Clay Travis' All That And A Bag Of Mail

It's Friday, and I'm here to try and bring some sanity to an insane world with the OutKick mailbag.

I know everything has been crazy this week since the Justice Alito opinion leaked on Monday night, but since everyone is sharing their opinions on abortion this week, here is mine: all fifty states being able to come up with their own abortion policy is going to be messy, but ultimately healthier than nine unelected Supreme Court justices coming up with their own position on abortion. Some states will have extremely lenient positions on abortion, other states will have extremely restrictive policies. Ultimately utilizing our fifty state laboratories to get to a better place on abortion will be healthier for our democracy than the nearly fifty year battle over Roe v. Wade, which most lawyers will tell you is one of the worst court opinions ever written, regardless of whether you agree with the final result or not.

And just off the top here, I'd like to point out there's actually a great deal of agreement on abortion across the country when you start to analyze some details at both the beginning and end of pregnancy. For instance, almost everyone supports the idea that birth control should be legal and widely available, and there should be abortions allowed when the health of the mother, rape or incest are involved. Similarly, almost everyone believes that abortion shouldn't be permitted in the eighth or ninth month of a pregnancy. Those are, I believe, important points of agreement that are overwhelmingly embraced by the vast majority of the American public, and this is where my own beliefs are as it pertains to abortion.

Now the challenging part, of course, is what happens between these two parameters at the beginning and end of pregnancy where there is large agreement across the political spectrum. And that's why having fifty different states make these decisions will be, I believe, healthier in the long run than the battle we've seen over Roe v. Wade and the Supreme Court. Our citizens need to make their opinions known, and our elected officials need to vote their opinions as well. This is how democracy works.

What I have found is that while many people reflexively identify as pro-life or pro-choice, when the details of particular situations are shared, a relatively small percentage of people are 100% pro-life -- that is believe there should be no abortions allowed at all -- or 100% pro-choice -- that is they believe that a baby can be aborted at any stage of the pregnancy, up to and including a ninth month abortion.

95% of all abortions occur before the fifteenth week of pregnancy. I personally think that most abortions shouldn't be permitted after 15 weeks, for sure. How much lower than 15 weeks should we go? I think that's for individual states to decide.

I also, like almost everyone, wish and hope there was never any need for abortion at all. And I'm also encouraged that the overall number of abortions and unintended pregnancies, particularly for teenagers, continues to decline massively.

With that in mind, let's dive into your questions.

Bruce writes:

"Over under 50% chance that it was John Roberts who was the leak. I know it sounds a little out there, but he's been somewhat of a wildcard justice."

Zero percent chance John Roberts leaked it.

I believe Roberts wants to continue to incrementally chip away at Roe v. Wade. He'd like to uphold Mississippi's 15 week abortion ban and is attempting to have that be the holding as opposed to completely overturning Roe.

Right now, the votes are there to overturn Roe and leaking this gives him no benefit. He needs more time to make the case for a justice to flip his or her opinion.

Which is why I think all the evidence points to a law clerk (or clerks, there could be more than one) for one of the three liberal justices being the source of the leak. These clerks have the motive -- a desire to change the result before it's announced and becomes official -- they have the access to the opinions and they are desperate to keep this law from being changed and believe they can gain by putting pressure on the five justices who are voting to overturn Roe, potentially leading one of them to change their minds.

I understand some people are arguing that it was a conservative leak, but that makes no sense to me. A conservative has nothing to gain by this opinion going public now. All it potentially does is put the lives of the five justices voting to overturn Roe in danger. And it allows the justices to be publicly pressured to change their votes. (The argument that leaking this opinion locks in these five justices doesn't make any sense to me. If a conservative justice changed his or her opinion now, sure they'd be lionized by the left, but they'd also be pariahs on the right. I just don't see a conservative leak making any sense at all.)

Which is why I believe John Roberts should join the five justices voting to overturn Roe and make it a 6-3 majority. I also believe they should immediately release the opinion to make it the law of the land and help to lessen the incredible danger the five conservative justices are under now, which is my biggest fear about this leak from the moment it happened.

If Justice Roberts truly cares about the legitimacy of the court, this would also eliminate the argument that the only reason Roe was overturned was because of the refusal to replace Justice Scalia in the final year of Obama's presidency. Right now, that claim can be made. If it's a 6-3 opinion it, can't be made.

JDS writes:

"Will Roe v Wade being overruled have an impact on the midterms and does it hurt the Democrats that it was leaked 6 months out from the elections."

The timing on the leak is not as politically significant, at least to me, because the opinion would theoretically have been released next month anyway. That is, yes, we're now all discussing Roe in May, but if the opinion had come out in June, everyone would be discussing it then too. If anything, this undercuts how fevered the discussion would have been in June because if the opinions comes out in June, then we've already had over a month of analysis.

The opinion was either coming in May or June, so I don't think the timing matters much.

Given how crazy our country is right now, who knows how much impact this decision may have in November because who the heck knows what might happen in the next six months that could be bigger than this issue?

What if the war in Ukraine spiraled into a larger European battle and turned into a world war? What if China invaded Taiwan? What if Joe Biden got COVID and died? I mean, there are just a ton of potential stories that could occur between now and November which could make abortion more or less significant than it is now.

Right now this issue burns bright, but when 25 blue states enshrine more abortion protection into the law and 25 red states enshrine less, will much of the fever burn out?

I think it might.

Plus, according to a New York Times analysis, even without Roe as the law of the land, 86% of all abortions will still occur. That is, this decision will only remove 14% of the potential abortions in this country. I'm not saying that's insignificant, but I think many people have the idea that either 100% of abortions will be legal or there will be zero. The reality is most people who want to get abortions will still get abortions.

Ultimately, however, I think as people realize that every state will be making its own abortion policy, that inflation, crime, the economy, the border, COVID and Joe Biden's general incompetence will all be bigger issues than abortion policy.

Several years ago, I thought abortion would be a major issue in the elections if Roe was overturned, but I think there are so many major issues at play here right now that I'm not sure abortion, even if Roe is overturned, will be a top five issue. Could I be wrong? Sure. And in sum, I think it probably benefits Democrats somewhat because otherwise what do they have to motivate their base?

But I think Democrats are already showing us that abortion alone isn't enough to turn out their base because they are already trying to argue that abortion's the first thing Republicans will take away and then comes birth control or interracial marriage or gay marriage, you name it, they're trying to argue that abortion is the beginning of a huge roll back of rights. If abortion alone was a huge motivating factor for their voters, why wouldn't they be able to simply stick to that argument instead of rapidly rolling out additional issues?

Plus, as I discussed above, abortion gets messy in a hurry when you start to talk about details. Look at what happened in Ohio where the Democrat, Tim Ryan, already said on Fox News he supports abortion in the ninth month. That's pretty radical. So would a Republican saying he or she doesn't support any exceptions to abortion.

But in the end, I just think the economy is going to matter the most to the most people.

Erin writes:

"Where does the Supreme Court leaker wind up, CNN or MSNBC?"

MSNBC.

And with a huge book deal too.

The leaker, assuming he or she is eventually outed, will make millions of dollars and be feted for bravery by the left wing in this country.

Assuming it's a Supreme Court clerk who leaked this document, that clerk will immediately walk out of the clerking job to the highest salary of any clerk in history.

Jessie writes:

"Is Elon Musk good or bad?"

Assuming he actually follows through on the promises he's made, he won't just be good, he'll be great.

We will have a social media company that isn't in the pocket of the left wing in this country and that will force the other social media companies to moderate their left wing stances as well.

I've written and talked about this a ton already, but I'm incredibly excited about what his ownership of Twitter will mean for everyone committed to the marketplace of ideas.

Vaunted:

"Are we going to be able to enjoy a nice, peaceful summer, or is the left going to cook up significant social unrest (e.g. riots, new COVID panic) to reenergize their lunatic base for midterms?"

This is a great question.

My general position is it's harder to riot when your party is in control of all the elected positions in the country because voters tend to blame the party in power when things spin out of control in the country. In other words, Democrats already control the White House and Congress. How can you blame Republicans when you control all the levers of elected power?

I think Democrat control of power lessens the chances of riots in a big way.

My biggest concern right now is that some left wing loon could attempt to assassinate a conservative Supreme Court justice to keep Roe as existing law. (That's why I argued above that John Roberts should join the majority overturning Roe and make it a 6-3 decision and release that decision immediately. Because as long as the decision is 5-4, then we are one justice's death away from flipping the opinion back in the other direction and that could incentivize someone to act violently.)

I hate to even have to discuss this because it's awful to think about, but if a Supreme Court justice were assassinated, what happens next? I think the country could come undone, even worse than the summer of 2020. Because Joe Biden would have a majority in the Senate and the ability to replace the murdered justice before the midterm elections are here.

If the Democrats rammed through a liberal justice with Kamala breaking the 50-50 tie, then the unreleased decision overturning Roe, in the event it had been 5-4, would flip back the other direction. Even if Democrats couldn't get a justice nominated before the midterms, we'd be stuck at 4-4, probably until 2025. (This presumes Republicans will take back the Senate in November, which I think they will.)

Essentially, I'm far more nervous about the time between now and when Justice Alito's opinion becomes official than I am about when the opinion is finally released. That's why the leak of this opinion is so potentially devastating, because it dramatically increases the risk of violence against the five sitting conservative justices who are voting to overturn Roe.

Drew writes:

"Do you think Biden will be stupid enough to attempt 'student loan forgiveness' to try and buy votes for the upcoming mid-terms?"

He may try it, but it's clearly, in my opinion, unconstitutional for the president to wipe out $1.6 trillion in individual student loan debt, absent the authorization of Congress, and I don't think it would ever take effect.

And I also think it would be wildly unpopular with large segments of the population, which means it would likely backfire against the Democrats.

...

Okay, I'm headed over to do the Clay and Buck Show.

Hope all of you have fantastic Mother's Day weekends.