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BREAKING: SCOTUS Confirms Draft Authentic, Not Final Opinion

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow
The Truth Network Radio
May 3, 2022 3:20 pm

BREAKING: SCOTUS Confirms Draft Authentic, Not Final Opinion

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow

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May 3, 2022 3:20 pm

Yesterday we learned of a reportedly leaked Supreme Court draft opinion in the Dobbs v. Jackson Women’s Health Organization case. Today, Chief Justice Roberts confirmed the authenticity of the leaked draft but warned that "although the document described in yesterday's reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case." Jay, Jordan, and the rest of the Sekulow team discuss yesterday's leaked draft and Chief Roberts' statement on its authenticity. This and more today on Sekulow. 

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Breaking news today on Sekulow as the US Supreme Court confirms the leaked draft is authentic, but is not the final opinion on Dobbs.

We'll break it all down for you today on Sekulow. But what a news evening it was at morning. It has been as protests still rage in front of the US Supreme Court.

Those from the pro-life movement, those from the pro-abortion movement. But we do now have a statement out from the Supreme Court confirming that this was an authentic draft opinion. That is not the final opinion of the court, but it is authentic. So there was a real leak from inside the US Supreme Court of an early draft of an opinion.

Let me say it this way. The case was argued December 1st. This is a draft from February by Justice Alito.

It is authentic as a draft. It is not the final opinion. Again, I know that many of you wish and hope it is, and we can still hope that it is, but we now know that there are three things at play here. One, an influence campaign on the US Supreme Court. This was done to try and dissuade justices from joining an opinion like this one that overturns Roe vs. Wade.

So you've got that going on right now. You also have Congress. They are making the play, the Democrats and Joe Biden including, to one codify Roe. How do you codify Roe with the legislative filibuster? You get rid of the legislative filibuster, then it would only require 51 votes. So they're still focused on a federal solution to preserving what they believe is this essential, of course, they worship at the altar of abortion.

And I think you're seeing that today, how deeply they worship at the altar of abortion. So right now what you've got is this leak that took place, and it was confirmed this morning by Justice Roberts. He said yesterday a news organization published a copy of a draft opinion in a pending case. Justices circulate draft opinions internally as a routine and essential part of the court's confidential deliberative work, although the document described in yesterday's report is authentic. So it is the draft opinion of Justice Alito, at least the one on February 10th. It does not represent a decision of the court or the final position on any member of the issue in court that until the case is actually the opinions actually issued. What is fascinating about this, though, is besides that this has been the greatest breach of protocol in Supreme Court history. This is an attack on an institution by doing this.

But what is also interesting, Justice Alito wrote this, we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by extraneous influences such as concern about the public's reaction to our work. There are a thousand people, more than that yesterday, as soon as this was announced in front of the Supreme Court, protesting, demanding, saying horrible things about the justices. There were protesters this morning, more pro-life protesters this morning, speaking out on this issue. We're going to be joined by Pat Mahoney.

He was out there, been a client of ours for a long time. If this is actually the final decision or anything like this, this is a major change in the law, which will be welcomed by the pro-life community. We've been fighting for this for 40 years. But you have to understand the internal insurrection that has taken place here. Somebody inside the Supreme Court of the United States stole a document, leaked it to Politico for the purposes of what? Putting pressure on justices to get the legislature enacted and to undercut the integrity of the Supreme Court of the United States. You're talking about an attack on liberty, folks? This is an insurrection. It's an attack on our institution. It's the attack on the institution of the United States government and one of its co-equal branches of government, the U.S. Supreme Court and our federal court system. Of note, Politico added a reporter to this, not just Josh Gerstein, who does their legal reporting normally, but Alexander Ward.

Guess who he is? A national security reporter who would be used to dealing with what? Classified document leaks and items like that trying to protect their source.

So this was planned with Politico. It is, again, there's times when things have leaked out of the Supreme Court, nothing like this, nothing on this scale. Folks, we want to take your calls to 1-800-684-3110.

That's 1-800-684-3110. So I think you have to break this down to the multiple issues at play. The first issue here is this is done to try to influence the court, not to overturn Roe v. Wade. I want you to understand, we now know it's an authentic draft of an Alito opinion.

Politico is reporting that it is a majority, that they have five votes at least. But this is not final. As the Chief Justice made clear, this is a draft from February. So this is an attempt by the left and the pro-abortion radicals who run the Democrat Party now to try and influence at least one justice to scare them away from joining this opinion which would overturn Roe v. Wade. That's part one.

That is the clear indication. Now part two is the federal, the codification of Roe by eliminating the legislative filibuster. So there's three prongs to this strategy coming out of the left. They don't act so surprised by the way. It seems like they were tipped off that this was coming because they had everything planned to go, even a written statement by Joe Biden. Yeah, so you've got, and then of course Chuck Schumer went to the floor of the Senate, Nancy Pelosi made a statement, others said we've got to get rid of the filibuster, Bernie Sanders said it, and codify Roe now. So this is the political rhetoric that's being instigated here.

And then of course third is the attack on the institution itself. This is unprecedented in Supreme Court history and as John Roberts has now confirmed, this in fact is the draft opinion, at least the February draft opinion from Justice Alito on the Dobbs case which would have overturned explicitly Roe v. Wade. And folks, it relies on a couple of cases at the ACLJ that we argued back in the 90s and early 2000s as part of the reason why this case needs to go.

Now whether all that's going to be in the decision or not, but they are going to try right now to make the move. Do we have Pat Mahoney? We do not.

Okay, let's go ahead. Do we have the Chuck Schumer sound? This was about a different case, but he got up, he went to the US Supreme Court and threatened justices of the court. So just understand this is all playing into a bigger picture. They're undermining the Supreme Court, they're undermining the institution.

Listen to, this is the majority leader of the US Senate, Chuck Schumer. I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions.

You will pay the price, you won't know what hit you. This is exactly the campaign that's now going to be run from now until this opinion is announced. So there's two things that we need to focus on immediately. Number one, what they're trying to do is get one justice.

That's all they need. So it looks like this is the lineup right now. It looks like five justices led by Alito, Justice Alito writing the opinion, at least in the draft stages, joined by Gorsuch, Thomas, Kavanaugh and Barrett. Three justices dissenting, Breyer, Sotomayor, Kagan. One justice, the Chief Justice.

It appears, it appears that right now you have a situation. He's not being listed as one of the five. Where he's either a concurrence.

He's not listed as, the reports are indicating he's not listed as a dissent either. That he may be writing a concurrence saying the law in Mississippi is constitutional but you didn't have to overturn Roe. Could be what it is.

So here's what you have. I think this is what we have to realize. This is an attack on the court itself and this is a pressure tactic. That's what they're trying to put in place here. Legislatively, as Jordan said, getting a justice to move between. I think it backfires. I mean, I think this goes the other way.

The enthusiasm, we've got friends that are there and I guess we can get Van Bennett to come down as well and talk to us because he's in Washington right now. Yesterday all the pro-abortion crowds were out there last night. This morning it appears there were a lot of young people, a lot of pro-life young people. Very excited about the possibility of this becoming the law of the land. I mean, it's obviously it would be monumental but Roe was fundamentally flawed from the outset. But what we're seeing, and I want to make clear to everybody right now, this is an authoritarian move. This is how authoritarians treat independent judiciaries when they want to start getting rid of independent judiciaries. So they threaten them as Chuck Schumer did. You won't know what hit you.

The whirlwind coming against you. So, I mean, you could take that as a personal threat. They then leak documents and they have politicized the entire process so they're leaking out draft opinions, real draft opinions. We know that's true. To try and dissuade the court because of an opinion they don't like even though it is a separate co-equal branch of government. And on top of it they say if you move forward with this we're just going to codify this into law and change our entire filibuster system. Some have even started talking about the court packing thing but the truth is their focus is can they codify this into law right now. So this is a full-on attack. The left loves talking about the attack on our systems of government. This is about as brazen as it gets because you are putting in jeopardy justices.

You are. You are, again, over politicizing the issue and trying to influence a court which is, again, your job as the attorney you can do that. You write opinions.

You go about it the legal process. But outside influence on the court, that is something we didn't accept in the United States of America. That's why they're lifetime appointments. But we live in a new America in a new time where everything is hyper-partisan and we have to be ready for it. Let me tell you what this is. You know what happened on January 6th was a horrible thing. External forces coming on attacking the capitol.

Terrible. This is internal. Someone inside the Supreme Court of the United States that apparently works there, probably a law clerk, took it upon himself to undercut justice in the institution of the Supreme Court. By putting out to the public to create for a purpose, as Jordan laid out so well, the three reasons they did this, first to get a justice to switch their opinion. They're politicking this. They're campaigning on this.

Second, to get legislation moving immediately to codify this. The Politico reporter, without giving their source, says that their source told them that as of this week the lineup is still the same, 5-3-1, which is a majority opinion. It's a strong opinion.

It's the draft, so I'm sure there'll be changes. But you have to understand what's taking place here. While I'm glad that this is where the court seems to be headed, I am very concerned for the institution of the court, for what this has done to our democracy, and the pressure campaign and the politicization of what's going to now take place with the court. You're going to have these justices under tremendous pressure, they've named who they are, and they're going to be under tremendous pressure to change their vote.

To feel like their life could be in jeopardy, their kids they've got to start thinking about. As Schumer said, you will pay a price. And now they've gotten out ahead where they can't plan to say, we know the opinion's coming out now, we know it's a controversial opinion, they're used to that, so I'm going to make sure we're in the right location, my family's secure and everything like that. They already have security.

This now makes them have to live at a different level of security now until this opinion is actually released in its final form. And, ultimately, deal with the pressure campaign. And folks, I will tell you, it can be a little tough to understand, but in Washington they've got to live there. Their kids have to go to school there.

So they've got to exist in the Washington, D.C. bubble. And so the pressure campaign is extremely high. This just elevated it. It was already very high. I think these justices had to understand that they weren't going to be invited to speak at a lot of law schools anymore. They weren't going to get a lot of book deals anymore, necessarily. So some of their livelihood was at stake for doing the right thing. This just exacerbates that. Because now you've got what could be an unlimited time of protest.

Will groups like Antifa and others jump on this to try and create kind of a riot feeling, chaos feeling in our country? Okay, Pat Mahoney. So a good friend of ours, been a client of ours for many, many decades.

Pat Mahoney, in fact, client of ours in a lot of these abortion cases, heads up the Christian Defense Coalition, was one of the founders of Operation Rescue. Pat, you were at the event when this leaked yesterday, last night. Give us the mood last night that will contrast the two this morning. What was last night like?

Well, last night, Jay, first of all, I just want to say, Jay, I wish you were there by me. We've been through so many of these battles to enjoy this historic moment. But last night, there was a much larger pro-choice crowd out there. I think there was this kind of immediate visceral response.

But the mood today, this morning at the court, was completely different. There were much more pro-life people than pro-choice people. And I think the thing that really was stunning for them, for the pro-choice side, there were so many young people, particularly college-age women, who were on the bullhorn, excited pro-life energy. It was really an extraordinary moment for me, being out there kind of emceeing everything and seeing that kind of – Pat, we only got a minute here, and we'll keep you over to the next segment.

But let me ask you this in just this one minute. So, the pro-abortion crowd, what were they saying? What was their direction of their attack? The same old thing, you're taking women right, you're robbing them – Was it aimed at the justices?

It was aimed actually more at President Trump, actually. Who appointed the justices? There you go. All right, very good. All right, we'll be joined by Pat now coming back from the break.

C.C. Howell is going to join us as well to discuss the opinion. Look, the Chief Justice is not too happy about this. They've got an investigation going on how this happened.

I'm sure they'll figure it out probably by this week, what happened. Internal insurrection is my guess. And what it's done, what it attempted to do, was to move justices of the court off the opinion. I think it's going to have the exact opposite effect. But the politicization of this, and the undercutting of the institution, this is an attack on the American institution. But the left will not say that. But this is an internal insurrection here. Welcome back to Secular.

We are taking your phone calls too, a lot of those to get to, 1-800-684-3110. As people are waking up to this news and saying, you know, one, was it authentic? Yes, now we know it's an authentic draft of a Supreme Court. It is not the final opinion of the court.

And so the Chief Justice has made that clear. There is a law enforcement investigation going on now to find out who was the source of this to Politico. I will note that Politico brought in a national security reporter to handle this article, which would be outside of their beat, but would be normal in a situation where they were dealing with almost classified documents.

So they knew what they were getting into as well. This is a strategy from the left to try to influence campaign, and then of course codify Roe. Yeah, so I'm going to quickly go back to Pat Mahoney, who was just at the protest.

He's a client of ours. Pat, again, I want you to focus on the one thing here that I think is important for our audience to say. This is obviously a tremendous breach of security, an attack on the institution of the Supreme Court. I hope this opinion, which has now been authenticated by Justice Alito, actually becomes the majority opinion of the court. It will be tremendous. What a victory that will be for the pro-life community. But you said there are young people out there today in droves. That is encouraging.

Tell us about that. It was very encouraging. In fact, Jay, we had a part news conference, part rally, part prayer, and I actually, I felt my 68 years of age, I was by at least 40 years the oldest person out there. The kind of energy that we are seeing, and I looked over at the pro-choice side, and you could tell they were a little taken back. And Jay, I've been at Supreme Court cases for over 35 years on abortion-related issues, many with you.

This was one of the first times where our crowd was much younger than their crowd. It was really an extraordinary moment. No, thank you. I appreciate you calling in, Pat.

Thank you. That to me is the encouraging thing. The other thing that's encouraging, of course, is if Justice Alito opinions hold, and I say if because justices can change, a majority opinion can become the dissent.

That has happened in cases. But I read the entire opinion yesterday, and it's gratifying on a couple of different levels. Number one, it's a complete repudiation of Roe and Casey, clearly. Another point, and whether it stays in the opinion or not, who knows, is right in the beginning of the opinion, under actually Section 1A, which is the first legal substantive, it says the constitutional analysis must begin with the language of the instrument, talking about the Constitution. And it said there's no constitutional recognized right to abortion. And then the court acknowledges on the next page that there is a theory, though, that has been bantered about by the courts where the right to abortion has to exist because if not, it's discrimination against women. And then this is what the court said, and this is very gratifying to us. I hope it stays in.

You never know. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a mere pretext designed to affect an invidious discrimination against members of one sex or other. And as this court has stated, the goal of preventing abortion does not constitute invidiously discriminatory animus against women. See, Bray versus Alexandria Women's Health Clinic, which I argue twice, once in 91 and once in 92. Then the court went on to say later that the Constitution's First Amendment jurisprudence has also been disrupted by the Roe versus Wade decision. And it talks about there has been, the court has, and it says it's flouted ordinary rules on, for instance, it says, and they have distorted the First Amendment doctrines. And the case they cited was Hill versus Colorado. They cited the dissent of Justice Scalia and Justice Kennedy. That was another case that I argued.

So there's a, whether it'll stay in there or not, I don't know. But the fact that those cases serve as a basis for what is now going to be the most historic opinion the Supreme Court has ever issued is significant. Cece, you've had a chance to read the highlights. A hundred page opinion here.

What's your sense? I think it's a great opinion, again, if it stands. And it's great that it goes through, you know, the fact that abortion was not part of our history. And it keeps hitting the point that abortion is not found in the text of the Constitution, which we have argued all along. It says that Roe's decision was on a collision course with the Constitution from the very beginning because the Constitution unequivocally leaves the question of abortion to the people. So, and that Roe and Casey didn't end the debate. And so they are trying to end the debate with this decision. And I think, you know, on the last- They want to debate back to the states is what they want to do.

That's correct. And I think one of the most important decisions or statements was that political or public response can't influence this decision. So, you know, if this was a try from the left to try and influence some justices to change their vote, in the opinion itself says, you know, the public or political response to this opinion cannot influence what the decision is. Roe was on a collision course with the Constitution from the day it was decided.

And Casey perpetrated its errors. And then the court says, we therefore hold the- if this becomes the opinion, we therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled and the authority to regulate abortion must be returned to the people and their elected representatives. But what you have happening right now is a attack on our representative constitutional republic.

Yeah. I mean, this is an attack on one of the co-equal branches of government and it's the judiciary, which unlike other branches, but, you know, its enforcement arm is based off the fact that we accept their opinions and we follow their orders like them or not. That's what gives the court legitimacy on top of being one of those co-equal branches of government. When you start doing- playing politics with the court, like it's legislation leaking or draft legislation leaking and even the leaks we saw in the White House and places like that, if this becomes the norm for court operations as well, this is not good for our country. But it plays into hyper-partisanship inside the court. The entire legal process in our country will become a political process, even more so than it already is today. So I think that everyone needs to understand one thing clearly here. The left, they're not giving up on losing this case.

No, no, no. This might have been a last-ditch Hail Mary attempt, but they tried- they convinced somebody to do it, put their career in jeopardy and certainly potentially even go to jail because they thought there was an opportunity. They felt like there's somebody on that court that might be- all they need is one that they could influence enough with this public campaign of you're not- your life is going to be miserable, might even be in jeopardy because of your decision here. And that is very dangerous, Cece, for the court as an institution. And I want to say this is a draft opinion. They've authenticated that it's a draft opinion of Justice Alito.

We think we know what the lineup is, 5-3-1, which is a win if it holds. But there is unbelievable pressure. They're trying to put on the justice. I think it personally backfires, but that's my view. I would think so, too. And I would also think that anybody who has ever wanted to be on the Supreme Court at any point in their life maybe thought that at some point this case would come across their desk. Of course.

So I hope that they already have the resolute, you know, their decision of this is how I'm going to rule and I'm going to stand by it. They stand by the courage of their convictions and by the Constitution. And let's not forget November. Joe Biden is looking for anything to distract from the economy, anything to distract from what's happened in Ukraine, anything to distract from inflation. I mean, the list goes on and on, all these attacks. Remember yesterday, talking about the DHS governance board, all those things that have been rolled out in a horrendous way and handled so poorly, the border, you know, the list goes on and on. So if you can get your base, that's always focused on now, your base to at least get excited and angry, then they think they might have some political chance.

You know, they know they're not going to win over conservatives with this position, but they're having trouble even getting their base in support. We come back, we're going to take a lot of your phone calls. People that hold on, we're going to get right to them. Share this with your friends and family. If you're watching the broadcast and give us a call at 1-800-684-3110. Find out more about the ACLJ as always at ACLJ.org. We'll be right back, second half hour. Become a member today.

ACLJ.org. Keeping you informed and engaged. Now more than ever, this is Sekulow. And now your host, Jordan Sekulow. All right, welcome back to Sekulow.

We are taking your phone calls to 1-800-684-3110 just to reset a little bit. Supreme Court leak. It is an authentic leaked draft opinion that would overturn Roe vs. Wade authored by Justice Alito.

We think sometime in February. Again, this was a case that was argued, the Dobbs case on December 1st. So this would have been an early draft. It is in a pretty finalized form, but we got confirmation from the Chief Justice in the statement this morning that it is in fact an actual draft. So it's authentic, but it is not.

I want to make it clear to everybody. It is not the final opinion of the court. This is an influence campaign that has now begun by the left to try and influence at least one justice. That's probably all it will take. One justice to say, you know what, my life could be in jeopardy. I got kids to worry about.

I got to live in this city. And though I believe this strongly, you know, they're going to destroy my life if I go along with this. So they're trying to play that game. I don't think it will work, but that is part of their strategy. The second part is politics. They want to codify Roe, get rid of the legislative filibuster, and on top of this, use it for hopefully to gin up their base for the November midterm elections. Because it's a base that is not very excited right now. It is looking like they're going to have some significant losses.

So try and forget about inflation. Try and forget about the DHS governance board, the border security issues, what's happened in Ukraine, all those situations that have lined up. But I want to go right to the phones people have been holding on. Let's go to Jerry first in Rhode Island. Hey Jerry, welcome to Sekulow. You're on the air.

Hello, team. Thank you for the in-depth analysis showing us that how practical this could have been based on the timing of the response from Schumer and everybody. Jay, you've been in front of that Supreme Court for four decades. They should be able to find this leak. I wouldn't be shocked if they know today. The chief justice said that he's directed the marshal of the court, that's the law enforcement arm of the court, to launch an investigation into the source of this leak.

I don't think it's going to take long to find it. My guess is that it's probably a law clerk of one of the liberal justices whose already name is being floated, frankly. I'm not going to repeat those because law enforcement hasn't confirmed and it wouldn't be fair. But there's been one of the justices' law clerks leaked this.

It's an unbelievable breach of protocol on a couple of levels. Number one, you are instructed when you clerk for the court that this is private information. You're a lawyer. This is not to be released. Chief Justice Rehnquist used to say if you did release something or leak something, that would be the end of your legal career. You could end up being disbarred or worse.

Number one. Number two, the chief justice has had a – this is not good for John Roberts. I'm sure he's – I've known John a long time. I'm sure he's very, very unhappy about this. He calls it a betrayal of the confidences of the court. Now the pressure campaigns will be placed on these justices. You saw that with the protests last night. Fortunately, the pro-life crowds came out also in huge numbers.

And as Pat Mahoney said, young people. So this is encouraging that a new generation of pro-life young people, I've been saying this for a decade, are going to take this banner. And I did not know if in my lifetime I was going to see Roe versus Wade overturned.

And I certainly did not know that if I did see it overturned, that if this opinion actually becomes the final opinion, that cases that I argued decades ago at the Supreme Court on abortion serve as the basis for why this opinion is being in part overturned. I was stunned when I saw that last night. Folks, we're going to continue to take your phone calls. We come back for the break. We've just got about a minute here.

I want to play this from Chuck Schumer. I just think it's very disturbing when you get into their mindset by 38. Under this decision, our children will have less rights than their parents. The Republican-appointed justices' reported votes to overturn Roe v. Wade will go down as an abomination.

One of the worst, most damaging decisions in modern history. Actually, maybe our children, the children in this country, will have more of them. They will actually live because Roe v. Wade has been reversed and people will choose life.

Jordan? Yeah, that's the hope. That's the opinion we hope to receive when it's in final form. But they are trying to see what they're doing. Oh, yeah. But even there, it's just not lost on them.

The idea that they're talking about children's rights and they're, again, forgetting, ignoring the right of the child in the womb. 1-800-684-3110 to be part of the broadcast. Stay up to speed on all of it at ACLJ.org. And if you're watching, share the broadcast with your friends and family. Welcome back to SEC Hill.

We're going to continue to take your phone calls. A lot of questions about what has happened with this Supreme Court leak in just a monumental case, of course, which in the leak, which we know is our official document. But it is not the opinion. It's not the final opinion. This leak showed that Justice Alito in his draft opinion is ready to overturn Roe v. Wade. It was a draft that was circulating around February.

We do know it is authentic, but we also know it's a draft, not the final opinion of the court. Let's go to Don in Texas online, too. Hey, Don. Hey, I appreciate you all. I appreciate everything you do.

Thanks. This is an example of the far left. They'll do anything to subvert anything that they don't agree with. Now, they don't care about inflation. They don't care about the border. They don't care about crime. They don't care about brainwashing our children in school. And they're willing to pass a law to have their way.

It's more than that. I mean, somebody was willing to subvert the institution of the Supreme Court of the United States, which is across the street from our building in Washington, and leak a draft opinion of Justice Alito's that overturns Roe v. Wade so that they would either pressure a justice or, as Jordan said, get legislation through immediately to ramrod legislation through and remove the legislative filibuster because of this opinion, which is just a draft. Now, Than, you're in Washington right now. Your reaction to this and what are you hearing on the streets? Well, Jay, I can literally hear it on the streets outside our building here. You can hear what's happening in front of the court. And I think what the caller just said in your response to him really articulates what we see, and that is that the pro-abortion industry in Washington, D.C., Jay, will take any action that is possible that even beyond the scope of law to uphold their preferred view of this. And look, I really do think it extends to the leader of the United States Senate, Chuck Schumer, because, Jay, he already has been down to the floor of the U.S. Senate and promised that he is going to take up another vote to codify Roe v. Wade and wipe out not just state laws that would happen from here forward, Jay, but that would wipe out protections for life that states have already passed reaching backwards. So, look, yes, the fight is in the court right now. But, Jay, we have said this on this broadcast so many times before, the fight in the federal legislature and the state legislatures, it's already beginning. Yeah, it's interesting because the court addresses in this draft opinion, if this becomes the opinion, Justice Alito lays out how the courts going forward would have to view a regulation of abortion by the states. And it says it need only pass the rational basis test and that protecting the life of the unborn is a rational basis. So that's, I mean, again, it's very positive language for the pro-life side.

We're taking your calls at 800-684-3110. If you're watching on any of our social media platforms right now, let me encourage you to share this with your friends. We're giving you, I mean, we've done these cases and our cases in this draft opinion are cited. Whether that holds or not, we'll see. But whether the opinion holds or not, we'll see. Pray for these justices too, by the way. The pressure on them is going to, it's already, is unbelievable, although I think it steals the reserve.

Yeah, I do too. I think this is going to backfire very poorly. I think it has. This was a very bad strategy by the Democrats to try and, again, liberals and pro-abortion advocates to try and persuade one justice off this opinion. We'll find out ultimately when this final opinion is released. But I do think, you know, there is a bigger strategy at play here. It's not even just about the opinion. It's about legislative action and it's about trying to get their own base excited about midterm elections. And they don't have a lot to get excited about when they, certainly when they look at the Biden administration, who has not followed through on a lot of their promises to the base.

It's about all of the above, Jordan. I mean, you talked about how they only need to convince one justice going forward to get a different ruling. They also probably really only have to convince one United States senator to get a legislative remedy to this. When this bill that we talk about, codifying Roe, was brought up for a vote in February, it was blocked because they could not get cloture. But, Jordan, if everybody had been present there, there would have been 49 senators in favor of it. Now, Joe Manchin was not in favor of it and Susan Collins voted against it as well.

She's opposed to eliminating the filibuster. But really, Jordan, you're within one vote there, whether it's Susan Collins or Joe Manchin or whoever it might be, to getting that legislative effort over the line. So I think they're trying both of those strategies. And if all else fails, yes, Jordan, this becomes 100 percent about politics in November.

It becomes about trying to elect a Congress, a House, a Senate and then state legislatures all across the country that will enact their will. So I think they're pulling out all the stops right now, Jordan. Let's go back to the phones, 800-684-3110. Yeah, we'll go to Chris at Maryland, online 3. Hey, Chris. Hey, thank you, guys. You know, I've been looking forward to your show since I heard about this leak last night. I feel like I've got a friend that's an expert.

Thank you, guys. The question is, how many people had physical access to this report? How many clerks?

How many aides? Are those people under any kind of oath or nondisclosure agreement? And is there any chance that a justice actually knew this was going down? I cannot imagine a justice allowing this to go down.

It would be a breach of every protocol and every ethical rule of the court. There are nine justices. Each justice has four law clerks, so that's 36 law clerks. Each justice also has usually three to four administrative staff. And then there are runners.

There are people that take things between the chambers. So it's not a lot of people. I think the chief justice said he's got the director of the marshal's office to launch an investigation. I wouldn't be shocked if they know today. Yeah, I mean, whether we know today is different. We may not know, but they're going to know.

Yeah, I think that, again, it likely – I mean, again, there are enough people around. It's not that. What a risky move by a law clerk if they did this.

Unbelievable. But it is a very risky move. I mean, if you're a law clerk, you could be disbarred for your entire life.

Or worse. You could end up in jail as well. I mean, so there could be a lot at risk here. But it has happened.

I mean, the truth is, this is not a hypothetical. A Supreme Court opinion on one of the biggest cases in the history of the court has leaked. Yesterday, a news organization published a copy of a draft opinion in a pending case. It says it is the draft opinion. And we know it's been authenticated by Chief Justice Roberts as a draft, authentic draft. It's not the final opinion of the court.

I do – I just don't want people – it is not time to celebrate. It is not. No, no, they're – we're in a battle, folks. Yeah, this is the final battle of this case. We'll be keeping this opinion. Between now and when they actually release the opinion, there are some questions about that as well. You know, I just want to say this.

The next eight weeks, you're talking about essential? First of all, pray like you've never prayed before on an opinion for a Supreme Court. Pray for the justices. But let me tell you, we are in an – somebody said to me yesterday, I think this is a news story for a day.

Let me break it to you. This is a news story for the next eight weeks. And then when it comes out, if it stays like this, going further into the elections. This is – we are in a battle right now for not only the integrity of the court, but to realize what is happening by what they've unleashed here.

Yeah, I mean, I think just last night is just an example. They're going to try and get a nationwide protest movement going. You've got to be worrying about the bad actor groups seizing on this. The Antifa-type groups who have already started to take action again, like in places like Portland at a Republican rally. So do they seize this to try and then not make it go from a protest to actually a chaotic riot scene? I mean, there's all that at play.

We're only – we're less than 24 hours into this. And again, it's kind of common to see that protest stand outside of the Supreme Court in Washington, D.C. We know the organizations, they've got people there they can call upon to get them to the court pretty quickly. The big question will be is does it stay consistent throughout this time period?

And does it expand outside of Washington, D.C., into cities and states across the country? Jordan, I think the answer to that is probably yes. I think it's going to be withering pressure. I think this is going to be that whirlwind and that soundbite from Leader Schumer that you talked about. And here's why I say that, Jordan.

I mean, look around today. Do you hear any condemnations from the left about these leaks? No, you hear condemnations about the rulings that they disagree with, which fine, that's America.

But there should be condemnations about the deliberate undermining and the disregard of the institutions of our republic. Jordan, you're not hearing that. Why are you not hearing that? Because that was actually what they wanted. I think there was a certain level of coordination to this because they wanted this last-ditch attempt. And Jordan, I think it's also going to sustain because one of the main reasons for it, yes, they want a different ruling. Yes, they want legislation. They also want activation in November.

So I think it'll sustain. We'll go to Bobby in New York on Line 6. Hey, Bobby.

Hi from Niagara Falls on the American side. My question is, is it possible that Chief Justice Roberts would decide to release, to make a decision early with his justices to take all of the pressure off the justices? No. The way this works is this. They will circulate drafts.

They're probably circulating, but there's probably been drafts after this. The political report says the lineup of the justices is still the same. Five justices in favor of overturning Roe. Three opposed to it. One purportedly the Chief Justice saying he thinks the Mississippi law is in fact constitutional, that you can stop abortions after 15 weeks, but he didn't think you had to overturn Roe to do it. And I think it comes out in due course. The pressure, I cannot overemphasize, the pressure that is now on over these next eight weeks, you're going to be hearing this a lot from us because we are fighting now to preserve what appears to be a majority opinion of the Supreme Court.

We are in a fight for that opinion. They're going to go after it politically. They're going after pressure points with the justices. They're going to try to nuke it on the filibuster. So they'll try to change it there. And they've undercut the institution of the Supreme Court. When we come back from the break, we'll take your calls at 800-684-3110.

That's 1-800-684-3110. Let me also say this. I'm holding in my hand. I don't know if we have shots of these, but these are three briefs that your American Center for Law and Justice filed with the Supreme Court of the United States on this case. And two of our cases are cited in this draft opinion that we argued back in the 90s. Long-term impact. Decades of litigation. Support the work of the ACLJ at ACLJ.org.

That's ACLJ.org. We'll take your calls at 800-684-3110 when we come back. Welcome back to Sekulow. We're taking your phone calls too. You've still got time to be part of the show if you call in now. 1-800-684-3110.

That's 1-800-684-3110. We'll go to Heather in New Mexico first on Line 5. Hey Heather, welcome to Sekulow. You're on the air.

Hi. Thank you so much. Thank you for all your hard work.

Thank you. I'm absolutely utterly amazed at the foolishness of this person who leaked this. And my question to you is, do you think they have any idea as to the fact that they have potentially ruined their life? And as you recently said, this may be even criminal.

I mean, do you think that they even have an idea of the amount of foolishness that they have perpetrated against themselves on this issue? Yeah, I think they probably knew when they did this that they put their law license in jeopardy. They will be disbarred.

I don't think there's any question about that. They breached the trust of the justices. There may be criminal implications of it.

Who would hire this person as a lawyer? Maybe some of the nuts on the left. I think they're going to become a hero. That's what they're going to try to do. This will become a Chelsea Manning situation.

They'll become a hero of the radical left. And they think they can build a career out of that. Yes, but this was inside – yeah, that's probably right. But this was inside the Supreme Court. I mean, I call this – this is really – this is an insurrection inside the court.

Someone has done this internally. That's why Harry is so amazing here. I mean, I hope the opinion sticks. I'm glad to know it was authenticated by the Chief Justice today. It's gratifying. I mean, I read the whole thing last night until about 1.30 in the morning.

But I will say this. The pressure on these justices is real. How do you view this whole situation right now, Harry? Well, I think what we have in front of us is simply an attempted legal insurrection by a particular individual who wants to style him or herself as a hero of the left.

And so I really think this particular individual is not too concerned about adverse consequences. There will be attorneys who will line up to defend this particular individual. And Jordan Boyd of the Federalist reports that many on the left now suggest that the court be literally burned down as they call for an insurrection.

They call for, in some cases, violence. So what we are witnessing is an unprecedented attack on the Supreme Court. This will probably lead to an attempt to codify Roe v. Wade. It will certainly lead to an attempt to eliminate the filibuster. And we may hear renewed calls to pack the Supreme Court.

Well, of course they are putting pressure on the justices right now. Let's go right back to the phones, 1-800-684-3110. Yeah, let me go to Roger at Oregon Online for a good question.

Hey, Roger. Yeah. If Roe v. Wade is indeed overturned, will federal tax dollars still be available to Planned Parenthood and the abortion industry? Yes, because they receive those dollars.

Remember, they can't use them for actual abortion procedures. So they still will get their $500 million from the federal government. That won't be impacted necessarily by this case. I think it would put into question long term. That would take a political change in the House, the Senate, and the White House about those funds. And the reuse of those funds. But this would not prevent them.

So you're still, let me remind you what you're up against. Even if they lose this case, and we find out in eight weeks that this style of opinion holds, they're a billion-dollar-a-year industry. And about half the country is going to put in radically, radical pro-abortion laws that allow abortion up until the moment of birth. They're going to go full steam ahead. California said they will fly people in for free to have abortions in their state of California. So there will be a battle in pro-life in red states to get the right laws in place. There will be a battle in the purple states, certainly, between what to do. So those states that are more evenly divided along those lines. And then in the blue states, they're going to go radical as well. We're going to have a job there to fight to make sure they're not legalizing infanticide.

Again, abortion after birth, which we've seen in that perinatal language that has been floating around both the Maryland legislature and the California state legislature as well. Yeah, it's interesting, Harry. Chief Justice Roberts says, to the extent this betrayal of confidence was intended to undermine the integrity of our operations, it will not succeed. The court will not be affected in any way. And he said, we at the court are blessed to have a workforce, permanent employees and law clerks alike, intensely loyal to the institution and dedicated to the rule of law. Then it says that this was a singular and egregious breach of that trust that is an affront to the court and the community of public servants who work here and direct to the marshal of the court and launch an investigation into the source of the leak. But the fact of the matter is, the person that did this, in my estimation, I think what Harry and Jordan said is absolutely correct. They knew the consequences of what they've done here. They knew they would be found out. And they were willing to take that risk because they think they'll become a long-term hero, and they might be, of the left. But it really was an attack on the institution, Harry.

I think that is correct. And if you look at the Twittersphere, for instance, you find Ian Millhiser. He's a senior correspondent for Vox. And he said, serious shout out to whoever the hero was within the Supreme Court who said, let's burn the place down. Caitlin Hobbs said, I'm going to burn the entire blank country to the effing ground.

More likely than not, conservative justices, in response to this type of outcry, will find that their lives, the lives of their families, will indeed be threatened in response to this leaked opinion. Well, that's the intent, right? And that is the intent.

And so you have The Nations, which is a magazine, their Washington, D.C. correspondent said, good. So I think at the end of the day, conservatives may not necessarily have chosen this particular fight on this particular day, but the fight, I think, has chosen us. And I think we need to be prepared to respond. So I think we are in a fight, in a very serious fight, to maintain the stability of the court during this time. The attack on the court has already happened.

The attempt to sway justices is ongoing now. I understand exactly what Harry said. It's exactly correct.

What Jordan said is also correct. The attempt at legislating Roe, codifying Roe as a statutory matter, is already starting. Getting rid of the legislative filibuster, already starting. Discussions unpacking of the court, already starting.

Yeah, that's right. I want to take the final call of the day. James in Virginia on Line 1. Hey, James. Hello. Thanks for taking my call.

Thanks for everything you do. If they move forward, Congress, to codify this, and I'm not sure if getting rid of the filibuster will be required, but is that something, is a congressional law challengeable on a constitutional basis, or is there a way to overturn that in the future? Yes. I mean, you could still argue that the law's unconstitutional because the unborn child is deserving of life, so they don't have such an easy task.

No. I mean, I think, listen, we don't want to give them that legislative victory or make it easy for them, so we need to put a lot of pressure. There's going to be a whole pressure campaign.

A legitimate pressure campaign on U.S. senators not to move forward with abolishing the legislative filibuster and not to move forward with codifying Roe versus Wade. And so it's not a given that they've got the votes to do that right now. They're going to try and convince the voters to give them those votes in November. So I think you've also seen a kind of a new pivot by the Biden team overnight into how they are going to try and campaign for the votes of the American people who are not real excited about this administration and it's really been failing the country on so many different fronts, but it's also failed the base. They haven't done what their liberal base has wanted them to do. Well, now they've got something to rally their base with. So there's a lot of politics at play here. We've got to stay engaged, folks. This is a battle happening, you know, on the court, the federal government, and ultimately, if this draft opinion ends up being something like the actual opinion, the battle is going to return to your states. Wherever you are in the country, it will be a 50 state battle for the life of the unborn. We will talk to you tomorrow on Sekulow.
Whisper: medium.en / 2023-04-23 16:46:44 / 2023-04-23 17:07:38 / 21

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