On Monday night’s Don Lemon Tonight, the CNN host claimed that the Supreme Court of the United States, according to the unamend people he says he’s talked to, is “now firmly in the hands of white, Christian supremacists.” And that in the recent overturn of Roe v. Wade, “religion- based bigotry prevails.”
Lemon welcomed Jeffery Toobin, CNN chief legal analyst, to discuss further on the legitimacy of the Court and its ruling, though in the end, “they still have the last word.”
Lemon presented a new CBS/YouGov poll finding that “59 percent of Americans do not approve of the court’s move to overturn Roe and support for the Court is already at a historic low before this.” Asking: “what do [the findings] this mean for the Court’s legitimacy?”
“I don’t think it has a big impact…so, what?” Toobin said. “So, people don’t approve… their decisions are still their decisions… unless it gets to be some overwhelming rejection, I don’t think this really, it has much significance, those polling- that polling.”
With regard to the state-level trigger laws banning abortion and lack of available action that the Biden administration can take, both Lemon and Toobin recognized that the “Democrats are pretty powerless.” Toobin stated that there are “going to be fights in the states… and the states that are going to have the biggest fights are those where control of the state government is really contested.”
In the case of Roe v. Wade, Justice Clarence Thomas meant business; Toobin commented that, “he says what he means.” He went on to suggest the Court was ready to start targeting marriage cases and contraception; “the one that is in greatest danger in same-sex marriage… there will be at least one state that says, you know it we’re going to outlaw it again.”
Meanwhile, no other justice signed on to Thomas’s concurrence. In fact, they all signed on to opinions that said the ruling was limited to abortion.
With same-sex relationships, contraception and consensual sexual activity in the discussion right now, Lemon probed on the idea of interracial marriage and why the Justice is not against that.
Justice Thomas, a black man, and his wife Ginni Thomas, a white woman, have been married for 35 years.
Toobin responded, “Everyone knows he’s involved – he’s married – he’s married to a white woman,” inferring that this might be the only reason that the Justice is not looking in to the case, Loving vs. Virgina.
With all this said and in mind, Toobin remarked that the Supreme Court is “in the hands of extremely conservative Republicans who have a very specific agenda … they are lowering the barriers between church and state. Obviously, they overturned Roe vs. Wade. This is their agenda… the agenda is very clear.”
Click "expand" to read full transcript.
CNN Don Lemon Tonight
10:37:13 p.m. Eastern
DON LEMON: Back now with more on our CNN exclusive interview with Vice President Kamala Harris, and what America -- what America's new reality will look like with abortion bans going into effect in states all across this country.
Here to discuss CNN's chief legal analyst, Mr. Jeffrey Toobin. Jeffrey, good to see you. So, Jeffrey, we're hearing a lot, you know, well, you know, what can Democrats do-all of this stuff. What do Democrats have when it comes to SCOTUS overall on abortions, specifically? Because a lot of options people are throwing out there that the White House doesn't support. Like expanding the court or opening clinics on federal lands.
JEFFREY TOOBIN: You know, one of the things politicians never like to admit is they are powerless. And Democrats are pretty powerless when it comes to the Supreme Court and even the whole Federal system.
Now, I'm not 100 percent powerless, but this is really now a state matter. And you know, there are, you know, going to be fights in the states, and the states that are going to have the biggest fights are those where control of the state government is really contested. States like Wisconsin, where you have a Democratic governor and a Republican legislature.
Same thing in Michigan, Virginia has a Republican governor. But the states that are all Republican, I- I just, I think they're on the process of banning or limiting abortions so that it's effectively banned. And I don't think there's a lot that the federal government can do about it.
LEMON: The time to talk about actions -- shouldn't they have been trying to codify?
TOOBIN: They could have. And you know, it's interesting, both sides are now talking about codifying abortion law. Mike Pence is saying, if I'm elected President, we're going to pass a law in Congress outlawing abortion in the whole country. Biden and Harris are saying, you know, elect Democrats and we’ll pass a federal law legalizing abortion in the whole country.
The fact is, it's an unsettled question legally whether the federal government even has jurisdiction over that matter. But you know, you need -- you need full control to even try to pass a law like that, and neither Democrats nor Republicans have that at this point.
LEMON: Listen, I agree and disagree with the former -- I'm with her on sentiment, when she said he said the quiet part out loud. I just don't think it was that quiet. I don't think he --
TOOBIN: You're talking about Clarence Thomas.
LEMON: Talking about Clarence Thomas --
LEMON: -- when he's saying they're going to come to other things like contraception, I don't think it was quiet. I think he is saying it because he means it. That's the only part I disagree with her on. I think she's right. Because he said that they should start looking at same-sex relationships, same-sex marriage and contraception. Do you think she's right?
TOOBIN: I think -- I don't know quiet or loud, but I think, you know, one of the things I've learned studying Clarence Thomas for a long time. I mean, you know, I've been covering the court for basically his entire tenure on the Court, since 1991. And he says what he means.
TOOBIN: He's candid, he's honest, he is the one who led the charge to say that the Second Amendment protects individuals to have, you know, weapons.
He has talked about how Roe should be overturned since the Casey decision in 1992, and when he says that those three decisions should be overturned, I think he means it. Now, I don't know that he has five votes at this point. I think the three cases he talked about, you know, contraception, same sex marriage, and -- what was the third one? I'm blanking.
LEMON: He said same-sex relationships, same-sex marriage.
TOOBIN: And consensual sexual relate -- activity.
TOOBIN: I think the one that is in greatest danger is same-sex marriage. Because with the invitation from the Supreme Court, I think there will be at least one state that says, you know it, we're going outlaw it again. We never agreed to it, it was forced on us by the Supreme Court, we're going to outlaw it again and create a test case.
There might be five case -- five votes for overruling Obergefell. And so, and you know, Thomas has said, he's already one of them, and if you look at the three Trump appointees, if you look at Samuel Alito, you could get to five pretty quickly on that.
LEMON: Why doesn't he feel the same about interracial marriage?
TOOBIN: Well, you know, look, let's not be coy about that. Everybody knows he's involved -- he's married -- he's married to a white woman and so some people think, he's not talking about Loving vs Virginia, which is the interracial case. In his defense, that case was also about privacy, like the abortion cases. But it also had a racial dimension, which makes it a somewhat different substantive due process case.
LEMON: Still didn't mention it.
TOOBIN: I know. I'm trying to be fair here, Don. You know, I'm --
LEMON: And Loving was just a couple of years before Roe. I mean, I'm just saying --
TOOBIN: It was. No, it was, look, it was a conspicuous absence, --
TOOBIN: -- but you could articulate a reason why it's different.
LEMON: Let's talk about this. This is a new CBS/YouGov poll finds that 59 percent of Americans do not approve of the court's move to overturn Roe, and support for the Court is already at historic low before this. What does this, sort of hyper partisan decisions, what do they mean for the Court's legitimacy?
TOOBIN: You know, one justice I covered a lot was Sandra Day O'Connor. And she was always very concerned about never having the court too far out of step with public opinion. She was very open and candid about that. This group of conservatives is very different. And to be honest, you know, it's interesting, it's -- but it's not -- I don't think it has big an impact.
LEMON: You don't?
TOOBIN: So, what? So, people don't approve.
LEMON: I agree. I agree.
TOOBIN: You know, I mean? You know, I just don't -- it's -- people say, well, it's going to hurt the Court's legitimacy. Their decisions are still their decisions. And they still --
LEMON: And it's still a law.
TOOBIN: And they still have the last word.
TOOBIN: So, you know, unless it gets to be some overwhelming rejection, I don't think this really, it has much significance, those polling- that polling.
LEMON: Do you think that the Court is -- I want to get the exact thing that people are telling me. They say that the SCOTUS is now firmly in the hands of white, Christian supremacists. Religion-based bigotry prevails. That is the sentiment. What do you think of that?
TOOBIN: You know, that's not the kind -- that's not the way I like to talk about the Court. I do think the Court is in the hands of extremely conservative Republicans who have a very specific agenda on lots of different issues, including limiting the regulatory powers of the government about climate change.
That's a decision that's due on Wednesday that is maybe as earthshaking in its importance as-as-as Dobbs is. I mean, keep an eye on this. West Virginia -- the West Virginia case. So, you know, they want to limit the regulatory power. Next year, they are going hear the Affirmative Action case out of Harvard.
Close to a lock that they're going outlaw Affirmative Action in this country. They are lowering the barriers between church and state. Obviously, they overturned Roe vs Wade. This is their agenda. You know, I don't use epithets like that. But you know, the agenda is very clear.
LEMON: You said extremely conservative. Is it fringe? Or do --
TOOBIN: You know, I think, you know, Mitch McConnell made sure that these justices got confirmed. I think it illustrates that the Republican Party of 2022 is incredibly different from the Republican Party of the 90s. In 1992, the decision that upheld Roe, the Casey decision, five to four, all five justices in the majority were Republican.
TOOBIN: Now, none.
LEMON: Now look where we are. Thank you, Jeffrey.
TOOBIN: That's the difference. I appreciate it, buddy.