The Supreme Court ruled 6-3 in favor a Tennessee law that bans transgender surgeries for minors. But famed attorney Alan Dershowitz explains to Glenn why “it should have been unanimous.”
Transcript
Below is a rush transcript that may contain errors
GLENN: Alan Dershowitz, how are you?
ALAN: I'm doing great, how about you?
GLENN: It has been a really confusing week. I'm losing friends, I think, because I stand with Israel's right to defend themselves. And I'm pointing out, that while I don't want a war, Iran is a really bad place.
And then I see, the Supreme Court comes out best interest there are three justices are like, I don't know. I think children, you know, can change their identity before we even let them drive or carry a gun. Or enlist in the military.
It's insane!
ALAN: It is insane. Especially since the radical left said that -- 17 and a half-year-old -- voluntary sex with their boyfriend. That would be sexist, that would be horrible.
But they can consent to have an abortion. They can consent to have radical surgery, that can't be reversed.
By the way, the decision is like six to two and a half. Elena Kagan, my former colleague at Harvard, didn't reach the merits of whether or not a state could actually ban these operations on a minor. She got involved in whether or not you need super, duper scrutiny, or just super scrutiny, a kind of, you know, a very technical thing.
But she didn't rule on whether under any kind of scrutiny, the state could do that. So definitely, two of them said that the state could do it, but not necessarily a third one.
GLENN: Okay.
Can you break this argument down? And why it should have been unanimous?
ALAN: Oh, it should be unanimous. There's no question.
States under the Constitution, have the authority to decide medical issues. States decide a whole range of medical issues. I remember when I was a young professor, there was an issue of whether or not one twin could be operated on to remove a kidney, to be given to another twin.
And, you know, that case went all the way through -- the federal government never got involved in that. That was up to the state of Massachusetts. They made interesting decisions.
Some states go the other way.
Half the countries of Europe go one way. The other half go the other way. And just as Justice Brandeis once said that things are the laboratories of Constitutional experimentation.
They have the right to do things their own way. And then we'll see over time. Over time, I predict that we will find that this kind of surgery, is not acceptable scientifically for young people.
And the New York Times had an absurd op-ed yesterday. By the mother of a transgender person.
And it never mentioned. It originally said that the person was now 18 years old.
And the decision does not apply to anyone who is 18.
You know, just wait. Don't make irreversible decisions while you're 12 years old. Or 13 years old.
Because we know the statistics show, that some people, at least, regret having made these irreversible decisions, particularly. Yeah.
GLENN: So why is it -- why is it that the state. Why wasn't the argument, you can't do this to children?
ALAN: Well, you know, that's the question.
Whether or not if the state says, you can do it to children, that violates the Constitution. I think states are given an enormous amount of leeway, this. Deciding what's best for people.
You leave it to the public.
And, you know, for me, if I were, you know, voting. I would not vote to allow a 17-year-old to make that irreversible decision. But if the state wants to do it. If a country in Europe wants to do it. All right!
But the idea that there's a constitutional right for a minor, who can't -- isn't old enough to consent to a contract, to have sex, is old enough to consent to do something that will change their life forever, and they will come to regret, is -- is absurd.
GLENN: So I don't know how you feel about Justice Thomas. But he -- he took on the so-called experts.
And -- and really kind of took him to the woodshed. What were your thoughts on that?
ALAN: Well, I agree with that. I devoted my whole life to challenging experts. That's what I do in court.
I challenge experts all the time. But most of the major cases that I've won, have been cases where experts went one way, and we were -- persuaded a jury or judge. That the expert is not really an expert.
Experts have become partisans, just like everybody else.
And so I'm glad that expert piece is being challenged by judges.
And, you know, experts ought to challenge judges, judges challenge experts. That's the world we live in. Everybody challenges everybody else. As long as all of us are allowed to speak, allowed to have our point of view expressed, allowed to vote, that's democracy.
Democracy does not require a singular answer to complex medical, psychological, moral problems. We can have multiple answers.
We're not a dictatorship. We're not in North Korea or Iran, where the ayatollah or the leader tells us what to think. We can think for ourselves, and we can act for ourselves.
GLENN: Yeah. It's really interesting because this is my argument with Obamacare.
I was dead set against Obamacare. But I wasn't against Romneycare when it was in Massachusetts. If that's what Massachusetts wants to do, Massachusetts can do it. Try it.
And honestly, if it would work in a state, we would all adopt it.
But the problem is, that some of these things, like Romneycare, doesn't work. And so they want to -- they want to rope the federal government into it. Because the federal government can just print money. You know, any state wants to do anything.
For instance, I have a real hard time with California right now.
Because I have a feeling, when they fail, we will be roped into paying for the things that we all knew were bad ideas.
Why? Why should I pay for it in Texas, when I know it wouldn't work?
And I've always wanted to live in California, but I don't, because I know that's not going to work.
ALAN: Yeah. But conservatives sometimes take the opposite point of view.
Take guns, for example.
The same Justice Thomas says that I state cannot have the authority to decide that guns should not be available in time square.
Or in schools. There has to be a national openness to guns. Because of the second apple.
And -- you can argue reasonably, what the Second Amendment means.
But, you know, conservatives -- many conservatives take the view that it has to be a single standard for the United States.
It can't vary in their decision how to control -- I'm your favorite --
GLENN: Isn't that -- doesn't that -- doesn't that just take what the -- what the Bill of Rights is about, and turns it upside the head?
I mean, it says, anything not mentioned here, the states have the rights.
But they -- they cannot. The federal government cannot get involved in any of these things.
And these are rights that are enshrined.
So, I mean, because you could say that, but, I mean, when it comes to health care, that's not in the Constitution. Not in the Bill of Rights.
ALAN: Oh, no.
There's a big difference, of course.
The Second Amendment does provide for the right to bear arms.
The question is whether it's interpreted in light of the beginning of the Second Amendment. Which says, essentially, a well-regulated, well-regulated militia. Whether that applies to private ownership as well.
Whether it could be well-regulated by states.
Look, these are interesting debates.
And the Supreme Court, you know, decides these.
But all I'm saying is that many of these decisions are in some way, influenced by ideology.
The words of the Constitution, don't speak like, you know, the Ten Commandments and God, giving orders from on high.
They're often written in ambiguous terms. Even the Ten Commandments. You know, it says, thou shall not murder. And it's been interpreted by some to say, thou shall not still, the Hebrew word is (foreign language), for murder, not kill. And, of course, we know that in parts of the Bible, you are allowed to kill your enemies, if they come after you to kill you, rise up and kill them first.
So, you know, everything -- human beings are incapable of writing with absolute clarity, about complex issues.
That's why we need institutions to interpret them. The institutions should be fair.
And the Supreme Court is sometimes taking over too much authority, too much power.
I have an article today, with gay stone.
Can had starts with a quote from the book of Ruth.
And it says, when judges rule the land, there was famine.
And I say, judges were not supposed to ever rule, going back to Biblical times.
Judges are supposed to judge.
People who are elected or pointed appropriately. Are the ones supposed to rule.
GLENN: Quickly. Two other topics. And I know you have to go.
If I can get a couple of quick takes on you.
The Democrats that are being handcuffed, and throwing themselves into situations.
Do you find that to be a sign of a fascistic state or a publicity stunt?
ALAN: A publicity stunt. And they would knit it. You know, give them a drink at 11 o'clock in the bar. They will tell you, they are doing this deliberately to get attention.
Of course, a guy who is running behind in the mayor race in New York, goes and gets himself arrested. And now he's on every New York television station. And probably will move himself up in the polls.
So no.
Insular -- I don't believe in that. And I don't believe we should take it -- take it seriously.
GLENN: Last question.
I am proudly for Israel.
But I'm also for America. And I'm really tired of foreign wars.
And I think you can be pro-Israel and pro-America at the same time.
I don't think you can -- you don't have to say, I'm for Israel, defending themselves, and then that makes me a warmonger.
I am also very concerned about Iran. And have been for a very long time.
Because they're Twelvers. They're Shia Twelvers. That want to wash the world in blood. To hasten the return of the promised one.
So when they have a nuclear weapon. It's a whole different story.
ALAN: No, I agree with you, Tucker Carlson, is absolutely wrong, when he say he has to choose between America first or supporting Israel. Supporting Israel in this fight against Iran, is being America first.
It's supporting America. Israel has been doing all the hard work. It's been the one who lost its civilians and fortunately, none of its pilots yet.
But America and Israel work together in the interest of both countries.
So I'm -- I'm a big supporter of the United States, the patriarch. And I'm a big supporter of Israel at the same time.
Because they work together in tandem, to bring about Western -- Western values.
GLENN: Should we drop a bomb?
ALAN: Yes, we should.
GLENN: Our plane drop the bomb?
ALAN: Yes, we should. And without killing civilians. It can be done. Probably needs four bombs, not one bomb. First, one bomb to open up the mountain. Then another bomb to destroy what's going on inside.
And in my book The Preventive State, I make the case for when preventive war is acceptable. And the war against Iran is as acceptable as it would have been to attack Nazi Germany in the 1930s. If we had done that, if Britain and France had attacked Nazi Germany in the 1930s, instead of allowing it to be built up, it could have saved 60 million lives. And so sometimes, you have to take preventive actions to save lives.
GLENN: What is the preventive state out, Alan?
ALAN: Just now. Just now.
Very well on Amazon.
New York Times refuses to review it. Because I defended Donald Trump.
And Harvard club cancelled my appearance talked about the book. Because I haven't been defending Harvard. I've been defending President Trump's attack. By the way, they called Trump to Harvard: Go fund yourself.
(laughter)
GLENN: Okay.
Let's -- I would love to have you back on next week. To talk about the preventive state. If you will. Thank you, Alan. I appreciate it. Alan Dershowitz. Harvard Law school, professor emeritus, host of the Dershow. And the author of the new book that's out now, The Preventive State.
I think that's a really important topic. Because we are -- we are traveling down the roads, where fascism, on both sides, where fascism can start to creep in. And it's all for your own good.
It's all for your own protection. Be aware. Be aware.
