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00:00Let me start with maybe the most basic part for me maybe even more important questions. A lot of people today who disagree with this decision say it's unprincipled. It may be wrong and that may be mistaken. But is it unprincipled. But it strikes me as profoundly unprincipled because the Supreme Court has long said that decisions. Of great durability on the basis of which people have reshaped their lives should not be overruled in the absence of some extraordinary change other than the mere personnel of the court. Nothing has happened other than essentially the Trump packing of the court. The addition of three justices selected by Donald Trump. Nothing has changed since Roe v. Wade and Casey to justify suddenly and for the first time in the court's history. Taking away a fundamental personal right now I say it's unprincipled and I think I would feel that way even if I were strongly pro-choice because this decision does not simply overturn the right to abortion. It overturns people's control over their own bodies. In the Casey decision in 1992 in a very much overlooked passage the court said that if we tell women that we can force them to remain pregnant then it follows. We might be able to force some women to have abortions. If for example for eugenic reasons we think that the babies to whom they will give birth are not going to live very long or will live severely crippled lives or if we think they made an unwise decision in becoming pregnant at a very young age and their parents want them to abort. We can force abortions on them. I wrote an article in the Atlantic just a few weeks ago saying don't be mistaken. Don't think just because you might be pro-choice and anti abortion that this decision is definitely going to protect your freedom. This decision takes power away from people over their own bodies and lives and intimate choices and gives that power to government. That's the basic thing it does and the principle of an anti tyrannical constitution. That principle is one that is now being shaken by the Supreme Court without any real justification. That's why I call it unprincipled. If I can ask it this way what went wrong. It's been on the books for almost 50 years now. Roe vs. Wade has. And with other major changes in customary law such as for example Brown vs. Board of Education I daresay the country came toward the decision even if it wasn't there at the beginning. The country didn't come toward this decision. We seem as divided today as we were then. What went wrong. Well I think Democrats were not as effective at the political game as Republicans were. They've played a long game. Half a century long gradually putting on the courts people who were committed to a certain view on particular substantive issues guns abortion school prayer a number of substantive issues. And gradually they did it. And those of us who kept telling Democrats in our own party. You've got to put more emphasis on the importance of electing people who share your constitutional values and will not confirm justices to the Supreme Court who have a completely different view of the Constitution. People did didn't listen. We didn't work as hard as the other side did. And you know it's a cliché that elections have consequences but they do. And it was the election of 2016 more than anything else that had this consequence because when Trump was elected he told everybody what he's going to do. He was going to put justices on the court. Who knew. He was confident. Vote to overrule Roe v. Wade. He did exactly that. And it was the election of Donald Trump that did this. You know we could go back and find other causes but this is a direct political consequence and it's a consequence that really represents the tyranny of the minority because it is a minority of the people who elected Donald Trump the justices who made this difference. The three more all confirmed by this group of senators who were elected by a dramatic minority of the American people. The mal distribution of votes in the Senate is part of the sort of hard wired into our system. But when you add it all up this is the consequence of a purely political shift not a shift in understanding of basic rights or anything of the sort. Professor you are of course a scholar but you're also you've spent a career as a strategist if I can put it that way of the Supreme Court and doing oral arguments planning oral arguments. We now have a concurring opinion from Justice Thomas talking about substantive due process rights going well beyond abortion involving things like contraception things like same sex marriage. If you were planning the defense of those despite the way that this decision came out what would you do rely. I would perhaps consider a different career. But being serious I think we have to make political changes. I don't think there is any path in the current court. I think Thomas was quite admirably candid. More so than than Alito. Alito pretends that those other rights like the right to contraception the right to same sex marriage the right to personal intimacy with the person of your choice in the privacy of your home. He pretends that those are not on the chopping block. Well they are. And Thomas made it very explicit. He's basically inviting challenges. The court cannot prevent the elimination of a fundamental pillar of its jurisprudence from having fallout consequences. And those fallout consequences are very serious. And they can be changed only at the ballot box. If we get a Congress and a Senate that is willing for example to consider expanding the court by adding four seats. That's a possibility even short of that. Congress could pass. If we had a very different Senate Congress could pass a national codification of the right of personal reproductive choice. The House has already passed such a bill. The current Senate wouldn't even consider debating it. But if we are serious as the president just said a few minutes ago that Roe is on the ballot this November. That's where I would put my energy. I would not put my energy at clever brief writing because that's not going to make the difference. A professor finally you I know have real respect for the institution Supreme Court. As do I. What does this do potentially to the institution itself. When we talk about starry decisis not because we just want people to stay with what they've said in the past but also as I understand it it's cabins extraordinary powers and this non elected branch of government. Are we substantially undermining stare decisis with this decision. I think without any doubt the justices talk a good game when they say that we believe in the power of precedent. But when push comes to shove and the rubber hits the road precedent takes the hindmost. Seems to me that the latest poll which showed that the courts respect as an institution has fallen to 25 percent the lowest in American history. I've been after today it'll be dropping to 15 percent. I think that's a shame because I think although the courts throughout the course of our history has had more power than I think it's appropriate for an outright majority Shery Ahn body to have. And apart from the brief period the Warren Court the court really hasn't protected voting rights or minorities in the way that the myth would have it. Nonetheless it's important to have an institution that can stand up against tyranny in a way that this court can. And when that institution itself loses respect because it is so obviously being driven by a change in personnel. Then I think the country is in danger. And that danger is compounded by the kind of danger we saw in the nearly successful coup and the insurrection of January 6th. So the country is really at the cliff's edge with all of its institutions and in a very fragile condition.

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Roe v. Wade Ruling 'Unprincipled,' Harvard's Tribe Says

Harvard Law School Professor Laurence Tribe explains why he thinks the Supreme Court's Roe v. Wade ruling represents a "tyranny of the minority." He speaks with David Westin on "Balance of Power." (Source: Bloomberg)