Attorney Laurence Tribe is known for writing controversial legal briefs and off-the-wall legal arguments at the Supreme Court. What is he arguing in Whole Woman’s Health v. Hellerstedt?
Barrett: Can we talk a little bit about Ruth Bader Ginsburg? We will talk about the fact that it was the then-president of the United States who started a trend toward democratic justices. Not necessarily liberal justices, but democratic justices. And when Elena Kagan came along, there was this real transformation. And I think Ginsburg is one of the most remarkable examples of that. And then she has now suddenly taken on a voice much more conservative. And the problem with that is we really have now lost the impact of several of the justices. And the case on which she said the most is now gone. I don’t know what her likely philosophy is going to be in the future. I don’t know if she’s willing to follow Clarence Thomas’ lead. And so I think the court will be more conservative without her.
Leaving aside for a moment how the court has been more conservative after Ginsburg joining, Tribe always complains that Ginsburg prevents the court from dealing with big issues like abortion, same-sex marriage and affirmative action. He thinks the Obama Administration wants to legalize abortion. If you also agree with him on these issues, there’s another thing: where does he draw the line on equal protection?
Garrett: There are constitutional protections guaranteed for the sex-cide of women. The Equal Protection Clause, which is in the Fourteenth Amendment, the 14th Amendment; that guarantees that no state shall abridge the privileges or immunities of citizens of the United States, and that includes the right to the full and equal protection of the laws, has been interpreted repeatedly as applying to sex-cide. And the court has not in the last several years invoked that same clause as a defense of abortion in an 8-1 case. So I think we see there that in the public discourse both sides of this abortion battle have been stuck on the same old grievance arguments that made them popular decades ago. It was difficult to say one thing and the other thing. What I really don’t like about it is the fact that if the framers had understood how abortion could be an individual issue, the United States would be a lot further along now.