BUCK: We’re joined now by Fox News’ chief legal correspondent Shannon Bream, who is always excellent on this and all legal issues. Shannon, so good to have you on. Thanks for being with us.
BREAM: It is great to be with you. Thanks for having me.
BUCK: So you were down there today at the Supreme Court covering this. You heard it. You were around it. What were your biggest takeaways for everybody listening in to this huge moment for the American legal system and a whole lot more?
BREAM: Yeah, certainly the biggest case probably this term easily and maybe for decades, this first real bite at potentially going after Roe v. Wade for the pro-life side, and the arguments were… You know, it’s very quiet in there. There were only a few of us who were allowed in the courtroom. So you’re watching every face, trying to read every bit of body language in there.
And listen, the primary decision was about stare decisis. To break down the great googly moogly law school talk, it’s just whether or not you can overturn something that’s considered super precedent. And it seemed like there were many justices who were open to the idea. We’ve been watching some of the newer justices to see where they would go.
Justice Kavanaugh talked about the number of decisions the Supreme Court has admitted after the fact, “Hey, we got this really wrong and there is a reason to overturn it.” So a number of them seemed that they’re going to uphold this Mississippi 15-week ban. The question is whether they go that next step to overturning Roe or Casey, and I don’t think we can really surmise that from what we heard today.
CLAY: Okay, Shannon, thanks for coming on. You do fantastic work. You can watch Shannon on Fox News. You said you get to be in the courtroom. You haven’t gotten to be in the courtroom for a while.
BREAM: Mmm-hmm.
CLAY: Who are the key justices when it comes to…? I’ll tell you what I think; you tell me if I’m crazy.
BREAM: Okay.
CLAY: There are obviously, it seems, four that would vote to overturn Roe v. Wade, right, at least in my opinion.
BREAM: Mmm-hmm.
CLAY: There are several liberal justices that have absolutely no interest in it. This seems to me like it probably will come down to John Roberts who I think would be more than institutionalist and would be more likely to maybe try to chip away at Roe by upholding Mississippi’s right to have a 15-week segment here for abortion. And then it might come down to Amy Coney Barrett, one of the new justices.
BREAM: Mmm-hmm.
CLAY: You went with that, disagree with that? How would you analyze these sort of voting aspects of this case?
BREAM: Yeah, I think that’s a good read based on what we heard from them today. It’s clear that Justices Breyer, Kagan, and Sotomayor are not going to be for this Mississippi ban, and certainly not for going after Roe or Casey. It does seem like Justices Alito and Thomas and Gorsuch seem pretty firm in the fact that this is something that could be chipped away at at this point.
Justice Kavanaugh today, again, was pressing on those questions about look at these cases we’ve overruled in the past, he seemed to open a window into the fact that that’s where he’s going. The chief was tough on both sides, as he usually is. He plays devil’s advocate sometimes. But listen. He noted that the U.S. is one of the few nations in the world — he noted specifically along with China and North Korea — that have these late-term, elective abortions.
Sort of suggesting, “Is that kind of the group that we want to be in?” But he’s very hard on all sides, I think, on this and I do think you’re right that he very much is an institutionalist. He’s sensitive to the arguments that were made repeatedly today that the court could look political if it decides to overturn Roe or Casey.
And then you’re right. You have Justice Barrett. She’s new, and listen, the argument against her among other things during her confirmation is that she’s gonna be the vote to overturn Roe v. Wade. There’s no mistaking about that. But she had very measured questions for both sides, and if it’s big, big decision for any justice to say, “We’re gonna go after one of our own precedents.” So I do think those are the two to watch.
BUCK: We’re talking to Shannon Bream, chief legal correspondent for Fox News, who was in the court today as oral arguments were heard on the Mississippi abortion restriction. Shannon, Justice Alito asked Elizabeth Prelogar, the solicitor general on the Biden administration side of this, if it’s “ever okay for the court to overturn something simply because the precedent is egregiously wrong,” I believe, is the quote here.
BREAM: Mmm-hmm.
BUCK: So it’s just so wrong, and Prelogar said no. What do you make of that?
BREAM: Yeah, that was interesting. I think she was trying to be more specific to this case and obviously kind of protect her flank on that argument. But it’s clear when you talk about things like Plessy v. Ferguson, Brown v. Board of Education and others, that when you go and you have cases that follow previous precedents that the court says, “Wow, this was a mistake.
“We might not have thought it was a mistake at the time, but history has shown us and our evolution as a society has his shown us we really got this wrong.” I don’t think it’s possible to say that any case is not at some point potentially the subject of being overturned. I think she’s very much trying to protect herself on Roe and Casey, and I think she was saying, like, “Listen. Even in these cases you still have to look at what is been decided by the court as a fundamental constitutional right.”
There was a lot of argument about that, a lot from Justice Thomas about what kind of right? Privacy? Equal protection? What are we talking about? I think that she’s trying to say no matter how you view Casey — whether you like it or not — the most recent abortion decision, even if you think it’s egregious, it’s still, she said, to overturn it would be essentially putting millions of women at risk of being treated not equally as citizens of this country.
CLAY: We’re talking to Shannon Bream. She was in the court for the argument today. She is Fox News’ chief legal correspondent. Okay, Shannon. So let’s kind of rubber meets the road here. Give us a timeframe. A couple questions here. When will, in your opinion, this actual decision come down? If the decision and how does and they uphold the Mississippi case but don’t overturn Roe v. Wade, what does that look like going forward? If they overturn Roe v. Wade, what does that look like going forward in the immediate aftermath?
BREAM: Mmm-hmm. So for a timeline, they have this first secret vote behind closed doors the Friday after they hear their cases. So this will be the initial case where the justices secretly behind closed doors have this conversation and make their initial votes. Now, those can change over time. We all know that they do horse trading sometimes, that you can be persuaded by molding your opinion writing in certain way that you bring on another vote.
You change how people feel. I think this is one of those things that will come in the last week, which is the very end of June. I’d been surprised if it comes before that. That’s the end of the term, and I think this will probably take us that far, or at least very, very well into the spring or early summer. Now, if they uphold the Mississippi 15-week ban, some other states who have bans that are later and are pro-life in nature and maybe have pro-life-leaning legislators and governors?
They may go and say, “Hey, let’s move ours back to 15 weeks.” If they go ahead and strike down Casey and Roe, there are trigger laws in any number of states that work both ways. Some states have said, “If those are overturned, then great. Our state doesn’t recognize a right to abortion. We ban it, with very few exceptions.”
Other states have trigger laws that move in the other direction saying, “If Roe or Casey was struck down, we then codify it as a state law that you have certain abortion rights here.” So there are some things that would happen automatically. But I do think if Roe or Casey were struck down, you’d see any number of pro-life-leaning or red-leaning states quickly take action to scale back abortion access as much as it could.
BUCK: Shannon Bream of Fox News, chief legal correspondent. Shannon, really appreciate you joining us today and sharing your perspective and expertise. Always good to talk to you.
BREAM: Anytime. Thanks, guys.
CLAY: That’s Shannon Bream.