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Abortion doesn't belong at the supreme court, says 'Most Dangerous Branch' author

MICHEL MARTIN, HOST:

This is ALL THINGS CONSIDERED from NPR News. I'm Michel Martin. By now, you've surely heard about this week's bombshell report out of the Supreme Court, a leaked draft opinion circulated among the justices that suggests that the court is ready to overturn Roe v. Wade, the landmark decision that legalized abortion nationwide nearly 50 years ago. Although the leak itself came as a surprise, the conclusion of the draft decision really did not. A solid conservative court majority and the reversal of Roe has been a top conservative project for years, steered by conservative academics and activists, facilitated by Senate Republican leader Mitch McConnell and cemented by President Trump's election to office. But now McConnell and his allies professed to be furious over what they say is a breach of the court's protocols.

We wanted to know more about how the Supreme Court reached this point and what this moment could mean for future polarizing social issues, so we called David Kaplan. He is a former editor at Newsweek who has written about the court for years. He's the author of "The Most Dangerous Branch: Inside The Supreme Court In The Age Of Trump." And he is with us now. David Kaplan, welcome. Thank you for joining us.

DAVID KAPLAN: Glad to join you again.

MARTIN: So if you would just start by telling me your reaction to the draft opinion, what struck you about it?

KAPLAN: It was predictable. If you listen to the oral argument, this is the direction in which they were going, and they sort of made good on what we all thought they were going to do. Now, liberals have been crying wolf about what the court would do for Roe for years, and 30 years ago, they pulled back from overturning Roe. But bottom line is, I'm not surprised. I'm, of course, shocked by the leak.

MARTIN: Well, tell me more about the tone of the decision itself. I noticed you had some thoughts about that.

KAPLAN: It's pure Alito. Any attempt at moderation, at just the bare facts, just the fact that we're overturning Roe isn't in there. You'd have a very different opinion if, for example, it came from Chief Justice Roberts. And Alito was sort of built for this moment, and he'll go down in history for this opinion, for the good or for the bad, depending on your perspective.

MARTIN: President Biden called the draft opinion radical, and he's not alone in that. And why - I know that you're not speaking for him, but why does he and why do others call it that? And have we seen opinions like this in modern court history?

KAPLAN: I wouldn't say quite like this, given how important an issue Roe is, but I would argue that the court's radicalism isn't brand-new. In their decisions over the last 15 years, when they largely gutted the Voting Rights Act, when they largely got rid of McCain-Feingold campaign finance, when they got rid of the District of Columbia's gun control law, the court has demonstrated disdain for what other branches have done. And the irony, of course, is that in those rulings, the court ignored what the, quote-unquote, "people's elected representatives" wanted to do. And then, of course, now in overturning Roe in this draft opinion, we hear Sam Alito talking about fidelity to the people's elected representatives. I would use less the word radical. I would use the word hypocritical.

MARTIN: So talk about how we got to this point. I mean, it's not escaped anybody's attention, I think, who's following this issue that this court has become the focus of so much attention. There's a recent - you know, confirmation hearings have become so sort of poisonous that digging into people's pasts, assigning views to them that they may or may not have this sort of thing. I mean, I don't - nobody seems to be happy about the process. And that's a reflection of the fact that the court is sort of at the focal point of these very difficult issues. So how did we come to that, especially given that - you know, playing - you know, the play on the title of your book, "The Most Dangerous Branch," I mean, the reason you called it that is because it was originally supposed to be the least dangerous branch. So how did we get to this point, as briefly as you can?

KAPLAN: Well, we got to this point because we have had a triumphalist court for 50 years. And whether you're a liberal politically or a conservative, I think that's a bad thing. I think for better and for worse, we ought to be leaving most of our tough social issues to the political branches. You don't have to think well of Congress, and I surely don't these days, to think that they are still the most legitimate branch of government to be resolving these issues. And I argued in the book that Roe in the first place should not have been considered by the court 50 years ago. They should have ducked the issue.

That isn't because I'm anti-abortion. If I were a legislator, I would be - vote for extremely lenient abortion laws. But it's because I don't think these issues belong at the Supreme Court. And the price we've paid for that is the politicization of the court over the last 50 years and it becoming the focal point of confirmation hearings and of at least the radical right's whole electoral campaign. That's what Trump partially ran on in 2020, and he - part of the reason he won in 2020 was because of the Supreme Court. That's bad for the court, and it's bad for the country.

MARTIN: So going forward, do you think this will affect future rulings? Of course, the argument now is that however much this draft ruling may deny it, people look at this and say that this presents a dangerous precedent for the erosion of other things that are now part of society, like same-sex marriage, for example, access to contraception, you know, for example, even interracial marriage, you know, for example. Do you think that that's true?

KAPLAN: Yes. I'm not always known for my short answers, but I think, in short, this now radical conservative majority is feeling its oats. I don't think interracial marriage is at stake. I don't think contraception is at stake. I don't think there's much political will in the country to look at those issues. I'm inclined to think that's even true for same-sex marriage, but I think perhaps in other areas, you'll see this court unbridled. They will use their five votes to go after precedents they don't like.

You know, the great liberal lion of the 20th century, William Brennan, liked to hold up his five fingers. If you talked to him, and I did over the years, he'd hold up his five fingers and say, you know, around here, with five votes, you can do anything. He said it with a smile, but he was deadly serious. And I think the conservatives, now firmly in control of the court with five or six votes, will take out that majority for a spin. They've done it here, and the court will survive. They'll - it'll survive the leak. It'll survive Roe. Its legitimacy will be eroded, but they still have the votes.

MARTIN: That is David Kaplan. He's the author of "The Most Dangerous Branch: Inside The Supreme Court In The Age Of Trump." David Kaplan, thank you so much for joining us.

KAPLAN: My pleasure.

MARTIN: Religious conservatives have been critical to the effort to overturn Roe v Wade. On tomorrow's program, we'll learn how abortion became a key issue among the religious right. Kristin Kobes Du Mez, an historian who studies religion and gender, says the path is not as clear-cut as people may think. Tune in tomorrow to hear that conversation. Transcript provided by NPR, Copyright NPR.