest level, this dysfunctional at this point.
[01:09:09]  Yeah, they've got some very big cases yet to decide.
[01:09:12]  Oh, yeah.
[01:09:13]  All the big cases come out in June.
[01:09:14]  They don't need this distraction, just as a minor point.
[01:09:17]  Never mind.
[01:09:17]  That's why I think they got to get the opinion.
[01:09:19]  If it's ready, get it out.
[01:09:20]  Get it all.
[01:09:21]  What about, you know, you mentioned, so forgive me because you literally said, I have no idea what's going on internally there right now, but I'm going to ask you to speculate anyway.
[01:09:28]  I can't imagine.
[01:09:30]  They're all so distinguished, right?
[01:09:32]  They don't live the same general kind of life the rest of us do, but they're human beings.
[01:09:38]  They are of our world.
[01:09:40]  And so I do wonder, like, are they, would you think this is a grizzled, tough, you know, we're not going to be cowed out of our opinions kind of group right now?
[01:09:51]  Or do you think there's some, you know, fingernail biting, like, oh my God, you know, what do you, how do you, what do you think is happening internally?
[01:09:59]  Well, I know, and I know you do, too.
[01:10:00]  I know a number of these justices.
[01:10:02]  And I, and because of the Supreme Court bar is not that large.
[01:10:05]  And so you know, you know, they're human beings though.
[01:10:09]  So I think number one on the first level is this is a tremendous betrayal of trust.
[01:10:13]  And I think that's both within the chair, if it is back within the chamber, within one of the chambers, one of the justices' chambers.
[01:10:19]  There is, I mean, I'm sure that each justice is going to find out to the best they can if it's in their chamber.
[01:10:26]  So a tremendous breach of trust by the individual that did this.
[01:10:30]  Then you have now the distrust factor that goes on now, how people are going to communicate drafts.
[01:10:36]  You know how they circulate these drafts, usually by messenger.
[01:10:40]  Here's my draft.
[01:10:41]  And they go to all nine chambers.
[01:10:42]  In fact, in the draft of this one, it says, you know, Alito and then lists all the other justices, you know, to the most current.
[01:10:50]  It goes in seniority.
[01:10:51]  And Amy Barrett is the last one because she's the most recently confirmed justice.
[01:10:56]  So you know the distrust factor is huge.
[01:10:59]  You know the tensions are high because the chief justice said in his statement that he has instructed the marshal's office to investigate and determine what happened.
[01:11:09]  They will and they will determine it because, you know, it's not going to be that hard.
[01:11:15]  I can't imagine they're not going to know.
[01:11:16]  If they don't know by now, they're going to know.
[01:11:18]  I can't imagine they don't know by now, frankly.
[01:11:20]  They know.
[01:11:21]  Yeah, yeah, they do.
[01:11:23]  And then how that's handled publicly, I don't know.
[01:11:26]  What it does to that chamber and that justice is a whole nother question.
[01:11:29]  I mean, somebody suggested sending the FBI over to investigate this.
[01:11:33]  Now, I balk at that because, number one, separation of powers.
[01:11:37]  I don't think the FBI serving the executive branch has the right to go over to the judicial branch and start questioning Supreme Court justices.
[01:11:44]  Now, I'm a defense lawyer, so that's going to be my reaction.
[01:11:47]  Also, the institution itself, the Supreme Court, has its own Marshal Service, has its own police department.
[01:11:54]  They can handle this.
[01:11:56]  But it easily handles that judiciously.
[01:11:58]  Can I ask you about that?
[01:11:58]  Because with all due respect to the Marshals at the U.S. Supreme Court, like, this isn't exactly what they do.
[01:12:03]  Like, they don't have a ton of experience investigating something like this.
[01:12:07]  And Andy McCarthy's argument, I know he's on the same side of the aisle as you are, but his argument is they work for us.
[01:12:14]  Whoever leaked this document is our employee.
[01:12:16]  And that document belonged to us.
[01:12:18]  And we paid a lot of money for it.
[01:12:20]  And we have other employees, employees who are specialists at investigating crime, whether it's the executive branch and the FBI or it's Congress with its subpoena power and so on.
[01:12:28]  So let's get somebody with some teeth to show up and say, excuse me, Mr. Marshall.
[01:12:33]  I know that you, Ms., I should say, you're very good at the OEA, OEA, OEA, but you need to step over there.
[01:12:39]  And with all due respect, we're going to get to the bottom of this.
[01:12:42]  Well, Andy's a friend of mine.
[01:12:44]  I have tremendous respect for him.
[01:12:46]  But, you know, I spent four years in the last administration defending the president of the United States.
[01:12:51]  And a lot of it had to do with the FBI and these law enforcement agencies.
[01:12:56]  So call me John.
[01:12:59]  The truth is, I just don't like the idea of federal agents maneuvering.
[01:13:04]  What about special counsel?
[01:13:06]  What about special counsel?
[01:13:06]  Bill Barr said maybe special counsel.
[01:13:08]  He thinks Roberts can be.
[01:13:09]  John Roberts is the chief justice of the United States, not just the Supreme Court.
[01:13:13]  He's the Chief Justice of the United States, Chief Judge of the United States.
[01:13:17]  I think let him, if he needed outside help to determine this, that would be his call.
[01:13:23]  That would be the judiciary saying to the executive, we need your assistance to do this.
[01:13:28]  But I think you got to let the justice, the Supreme Court itself handle this initially.
[01:13:36]  I cannot believe, Megan, for a minute that they're, I had trouble believing they don't know now.
[01:13:40]  I'm just being honest.
[01:13:41]  I can't believe they don't know right now.
[01:13:45]  They've definitely got their suspects.
[01:13:46]  I'm telling you, look, I've been saying this for two days now.
[01:13:48]  There's a guy.
[01:13:49]  His name is Phil Houston.
[01:13:50]  He's a human lie detector.
[01:13:51]  He ran the CIA deception detection unit.
[01:13:54]  He created the policy on how to, he has a book called Spy the Lie.
[01:13:59]  He created it and he ran it for the CIA for 25 years, half of which he spent trying to figure out whether terrorists were terrorists and half of which he spent trying to figure out whether our agents had become double agents for somebody else.
[01:14:11]  And I took his eight-hour class, Jake, which I highly recommend to you.
[01:14:14]  In fact, I'm going to have you over to my house when we offer this because we're going to do it for some friends.
[01:14:18]  And he sits you down at the beginning of this class and he shows you himself and his CIA partner interrogating five employees suspected of one of whom embezzled from their company.
[01:14:31]  And he asks the same five questions of each of these five employees.
[01:14:34]  And then he asks you to vote who's the liar.
[01:14:37]  There's one who did it and all the rest are innocent.
[01:14:39]  And our answers are all over the board.
[01:14:41]  This is like a smart news group, savvy.
[01:14:43]  This is all my staff on the Kelly file that he offered to do it for.
[01:14:45]  So we did it.
[01:14:46]  All over the board.
[01:14:47]  It was the guy with the blue shirt.
[01:14:49]  It was the lady in the red dress.
[01:14:50]  It was, you know, whatever.
[01:14:51]  Take the whole class eight hours later.
[01:14:53]  Same tape is shown.
[01:14:54]  We all write, everyone knew who it was.
[01:14:56]  There are ways of detecting lies without a hookup to a polygraph.
[01:15:01]  And he's an expert.
[01:15:02]  I'm, you know, tongue in cheek a little bit, but seriously, this guy could figure it out.
[01:15:07]  I think that, look, I tend to think, and maybe it's because just knowing the institution like I do, I tend to think they know.
[01:15:14]  And I think the justices in the individual chamber probably know now.

=== Legal Precedents Beyond Roe (12:53) ===

[01:15:17]  I don't think they knew before.
[01:15:18]  I don't think this was, I don't think the justices would have ever done this.
[01:15:21]  I would be shocking.
[01:15:23]  I mean, I can't imagine the situation.
[01:15:25]  So that's what I'm saying.
[01:15:26]  I think hold off on the FBI, hold on on the Secret Service.
[01:15:31]  Let the Supreme Court handle it institutionally themselves, at least here in the initial stage.
[01:15:35]  But if I'm John Roberts, I'm telling those justices, get your opinions done.
[01:15:39]  We are not going to keep the country in this eight-week suspense while this has happened.
[01:15:45]  You've had a breach.
[01:15:46]  Look, when you contacted me the other day, I said, I'm not saying anything until somebody authenticates it, right?
[01:15:51]  I just want to make sure this is not just some hoax.
[01:15:55]  And then, of course, they authenticated the next day.
[01:15:57]  And, you know, when you now realize what's happened, this has been a heist of a Supreme Court draft opinion that was circulated among the chambers.
[01:16:05]  This is a really big deal that's happened here.
[01:16:07]  And I think the danger here is, again, it's the institutional credibility.
[01:16:11]  And that's what you're seeing in front of the Supreme Court, the pro-life protesters, the pro-choice protesters.
[01:16:16]  We see that all the time.
[01:16:17]  This goes much deeper than the protesters.
[01:16:20]  It goes much deeper than the opinion.
[01:16:21]  If somebody thought that they should do this to influence an outcome, whether it's in the court, in the legislature, whether it's getting Joe Biden, the president of the United States, more court picks by court back.
[01:16:33]  I mean, I believe that all nine of these Supreme Court justices have much higher ethics than whoever leaked this opinion.
[01:16:40]  And this person will be proven wrong and no one will flip because of whatever pressure comes.
[01:16:46]  To your point, hopefully there will be as short a period as possible because we don't want anybody questioning it.
[01:16:51]  And this person will learn that this did nothing other than rattle a bunch of good people who are doing their best to serve the country and endanger them and get a lot of people upset or elated prior to the time they were going to have it happen a month later.
[01:17:04]  All right, stand by because I really want to talk to you about what's in the opinion and what it means.
[01:17:09]  You referenced it a second ago, the hysterics about where this is going to take us.
[01:17:13]  I know you'll be a straight shooter on it, and that's where we're going to pick it up after I squeeze in a quick break.
[01:17:17]  Jay Seculo stays with us over this quick break.
[01:17:23]  Welcome back to the Megan Kelly Show.
[01:17:25]  President Biden just a short time ago stoking fear that if Roe versus Wade is indeed overturned when the final version of this opinion comes out, it could lead to LGBTQ children being barred from classrooms and reverse a 1965 decision by the high court that allowed privacy when using contraceptions, contraceptives between married couples.
[01:17:49]  Okay, that's where he says this is going.
[01:17:52]  He also called hardcore Trump supporting Americans, quote, the most extreme political organization in history.
[01:18:00]  Listen to this.
[01:18:01]  Griswold was thought to be a bad decision by Bork.
[01:18:05]  And my guess is the guy's on the Supreme Court now.
[01:18:09]  What happens if you have a state changes the law saying that children who are LGBTQ can't be in classrooms with other children?
[01:18:20]  Is that legit under the way the decision is written?
[01:18:24]  What are the next things that are going to be attacked?
[01:18:27]  Because this MAGA crowd is really the most extreme political organization that's existed in American history.
[01:18:35]  Wow.
[01:18:36]  Wow.
[01:18:36]  President Unity.
[01:18:38]  with some thoughts for you today.
[01:18:39]  Back with me now, Jay Seculo, an attorney, Supreme Court litigator, and host of Seculo, his own podcast, which you should check out.
[01:18:46]  Jay, that's extraordinary, that soundbite we just heard.
[01:18:49]  Well, don't worry because the president has now, through his Department of Homeland Security, instituted a Ministry of Truth or a governance board for misinformation and disinformation, which should be going after his disinformation, which by the way, talking about something unconstitutional.
[01:19:07]  I can't think of anything more unconstitutional than that.
[01:19:09]  Well, you know, look, with all due respect to the president, he didn't read the opinion.
[01:19:13]  Justice Alito went out of his way to point out how this doesn't affect these other issues.
[01:19:17]  And it doesn't because those other issues don't involve the termination of another life.
[01:19:22]  So.
[01:19:23]  Okay, wait, before you get to that, let me set it up.
[01:19:26]  Because Griswold versus Connecticut is the first case in which the high court said, you know what?
[01:19:30]  We think there's a right to privacy.
[01:19:31]  We think that's in here.
[01:19:32]  It's not used in those terms.
[01:19:35]  But if you look at the right to liberty and sort of extrapolate, we think there's a right to privacy such that you can't tell a married couple what kind of contraception they can use or cannot use inside the marital bedroom.
[01:19:45]  And from that, Roe eventually, years later, would be born.
[01:19:50]  Like this right to privacy got expanded.
[01:19:53]  And that's sort of like the underpinnings for a case like Lawrence v. Texas talked about you can't legislate gay relationships inside of the bedroom either and so on.
[01:20:05]  They're all linked back to Griswold.
[01:20:07]  So this is why the left is now saying, now that the Supreme Court has said the right, the quote, right to privacy doesn't give us abortion rights, the next step is to say, well, there's no right to contraception and there's no right to marital sex privacy, whether you're gay or straight, and there's no right to gay marriage.
[01:20:24]  They're linking it all back because it does have seedlings in Griswold versus Connecticut and right to privacy.
[01:20:29]  So that's the argument.
[01:20:31]  Yeah, but you said something right in that conversation, in that little colloquy just then, that is really what it was.
[01:20:36]  Those interests actually come out of liberty interests that are recognized in the Constitution.
[01:20:40]  They may not be spelled out per se.
[01:20:42]  Remember, the right to abortion came from the, this is Justice Blackman's language, the penumbras.
[01:20:49]  Emanates out of.
[01:20:51]  So there was no constitutional text supporting it.
[01:20:54]  These other issues are very, very different.
[01:20:57]  And Justice Alito, again, in this draft opinion, goes to great length to point that out, that these are different interests at stake.
[01:21:06]  So I do think you cannot ignore the fact that what we are talking about is unique, as Justice Alito's draft says, a unique situation.
[01:21:14]  And that is there's a life here that's involved, and that is the life of the unborn child.
[01:21:19]  And that gives the states a more compelling governmental interest.
[01:21:24]  I do not expect that there would be any votes to undo any of loving or any of these cases.
[01:21:32]  And the fact is.
[01:21:34]  Loving is the case that said interracial marriage is okay.
[01:21:37]  Right.
[01:21:37]  And they are using that one too.
[01:21:38]  And yet, you know, Justice Thomas, who is married to Jenny Thomas, so quote, an interracial marriage, whatever that means anymore in our culture.
[01:21:45]  I mean, I'm not even sure.
[01:21:47]  I don't like labeling things like that anymore because, you know, we are a nation of so many cultures.
[01:21:53]  And I mean, my family's, you know, part of my family is Russian.
[01:21:56]  Some of it's Ukraine.
[01:21:57]  Some of it, and reports of that time, it was Poland.
[01:21:59]  I mean, you know, this is just the world we live in, which is good.
[01:22:02]  That's the diversity of the country.
[01:22:04]  The fact that they're trying to scare people by saying this, I laid out a lot of those cases, as you know, on the marriage cases because as a constitutionalist, I wasn't sure the federal government should be in the business of dictating any of this.
[01:22:21]  Again, it kind of falls back to the states, and there's liberty interests, which are different than privacy interests.
[01:22:27]  And again, the unique nature of any of these other interests that you have, you have two consenting adults in those situations.
[01:22:36]  Here you have a person unborn, but a person that has no constitutional protection unless this opinion becomes the law until now, because was not deemed to be a person under the Constitution.
[01:22:51]  So it's very different than every one of these other cases.
[01:22:54]  Justice Salito, in his draft opinion, goes out of his way there.
[01:22:57]  Let me read that.
[01:22:59]  Let me read that so people know.
[01:23:00]  This is from the draft opinion.
[01:23:01]  Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests, that's the chief appellate officer for the United States arguing for the Biden administration, suggests that overruling those decisions would threaten the court's precedence, holding that the due process clause protects other rights.
[01:23:19]  And in parentheses, they cite the case of Bergafal, which is the gay marriage, Lawrence v. Texas, which I mentioned, Griswold, which I mentioned.
[01:23:25]  That is not correct for reasons we've already discussed.
[01:23:28]  And he goes on to say, as even the Casey plurality recognized, because Casey upheld Roe with the vote of just three justices because they couldn't agree on anything.
[01:23:37]  As even the Casey plurality recognized, abortion is a unique act because it terminates life or potential life.
[01:23:45]  And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right.
[01:23:56]  Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
[01:24:03]  Now, the other side knows that that's in there, Jay.
[01:24:04]  They've read it same as you and I have.
[01:24:06]  Their argument is, oh, you just wait.
[01:24:09]  He may say that here, but that will 100% be used by people who objected to those decisions and those quote rights in the future.
[01:24:18]  The reasoning of this opinion will be used to try to challenge those rights and get a reversal, either with this court or a future court.
[01:24:27]  Yeah, and I think that's ridiculous.
[01:24:28]  Number one, the opinion itself, if that ends up being the opinion, Megan, with that language still in it, says exactly the opposite of what these people are advocating.
[01:24:37]  It says it cannot be used for that because of the unique nature of the procedure involved here, which is also to many people the taking of human life.
[01:24:46]  So all of these other cases, he specifically says it cannot, this context cannot apply to that context.
[01:24:53]  So in that sense, it ends that debate.
[01:24:56]  They don't want that debate to end because they want it to, because abortion is still, you know, an issue where even though there are people on, as the Supreme Court said, on both sides of the issue, people are pretty firm in their view on which way they go on this.
[01:25:10]  And people, you know, understand exceptions and all of this.
[01:25:13]  But the fundamental is just to return this to the states.
[01:25:16]  So everybody needs to remember that.
[01:25:18]  But he specifically writes in this opinion, assuming it becomes the final opinion, that those other issues are not at stake because this case applies to a unique situation, the termination of life.
[01:25:31]  And I think it cannot be any clearer.
[01:25:34]  Alito and the other justices joining the majority, they may not be institutionalists like Chief Justice Roberts is, but they care about the court.
[01:25:41]  And they understand the court only has authority because we give it authority.
[01:25:45]  We listen to them.
[01:25:45]  You know, they don't have a police force that goes out and enforces these decisions.
[01:25:50]  And so they'd have to be, like the young kids, burn it all down.
[01:25:54]  If at any point in the next 20 years, they ignored this specific paragraph and said, never mind, that stuff we said, we don't mean any of that.
[01:26:03]  We're going to start burning it all down.
[01:26:04]  We're going to burn down, you know, Bergafal.
[01:26:06]  We're going to get rid of Lawrence.
[01:26:07]  We're going to get rid of Griswold.
[01:26:08]  That would be insane.
[01:26:10]  No, and it's not going to happen because number one, this opinion kind of, in a sense, reinforces those cases.
[01:26:17]  I mean, you have to really look at what it's saying.
[01:26:19]  And Alito may not have agreed with some of these other cases.
[01:26:22]  I don't think he was serving on the time of the Lawrence case, but I think on Oberfeld, I know he was there.
[01:26:27]  So here's the thing.
[01:26:29]  He is saying, in this opinion, again, if it becomes the opinion, you cannot apply this area of law to this area of law, which should not actually be that complicated.
[01:26:39]  But look, that doesn't serve the political motives of the saboteur here who was trying to gin up all of this unrest, which has happened.
[01:26:47]  Look, there would have been unrest the day the opinion came out if that, in fact, was the opinion.
[01:26:51]  But it would have been done in an orderly way that it normally is.
[01:26:54]  Now, you're not seeing mass rioting in the streets.
[01:26:56]  You're not seeing what we saw, you know, last summer, two summers ago.
[01:27:00]  So we're not seeing that kind of reaction.
[01:27:02]  Hopefully, the country's mature enough to not put itself through that again.
[01:27:07]  But look, this is a legal system.
[01:27:08]  This is a unique case because it involves a unique situation, and that is unborn life.
[01:27:13]  And when you've got Elizabeth Warren screaming yesterday as she was walking over to talk in front of the Supreme Court and is screaming about how the Republicans have been planning this, the Republicans were very late to this game on life.
[01:27:26]  Okay, let's face it.
[01:27:28]  It was the religious community that spoke out against this in the late 60s as it was maturing already.
[01:27:33]  And then certainly after Roe and then eventually the Republican Party took on a pro-life platform.
[01:27:38]  But as you know, there were plenty of pro-life presidents that did nothing on this issue.
[01:27:43]  And then there were others that did.
[01:27:44]  And the fact is, Joe Biden yesterday said about the Supreme Court decision, he said that you cannot let the Supreme Court decide whether someone can abort a child.
[01:27:55]  I mean, I want people to think about what he just said.
[01:27:58]  You can't let the Supreme Court decide if someone can abort, terminate a child.
[01:28:05]  I mean, he called it a child.
[01:28:06]  He used the term baby.
[01:28:08]  He said a baby.
[01:28:08]  Yeah, he used the term baby.
[01:28:10]  So a baby.

=== Late-Term Abortion Debates (06:51) ===

[01:28:11]  The left will only say fetus at best.
[01:28:13]  Which means, by the way, the same thing, but right.
[01:28:16]  Yep.
[01:28:16]  But the idea that they even, this is the thought process.
[01:28:19]  So I think, again, this, you know, it's going to affect all these other rights.
[01:28:22]  I think is, again, another one of these.
[01:28:24]  Get it out there.
[01:28:25]  Get people riled up as if they're not riled up already by having this opinion leak.
[01:28:29]  Well, and it's like, it makes the argument almost easier for them because the closer you get to the actual abortion debate, the more uncomfortable it becomes for the pro-choice side.
[01:28:39]  Like if you just keep it in the abstract, my body, my choice, stay away from me, big government, you know, regulators.
[01:28:45]  That is appealing.
[01:28:46]  When you actually start to think about, wait, what are we arguing about?
[01:28:49]  Like, what's in there?
[01:28:50]  What's in your body that's become an issue?
[01:28:53]  It gets a lot more uncomfortable.
[01:28:55]  And this is one of the reasons why I think a lot of the country is, you know, they may not want to see abortion outlawed altogether, but they certainly are not on the side of those people like from the big group, quote, shout my abortion, shout your abortion.
[01:29:12]  Like that's literally one of the biggest groups on the other side now.
[01:29:14]  They want you to shout it, say it loud, say it proud.
[01:29:17]  Just yesterday, Tish James, the attorney general of New York State, the one who, to her credit, brought down Harvey Weinstein.
[01:29:22]  Okay, I like that.
[01:29:24]  Went after Andrew Cuomo.
[01:29:26]  I wasn't opposed to that either.
[01:29:28]  Sent out a tweet talking about how proudly she, how proud she was when she walked into Planned Parenthood to have her abortion.
[01:29:37]  I just think most Americans are turned off by that.
[01:29:39]  You're proud.
[01:29:40]  Like you didn't, you felt no compunction about the child you created.
[01:29:43]  I get, okay, I get it's your choice, but you're proud.
[01:29:46]  I don't believe that she felt proud when she went in there.
[01:29:48]  I don't know her.
[01:29:50]  And I don't know.
[01:29:50]  And maybe she did, but you know, this is a traumatic moment in any person's life that they know what, especially they know what they're doing.
[01:29:57]  You know what has changed this debate more than anything, more than the legal arguments, more than the political rhetoric?
[01:30:02]  Imagery.
[01:30:02]  Ultrasounds.
[01:30:03]  Oh, yeah.
[01:30:03]  See, that's the same thing.
[01:30:04]  Oh, it's more than ultrasounds.
[01:30:06]  Now, I've got, you know, I've got six grandkids now.
[01:30:08]  So I have pictures of my grandkids at, you know, 21 weeks, 18.
[01:30:13]  It's unbelievable.
[01:30:15]  So this whole argument, you know, used to be, they just argued it's just a bunch of cells.
[01:30:19]  It's not a person yet.
[01:30:20]  And now I'm looking at my granddaughters and grandsons and I'm looking at, you know, in 20 weeks with these pictures that are, it's not like the old days.
[01:30:29]  I mean, it's very clear.
[01:30:30]  The 3D images are spot on and they look like what your child looks like.
[01:30:35]  Yes, I'm seeing it as you're saying.
[01:30:38]  I'm seeing them get emotional about this.
[01:30:40]  I mean, I'm seeing the pictures of my own grandkids, but I'll tell you, take it a step further.
[01:30:43]  The doctors, okay, that are performing surgery in Euro now are using more than 3D imaging.
[01:30:50]  They're using 90 type imaging.
[01:30:52]  They can see all the way around the child.
[01:30:55]  And I think we just have to, you know, that has changed this debate drastically.
[01:30:58]  So yes, like you said, you can say it and in the abstract, but when it comes down to it, I don't think anybody walks in there thrilled about this.
[01:31:05]  I mean, I think that's, I think.
[01:31:07]  I should hope not.
[01:31:07]  I don't know.
[01:31:09]  I mean, I'm not, you know, obviously.
[01:31:10]  There are some women who are like, I'm on my ninth abortion.
[01:31:12]  Like, okay.
[01:31:13]  So that person has absolutely no moral compass and feels no compunction about it.
[01:31:17]  And I mean, they're out there.
[01:31:19]  Okay.
[01:31:19]  So they should go, they should stay in the Northeast where I am, and they should never move to one of these 13 states because that's not going to be possible anymore in states like that.
[01:31:27]  Now, and by the way, like the thought that you won't be able to get an abortion at all is not true either.
[01:31:31]  It will become more difficult in the states that outlaw it.
[01:31:34]  But this, the FDA approved like the mail, the abortion drug that women are going to be able to get mailed to them.
[01:31:40]  And if you can't get it mailed into your red state, you probably get it at the neighboring state.
[01:31:43]  It's a PO box.
[01:31:44]  I mean, women, it's not, we're not, we're past the days of the back alley horrible procedures.
[01:31:50]  But can I just, I want to touch on this because I know this is something you argued and it's all over the court's decision.
[01:31:55]  And it's an important argument.
[01:31:59]  Talk about Europe and versus us when it comes to balancing, because you mentioned the balance of like, do we account for the fact that there's a human life in there?
[01:32:07]  And the way they've approached it, they're more liberal than we are.
[01:32:10]  And so how do they treat this?
[01:32:11]  But they're not more liberal on this than we are.
[01:32:13]  And we have an office in Strasbourg, France, our European Center for Law and Justice, and they've been very active on the life issue.
[01:32:19]  And the United States is with, you know, North Korea and China on our abortion policies.
[01:32:27]  And in Europe, the restrictions on abortions after, I mean, most of the time, after 12 weeks, 15 weeks, it's very restrictive.
[01:32:37]  So Europe has taken a much more cautious view of the right to abortion.
[01:32:42]  I think also in part because what Europe has experienced with genocides and things like that, we haven't experienced in the United States.
[01:32:50]  I think that the ethical and moral implications of that have affect the European jurisprudence and the European parliaments in the various countries and within the European Union itself have been very, very resistant to an expansive abortion right like in the United States.
[01:33:06]  They think we're barbaric.
[01:33:08]  I mean, this is a, in the United States, we're one of six countries that allow late-term abortion.
[01:33:13]  And as you and I talked many years ago, late-term abortion means while that child is being delivered, I have deposed those doctors and they are, they give you a clinical explanation as they are.
[01:33:26]  And I don't want to get gruesome here, basically taking the child apart limb by limb, which is pretty gruesome.
[01:33:31]  And with no, and it's just a clinical view to them.
[01:33:35]  I mean, that well.
[01:33:36]  I mean, I tried those cases.
[01:33:37]  I have, I've deposed those witnesses, those experts.
[01:33:40]  It's sick.
[01:33:42]  Just so people know, 85, this is from your brief.
[01:33:45]  85% of European states that allow abortion.
[01:33:48]  Okay, so 85% of those that, the vast majority allow it.
[01:33:52]  I'm sorry, 13% outright ban it.
[01:33:55]  And then of those that allow it, there are 47 member states.
[01:33:58]  So 13 ban it outright.
[01:33:59]  And of the rest, the vast, vast majority of them, 85%, limit it to at most 12 weeks in.
[01:34:07]  A lot of them have earlier limitations, 10 weeks, so on.
[01:34:10]  So at most 12 weeks.
[01:34:11]  So you got the vast majority of ours.
[01:34:13]  Which would be the Mississippi law, by the way, which would be law in Mississippi.
[01:34:17]  They say 15 years.
[01:34:18]  Europe was not a model where the court who likes to sometimes go looking at international law, which can be a bit dangerous because we have a constitution.
[01:34:25]  They don't.
[01:34:26]  That doesn't help them.
[01:34:27]  Europe does not help them.
[01:34:28]  Alito points that out in a footnote.
[01:34:30]  Yeah.
[01:34:30]  And then, and you also point out that over there in Europe, they don't exclude in principle the unborn child from the scope of human rights, including the right to life.
[01:34:40]  There's a real recognition that this is a life.
[01:34:44]  Yeah.
[01:34:45]  So it's personhood, which this opinion by Justice Alito, I think, does that without explicitly saying the word personhood.
[01:34:54]  But one of the things we argued is a person is protected under the Constitution.
[01:34:59]  And is that unborn child a person?
[01:35:01]  Our view is that it is.

=== Thanks for Listening (02:15) ===

[01:35:02]  And I think this opinion recognizes that.
[01:35:04]  But in Europe, it's a given.
[01:35:06]  And even the countries that allow abortion, like you said, the most restricted at about the end of the first trimester.
[01:35:12]  But even the countries that do, they still say it's a person.
[01:35:15]  It's just saying that the interests there way the other way.
[01:35:19]  But none of those compared to what the United States has on abortion laws.
[01:35:23]  We are the most aggressive.
[01:35:25]  We have people over here on the left that have literally referred to unborn babies as clumps of cells, clumps of cells, and that's it.
[01:35:32]  They're the same people who are referring to us as bodies that give birth.
[01:35:35]  Like they won't say women, except now we're hearing a lot of women if suddenly they remembered what women are.
[01:35:41]  Jay, thank you so much.
[01:35:43]  I hope we can talk again once we learn more, but I really appreciate it.
[01:35:46]  Hopefully we get an opinion soon.
[01:35:47]  Yeah, exactly.
[01:35:48]  Fingers crossed.
[01:35:49]  And the leaker's name.
[01:35:51]  I love that show.
[01:35:52]  I hope you love that show.
[01:35:53]  It was like elevated discussion that's still easily digestible by everybody, but with some of the greatest minds, right?
[01:35:59]  Josh Hawley, my God, not only did he clerk for Chief Justice John Roberts, but he's a U.S. Senator and he, you know, the JD fans, all of it, like totally on point.
[01:36:08]  Glenn Greenwald, Pulitzer Prize-winning, brilliant lawyer, totally fair and fascinating guy, isn't he?
[01:36:14]  He comes at every story from a different angle.
[01:36:16]  And then Jay Seculo, you could ask for no better.
[01:36:19]  I could listen to him talk for another hour.
[01:36:21]  He's lived it.
[01:36:22]  He's the real deal, not some Supreme Court faker.
[01:36:26]  So I hope you enjoyed it as much as I did.
[01:36:28]  And we're going to do it all over again for you tomorrow.
[01:36:30]  We're going to stay on this leaker story with Rich Lowry of National Review.
[01:36:34]  And we're going to stay on the left meltdown story as well.
[01:36:37]  Senator Ted Cruz will be here.
[01:36:39]  And our pal Michael Knowles of the Daily Wire.
[01:36:41]  He's always so fun.
[01:36:42]  I love Michael Knowles.
[01:36:44]  Speaking of the way their minds work, right?
[01:36:47]  It's like Glenn and Michael, they just, you can't predict what they're going to say, which is part of the fun.
[01:36:52]  Anyway, in the meantime, go ahead and download the Megan Kelly show on Apple, Pandora, Spotify, and Stitcher.
[01:36:57]  Leave me a comment over there on Apple.
[01:36:59]  Oh, and a five-star review.
[01:37:01]  I never forget, I always forget to ask for a five-star review, but that would be nice.
[01:37:06]  Also, follow us at youtube.com slash MeganKelly.
[01:37:09]  And thank you so much for listening.
[01:37:12]  Thanks for listening to the Megan Kelly Show.
[01:37:15]  No BS, no agenda, and no