Politics Masquerading as Law
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S2: None of what we are doing is, I think, unprecedented. You’re certainly hearing an unprecedented amount of complaining by the former president and his enablers because they don’t like what we’re finding.
S3: I pointed to three decisions over the course of 20 years that shows the slow death of the Voting Rights Act, and this Alabama case has to be read in that context.
S1: Hi and welcome back to Amicus, this is Slate’s podcast about the law and the courts and the Supreme Court and the rule of law. I am Dahlia Lithwick and it’s been a pretty weird few weeks in Washington, D.C. and at the Supreme Court. The GOP is grappling with the fallout from the RNC’s decision to characterize the events of January six, 2021, as quote legitimate political discourse as the January 6th committee pursues. The truth of what that event really did represent two stories increasingly tough to reconcile. We are awaiting President Joe Biden’s nominee for a Supreme Court seat soon to be vacated by Justice Stephen Breyer. But in the meantime, we got an order on Monday evening halting a major racial redistricting decision under the Voting Rights Act in Alabama. That order happened on the shadow docket and rather than explain the reasoning behind it. Justice Brett Kavanaugh, in a concurrence that was signed only by Justice Samuel Alito, use that concurrence to, you know, attack the dissenters. Later on in this show, we’re going to talk to voting rights expert guru consummate explainer Franita Tolson about what, if anything, remains of section two of the Voting Rights Act and to help us parse what it means when Chief Justice John Roberts, who has certainly dedicated his career to constricting the VRA sides with the court’s liberals to protect it. And after that, our Slate Plus members will get to listen in on my conversation with Slate’s own Mark Joseph Stern talking a little bit more about that voting rights decision, about the shadow docket and about Madison Cawthorn, everybody’s favorite insurrectionist adjacent representative. And I just want to pause to say, as I do not do often enough, this show would not be possible without your support. Slate Plus helps keep Amicus going and all the journalism we do at Slate. So thank you for your support. So before we get to any of the many things that I have now promised you, we wanted to think a little bit about the law of January six, 2021. As the Republican Party increasingly opts to characterize that day as something between, I don’t know, a meander through the Capitol gift shop, a political parade through Washington, D.C. one man remains very focused on unearthing the real story and putting it in its correct context. Congressman Adam Schiff represents California’s 28th Congressional District. He’s in his 11th term in the House of Representatives, and he serves as chair of the House Permanent Select Committee on Intelligence. He was the lead impeachment manager in the first impeachment of Donald Trump, and he currently serves on the January 6th select committee. Representative Schiff’s book Midnight in Washington details both his own struggles against a lawless President Trump and also the surrender of members of government to a false narrative about fundamentally anti-democratic political forces. So Representative Schiff, welcome to Amicus. It’s an honor to have you.
S2: Thank you. It’s great to be back with you.
S1: And I want to start, if I may, with this rhetoric around these three words legitimate political discourse, because it looks more and more like the choice of those three words was kind of an unforced error by the GOP. It was a choice to take some hard to discern, step beyond what could be tolerated in political discourse. And we’re seeing this week a real backlash from former Vice President Mike Pence from Mitch McConnell.
S4: Well, let me give you my view of what happened January the 6th and we’re all we’re here. We’re here. We saw it happen. It was a violent insurrection for the purpose of trying to prevent the peaceful transfer of power after a legitimately certified election from one administration to the next. That’s what it was.
S1: So I guess my initial framing question is this congressman, the growing sense that you can say a whole lot of things about January six, you can call them peaceful protesters. You can call them unjustly incarcerated freedom fighters, but you cannot call this legitimate political protest. And I guess I’m really curious what it is about that language that somehow is splitting the GOP into those who feel that they must condemn the violence and those who are going to just keep denying it.
S2: Well, I think it really goes to the R and CS degree of reliance on. The former president for their funding for their future. They feel they’ve made their bed with Donald Trump, they need to continue making their bed with Donald Trump. Donald Trump insists that they call that violent insurrection a violent attempt to overthrow the peaceful transfer of power legitimate political discourse in Donald Trump’s warped view of events. The insurrection was the election, and what happened afterwards was somehow legitimate. And so the RNC reflects that they know where their bread is buttered and it isn’t buttered by Donald Trump. But there are other voices in the GOP who understand, even if they’re not willing to speak it out loud, what a disaster the former president is for their party and what destruction the big lie about the election and therefore the big lie about the insurrection is causing the country. If you persuade people as they’re trying to do that, we can’t rely on our elections to settle our differences than what’s left, but violence. And so I think you’re seeing that tension played out. It is, you know, a bit encouraging. I say only a bit. Tragically, the GOP continues to reach new lows, but it’s a bit encouraging that at least some GOP members, mostly people who are not in office, but some who are in office, are speaking out against the censure of Cheney and Kinzinger for upholding the truth and their oath of office. So I think that’s encouraging.
S1: Can I ask you perhaps a slightly darker take on the same question, which is there’s a worrying iteration of this language, which is just that. The monsters out of the box that what Mitch McConnell, Mike Pence, as you said, you know, Ben Sasse, folks who are not in the party are beginning to recognize, is that the sort of snowballing monster of the big lie of election suppression of denial of actual violence is now so vast that it cannot be contained by any existing institution or person. And that’s why at this moment, we’re getting an inflection point where folks are saying, No, no, no, no, not not this. In other words, I guess the dark version is, does the problem here transcend any person in leadership now?
S2: You know, it’s a very good question, and I’ve asked a similar question or made a similar observation on the pandemic and vaccines. The Republican Party created this monster and Donald Trump, and then Donald Trump created his own monster. That in part, not even Donald Trump can control anymore. When Trump is out there now, because he decides it’s politically advantageous for him to take credit for the vaccine, in part apparently because it’s part of a broader pissing match with Ron DeSantis. But for whatever reason, when he’s out now on the stump and says people should get vaccinated, he gets booed by his own people. Donald Trump booed by his own base. That monster he can’t even control now. And I think there is a sense with respect to this big lie that they have pushed this. This snowball down the hill, and it has gathered so much momentum that it is taking on an irresistible force of its own. And what has been so cognitively dissonant in the past is only growing more dissonant. And by that, I mean, on January six, you had Republican members of Congress challenge. The electors from their own states claim that the ballots which elected Joe Biden were fraudulent when they were elected on the same ballot. And I do think that some of these Republicans, like Mitch McConnell, recognize this monster may consume them, too, that if they’re going to go along with the Big Lie, then that Big Lie can be used against them in their own election.
S1: And I wonder if we can talk about where we are on the select committee. I think Representative Raskin has said there’s kind of three circles of what is being investigated. Can you just give us a brief kind of look at the map of what at this moment you’re looking at? Is there some sort of analytic or descriptive way that you have people think about what is and what is not in front of the select committee right now?
S2: I can’t go into the kind of organized organization structure of our investigative team, but what I can say is it became very apparent early on in our investigation that January 6th was really just one of multiple lines of effort to overturn the election. It was obviously the most serious and the violent manifestation of the effort to overturn the election. But there were other very serious pernicious efforts as well efforts to, for example, bend the leadership of the Justice Department into the illicit purpose of trying to get Georgia not to send a slate of electors or to send an alternate slate to promulgate false claims of massive fraud. There were efforts for bogus litigation. There were efforts to suborn state and local elections officials, the most prominent being the former president’s effort to coerce the secretary of state in Georgia to find eleven thousand seven hundred eighty votes that didn’t exist, but just the exact number of votes he needed to beat Joe Biden in that state. And so we are examining each of these lines of effort the fake electors, the public reporting about the effort to potentially seize voting machines. And so a big part of our focus is on these multiple lines of effort to interfere for the first time in our country with the peaceful transfer of power. But other lines of inquiry are looking at those who participated in the attack. The white nationalist groups and whether there was any organization and coordination among these disparate groups where the funding came for to finance January six, which took resources. What role the White House played. What role the Trump campaign played in all of these lines of effort, not just January six and as well. What role bigotry played. Because as we saw with the Confederate flags and the Ashwin’s T-shirts on January six, this wasn’t just a Trumpist insurrection, it was also a white nationalist insurrection. And we looking at all these issues because our primary goal is to protect our country and our democracy going forward. And so we have to look at all the root causes as well as these. Multiple lines of effort.
S1: And can I ask you? I’m just reflecting on that New York Times reporting from earlier in the week that the committee has taken a real page from sort of crim investigations, collecting metadata, flipping lower level. I think the word is not flipping, but let’s call it flipping for right now. Lower level staffers kind of likening this to a mob or White-Collar Crime investigation, and I wonder how much it carries a risk of upping the kind of hardball tactics. I’m thinking a little bit about some members of the House of Representatives now saying that there were secret police breaking into their offices and, you know, looking at their white boards, and that the more aggressively this is investigated, the more it plays into this mythology of the, you know, deep state and its nefarious ways.
S2: First of all, we have a very capable, impressive team that we have assembled of staff and former assistant U.S. attorneys and people with investigative experience. And I may be biased because I’m a former assistant U.S. attorney, but they’re very good lawyers and they’re very good investigators. And because they have, many of them have criminal experience as I do criminal law experience. There is a perception that we’re running a, you know, criminal investigation. We’re not running a criminal investigation that’s the purview of the Department of Justice. But nonetheless, knowing how to do an investigation, a complex white collar investigation, which is what this really resembles, is a very useful skill in knowing what records are useful, how to assimilate, where to go to for records, what witnesses we need to talk to. Knowing how to sequence the witnesses in terms of what critics are claiming are hardball tactics. I actually, I think we have been very conservative in our approach. We have worked fast and we, you know, gone to the courts when we need to. And we’ve gone to the Justice Department when people have violated the law and been in contempt of Congress and have basically said they’re above the law. They don’t need to bother showing up. But on the, you know, I think the more difficult decisions we are still waiting, for example, what to do about these members of Congress who are refusing to come in. But there’s nothing that unprecedented or even aggressive about asking members of Congress to testify in the Russia investigation. We asked two members to come testify, and they both did. One Democrat, one Republican members are asked to testify, often in ethics investigations. So none of what we are doing is, I think, unprecedented. You’re certainly hearing an unprecedented amount of complaining by the former president and his enablers because they don’t like what we’re finding. And so you’re also hearing with the GOP and Ken McCarthy’s penchant for false equivalence. Well, if they’re going to use these investigative tactics that we’re going to abuse any power we get if we take the majority, which frankly, they will abuse their power if they’re ever, given the majority, regardless of what restraint we show today. But that’s an argument, not for us refusing to do our jobs and get to the ground truth of Jan. six. It’s an argument for making sure that Kevin McCarthy never become speaker, because after all, one of the lines of effort to overturn the election was in Congress itself and had Kevin McCarthy been speaker after the 2020 election. He would have overturn the election in the House, and we would have been in a complete constitutional crisis. So that, to me, is the takeaway. Not that the Jan. six committee should shy away from undertaking its responsibilities with diligence.
S1: Can I ask one last question before we let you go, I know you’re on the clock. I I think I need to end asking you this. You have lived through the Mueller report. You have lived through two impeachments and now this investigation and part of me wonders what you think the end game is in so far as. A huge proportion of this country cannot be persuaded, and I don’t think your job is to persuade them. I feel as though you are constructing a historic record and you’re doing something that lives in the interstices between politics and justice, or that maybe sweeps both of those things up. But I guess I’m wondering how you think about each of these processes, which is not quite politics, not quite law, something to do with first drafts. Hopefully, not last drafts of history. And I guess I wonder what your model is like. This doesn’t feel like a last question. It feels like a dissertation, but when you think about what it is that you’re doing, that isn’t quite any of the categories that as a lawyer and as a congressman, you think about, where do you put this?
S2: Yeah, no, that’s a very interesting question, and actually you began with a mention of my book Midnight in Washington. I did write that as a first draft of this part of history with an eye towards history and knowing that with respect to impeachments, they have been historically very rare. And there’s great interest even today in the impeachment of Andrew Johnson a century and a half ago. But in terms of the work of the committee, I I guess I would come back to a view that I had during the first impeachment as we went to trial in the Senate. I would tell my fellow managers that we’re we’re speaking to the four in the 40 million the four Republican senators we thought might have an open mind and the 40 million Americans that we estimated also had an open mind. There are, you write, a great many Americans who have a very closed mind when it comes to January six or a lot of other things touching in the political realm these days because the way we get our information is so balkanized. But there still are tens of millions of people who don’t live, eat and breathe politics. They’re just trying to get by and provide for their family. And they are hearing these conflicting narratives about Jan. six. They’re hearing it’s legitimate political discourse, but then they’re seeing images on TV of police being beaten and battered, and they’re trying to reconcile. Well, how could they possibly be saying it’s legitimate political discourse? And it’s important that we speak to those people. So I view that as a very important component of the of the public hearings that we are going to begin, I think, in a matter of weeks or months. I view those hearings as speaking to the American people and sharing the facts we’re learning in the investigation. I view the report as a document for history, and I view our responsibility as the recommendations that come out of that report to try to take steps to prevent anything like this from happening again. And so I think you’re right. We are kind of at the intersection of history and justice. I would add accountability. Justice is predominantly the role of the Justice Department, but we’re hopeful that our accountability can also lead to justice. And that’s, I guess, how I would visualize envision our responsibility.
S1: Congressman Adam Schiff represents California’s 28th Congressional District. He’s in his 11th term in the House of Representatives, where he serves as chair of the House Permanent Select Committee on Intelligence. He was lead prosecutor on the first Donald Trump impeachment, and his book Midnight in Washington details his struggles through the Donald Trump era. Representative Schiff, thank you so much for joining us today. Thank you.
S2: Great to be with her.
S1: So now we’re going to turn to Merrill v. Milligan. This is a voting rights case that is so seemingly complicated that I don’t know about you, but most of the media stories I read this week just tried to explain voting rights. This was a really crucial racial redistricting case under section two of the Voting Rights Act decided Monday night without much explanation on the court shadow docket. And if I have not lost you already with his introduction, I’m very relieved. But this is enormously consequential and it sometimes gets obscured because it’s buried under a statute in a redistricting order and then again under just a lack of any reasoning provided by the court. So thank God, Franita Tolson is here. Franita is vice dean for faculty and academic affairs and a professor of law at University of Southern California Gould School of Law, and her scholarship and teaching focus on election law con la legal history employment discrimination. Her research has been featured in leading law reviews around the country, and she has served as a contributor and issue expert for media sources. She’s also testified before Congress a bunch of times on voting rights and authored a legal analysis for an amendment to the Constitution introduced by Senator Elizabeth Warren and Richard Durbin that would explicitly protect the right to vote. And that’s really only about half of it. But Franita, welcome to Amicus.
S3: Thank you. Very happy to be here.
S1: And I think I want to start by asking you to do the thing I feel like I really have been trying to do all week, which is just please explain literally decades of redistricting, law and the Constitution standing on one foot. I think I’m going to give you this as a setup. On the one hand, the Voting Rights Act, the doctrine requires states to draw districts where minority voters can elect their preferred candidates under certain conditions, but also a jurisdiction cannot make race quote the predominant factor in redistricting without some compelling reason to do so. And I just want to sort of hand this to you with the caveat that Chief Justice John Roberts dissenting from this week’s order, described this case law as having, quote, engendered considerable disagreement and uncertainty regarding the nature and contours of vote dilution claims, only to say to you, it feels as though everybody has a really vested interest in saying this is too complicated to understand. So it is not too complicated. Can you give us a quickie tutorial on this body of law about race and redistricting?
S3: So I agree completely. I do think that there’s this sense after the decision that Section two is so complicated, right, that we need to revisit it. But keep in mind, law courts have been doing section two for decades. This is not something that’s new. And in fact, the case itself, I would say, involved a pretty clear Section two violation. This is not something that you had the lower court just offhandedly say, OK, this is a Section two violation without putting in the due diligence. But let’s take a step back if you think about Section two, it’s been in place since 1982, right? So that’s almost 40 years of having this regime in which states are required to draw districts in which African-Americans, Latinos or any minority can be a majority in their own district, particularly if there is racially polarized voting, which means that the majority or in most cases, white people vote for a different candidate than the ones minorities prefer. And so the idea is to put them in their own districts so that they can elect their candidate of choice. So as long as they are geographically compact, courts have tended to find that Section two requires this, and this has been true since 1982. Now let’s be clear in some ways, and I want to make this point because I think we’re the court is trying to get back here prior to the 1982 amendments to Section two. There was a case called City of Mobile vs. Boulder in that case, which dealt with At-Large elections. The question is whether or not having a At-Large election where the entire governing body in mobile was elected at large minorities were not able to elect their candidate of choice despite being 40 percent of the population of mobile. There was a question there as to whether or not Section two was violated. The Supreme Court held that Section two required discriminatory intent. Discriminatory intent is really, really hard to prove. Right. So essentially, the plaintiffs would have to prove that the structure was adopted for purposes of diluting the votes of minority voters. Very hard to prove that in many cases. So in 1982, Congress changed a law in order to make it easier for plaintiffs to win under Section two. So you just have to show discriminatory effect. We spent a lot of time talking about really the remedy to a Section two violation. The remedy is to put minorities in their own district so that they can elect their candidate of choice. But you also have to show that the challenged rule or challenged plan has a discriminatory impact. OK. So courts have been doing this. We have developed doctrines around Section two. This is not hard, right? Like and I think part of it is that a lot of conservative justices and judges disagree with Section two. They disagree with the use of race and redistricting. Just because you disagree does not mean that the doctrine is hard or muddled or unclear. The doctrine is clear. That being said, doctors have developed to as really as a response to Section two claims. So as you mentioned in your opening remarks, this notion that you know they can’t rely on race too much in drawing districts, some of that in a lot of cases, starting with shuttle versus Reno, is a response to states drawn majority minority districts in order to, in some cases, protect minority voters. But in some cases, states have drawn majority minority districts in order to harm minority voters. Right, so it’s taken on a life of its own. But courts have become equipped as sort of distinguishing when majority minority districts are needed and when they’re being used in order to pack minorities into districts and dilute their vote statewide. So shallow versus Reno says, Look, you cannot use race too much. And during these districts, these districts have to be needed, and compliance with Section two, i.e. Section two, requires the state to draw. This district has long been a defense to a potential equal protection claim under the Shah lot of cases. So to the argument Hey, state, you’ve used race too much. The state can say Section two requires this. But keep in mind the fact that we have this line of cases shall versus right now under the equal protection clause, i.e. you relied on race too much shows you the disagreement with Section two. This notion that we don’t want states, you know, drawing these districts too much, particularly if they’re not needed because we don’t like the idea of using race too much. So really, the Alabama case is a way to further undermine Section two because conservatives don’t like it. They don’t like statutes that first of all, liability can be premised on effect. Think that the city of mobile versus Bolden, right? This is why the Supreme Court said plaintiffs have to prove intent. Now, of course, that will limit the number of Section two claims the number of successful ones. It’s very hard to prove, but at the same time, it also keeps the states from having too much liability in terms of having to draw these. Majority minority districts. So in some ways, the Alabama case brings all of these criticisms that we’ve seen since the early 1980s about Section two to a head. And I think what we’re looking at is a world in which the Supreme Court, even Chief Justice Roberts. This is why he’s saying, well, this confusing. It’s almost like a two sided coin right. It’s confusing. But the law is also settled, right? Such that there’s a Section two violation here. Well, which is it? The lower court looked at the Alabama redistricting plan. They realized that there could be a second majority minority district drawn because, of course, keep in mind, I mean, under the new map, African-Americans are only what, 14 percent of the districts, despite being twenty seven percent of the population, are a red flag, right? This is not hard. So I think the Chief Justice, even though he sided with the four liberals, wants it both ways. But he would prefer to not do it on the shadow docket. He wants the case to be fully briefed, argued on the merits and nano. Probably vote with the Conservatives to gut Section two. Honestly, that’s the world we live in right now.
S1: First of all, that was the best mini course on racial redistricting law that I’ve ever had and super clear because I think this is, as you say, doctrinally not complicated. It is cognitively complicated because as you say, you’ve got this pincer move of you can use race, but you can’t use race too much. So it just seems as though this is insoluble. And yet, as you say, it’s been solved for a very long time. I want to talk about Chief Justice Roberts because I do feel that this goes to this sort of animating theme I have of John Roberts as a conservative, which is, you know, he’s always saying, lie better to me, like he really doesn’t like bad liars. He likes people who go through all the work and then present him with a good lie. And it feels like what he’s working toward. And by the way, what he’s worked toward for his entire career as a lawyer is eviscerating the Voting Rights Act. But doing it under the guise of, you know, we’re doing this diligently and scrupulously under the law and not willy nilly on the shadow docket, like within the junior Justice Kagan, you know, stop talking about the shadow docket. I want to talk about Roberts, but I first also need you to do one other piece of teaching, which is the incredible shrinking Voting Rights Act like. So we’ve talked on this show a lot about the demise of Shelby County and then Brnovich just within the last year, whittling away at the use of Section two, but not in the redistricting context. So this is actually something I feel like it would be useful for you to explain, which is Brnovich is kind of an outlier case because they were using Section two to try to resolve the problems of having Section five go away, right? So was for just a full on vote suppressive measures. This is actually the traditional use of Section two, right? Typically, as you said, Section two was the piece of the Voting Rights Act that you leaned on when you wanted to solve this kind of vote deletion case, which is really different from what Brnovich did, right?
S3: I think we’re coming full circle. So Brahma, which involved two Arizona voting laws, right? One that prohibited ballot collection by anyone other than election officials or a close family member and another that required any ballots cast outside a person’s assigned precinct be disregarded. And there was a disparate impact, right? This had a very negative effect on minorities in Arizona, but the Supreme Court found that the laws did not violate Section two. So let me make one point first, and it really goes to your point about the incredibly shrinking Voting Rights Act. Look where we are, right? So when the Voting Rights Act was passed in nineteen sixty five, it was to address a lot of access issues. So just literacy tests, poll taxes, things of that nature that kept people from casting a ballot in the first instance, 1982. Those amendments are exceptional because Section two was amended to address vote dilution claim, so not necessarily access, but just a sense of how districts are drawn. And it can be drawn in a way that makes a voter’s vote less powerful, right? You can live in a place, and if they draw your district around, then it doesn’t really matter if you vote or not, because you have no no impact on the outcome of the election. So Section two was really designed to address these second generation claims in 1982, but that does not mean that Section two was not also designed to still address first generation claims. It’s just that it had not really been used that way. So the the claims at issue and Branham, it’s those type of laws that are being challenged are really access issues, right? People are trying to vote in the first instance and they can’t because of these laws. So really, this is a full circle, right? We’re coming back to a place where we still have to relitigate these access issues that were resolved in the 60s and 70s, which is really, really sad. So I invite you not to see Brunswick as necessarily an outlier, but part of this incredibly shrinking voting rights act, right? Because even Shelby County, we focus a lot on Shelby County because it gutted section. Five is very upsetting, right? Just in case your listeners aren’t interested in these issues like we are. Shelby County dealt with the reauthorization of the Voting Rights Act and in particular the pre-clearance provision, which requires certain jurisdictions, mostly in the South, but also in other places. So pre-clear any changes to their voting laws before those laws will go into effect. It is really one of the most successful provisions of the Voting Rights Act, but I would even venture to say it’s one of the most successful civil rights statutes in our country’s history, because what it did is it fundamentally changed the political complexion of the South, right? Like forcing them to to preclude precluded changes meant that it was very difficult for any discriminatory laws to actually go into effect. Section two catches them on the back, so they went into effect, and now the government or plaintiffs can challenge them as violating Section two. So section five section for me, if I together Section 4b determine which jurisdictions will cover those two provisions together were really transformational because they caught it at the beginning before I could even impact minority groups. Shelby County by invalidating the coverage trauma, in part because the court argued that the Congress had not built a record that was good enough to justify it right? This idea that states control voter qualifications, states have primary authority over elections. If Congress wants to intrude. Congress needs to provide a justification. This is not good enough. And that’s your boy, Chief Justice John Roberts. But keep in mind that Shelby County was not the beginning of this. I often read Shelby County, and I guess I like punishment because I continue to read it and get mad and it keeps me going. But I think back to a case called Bolger Parish, and I did not know it was pronounced Bolger and actually went there. But this is a city in Louisiana, and they passed a redistricting plan, but it was locally for local government. In that case, the Supreme Court held that Section five only prohibited plans that were retrogressive, meaning that minorities have to be worse off under the new plan than they were under the old plan. But that plan was passed with discriminatory intent. So you mean to tell me that a governmental entity can intentionally discriminate against their minority residents and that plan passes pre-clearance? Right. That was in 2002. So that was what, 11 years before Shelby County. But it was like cases like that that started to give us some sense that the Voting Rights Act was in real trouble any time a governmental entity can pass an intentionally discriminatory plan. Now, of course, that doesn’t insulate it from challenge under Section two. Right. And that was the court’s justification for viewing it that way. But the disconnect, especially if you understand what Section five was intended to do to prevent minorities from being harmed in the first instance, it was a bizarre reading of the statute to force this type of issue into Section two litigation, which honestly is very expensive. It takes a long time. And this is why Section five was, in some ways, better. OK, so Bolger, Parrish, Shelby County. Then we get to Brnovich, right? So Brockovich is interesting because what it does is, I think it makes it very hard for plaintiffs to bring successful Section two challenges. So both your parents, of course, started this this process of pushing things to section two and even in Shelby County, you get some sense that the court is like, well, they’re still section two, but then you get to Brockovich and Barnard, which is why. Well, let me tell you this Section two is a problem. Now what does Alito do? Alito rolls in front of it, and it’s really interesting the way he rewrites the statute and there’s no other way to frame it. It’s a rewriting of the statute. Right. So you have the two Arizona laws. They clearly have a disproportionate impact on minority groups. But he says it’s not big enough. And not only is it not big enough, he says, Look, you have to look at the opportunities provided by the state’s entire political system. So, yeah, you know, these two laws might have some impact, but you know, there are other ways to vote. You can show up on Election Day, you can vote absentee, you can do all of these different things. You can vote early. Right. And we need to consider that and thinking through whether or not there’s a Section two violation. Get this To what extent does the new rule depart from the standard practice when Section two was amended? Well, what does that mean? That means that as long as the state has in-person voting on Election Day, the court is less likely to find that there’s a Section two violation because literally, that’s all the state has to do. Who? How do you so how do you build a political system that is inclusive and reflective of where we are as a society, right? To some extent, the innovations that we’ve seen are a reflection of where we are as a society. Election Day is not a holiday, so the keep in mind early voting is key for a lot of people to be able to participate. We’re still in the middle of a pandemic, so absentee voting has become very, very important. What Alito has basically done is validated a state’s ability to make some methods of voting harder, particularly those methods that people of color tend to rely on in 2020. People of color disproportionately use absentee voting relative to white voters under brunt of it. That is not a Section two violation, right? Because Alito would just say, look, vote in person. So in some ways, the decision is a way of insulating certain categories of voting laws from ever being challenged under Section two. I’ve pointed to three decisions over the course of 20 years that shows the slow death of the Voting Rights Act, and this Alabama case has to be read in that context. It really is part of this sort of longish history of the court, slowly but surely gutting various provisions of the Voting Rights Act
S1: Franita before we turn to the way this particular decision came down. And again, thank you for the clinic because I just think like this seems so technical, but it’s actually like anybody can understand it when you explain it the way you just explained it. But I also just want to go back and loop in one thing you said about the difference between these cases that challenge access and the cases that try to challenge redistricting and voter suppression through redistricting. Because I’m aware of a conversation we had with Sherrilyn Ifill, where she was saying that her principal complaint about the shadow docket and the ways in which the Supreme Court just wipes away a district court order is that all of those findings of fact, everything that was done by litigators to build a case to make visible not just to the justices, but to the American people what the burden is on racial minorities that gets wiped away to. It’s literally gone.
S2: We have to explain to our clients
S3: right why a 192 page decision from a district court judge in Alabama in which our clients make this powerful testimony about why they can’t comply with Alabama’s absentee voting law that requires them to engage with all these people during the COVID pandemic. And they are black people who have particular disabilities. Why that gets wiped out. Why it doesn’t exist anymore. Why there could be a decision that quoted them saying my ancestors had to risk their lives to vote. I don’t think we should have to do that anymore. It’s quoted, right? But we have to explain what happened to that thing. It’s just gone.
S1: And the reason it really stuck with me and I’ve never stopped thinking about that is that is an immense amount of erasure of actual lives, of an actual record. Redistricting is so freaking hard because it feels like it’s a formula on a computer and you just don’t have. Correct me if I’m wrong, that kind of, you know, here is a person who stood in line for 17 hours and, you know, couldn’t get their records from the DMV. It just doesn’t have that kind of human sense that she was trying to paint. And I think part of when I opened with redistricting is really tricky. It’s just that it can be so bloodless. Yeah.
S3: Yeah, definitely. For some reason, as you were speaking, the one thing that kept coming to mind is that the cruelty is the point. And it seems weird to describe it that way, but I actually think it fits here a little bit. So during the Trump administration, there were a number of things that happened, and I just didn’t quite understand it. Hawaii versus Trump, which challenged the travel ban. I mean, there were various iterations of the travel ban, and I remember sort of Reno’s decisions and thinking of my hair like, why are they going through all of this trouble, right? There are ways to do immigration policy that make more sense. Why? And the cruelty is the point. And I think this assembler, if you think about it, like this idea that the Supreme Court can swoop in and erase all of the worth that voting rights advocacy groups, plaintiffs people who are invested right, people who understand this history where you know, African-Americans and other minorities, people with disabilities, language, minorities, all these groups have been negatively impacted by voting laws throughout our history. They understand that history. And so they’re definitely come into this with a lens of, you know, trying to fight. But part of it is taking the fight away. I know we hate to say it that way, but to me, that’s the only way to explain what is our clear inconsistencies in the court right in this space versus other spaces. Because I’m sure if you compare what the court has done in the context of the Alabama case, what the court did in the context of the Texas abortion law, right? We can have an entire conversation about the inconsistencies in which the court has approached these issues. But that being said, I think to some extent, the cruelty is the point, and I might sound extra saying that. But part of this is to deter these types of lawsuits from being brought. There’s no other way to explain it. Brockovich, you know, his new five part test that he developed to try to rewrite Section two makes it harder to win the Alabama case. You have these lawyers, these amazing lawyers who put all of this working and you had these this panel. These are not radical judges right to Trump appointees found the Section two violation, right? So they did their job right. They showed out they understood the assignment. Supreme Court comes in in one order, wipes it out. To some extent, we have to acknowledge the cruelty is the point. This is about deterrence. It’s not just about getting to a certain endpoint. The endpoint is important. The endpoint is the complete invalidation of the Voting Rights Act. They want a new to the statute. We know that, but they also want to deter these groups from bringing this type of litigation because otherwise, why not wait for full briefing in an argument? So maybe an unpopular position? But I say what? I see it.
S1: No, I mean, it’s it’s hard to see it through any other lens. And I guess I would just marry your answer to my question, which is it’s not just that the cruelty is the point, it’s that the bloodless cruelty is the point that if you can’t tell this story in a way that folks can understand, then it’s a kind of a cherry on top of the sun of cruelty. If that’s a thing which is just, you know, we’ve made it so arcane that maybe nobody will, you know, react. And I and I really like what you’re saying because I don’t think it’s over-the-top to suggest that there are a thousand ways to do these cases. You had a three judge panel that did it, and I want to see the numbers again. You said it in your very first answer, but I feel like this is phenomenally important in the state of Alabama. You have seven congressional districts population 27 percent black. The state of Alabama produces a map that packs some black voters into one district, spreads everyone else out into three districts, managing to ensure that while Black Americans make up 27 percent of the state’s population, they will control 14 percent of the congressional delegation. This is not a hard case, as you said, it goes to this three judge special panel. As you said, two Trump appointees who do their job and find exactly the thing that you just said, which is, Hey, this map violates the Voting Rights Act. Am I missing anything in terms of setting the table before we get to the order itself?
S3: So one thing that I think is worth mentioning in some ways, the litigation over the last decade shows how the original Voting Rights Act actually didn’t go far enough. One interesting tidbit I think Wakefield is wrote a great blog post about this on election law blog recently, where he talked about the fact that Section five wouldn’t have blocked Alabama’s plan. All right, so you have these disparities, right? Why people are twenty seven percent, but they only get 14 percent of the districts under the original plan, the one from 2010, they only were required to draw one district with the population has grown where they can now fit into. So Section five actually went to block that plan. And so in my mind, that tells me that, OK, in terms of our political system, we’re in a different place now, right? Just in terms of like the barriers that African-Americans and other minority groups face, the way that we conceive of effective political power in these states has changed. But we’re still sort of litigating under provisions that haven’t really changed that much. And as part of the problems. So not only am I’m like, Oh my God. The Supreme Court has invalidated the Voting Rights Act and I’m a part of me is also like the Voting Rights Act didn’t even go far enough, right? So if we lose the little bit we have, we’re going to be even worse off than we would have been otherwise right. Like, the situation is actually more dire than we realize because the original Voting Rights Act didn’t go far enough in protecting minority communities. That was a very startling realization to me. I’m like, Oh my God, we can’t even get what we need. For decades, we’ve been trying to preserve what we have, and now we’re losing that. So what does that mean for the role forward?
S1: That’s another way of saying. The thing that I think you lead with, which is adding Section two to the existing Voting Rights Act, isn’t because it’s working. It’s because right, it’s not working. And then to say we’re going to get rid of section five with the promise that you always can go back to section two and then you wipe out section two. It has this illusion that like, Oh, there’s just so much law here, like you’ve got double the protection you had, and it’s in fact no added to the law because it wasn’t enough to begin with.
S3: And these voting rights advocacy groups and these litigators have been working with the bare minimum, literally, I call them superheroes. They are superheroes because they have been doing a lot with the least.
S1: So let’s talk now. Let’s finally, that was an immense amount of sort of table setting, but I think we’re there. Let’s talk about the order on Monday, and I would love to chat with you at length about all of the careful doctrine that the court lays out. But it. Isn’t there? We do have a concurrence written by Brett Kavanaugh, signed by Samuel Alito, taking some potshots at the dissenters, but not really a very clear sense of what happened to Section two.
S3: So one thing Justice Kavanaugh said that I thought was really, really interesting here is that, yes, the plaintiffs might win, but so might Alabama, huh? Right. That means that you leave the order in place. That does not mean that Alabama has met its burden to justify overturning the district court’s order. So, you know, it’s really interesting from that perspective because it seems that in the context of whether or not there should be a stay, Kavanaugh doesn’t seem to understand the standard. But I do think that and I would encourage your listeners not to think about this as being about law. It’s not about law. And you also can’t think about the court’s rationale as legitimate or justified. And that’s the difficulty with it, right? Because think about this as precedent, it shouldn’t be right. This a shadow docket, it’s an order. This is not something that we think about as a roadmap for the path forward. But given that the court didn’t really provide that reasoning, how should we think about that in future voting rights cases? The last thing I would want to be in this moment is someone litigating a voting rights case. And unfortunately, I’m working on or fortunately, I’m working on several. But one of the reasons why the Alabama case is so scary is because of the lack of authenticity is one way to think about it. Like, I don’t want to say that the court is being inauthentic, but there is a sense of and authenticity, but also the fact that they have muddied the waters in terms of the path forward because this particular case. So it’s going to be set for argument either this term or maybe early next term. So it could be a while before we have a clear sense of what the world of Section two actually looks like. And I think that’s scary for some people who are working in this space, right? How do you litigate cases going on now because you have voter suppressive laws in Georgia being challenged? Texas, Florida. Right. So there’s active Section two litigation going on. And I really think the question after the Alabama case is to what extent has the court muddied the waters in those cases? Right. Because all of a sudden, just because Alabama case dealt with redistricting, there’s still the question of how much just bleeds over into other types of Section two litigation because Section two deals with both vote dilution and vote denial, right? If the Section two is as complicated and as messy and as confusing as even Chief Justice Roberts claims there, how does that impact the views of lower court judges who are overseeing section two cases, right? How does that influence their decision making? So there are just so many unanswered questions coming out of what, in essence, this is a very short order because it has so much confusion about the law in this area and the overall status of Section two.
S1: It slightly harkens back to your point, which is once you set out a quote unquote rule that essentially says, We’re not telling you the rule, what you’re doing is killing anybody from coming back. And that’s part of the point. I’ve just talked about how Justice Kavanaugh in it is not an opinion, it’s a concurrence. We don’t actually have any kind of law. And then he immediately gets the burden of proof wrong, as you just said, and seems to think the plaintiffs have this super high burden. And Justice Kagan checks him on that in her dissent. But the other, I guess the only other operative legal theory here that we have to get to is this Purcell principle, right? Oh my God, and I wish listeners could see your face just now because it’s been one of those I know faces. But like the Purcell principle is judge made law. It’s not in the Constitution. It is a kind of a convenient slash administrative rule that used to hold that courts shouldn’t tinker with election law on the eve of election because it causes voter confusion. That’s not how Percell is used by Justice Kavanaugh.
S3: No. So not only is he wrong about Purcell and I’m going to get today, I want to. Just for the record, I have to say this line from his concurrence because every time I read it, it pisses me off. He says the principal dissents catchy. The worn out rhetoric about the shadow docket is simply off target. Now they’re trying to be dismissive about that, right? So what does that mean? That means that there will be a lot more opinions like Merrill versus Milligan, making very consequential decisions in the context of important issues without full briefing and argument. I just want to memorialize that because I do think this is the way of the court trying to minimize the importance of the fact that they are making these decisions without full briefing. And that does really makes me mad. But the second thing is the personal principle. The court has really weaponized it, and to some extent we saw that in 2020, right where? They were trying to respond to the pandemic and state courts were coming in and saying, Look, we interpret our state constitution to require, for example, that the state a lot more time to receive absentee ballots. Supreme Court comes in and says presale principal right, you cannot change the election rules so close in an election because it generates confusion. OK. You know, I am of the opinion that you have to also think about the right to vote right, that the sale principle cannot trump the fundamental right to vote. And in that particular case, I was referring to this was Wisconsin, a very beginning of the pandemic. The state court was trying to really accommodate the fact that one, you know, long line social distancing. A lot of people are not going to vote in person. Therefore, voting absentee becomes very important. A lot of people had not received their absentee ballot by the deadline. And so, you know, you can sort of justify the extension if you think about the right to vote is fundamental in trying to accommodate these voters in a pandemic. Court comes in and says is too close to the election. OK, fine. I’ll even give them that. I even give them partial right? The Ninth Circuit enjoined Arizona’s voter ID law a month before the election court says to close the election. The election is in nine months. An Alabama case, the election is in nine months. Somebody please explain to me what Purcell has to do with this right? This is not too close to the election. The plaintiffs in his case filed a day after the new map passed. This is not a situation in which there was a delay, right? The plaintiffs did everything that they were supposed to do in terms of the timeline. The judges did right. This case was expedited. It went very, very fast. And we’re still nine months out from the elections. Someone please explain to me how partial is even a concern here. And this is what I mean when I say that the court has weaponized it, right? It has become this excuse to allow states to have wide discretion over the election apparatus, even if it’s to the detriment of voters. That’s really the function of for-sale now, and it’s not really a concern about chaos. And you know, I’ll concede there are legitimate concerns about changing rules. And there’s always this concern when you have litigation over drawing districts and you know, you get closer to the election and people don’t know which district they’re in. We saw this in the context of voter I.D., right? You know, extensive litigation. Voters have questions about what kind of I.D. can I bring, you know, what are the rules? Can I use an affidavit like, yes, litigation can generate that type of confusion. This situation is not it. So to some extent, Purcell has become an excuse to just defer to the state. It’s a way of trying to minimize voting protections in the name of state sovereignty. So Purcell, in my opinion, is best understood as now a component of federalism as opposed to an election administration role. And so what I mean by that is just another way of protecting the authority that states have over elections as against intrusion from the federal government. Here, the federal government is operating technically through section two. This is a federal statute. The court is saying we are not going to let federal law intrude on this authority. So for sale in some ways is best thought of now as a federalism protection tool as opposed to a doctrine. This senator, any concern about election chaos.
S1: And I think it’s fair to pull on that one more notch into the grim recognition in a lot of election voting rights. Commenters said this. If you can use Purcell this way when, as you said, you’re nine months out from an election, then every state under the, you know, flag of federalism has one free shop to do whatever the heck they want to do and hope it doesn’t catch up with them before the election. And in some sense, it really gives you a whack at the pinata to do whatever kind of mischief that is presumably forbidden. And you’ll always win, right? Because there’s always an election coming.
S3: Yeah. Well, that was also true with the invalidation of Section five, right? Essentially, invalidation of Section five and a lot of cases gave states a free pass until somebody sued under Section two. And so I think that in the court’s view, this is preferable. This is also why the court is hostile to facial challenges in the context of election law. It’s really, really hard for a plaintiff to challenge a law that has been passed but has not went into effect yet. Right. Because to some extent is the standard right. It has to be invalidated in all its applications. But it’s also just this sense by the court that states need room to be innovative in this space, but not like innovative in a positive sense, right? Innovative in the discriminatory actors. What is the best way of discriminating against minority voters?
S1: Let’s try a few things. I mean, we call them the laboratories of democracy. Let’s I want to give you a chance because you you put a pin in this right up at the top. But there is a really bad hot take, which is, oh, this was five four. And Chief Justice Roberts voted with the Liberals. That leads people to think that maybe Chief Justice Roberts, again, who has dedicated his career to ending the Voting Rights Act, is somehow a fan of the Voting Rights Act. And I want you to be really clear just in response to this last question. Chief Justice Roberts just doesn’t like the unseemly ness here.
S3: Oh yeah, he’s an institutionalist. And so he cares about the perception that the court has among the general public among the legal community. Right. So he would prefer to be orderly about this. You know that there is some procedure in place, but trust and believe that when this is argued and briefed and the opinion comes out, it’ll probably be six three. I don’t think that’s necessarily inconsistent with what he says and Merrill, right? Like, he’s clear that the whole line about the Section two being complicated and confusing gives you some insight into where he would land if the cases is fully briefed on the merits. Part of it is hope, right people. I think they want to have some, some hope that, you know, maybe it’ll survive, right? Maybe there’s some chance we can peel off robbers when this case is heard on the merits, but it’s unlikely. As you mentioned, he spent his career hating the Voting Rights Act, right? It’s not a surprise that he wrote. Shelby County, when he was in a DOJ, he wrote memos against the Voting Rights Act. He’s an abusive relationship with the Voting Rights Act. This is 40 plus years of him trying to defeat the statute. It reminds me of Andrew Jackson’s relationship with the Bank of the United States like he does two headed monster that he had to defeat. Right? That’s Chief Justice Roberts and the Voting Rights Act. And nothing will change that.
S1: Franita had a much more lowbrow analogy, which was my big brother Alex, who when a bully when I was two, rolled a rock down the slide at me and Alex said, No, she’s my sister. Only I can roll rocks down the slide at her. So that feels like it’s where Chief Justice Roberts is. Before I say goodbye, I need you to say because you told me before we started taping that you are still toting around big hope. And this has not been like the hope here of conversations. And I wonder if you could just give listeners who I think now probably understand the enormity of what just happened and how consequential it is. This was not a technical matter, what it is that nevertheless is carrying you along the current of happiness.
S3: So I’m a I’m a be high brow and then I’ll be a little granular, high brow. My ancestors were enslaved. Like, this is not my situation. So I think about that. You know, and I’m like, I can do this work right? Black people have been fighting to fight in this country for 400 years. We can do this because think about what we achieved, right? Like in a sense of, you know, coming out of slavery in 1865, a whole hundred years later, you get the Voting Rights Act. It took a long time. A lot of people died doing it, but they kept trying, right? So to be more granular. There is a great profile of a man named Jackson Giles in the local Montgomery newspaper, and he was head of the Colored Man Suffrage Association, and he sued the state of Alabama when they changed their state constitution to disenfranchise black people. And he sued twice. Not only did he put his life at risk. Wants to challenge it and lost in an opinion written by Justice Holmes. But he did it again. He lost again. But the point is he kept trying, and he did so a significant threat to his life and for some people who were involved in this fight. There was always this threat of death, right? At least now we get to do this work. And in yes, it’s I don’t mean to is hard. It’s disappointing to say it, but we’re doing it under much better circumstances than the people who came before us did. And that means a lot to me. And so first of all, I just try not to disrespect the ancestors by losing hope because they never did, and it was in far worse circumstances. The second thing is that America will always be a democracy, and progress right is always a work in progress. So what that means is that there will be fits and starts. We will have moments where things are great. Like, I think about the Warren Court era is like the high watermark where you had all of these decisions that brought us closer to being an inclusive democracy. It was like this partnership between the court and Congress and, you know, the Congress passing the Voting Rights Act and the Civil Rights Act and the Fair Housing Act and then a court coming in and we got your back and they didn’t want all of these decisions to sort of bolster this view of America as a melting pot, really, and not just this predominantly white male entity that had existed for two centuries, right? All of a sudden, this vision that people can really get behind. And so of course, there will be backlash. There’s always backlash to progress. We saw there were reconstruction, then there’s backlash, but people kept fighting. And so the people in between like these moments where we really shine, we’re just in a moment in between, right? We had a high watermark and now there’s the backlash, but we’ll get there again. It’s just going to take time. Right. So this is what keeps me focused. That doesn’t mean like, I’m not, like, significantly pissed off the fact that we have to relitigate all of these things that should have been resolved, right? The fact that we we can no longer coalesce behind this broad vision that racial discrimination is bad. And even more importantly, racial discrimination in voting is bad, too, right? The fact that minorities should have political power in this country and be able to articulate their policy preferences and that you know why people shouldn’t feel threatened by that and that elected officials should actually have policy positions and not try to insulate themselves from competition and so on. Right. Like, you know, I’m really mad that I have to keep having this conversation. But you know what? I’m a keep doing it because the people who came before me, I’m sure they got tired. I’m sure they get frustrated. I’m sure they get pissed too. But they kept going. So we keep going.
S1: Franita Tolson is vice dean for faculty and academic affairs and professor of law at University of Southern California Gould School of Law. Her scholarship and teaching focus on election law, constitutional law, legal history and employment discrimination. Her research has been featured in so many, so many places, and she has testified before Congress multiple times on voting. Rates, she might also be the first person to use the word pissed off twice in one interview, but hole three times, she’s telling me. But holy cow, so, so, so phenomenally, phenomenally helpful in really untangling something that I think both is abstract. And it’s also, oh my god, it’s the water we swim in every day. Thank you, Franita. I know this took a lot of your time, but we’re so grateful.
S3: Thank you for having me. This was awesome.
S1: So now here we are at everybody’s favorite part of the week, the month, the year which is checking in for our slate, plus Amicus subscribers with the Divine the only Mark Joseph Stern Mark.
S2: Hey, hey Dahlia.
S1: We were just talking before the show about how I get in the face of disintegrating democratic norms. I get quieter and quieter and you get more and more exuberant and chaos muckety.
S2: It’s kind of perverse. I don’t know why, but I just get louder and kind of more charismatic and flamboyant. The rage here I am. Maybe it was some kind of like closeted coping mechanism for my youth that’s like stuck with me.
S1: Oh, that’s a good theory. Well, I am not challenging you to top the exuberance and mayhem of last show in which you quite literally were Fozzie Bear for about seven straight minutes. But I am going to say that was a new high slash low. OK, let’s talk a little bit about this week, and I think I want to start with some of the stuff that’s happened even in the intervening two weeks since we talked to Judge Nancy Gertner. And then you about just the general sense that the wheels are falling off at one first street and we were talking about just judicial norms and behavior. Judge Gertner talked a lot about the ethics rules and the appearance of impropriety. And just really quickly, even since we had that conversation, we’ve had Justice Gorsuch fly down to Florida to give an off the book speech. We’ve had reporting from Jane Mayer about Ginni Thomas and friendships with governors of Florida and donations to groups that write amicus briefs before the Supreme Court. And this week, a speech by Sonia Sotomayor at NYU Law School, where she was pretty openly deploring how political and partisan the judges and justices are. I’m not sure if I’m forgetting anything, but I wanted to take your temperature Mark on this just generalized sense that things are not happy in health at the Supreme Court, but also and this is my specific question, which that was just an immense amount of build up. But I think the specific question is I took the order, the shadow docket order, which we talked about in the main show to be really emblematic of this new thing, which is the court can’t actually be bothered to explain its reasoning to show its work, but it sure can take pains to clap back at one another. And it’s so weird to me that instead of the performance of actually doing justice, that order that shadow docket order was like the apex of I’m Brett Kavanaugh. I don’t even have to explain myself, but Elena Kagan, you’re wrong.
S2: Yeah, and it was it was more of this dynamic that we’ve seen emerging between Kavanaugh and Kagan, where Kagan roasts Kavanaugh, and Kavanaugh gets his feelings hurt and has to try to clap back, but ends up, I think, often just proving Kagan’s points. You know, I know you talked about this with Franita, so I won’t belabor the point. But of course, this shadow docket order had even less reasoning than the SB eight shadow docket order in the first SB eight order about the Texas abortion ban. The court at least provided one paragraph of hand-waving where it said, Oh, we don’t know if if the plaintiffs really have standing, if they’ve sued the right defendants here. There is no reasoning. It’s just blunt exercise of raw power. The court intervening by a five-to-four vote and just saying no, these maps will not be used in the upcoming election. We don’t care that the lower court held a full trial and entertain thousands of pages of briefings and motions and evidence, and issued a 225 page decision laying it all out. We’re just going to throw our weight around to block it. And I think that’s probably. What upset Justice Kagan even more than the particular outcome here, I mean, the outcome is ratcheted, right? This is just a direct assault on the political strength of black voters. But the way the court did, it was kind of the focus of Justice Kagan’s dissent. And that’s what prompted Kavanaugh to try to claw back and say, Oh, there’s criticism of the shadow docket is so worn out. You know, it’s so tired. I can’t believe we’re still having to go through all of this. Why won’t you just let us, you know, put our unreasonable orders with no justification to fundamentally alter the law? Why do you have to keep complaining about it, Elena? And it seems like they are furious with each other. It seems like there is a lot of hostility behind the scenes between these justices, not just about the substance of the law, but about the aggressive manner in which the five ultra conservatives because Chief Justice Roberts is not with them on this one, right? Chief Justice Roberts is with the Liberals in dissent the way that that Kavanaugh and Barrett and Alito and Thomas and Gorsuch are just acting like a kind of super legislature and radically shifting fundamental tenets of the law, really gutting what remained of the Voting Rights Act without explanation and a total violation of the court’s own procedures and the court’s own procedural rules about when it gets to weigh in and do this stuff, which Kavanaugh tried to defend. And I don’t think it worked because he was either lying about the standard or really misrepresenting the case and misrepresenting precedent, which is sort of his forte. So, yeah, I agree that things are not good. I think Justice Sotomayor almost came out and said it in her in her speech. But I’m of two minds about it because part of me is like, you know, the Supreme Court is an important institution that exists to protect individual rights and democracy, and it should not become just like The Real Housewives of D.C. But part of me is also like, I want everyone to understand that the Supreme Court has been captured by the right and isn’t overtly political and partisan institution. And Democrats need to wrap their heads around the fact that it has been corrupted by a particular partisan ideology. And these kinds of flame wars kind of help my cause in that respect, because you can’t read the Kavanaugh Kagan debate and come to the conclusion that these people are just practicing law. This is a political debate with a little bit of legalese sprinkled in to give it the facade of a of a legal dispute, rather than a pretty political squabble.
S1: It’s so interesting, Mark, because I’m thinking back to, I don’t know, maybe 10 years ago, not that long ago when folks like Erwin Chemerinsky used to critique Justice Scalia’s opinion writing, which was at the time, you know, ninety five percent. Good, if you and I don’t agree with it, whatever, but at least well-reasoned, principled. Doctrinal writing, and then he would just throw in his AM radio lines, right, like he would throw in even before tweets were invented. Scalia was, you know, a little bit doing some of that Real Housewives, you know, skirmishing and Irwin at the time, I remember. And maybe other folks were saying, but I remember him really vigorously arguing that this is harming not just the prestige of the court, but it was leaching into how other judges were writing it was leaching into academic writing and that judges need to be needed to be really careful not to kind of broadcast on two channels, one of which was lowbrow. Twitter. And I think the question I’m asking you that you just answered is it almost seems as though that has snowballed so quickly Mark that now it’s like we’re not even bothering with this sober doctrine. We’re just tweeting, and it’s so interesting to see. I mean, and I know we’ve talked about it a lot that the way you audition for the court is by mimicking that tone of, you know, kind of shitty am radio, cheap shots rather than doing the work. And I think one of the things that’s really, really striking in the example you and I are talking about this Voting Rights Act case from this week is the District Court panel actually did the work like they actually did two hundred and twenty five pages application of, you know, the facts to the law understanding seriously that that is what judges do. And so I guess it just dovetails, you know, with something that Sherrilyn Ifill talked about, about the nature of these shadow docket decisions to just toss all that away. All those findings of fact are gone. But also just that you can toss it away and say nothing, or you can toss it away and take a shot at Elena Kagan. And that’s really even from SB eight that feels different to me. If you’re going to perform one thing, performing contempt for the other side is a bad choice. I think in terms of how people think about the courts.
S2: And it hasn’t even been six months since since SB eight, and it’s already deteriorated to this state. And obviously, the real victims of this order are black citizens in Alabama who’ve had their political strength radically diluted by this blatantly illegal map. But I do also have some sympathy for these three judges who issued that 225 page decision, two of whom were of course, nominated by Donald Trump, who probably have not a lot of love for the Voting Rights Act Section two, but who recognized that they were legally bound to apply it. And they did so quite honestly and rigorously, and all of their important work just gets set aside or lit on fire by the five justices with no explanation, to your point. So, yeah, it’s really distressing for the real world victims of these decisions. It’s also distressing for the dwindling number of real judges in the federal judiciary who are still doing the work like this hasn’t become all kind of a political farce. Who are still doing their best to apply the law, to apply precedent, to consider the facts and to come to a conclusion that is eminently reasonable and defensible. I mean, that court might as well have just issued a one page order with a doodle of like Brett Kavanaugh’s face on it for for all that the Supreme Court cared because they just tossed it aside with no explanation. So, yeah, it sucks for black people. It sucks for democracy, and it sucks for the few remaining judges who believe that there is something separating law and politics, and that by actually doing law, they will get at least an iota of respect from the Supreme Court majority.
S1: I want to ask you one more question about this, and I’m going to phrase it in artfully because I’m not quite sure. This seems to to raise laws of physics rather than jurisprudence, but let’s try anyway. One of the things you noted in your piece when this order came down was the use of the Purcell principle. This idea that for some reason now it’s always going to be either too soon to act or too late to act, and that you can never, if there’s an election anywhere in the future, do anything to fiddle with electoral systems. And one of the things I was really struck by is both that law of physics that says, particularly on the shadow docket, it’s always too soon, but it’s always too late. It’s always an emergency. But we’re not actually doing anything. This sort of collapsing of the ideas that there is an emergency docket that can function that is always functioned with this notion that the court, under the guise of not getting involved in things, is now involved in everything. And so I guess my question is how do we think about Brett Kavanaugh, who, by the way, in the DOBs argument, this is the Mississippi abortion case kept insisting that the the way the court could do nothing. Let’s return abortion to the states and we have that language again. We’re not doing anything. I don’t understand you freaked out, Elena Kagan. We’re doing nothing here. And I think it’s a sort of like a really kind of lame. Sixth grade magician trick to keep saying that if I distort the exigencies of time and space and action and inaction that people won’t see what I’m doing and he’s doing all that stuff all the time, it’s making me kind of grumpy Mark.
S2: It’s like the theory of relativity. After four bong hits. It’s a it’s a very bizarre concept of legal physics as you framed it. And I think what helps kind of cut through all of the bullshit here is the way that our friend and colleague Steve Vladeck frames it, which is don’t just look at what the justices say, don’t just look at what the president counsels. Look at what the actual outcome is and whether the court is substantively altering the law or making new law through the shadow docket. Because we talk about the shadow docket broadly, but it’s a bunch of different things, all tossed in the same bucket. And sometimes the court intervenes and we say that’s bad, and sometimes the court doesn’t intervene and we say that’s bad. And the bad faith actors of the world like Brett Kavanaugh will seize on that and say, You’re being hypocritical. You know, you are just upset with the underlying merits of the decision, even though he insists there are no merits. And so you don’t have a problem with the shadow docket, you just have a problem with us in our decisions. And I think that’s so obviously incorrect because the two worst shadow docket decisions before this VRA case were, I think Tandon V. knew where the court radically altered the free exercise clause and granted much stronger protections to people who don’t want to follow laws that are neutral and generally applicable because of their religion in the context of COVID and then the SB eight decision where the court did not intervene and so allowed Texas’s abortion ban to take effect. So the first case the court did intervene and radically changed the law. The second case, the court didn’t intervene and radically changed law. The important thing is that the court ended up fundamentally altering the law and decades of precedent and did so in a fundamentally like unreason slapdash, nonsensical way that does not withstand any kind of scrutiny. And the court won’t even tell us if these interventions count as precedent. Sometimes it suggests that they do. Sometimes they suggest that they don’t. The court has not explained what the new rules are like paging Dua Lipa here. So I agree with you that it’s very frustrating to get gaslighted by Brett Kavanaugh all the time. I think it’s worse if you’re Elena Kagan, and probably even worse if you’re a poor, lower court judge laboring under the delusion that the court is not politicized. I don’t know exactly what to say beyond the fact that Congress can change this. And actually, you mentioned the Purcell principle, which is now Brett Kavanaugh’s tool to block any lower court decision protecting voting rights. The the voting rights bill that passed the House of Representatives just a few months ago actually purported to abolish the Purcell principle, said you’re not allowed to use this to block a decision that protects voting rights. This is just kind of like a administrative rule that the court has created and so Congress can override it. And I reached out to several conservative law professors who said that that was OK, that actually Congress can step in here and modify the court’s rules when they’re just administrative rules or prudential rules that are designed to make make the courts work easier or make the law more stable, like Congress gets to have a say there, too. And so I think if we’re looking for a glimmer of good news here, it’s that Democrats understand this problem and they see through Brett Kavanaugh’s lies. And they understand that this is abuse of the shadow docket, and they understand that the Purcell principle is just a heads. I win tails. You lose kind of a rigged game for races, state legislatures. And so maybe it’s not just you and me and Franita and Steve like shouting into the void. Maybe there’s actually some movement here. And in 50 to 100 years, we will see the demise of the Purcell principle and dance on its grave.
S1: Well, I’m so looking forward to the next hundred years intervening, intervening, podcasting, Mark, let’s make a date and
S2: set it on the Google, right?
S1: Let’s just agree that on February 12th. Of 21 22. You and I are going to dance on the grave of the Purcell principal, but we will be in space wearing togas. OK, last thing Mark, you have totally dominated the Madison Cawthorn beat and I need you to and I do not envy you being on that beat. But it’s yours. Congratulations. Thank you. Would you like to give us a little a little update because you think about this really hard?
S2: I do. Yeah. Thank you, Dahlia. I appreciate that. So I like this beat. It’s a lot of fun for me because we often forget that the 14th Amendment contains more than just due process and equal protection and birthright citizenship. It also has a section section three that says any individual who engaged in insurrection against the United States cannot hold public office unless Congress by a two thirds vote grants them amnesty. Madison Cawthorn said a lot of very troubling and violent things around January 6th before and after talking about the need to fight, and there is an open question as to whether he communicated with or colluded with the individuals who ended up breaking into the Capitol and attempting to basically overthrow the government. But the January 6th Committee cannot get him to testify because it seems like it’s just not legally possible to force a sitting congressman to testify before a congressional committee. Luckily, North Carolina’s state law provides an alternate mechanism for this, and it is a mechanism through which an organization called Free Speech for People joined by two former justices of the North Carolina Supreme Court are attempting to pursue by filing a challenge to Madison Cawthorn candidacy in the 2022 election, arguing that he engaged in insurrection on January 6th and whether or not he is ultimately proved to have engaged in insurrection. The North Carolina State Board of Elections under State Law has a right to conduct an investigation to depose or subpoena Madison Cawthorn to force him to testify about the events of Jan. six and his alleged involvement. And there’s nothing that his allies in Congress can do. Jim Jordan can’t fly down there and firebomb the North Carolina State Board of Elections like this is all laid out in the law. So the big question here has been will the North Carolina State Board of Elections play ball? Or will it back down and say this is not a place for us? We only consider these disqualification challenges when the candidate is not old enough to run or doesn’t reside in the correct district or state, or isn’t a citizen of the U.S. or whatever. And we got an answer to that question this week because Madison Cawthorn has scurried over to federal court and asked for an injunction to block this investigation and basically forced North Carolina to keep him on the ballot. And the North Carolina State Board of Elections weighed in and said, Actually, we agree that this is a perfectly legal process, and we believe that we have the right to investigate whether Madison Cawthorn engaged in insurrection and to disqualify him from the 2022 ballot if we conclude that he did under the 14th Amendment. That is very good news for people who do not like instructions. Very bad news for the handful of Federalist Society law professors who are desperately trying to devise theories explaining why states have no power to keep insurrectionists off the ballot. But I think this is going to pretty clearly produce some real case law about section three of the Fourteenth Amendment and this disqualification clause for people who engaged in insurrection. At a bare minimum, it’s going to force the federal courts to confront this vestige of the Constitution that has been largely ignored until now. And I think that’s all good news, even if it ultimately fizzles out, which to be clear, the odds are not in our favor. If we believe Madison Cawthorn should be disqualified at the end of the day, he’s still going to try to exploit our very conservative judiciary to shield him from this. But it’s a real thing. It’s not frivolous. It’s not a joke, and we should all be taking it pretty seriously.
S1: Mark Joseph Stern covers the courts, the law, the Supreme Court, all of North Carolina, most of Florida, much of Mississippi and many other places for Slate.com. He is broadcasting to you from a place where he is still smiling. Bless his heart. Mark Thank you. Thank you. Thank you for joining us. Yet again this week.
S2: Always a pleasure, Dahlia.
S1: And that is a wrap for this episode of Amicus, thank you as always for listening in and thank you so much for your letters and your notes and your questions. You can keep in touch at Amicus at Slate.com. You can always find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcasts. And we’ll be back with another episode of Amicus in two short weeks.