The Supreme Court’s Effect on the Midterms (with Dahlia Lithwick)
Leading up to Election Day, we’re revisiting a favorite episode with lawyer and journalist Dahlia Lithwick. Dahlia explains in detail the consequences of the Dobbs ruling and whether they’ll drive people out to the midterms. How does your vote impact the makeup of the highest court and the decisions it makes? This episode is for everyone who cares about the future of reproductive rights.
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Andy Slavitt, Dahlia Lithwick
Andy Slavitt 00:18
Welcome to IN THE BUBBLE. This is Andy Slavitt. It’s Wednesday, September 21st. Welcome to fall, everybody. I hope your summer was great, and you’re ready for a great fall a lot of things changing and starting election season ramping up, the Supreme Court is about to get back in session. And we’re adjusting to some new realities that are difficult to process. One of them is we are living in a world post the Dobbs ruling. And, you know, like every law or court ruling, it has both intended and unintended consequences. And then those consequences have spillover consequences. So now there is a bill put forward by Senator Lindsey Graham, to create a nationwide ban on abortion after 15 weeks. There also real on the ground impacts to what the courts did and what it’s allowed states to do. And that means the landscape for women is changed dramatically in ways even beyond abortions. But extending to being pregnant in general, and the rights that you have to just simple medication, if it affects your fetus and affects the world. So we’re gonna get into understanding that in a pretty intense way with our guest today. Who is the amazing, even the fabulous I don’t use that word very often. Dahlia Lithwick. Dahlia has been a supreme court reporter. She’s an author. She’s incredibly thoughtful. And we’re gonna get right into it in this conversation, starting with what the world looks like postdocs. And then getting into an amazing discussion that goes a few different directions. We’re going to talk about what’s changed in the Supreme Court, we have a new Justice Ketanji Brown Jackson, and how she fits into the court. But four years of new judges have really transformed the landscape for what the court system looks like. And we’re going to talk about that in some pretty stark ways. Because, you know, on the subject of things we thought we could take for granted, the way our court system works, has changed pretty dramatically. So that and then how all this sort of affects how people are getting out and thinking about the coming midterms. She’s written a book, Dahlia has called Lady Justice, women law in the battle to save America. We’ll talk about that a bit. I think you’re gonna love this conversation. It is intense. It is filled with information is chock full of her expertise and her compassion. And let’s just bring her on. Hi, Dahlia.
Dahlia Lithwick 03:12
Andy Slavitt 03:13
How are you?
Dahlia Lithwick 03:14
Andy Slavitt 03:15
We don’t have a little bit of experience with what the world looks like after Dobbs. And there’s all kinds of elements to that Dahlia. There’s the political element, there’s the judicial element. But I want to start with the impact on real women and real people, girls as a matter of facts, and that is women. What are we seeing?
Dahlia Lithwick 03:36
So I think this is where it gets immediately really complicated, because in our heads after Dobbs, we thought, oh, this is going to affect women who want abortions, and you know, how they get out of state and abortion medication and how that’s mailed? I think we were looking even than when we knew it was a catastrophic ruling. I think the aperture was really narrow, because I think we forgot that this was going to sweep in IVF. This was going to sweep in miscarriages. You know, we’re getting reports just this week of prisons, detaining women in Alabama for you know, fetal endangerment by doing what, by you know, taking drugs during pregnancy. And you know, a prison in Alabama is like, fine, we’ll keep you in prison. We’ll set the you know, bonds so high that you can’t possibly pay it. And that way, we can make sure that you’re not endangering your fetus. And we’re gonna see more and more stories about this. And I guess this is my roundabout way of saying every part of pregnancy and miscarriage is now in the hopper. It is part of the conversation. And I think that women around the country who were a little bit, I’ve been horrified but thought, you know, this only is going to implicate women who have abortions and that’s not me are suddenly realizing that if you to miscarry, you might need to wait for a panel to approve, you know, the DNC, you might need to wait to have a bunch of lawyers determine whether your ectopic pregnancy, it renders you, you know, in such a state that your life is threatened. And so this is just absolutely, raising red flags about criminalizing every part of pregnancy.
Andy Slavitt 05:23
So, Delia, if you’re pregnant, and you get cancer, whose business is it? Is it your cancer? Is it the baby’s cancer, and therefore the government has a say in how you treat that cancer?
Dahlia Lithwick 05:33
Right. And I mean, we’re seeing people who are being refused methotrexate, right. I mean, that’s a really good example, because it has possible a board of patient components.
Andy Slavitt 05:44
There being refused it for what kind of treatment?
Dahlia Lithwick 05:46
For cancer treatment cancer, because of the possible implications for the fetus. And again, there’s also this whole panoply of questions where you have who is getting to decide it’s not the government, sometimes it’s the pharmacist, right? We’re already seeing religious claims from pharmacists saying, I’m not going to give you methotrexate, I’m not going to give you the morning after pill because in my view, it’s an abortifacients. And so again, it’s not even the state intervening, that’s chilling enough, and you’re quite right, you know, for the state to be determining whether your cancer is sufficiently lethal, that you can get your cancer drugs is insane. But the thing that I think is so pernicious, and I think we also missed this, is that after SB8 passed in Texas last year, and that was that bill that conscripted everyone in the country to become their own kind of vigilante and to collect a bounty, if they turned in somebody, not just performing an abortion, but aiding and abetting one, this culture of vigilante abortion enforcement has become a part of the puzzle. And so what I go back to over and over again, is Dorothy Roberts amazing book called Torn Apart. And Dorothy Roberts is an African American legal scholar, who has been saying for decades, for Black people, pregnancy and child rearing has always been criminalized, it’s always been a quick call to foster care, a quick call to the authorities, if you’re a Black woman, you are very, very, very apt to be thrown in jail for drug use during pregnancy. And in a sense, one of the themes that I pull through so much of what happened in Dobbs is that all of America is now living in a reproductive state that black women have been living in, probably, you know, since before chattel slavery, but the criminalization, the perpetual idea that the state gets to decide if you’re a good enough mother, or a good enough pregnant person has now become reality in half the states.
Andy Slavitt 07:55
Okay, let’s take another lens on this. Ultimately, the people who get to make these decisions now about these complex questions, do you get to treatment for cancer? Does the pharmacist have the right to deny your drug all these lands up in some judges courtroom? It even if that’s not true, 100% of the time, it’s going to be true a lot of the time. So let’s take a look at what’s changed about that judge, the judicial system, that courtroom that you would walk into over the course of the last four to five years. How would you describe the judicial system that we faced, you know, over the last number of decades, including the Supreme Court, and then what’s become different? And how would you describe that court system in that courtroom that people might walk into today? Is there is there a meaningful difference?
Dahlia Lithwick 08:54
I think there’s a meaningful difference. And I think for a long time, we used to hear, you know, there’s no such thing as an Obama judge. There’s no such thing as a Trump judge. And one of the real lessons we’ve learned is Oh, in fact, there is a Trump judge. And she’s probably very young. And she was probably sort of groomed and very, very much raised through the Federalist Society and you know, Leonard Leo and the billions of dollars that are pouring into seeding those judges. And you can even just think about the last few weeks where we had a Trump judge set aside the entire Justice Department criminal investigation of Donald Trump on some crazy pretextual theory about executive power and a special master. It’s, I can’t think of a better word than just straight up chutzpah, but I think that there are judges who are out so far over their skis so quick, to get stuff done. And by no means do I want to suggest that all Trump judges are that are or that all of the judges who do that are Trump judges, both of those things are not true. But even if you look at the Supreme Court, which is what I cover, and I’ve been covering for 22 years, the sense of what Professor Lea Littman in Michigan calls the hashtag YOLO. Feeling that, let’s just do all of it. Let’s do it. Now, let’s just push the boundaries of everything, let’s dismantle, you know, the administrative state, let’s take down, you know, we’ve got a judge just recently, trying yet again, to take apart the Affordable Care Act. I think that the kind of, it’s all coming down, everything’s coming down, it’s coming down now is happening in such a compressed amount of time. And it’s not just because they’re Trump judges, as I say, I think there’s just a sensibility that the judiciary is so polarized, and so untethered from the norms of what it is to be a judge, that once you are finding yourself looking around saying, Clarence Thomas’s wife did what now? Did what around January 6, and then, you know, was calling actual state officials around January 6, and that’ll happen. And he’s still sat on a case that implicated that, that’s the kind of stuff that is beyond anyone’s bounds of what judges do.
Andy Slavitt 11:22
Yeah, so it wouldn’t surprise any of us that there are judges with conservative leaning, it’s that they’re judges with liberal leaning judges that are pro corporate, that are judges that are pro defended. I mean, that’s all sort of part and parcel of people’s judicial record, at every level of the bench, right? It feels like you’re talking about something different, though, than that it feels like you’re talking about judges that can now take it upon themselves, to disregard the law, and have some pretense to treat people as if they’re invisible. And I think it’s this feeling that I get it. And I get the sense from some of the things that I’ve read that you’ve written it as I’ve looked at the book that you wrote, that people no longer feel like the courts are set up to decide cases for them, when they don’t even know that they exist. They don’t even give them, give them the agency to be part of making decisions.
Dahlia Lithwick 12:26
Yeah, I like that construction, I think there’s a couple of pieces of that that I might pull on. One is just the utter isolation of the Supreme Court, particularly, but federal judges generally, I mean, the court was surrounded by a security fence for the latter part of the 2021 term. The sense that they are so utterly removed from the sort of political life of the country, and that there are these agendas, you know, I think maybe most pointedly about bru in the gun case that essentially said, you want to carry a weapon on the New York City Subway, you know, more power to you. And I was so struck anyway, the fact that none of those justices take the New York City Subway, right, they’re not on the line. And so there’s a way in which there’s a huge sense that in so many of these cases, their lives, their children are not implicated. And so that sense of being isolated from the consequences of their decisions, I think is a part of what you’re describing. But then I think there’s this other part of it, which is a judiciary that is really arrogated unto itself, the power to decide all sorts of things. I mean, remember John Roberts remember balls and strikes. Remember judicial humility and minimalism we do as little good old days. I mean, this is the opposite of minimalism. This is and I don’t just mean the Supreme Court that essentially said, we can put guns in the hands of New Yorkers. And we don’t care, by the way, what the state wants to do. But you know, a Trump judge who just literally said, I am the boss of the executive branch, and I will determine how the FBI conducted search. We’ve never seen anything like that we have had Trump judges who are just dealing with Mexico policy for a year. I’m the boss of immigration now. We saw it, we certainly saw it in the COVID cases. And so I think that there is a tendency, not just of the judiciary writ large, to insert itself into every hot button question that’s been happening for years and years. And it’s a slightly separate problem. But the individual jurists are saying, You know what, now I’m just going to be in charge of all COVID policy. Now I’m just going to be in charge of, you know, whether all of Obamacare comes down and that’s fairly new. And it’s partly this nationwide injunction habit we’ve gotten hooked on but it’s also I think, a real arrogance on the Part of the judiciary, particularly the Article Three judiciary, that they sort of think like if we disassemble government, that’s okay. Because we can make decisions in their stead.
Andy Slavitt 15:09
Yep. Well, let me do a quick break. Let’s come back. And I want to talk in some detail about whether or not we’re losing confidence in Judges and in the justices in particular, in some part because of the process of how they got there. And then I really want to dive deeper into how the court has been erasing women as I think you’ve put it. So there’s a there was a flurry of cases, you’ve alluded to a number of them over the course of the end of this summer, summer 2022, around guns, around what people call Chevron. But it was this very specific case, saying that the EPA didn’t have the authority to do the kinds of administrative work that the government’s traditionally do, of course, dabs. And so it causes me also to focus on the question of how the judges got there. And we have, in the face of it all, when Mitch McConnell, who clearly had a distaste for Donald Trump would just tell people while he was raising money and running campaigns, hey, it’s just about the judges, to all about the judges, it’s all about the judges, he made no bones about the fact that was all about the judges. And I think we kind of, you know, if you’re paying attention to that, you kind of go okay, there’s something happening here. Some of them in the background, you know, on random day, a couple 100. A couple dozen more judges are getting put in place. What does it mean, if something different about the process of how a judge gets nominated, confirmed, put on the bench, that we should be troubled by?
Dahlia Lithwick 17:07
Every part of the process is troubling. And I would say that across the boards, I think that’s a bipartisan problem. And I think that nobody who watches the way confirmation hearings happen, you know, Justice Scalia, one of the most polarizing jurists, you know, certainly in my lifetime, almost unanimously confirmed, you know, Justice Ginsburg, almost unanimously confirmed. So the idea that, you know, now we have the centrist milk toast, you know, judges, particularly on the lower courts, who are literally made of mayonnaise and vanilla, and you can’t get them confirmed, because the polarization around them is so acute. And so I think that two things happen. One is we have a confirmation process that’s fundamentally broken, that exists to you know, tear down and destroy, we can talk about Ketanji Brown Jackson, I’m sure that a conservative would say that. That’s exactly what was done to Brett Kavanaugh. But you get into this kind of high stakes, slash and burn, you know, take no prisoners. And that’s been going on for decades. I think that why that’s been going on is what’s interesting. And you alluded to it in your question, which is, as the country slowly became a jurist, crazy, it became really evident that you could lose everything else, right, you could lose the popular vote, you could lose houses, state houses, but if you won the court, that’s all that mattered,
Andy Slavitt 18:37
including pig, including being able to pick the president, ideally, for the people who put them in place. Right.
Dahlia Lithwick 18:42
Well, that’s the dream, right? That’s the case that people I think, need to really focus on is more versus Harper, which is literally the case that’s going to tell us about the case. Well, that’s the case. That’s it’s incredibly arcane. But it’s a case that’s coming up this coming term. And it essentially invokes what’s called the independent state legislature doctrine. You could just call that, you know, the peanut butter and jelly doctrine. It has no history and no meaningful doctrinal footprint. But the claim is that state legislatures alone, are unreviewable by the courts, that the decisions they make about voting cannot be reviewed. And whether it’s gerrymandering or whether it’s vote suppression, or whether it’s who is the slate of electors that we send in right, if this sounds familiar, this is what January 6 was predicated on this was the claim John Eastman was pushing right, the Georgia could just decide who the real electors are doesn’t matter what the popular will is. And we know there are four justices on the current court who are really solicitous of these arguments that state legislatures cannot be in any way curbed by any other power, particularly the judiciary but also not by the governor. And in its most extreme form, it literally means that the state of Pennsylvania, if it wants to, can simply say, Yeah, we don’t think that this election was conducted validly here are the electors. So it really, you’re not kidding. When you say steal the upcoming presidential election?
Dahlia Lithwick 18:52
Well, it wouldn’t you have judges that don’t call balls and strikes, but only call strikes, then game on, right? If you know that that’s what the judicial makeup is, and you’re a legislature and you’re pointing at a slate of electors, or you’re a pharmacist, deciding, you know, how you’re going to your personal religious views are going to dictate how you’re going to prescribe medicine to women who are pregnant, you can no longer count on balls and strikes, but you know, you’re gonna get the call You want. That sort of changes everything, doesn’t it?
Dahlia Lithwick 20:45
It changes everything. And I think maybe this is the piece of it that also really only surfaced this year. And I don’t mean to obsess on Dobbs the abortion case. But I will say it’s a kind of natural experiment in the problem, Justice Alito, when he writes his majority opinion and dubs says women have the vote. If you don’t like it, you have heaps of political power go out and change it. Right. I mean, it’s almost trolling. Let’s call it trolling.
Andy Slavitt 21:12
Well, he said it for laughs. I mean, right, yeah. To put down anybody who was disagreeing with him.
Dahlia Lithwick 21:18
Well, he also, I think, said it because he wants to say with a straight face, that your vote counts in this country, and that if you don’t like what the court did, then get out and vote. But if you are in a state, that doesn’t allow your vote to be counted for any number of reasons, then giving you power to change this at the ballot box is the most fatuous offer in the world. And so I think we have to be really, really clear that voting and voting rights and vote suppression and what you referenced in your election denialism, just the claim that the person who won the election didn’t win. All of that is bundled up with these quests for more judicial power. The […] is creating a world in which your vote doesn’t count.
Andy Slavitt 22:04
I wouldn’t come back to talk more about the effects of damages. But I want to zero in on the Supreme Court, which is a place where you spent a large part of your career at supreme court reporter. There’s two justices on the Supreme Court that our particular interest. One is someone who you essentially say is the defining voice down on the court wasn’t extremist. But was it is now a defining voice in the court. And that’s Clarence Thomas. And the second is that our new swing justice, congratulations, ladies and gentlemen, America. Meet Brett Kavanaugh. He’s your new swing justice. Now, what’s interesting about those two justices wanted to find the court one who decides to close cases is that both their confirmation hearings, were essentially had one important commonality. And that is testimony around their I’ll say abuse of women. So talk about that. Is this just a coincidence? Or does this tell us something about the shape of the court and what it means, particularly for women, and the way that some of the cases are playing out and will continue to play out?
Dahlia Lithwick 23:20
I think that what I would say is just as a purely symbolic matter, the fact that both Clarence Thomas and Brett Kavanaugh were credibly accused of sexual harassment in one case and sexual assault in another is so symbolically awful. I mean, it’s just at the most basic level. I was there. For the Cavanaugh confirmation, I saw the women in The Handmaid’s Tale dresses outside the building and the just fury that they felt that this was happening, and it was happening without an investigation. And you have a sense that in both cases, it was so kind of galvanizing and also dispiriting because it was clear that the fix was in and nothing was going to get investigated or resolved. So I think the symbolism around it is really profound and inescapable. And I do think a lot of women who are furious now in the wake of dubs were activated around the Kavanaugh hearings. I think a lot of women who didn’t care started to care then and are incandescent now. But I think that the deeper thing you’re asking, and this is the thing I’m struggling with is what do you do on a court which we are about to enter it on the first Monday of October, when all three dissenters are going to be women? All three of the people who are perpetually in dissent will be Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson and that, you know, two of those women are women of color, which I think adds another layer of and they will dissent every time. They will descend every time in all of these hot button issues were describing and the optics of that are pretty chilling.
Andy Slavitt 25:05
Will anybody listen to them on the court. I mean, will that will that matter? Well, I mean, no Roberts cares about trying to broker some consensus when he can. But will it matter anymore? Does justice Cavanaugh care, do other justices care? Or is it really we’ve just sort of gone beyond that?
Dahlia Lithwick 25:26
I think that justices Cavanaugh and Barrett want to at least look like they care. I think that the guardrails that they have something I mean, that’s your there it is. Ladies, gentlemen, your silver lining. I think that the reason that Kavanaugh is kind of posited as the swing vote isn’t because he’s that much less radical than the other conservatives. But he does whatever he can, I mean, think of the Dobbs case, again, where he writes this concurrent saying it’s not going to be an issue in terms of interstate travel. Right?
Andy Slavitt 25:57
Because of the packaging for the same position.
Dahlia Lithwick 26:00
It’s not rooted in anything he just asserted it. He says the words and justice Barrett has been known to say the words and I also think they like to be liked. I think that Justice Alito, really, really relishes being hated it confirms for him that he is, in fact correct. And I think Justice Thomas feels that way largely about his critics. So I think that what you’re talking about is kind of an EQ question. I think that Justice Cavanaugh like wants to get invited to the cocktail parties in DC, and he wants to be seen as a guy who coaches girls basketball and is a feminist.
Andy Slavitt 26:39
So he’ll do the Jared Kushner throw a bone case to say, look how we decided on this one. I decided along with the ladies on this one case.
Dahlia Lithwick 26:48
Yeah, I think so. I think that’s right. And I think Justice Jackson is interesting. I mean, there’s a very famous cliche that says that every time you get a new justice, you get a whole new court, because the interpersonal dynamic, everything scrambles, so it’s not like, you know, you take out the centerfielder, and you put in a new centerfielder, the whole court changes. I think it is true. I think that that all of these relationships, and every all of the alliances and who’s kind of buddies with who everything shifts, and you have to kind of figure out how to work everybody and Justice Kagan and justice, the Chief Justice both are historically like the high EQ justices in that they really know how to look down the bench during an oral argument and see who they can pick off and see who’s vulnerable. Justice Kagan was so adept when Justice Kennedy was at the court, you could almost like see that like her of her working him kind of trying to bring him along. Justice Jackson is really good at that, too. She’s an incredibly likable, beloved, very, very able to read the room. I think she might have some impacts; I think that it is going to change things. I also think we forget what, like conservative background she has. I mean, she’s, uh, you know, her background is in big law. And, you know, she’s not a hippie lefty. And so I think in a lot of ways, they will find common cause with her on the right side of the court, whether all that is just optics and feelings, I don’t know, but I think at minimum, they won’t treat her like she’s dumb the way they have done historically with Justice Sotomayor, which is shocking. And I think that they will give her a little space before they start kind of swatting down at her which, again, these are very, very, they’re not even silver linings, they’re basically like, Tin Can linings. But this is what I got.
Andy Slavitt 28:57
Let’s take a break, Dahlia. And then let’s come back and talk about how the fight for reproductive rights will affect the midterms that are coming up in just over a month. So like you wrote in the book, this was incredibly interesting, that you decided to stop reporting within the courthouse, because this is a quote from the book. You no longer felt you could cover the court without also giving cover to a system that he raised women. Unpack what you mean by that.
Dahlia Lithwick 29:48
So at the metal level, this is the problem all of us have, right? We’re operating inside broken systems, and we have to decide how long we want to stay in the system and give it credibility and every single person I know who stayed at the Justice Department, for instance, in the Trump year had a version of this. I don’t know anybody who doesn’t have a version of at what point do I have to not be a part of this? Because by putting my imprimatur that it’s legitimate onto you know, this thing. I am making it. Okay. So that’s,
Andy Slavitt 30:19
I’ve never heard it from a reporter before. And when I read it, I understood it. But it’s different than someone who is, you know, in the administration, versus someone who’s doing reporting.
Dahlia Lithwick 30:31
I guess my feeling was, and this is simply, you know, a reflection of how we cover the court. But it tends to be a very, very Reverend coverage, right? And we’ve been raked over the coals for basically just being, you know, willing to transcribe what they say. And we don’t do deep dives. That’s changed. By the way, I think the court the press corps is much more critical than it used to be. But for a long time, they said we were just sort of stenographers who are currying favor. And one of the things that I did feel really acutely was that you could cover the Kavanaugh hearings and in the fullness of your doubts about him, but the day he got sworn in, he just became justice Kavanaugh, and we treated him like everyone else, which is, by the way, how we treated Clarence Thomas, and as a reporter, whether you want to be a part of just exceeding to that normalizing it saying, Okay, well, that thing happened, who knows could be him could be her. But you know, we’ll just call them Justice Kavanaugh and ignore her story. I felt as a reporter, deeply uncomfortable. And just one coda to that when I wrote the piece, so it appears in the book, but I wrote it as a piece after the Kavanaugh hearings, I cannot tell you how many constitutional law professors wrote to me and said, I can’t teach comm law anymore, for exactly this reason. It’s not legitimate. I don’t want to teach it as though it’s constitutional law. And this year after the end of the term. I don’t know a constitutional law professor who wasn’t having some iteration of that question of how can I stand up in front of my first year law students and say, this is what the Constitution means. So it’s part of, you know, you’re operating in a system that feels like it’s buckling. And you’re trying to shore it up, because my God, we need courts, and we need people to teach constitutional law, we need people to stay in the Justice Department. But at some point, when you feel as though I am lending, credence and credibility to something that is completely corrupt. And I think it’s a totally personal decision.
Andy Slavitt 32:34
So, I want to take it to the […] part of this. The court clearly unraveled at least decades of progress for women in the last term. But your book also writes about the fact that the law itself has always dictated that women could or couldn’t do it, in many respects has been silent. You think about the atoms quote to her husband about..
Dahlia Lithwick 33:00
Remember the ladies, I think she’s, you know, it’s don’t forget about us.
Andy Slavitt 33:04
us and women weren’t even included in the Constitution, which is the point where people say, hey, the Constitution doesn’t mention abortion. Well, the country she doesn’t mention women either. But you’re talking about the word the verb that just really stuck with me and killed me was that it was erased a system that erased women because I think this idea of being erased and you talk about it, in the context of white women now experiencing what black women have felt, I’m gonna ask you just a second about what that is and to mobilize women. But before we even get to that, love the simple, clear statement about what position women have been put into historically and now after this latest term.
Dahlia Lithwick 33:50
I think one of the things that the book begins and ends with is this idea of lock her up, right? I mean, at the Trump rallies when they wanted with him chanted that they wanted the power of the law, to be used to jail somebody over her emails, like sit with the irony for a minute to jail her without, you know, a processor without findings of fact. And the book kind of ends in exactly the apocalyptic world you started with, which is women are going to go to jail for miscarriages, they’re going to go to jail for trying to end their own pregnancies. So in a very strange way, the arc of the book traces this idea that women can be actually at the mercy of the criminal law, just for being women, right, just for having a normal reproductive life. Yeah, and I think that the reason erasure is the word that I used, the simplest statement of it is, it is an astounding thing to have grown up believing that the criminal law was not going to be turned against you for your gender. And suddenly waking up one morning and saying, oh my god, you know, if I, you know, I mean in Oklahoma, and I present with what looks like a suspicious miscarriage, I can go to jail for years. If I drive across state lines, I can be held back to my state and tried, right. And they keep saying, Oh, this isn’t criminalizing abortion, but it’s quite clear that this is where we’re going.
Andy Slavitt 35:31
It’s criminalizing pregnancy in some cases.
Dahlia Lithwick 35:35
That’s the point that I’m trying to make is that you cannot escape this if you are a person who even has sex, right, because we’re talking about birth control as well. And you and I are sitting here talking as a personhood amendment is being floated, which literally means a fertilized egg has more rights than women. So I guess I just like the arc of the book to me is that awakening to the fact that when Justice Alito cites a witch burner, in the Dobbs opinion, how we think we’ve come hundreds of years from that, and we’re right back there, again, is astounding. That’s the erasure.
Andy Slavitt 36:16
So let’s just talk about how people are reacting to this and how this may affect politics in the midterm because ultimately, these things, these things only change when the people who pick judges are people who’ve listened to people who have reacted to what they’re seeing. You wrote in a column recently, I think, was, every time a Republican man opens his mouth to talk about women’s bodies 10 new female voters get their wings, which, by the way, is one of our producers favorite lines ever.
Dahlia Lithwick 36:47
Thanks, Christmas movies.
Andy Slavitt 36:52
So this response, is it real? Is it significant? Is it meaningful? And is this really impacting women in the political landscape.
Dahlia Lithwick 37:06
I mean, all I can look at is the data. And whether you want to talk about Kansas and the referendum, right, in Ruby, red, Kansas, where people come out and trounce or the special election in New York, right, where the improbable candidate who runs on abortion, pulls it out. And then I think you can just look at I’m just looking as we’re talking at Wall Street Journal numbers, right, that came out recently that says 60% of voters say abortion should be legal in all or most cases, that’s up from 55 in March, even the 29% that say it should be illegal, want rape and incest and the life of the mother exceptions, you know, the states that are passing, no exceptions, not for rape, not for incest, you know, not for unless the mother is quite literally bleeding out or so out of step with, you know, the polling numbers that seem to show that women are mad and they’re activated. I mean, the other thing that was really interesting in the Wall Street Journal numbers that came out recently was how many voters said this was the most important issue for them. This was edging out the economy. It was edging out everything. And I think emphatically that we’ve seen time after time after time, not just women, by the way, but dads who are peeling off and starting to say this issue is important. And my sense is, if you’ve ever peed on a stick, if you’ve ever had to have a DMC for a miscarriage, if you have ever had a kid in college, who you know, presents and needs a morning after pill, this isn’t about abortion anymore. And I think it is so salient for people because if you have a reproductive life, then this is an issue for you. And all of that stuff, by the way, is the stuff that Justice Alito was just like batted aside, didn’t even want to engage with in the amicus briefs, you know, the health questions, the economic questions, the equality questions. And so I think that’s my way of saying some of it was the, you know, women voters get their wings piece is that they could have just been quiet after Dobbs in the States. But instead of being quiet, they said, now we’re going for life begins at conception. Now we’re doing away with rape and incest exceptions. Now we’re going to start going after birth control. And so in a sense, this is a cellphone, because whether or not it was going to be salient by pushing so hard in the States. I think that they’ve made it salient for people that it might not have been salient for before.
Andy Slavitt 39:49
Well, Dahlia, thank you so much for being here, talking us through this incredibly important and many sided topic. So thank you for putting it But I think very, very helpful in clear terms.
Dahlia Lithwick 40:03
Thank you, I have to say, I never thought when I started this book, there’d be a whole chapter about gerrymandering and […], but I think that’s exactly where you land is where I land, which is, if we can’t tether this to voting, everything else goes away. And so people really have to whatever cynicism you have about systems double down and really, really recognize that once you have 70 80% majorities that hate something, now’s the time, now’s the time. Thank you. Thank you for having me.
Andy Slavitt 40:51
Friday, we have an amazing conversation, and how to adjust to the real reality that many Americans face in this country that they just have had no opportunity to build wealth. And there’s a really innovative solution being put in place. You may have heard about it way back in the 2020 election from Cory Booker, called Baby Bonds. It’s giving the babies money at birth that they can get when they’re 18 years old. It’s a pretty transformative concept. And we’re going to talk with the godfather of that idea, as well as the mayor of a city that’s implemented it more coming up later in this month. And next, Cody Keenan, who was Obama’s speech writer, on the fight for marriage equality and some of the other fights in Obama’s time. We have Neil Kashkari from the Federal Reserve Bank here to talk about the remedy to inflation in the economy, and a lot more exciting stuff. So yeah, well hang in there and we will talk to you on Friday.
Thanks for listening to IN THE BUBBLE. We’re a production of Lemonada Media. Kathryn Barnes, Jackie Harris and Kyle Shiely produced our show, and they’re great. Our mix is by Noah Smith and James Barber, and they’re great, too. Steve Nelson is the vice president of the weekly content, and he’s okay, too. And of course, the ultimate bosses, Jessica Cordova Kramer and Stephanie Wittels Wachs, they executive produced the show, we love them dearly. Our theme was composed by Dan Molad and Oliver Hill, with additional music by Ivan Kuraev. You can find out more about our show on social media at @LemonadaMedia where you’ll also get the transcript of the show. And you can find me at @ASlavitt on Twitter. If you like what you heard today, why don’t you tell your friends to listen as well, and get them to write a review. Thanks so much, talk to you next time.