A Win for Multiracial Democracy | Crooked Media
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June 12, 2023
Strict Scrutiny
A Win for Multiracial Democracy

In This Episode

Finally, some good news! The Supreme Court’s ruling in Allen v. Milligan preserves section 2 of the Voting Rights Act. Janai Nelson, President and Director-Counsel of the NAACP Legal Defense Fund, joins Kate, Melissa, and Leah to break down the opinion for a live show at Howard University School of Law.

  • Listen to this past episode where the hosts recap the oral arguments for Allen v. Milligan
  • Read Melissa Murray’s op ed with Steve Vladeck in The Washington Post
  • Listen to argument recaps for Jack Daniel’s Properties, Inc. v. VIP Products LLC in this episode
  • Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events.

TRANSCRIPT

 

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Melissa Murray [AD]

 

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Melissa Murray Hello and welcome to a very special live show of strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw.

 

Leah Litman And some guy named Donald Trump was supposed to be here, but he busy. Then as a back up, Crooked put us in touch with this guy Jack Smith. But he’s also going through some things because, yes, the twice impeached former president and now is now a twice indicted former president. So Donald Trump was indicted once again, this time in federal court on charges related to classified documents that he improperly retained. We haven’t yet seen the indictment, but it’s been reported that the charges include conspiracy to obstruct justice, violation of the Espionage Act. Basically, area man has run into some trouble with the law.

 

Melissa Murray We’re not going to spend a lot of time on Donald Trump because, frankly, he’s exhausting and he doesn’t really deserve our time. And also because it’s been a really big week for the rule of law and we really want to dig into it. So, first of all, we are coming to you live today from Howard University Law School in Washington, D.C. And I will say when we decided to have our first DC live show, there were so many choices because let’s face it, D.C. is lousy with lawyers and lousy with law schools. But we knew immediately that our first D.C. show had to be here at Howard Law School, the Mecca, the Hilltop, the place that has spawned so many amazing civil rights pioneers. And we are so grateful to the Howard University Law School community and Dean Danielle Holley Walker for their kind hospitality and for welcoming us here today. Thank you so much.

 

Kate Shaw So as listeners will know, normally on this podcast, we spend a lot of time talking about the Supreme Court, but we are typically doing it at a relatively safe distance from the place.

 

Leah Litman Though perhaps speaking only for myself, I would personally be willing to take one for the team and follow the justices abroad when they go to Italy for their cozy vacations styled as academic junkets just to do a fantastic live show in, say, Italy.

 

Kate Shaw Honestly, it would depend which justices we are talking about, at least in my mind. A girls trip with Sonia, Elena and Angie that I think we would do. I don’t think I would follow Neil Gorsuch anywhere, even on Harlan Crowe’s really luxe private jet. But so back to D.C. for the moment, we actually don’t know what the justices plans are because, frankly, those nine still have some work to do here. There are around 23 opinions left to announce this term and probably only about two weeks in which to do it.

 

Leah Litman So you better work bitch over it. One verse st. They are certainly polishing up those drafts and we want to be clear, it’s probably not going to be good. The question to our minds is just how bad.

 

Melissa Murray Well, it’s not just us saying that it’s going to be bad. I mean, Mother Nature is literally saying it’s going to be bad if there is a literal toxic cloud hanging over the East Coast, which feels like Mother Nature’s way of saying it’s a metaphor, Right? Am I right? Yes. So the toxic cloud, in our view, is likely the US Supreme Court. And what they’re going to do over the next two weeks and the East Coast is basically all of democracy. So buckle up, folks. It’s going to be great.

 

Leah Litman The literal toxic cloud is especially appropriate because we’re almost one year from the Supreme Court’s decision that kneecapped the Clean Air Act in June in West Virginia versus EPA. So a week after the court overruled Roe, the court made it harder to address climate change and made it easier for polluters to pollute the atmosphere and the Clean Air Act. The statute that the court hobbled in that case was literally enacted on the heels of smog overwhelming New York City. So it’s almost like Mother Nature is both protesting the court and crying out that we still need the Clean Air Act.

 

Melissa Murray So in light of all of this, this literal physical, toxic cloud, as well as the toxic cloud of the court, there’s an understandable instinct to stay far, far away from SCOTUS, but not us. We don’t run from danger. No, we walk right up and say, Hey, danger, we’re here. And that’s what we’ve done. We took this opportunity to come directly to the courts, playing their faces in their backyards, and we decided to do that here at Howard Law School again, because of the incredible work that Howard has done over the years supporting and bolstering civil rights in this country.

 

Leah Litman So we had previously done an episode with the incomparable Tiffany Wright and talked about the launch of the Civil and Human Rights Clinic here at Howard. That clinic filed a powerful brief in Dobbs about the history of abortion restrictions and the burdens that abortion bans disproportionately impose on black women. And we have been seeing those enormous burdens on people, women’s lives every day since the court overruled Roe.

 

Kate Shaw And of course, most people in this room do not need reminding of this. But for our listeners at home, it does bear emphasizing that Howard has long been in the business of training leaders who have been at the forefront of using the law to seek racial justice, to build a functioning and inclusive democracy who understand the fundamental linkage between those two projects. So it is a real thrill for us to be here. We have been stand girling out on the class portraits in the hallways. We’ve been taking pictures of ourselves prepping in the polyamory conference room. It is an absolute delight for us to be here.

 

Melissa Murray We also want to give a real shout out to Dean Danielle Holley Walker, who made this possible. And we should note this is something of a swansong for Dean Holley Walker, who is going to be leaving Howard Law this June to assume the presidency of Mount Holyoke College, the first black woman in the history of that college to have the post. She’s been an early and avid supporter of this podcast and all of us, and we commend her remarkable tenure here at Howard Law School, and we wish her well in her new post. Mount Holyoke is so lucky to have her. And again, we are so grateful for her hospitality and we’re so grateful for the work that she and her team and our team at Crooked did to bring all of this together. So thank you.

 

Leah Litman We are also delighted to be joined on stage here at Howard by Jenae Nelson. Jenae is the president and director counsel of the NAACP Legal Defense Fund. Prior to assuming her current position, Nelson was the associate director, counsel and a member of LDF litigation and policy teams, where she was a lead counsel in a successful federal challenge to Texas’s voter ID law, among other cases. And prior to joining LDF, she was a law professor and associate dean at Saint John’s University school of Law, and she is also a repeat straight scrutiny guest. So welcome back to the show today.

 

Kate Shaw I am so delighted to be here. Thank you. All right. So here is a quick overview of today’s show. We are going to start with the court’s latest batch of opinions. We are then going to highlight some cases out of the federal trial courts and we will end with some court culture.

 

Melissa Murray But first up, opinions. And boy, did we get a banger from the court on Thursday and Allen versus Milligan. And of course, that was the huge case involving Section two of the Voting Rights Act. The question in this case was whether an Alabama congressional map that created just one majority-black district out of seven in a state that is 27% black violated Section two of the Voting Rights Act, which prohibits voting standards or practices or procedures that result in, quote, a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, unquote. Now, in a move that surprised a lot of people, including me and me.

 

Kate Shaw Oh Really?

 

Melissa Murray Lots of surprises.

 

Kate Shaw Not me. Not me. We’re going to get to that. But first, I mean.

 

Melissa Murray For some of us who don’t give him the benefit of the doubt, Chief Justice John Roberts, who we know is a long time fan of the Voting Rights Act and voting rights more generally, wrote the majority opinion in this case for five justices himself, the three Democratic appointees and perhaps inexplicably, Justice Kavanaugh. So you majority agreed that the map violated Section two of the VRA and Roberts. Describe the effort by Alabama in the case as an attempt to, quote, remake our Section two jurisprudence a new Meow Ball of Milk, Table two.

 

Kate Shaw And Roberts strongly rejected that effort, writing, We see no reason to disturb the district court’s careful factual findings. Nor is there a basis to upset the district court’s legal conclusion. The court faithfully applied our precedents and correctly determined that under existing law HB one that’s the previous map violated Section two. Okay, so that’s the bottom line. There is a lot more to say. So let’s get right to it.

 

Leah Litman And just to frame things, you know, a unanimous three judge panel where two of the judges were Trump appointees found that Alabama’s maps illegally diluted the votes of black Alabamians in violation of the Voting Rights Act because Alabama drew one district where black voters could elect the candidate of their choice rather than keeping black voters in the black belt together in a second district where they could also elect the candidate of their choice. And faced with a judicial order directing them to engage in the project of multiracial democracy, Alabama went up to the Supreme Court asking for a pass from that whole multiracial democracy.

 

Melissa Murray We’re going to get back to that hall pass in a minute.

 

Leah Litman But a pass from democracy could be a tagline for this court. But we will talk about what the court did here and also react to it.

 

Kate Shaw Okay. So, Janai, can we ask you to start with what are, in your view, the most important takeaways from the opinion? And we’d love to hear about why you actually weren’t surprised the way a lot of us were.

 

Janai Nelson Absolutely. But first, I just have to say that I can’t think of a better place to be in conversation about this victory and three people to be in conversation with about it than the Strict Scrutiny podcast hosts leah, Kate and Melissa. So I’m just delighted to be here at Howard University School of Law, where Thurgood Marshall, the founder of the Legal Defense Fund, graduated in 1933. So this feels like a wonderful homecoming and the appropriate place to celebrate what I think is a landmark civil rights decision by the Supreme Court. So the key takeaways and then we’ll get to the idea of a surprise. So this case in so many ways, first and foremost, is a vindication of the voting rights of black voters, not only in Alabama but across the country, because this holding reverberates in cases that are currently pending before the court, cases that are pending in district courts that LDF and other civil rights groups are litigating, and cases yet to be brought where there are potential majority minority districts to be drawn. So the potential reverberations are are vast. So that’s number one. Number two, this is a validation of section two of the Voting Rights Act and Section two, as many of you may know, has been the only tool that has done any really robust work in the past decade, since Section five of the Voting Rights Act was struck down. In an opinion authored by Chief Justice Roberts ten years ago this month, Shelby County versus Holder in that case, invalidated a provision that would have prevented this map in Alabama from going into effect in the first place. It was a pre-clearance provision which required the federal government to review voting changes in states with a history of discrimination. And we know Alabama has a very robust history of racial discrimination. And this congressional map would have never gotten through Section five preclearance. So here we are enforcing Section two. But Section two has been withered in many ways over the past decade as well. And there was great concern about whether it would be enforced robustly in in this what I considered a very slam dunk textbook case of racial gerrymandering. And so the court validated Section two, said it was still a robust tool, that it is completely constitutional, which I think is a real win given the number of questions swirling around it. And it also validated it. And it’s, you know, swept away the doubts around whether you can bring a private action under the Voting Rights Act and resolved. A number of issues around the technical application of the jingles, requirements, etc.. I would say the final thing is that this opens up the door to reexamine the possibilities of equal electoral opportunity as we see a changing demographic in our electorate. The US is on track to be a majority people of color nation by as early as 2040, and this decision could not come any sooner to encourage more fairer maps to allow our democracy to function as it should. So there are many wins, and I’m happy to dissect the opinion further and get into the surprise element.

 

Kate Shaw Great. So in terms of reaffirming existing doctrine, making clear that if faithfully applied, this does suggest that Section two will be a potent tool for combating discrimination in map drawing and in other aspects of the voting process. It also just to make quite concrete in terms of the on the ground impact of this decision, it seems quite clear Alabama has to create a second majority black district. That is very likely going to be true in the immediate aftermath of this case of several other states Georgia, Louisiana. There’s a possibility of impact in the maps in North Carolina, possibly Texas. So the on the ground consequences will be immediate in terms of including black voters in democracy and fully in the political process. In terms of the team at LDF that litigating this case, we can’t we cannot miss the opportunity to pile on some praise right to other previous strict scrutiny against dual roles and LDF in general. Right for lawyering the heck out of this.

 

Melissa Murray I have to saw, it just say it feels like if you come on Strict Scrutiny, you win in the Supreme Court found causation or correlation? I don’t know.

 

Leah Litman It’s definitely one of the two. Yeah. So we also wanted to extend congratulations to the ACLU, who was also very involved in mounting this challenge. You know, this team, I think, truly saved this part of the Voting Rights Act and in doing so, safeguarded multiracial democracy and the ability of voters of color to receive representation going forward.

 

Kate Shaw We should also shout out other lawyers involved in the case of Makana of the Elias Law Group, also argued, as did Solicitor General Elizabeth Prelogar. Both were terrific, arguing on behalf of plaintiffs and the federal government in support of the lower court’s opinion.

 

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Melissa Murray So, Janai, one of the things that I think was really important in this decision is that the court gives some much needed guidance in how to litigate and how judges should review claims of vote deletion. So voted, which and again, are instances where legislatures have drawn districts in ways that reduce the minority voters ability to obtain political power to elect the candidates of their choice. So in what ways has the court signaled how these cases should be litigated and how reviewing courts should address these claims about division?

 

Janai Nelson Well, I think the court did a lot of work by saying what not to do and by rejecting a number of the arguments that the state of Alabama put forth, very specious arguments. And in fact, Chief Justice Roberts said quite clearly that to the extent that the state of Alabama was suggesting that you need a race conscious approach to or race neutral approach, I should say, to redistricting, that that is fully rejected by Section two. And I really want to credit Justice Cattani, Brown Jackson for dissecting that issue during oral argument. And I think laying the foundation for that part of the the opinion. But the court also said that when we’re thinking about simulations, which is a real challenge as we start to continue to use more technology in the process of redistricting, the process of simulations allows you to produce thousands of maps on a computer. And the state of Alabama wanted to use evidence of simulations to suggest that there are many configurations for districts. And therefore, the 11 maps that we put forward in the case that showed that a majority minority district could be drawn were somehow diluted by the fact that there were so many other permutations. And the court really rejected the reliance on simulations, which is very important as we move forward in thinking about redistricting other areas. The court also made very clear that proportionality is as. As the Voting Rights Act says in its text, not a requirement. It’s not required that just because 27% of Alabama’s population is black, one in four people that you necessarily have to have a proportionate representation in your congressional delegation. But what you do have to have under the Voting Rights Act is an opportunity, an equal opportunity to elect. And that is what the court reinforced in Section two. So in many ways, it clarified existing law. It really reaffirmed principles that we already knew, and it rejected those that the state of Alabama attempted to use to solely the Voting Rights Act and to make Section two inoperable.

 

Melissa Murray Another important clarification the court offered was that in circumstances where legislatures adhere to earlier drawn maps, that adherence does not necessarily insulate them from future Section two claims. And again, I think that speaks to the dynamism of the landscape. The population is changing and that’s right. The state has to also adapt and update its maps to reflect that. So again, the court made that really clear to you. We are in a dynamic environment. With all of that in mind, let’s step back a little and maybe think about what this decision, which, as everyone has said, was incredibly surprising, especially for people who follow the court closely. What does this surprise victory for voting rights from noted liberal squish John Roberts? Tell us about this court and the moment it’s in and its relationship with the public. I think it tells.

 

Janai Nelson You that the court has not fully abandoned stare decisis, as many of us might have thought. At the end, I feel targeted, as many of us may have thought at the end of last term. It creates a flaw, right? It’s a very low bar, but it is. The bar is in hell. It is a bar. It’s a bar nonetheless. And I think I think it really is a recognition of at least some members of the court, namely Chief Justice Roberts and Justice Kavanaugh, recognizing that our democracy simply could not withstand a blow to Section two of the Voting Rights Act that, A, is not supported by 40 years of precedent and law, and B would wreak havoc on our increasingly multiracial, multi-ethnic democracy. If you continue to isolate political power in the way that the state of Alabama was attempting to do. And as you point out, Kate, the state of Louisiana, we’ve got Florida, we’ve got South Carolina, we’ve got so many states, we can name Arkansas as well in others, North Carolina. You really have no electoral process through. Which to hear the voices of this increasingly diverse electorate. And then you force people into other, more dystopian choices that I don’t think the court wants to be the author of that story.

 

Melissa Murray Speaking of dystopian choices, I think one of the reasons why I found this decision so surprising is because it’s not the first time the court had dealt with this challenge. And in fact, in February 2022, this case came before the court on the shadow docket, as many people will recall. Black voters in Alabama, represented by elders and the ACLU, challenged the maps under Section two of the Voting Rights Act. The three judge panel agreed with them that the maps were unlawful. Then Alabama appealed that to the United States Supreme Court on the shadow docket, and it requested a stay of the lower court decision that had instructed Alabama to redraw the map in advance of the 2022 midterm election and a 5 to 4 majority of the court. In an unexplained shadow docket decision, a 5 to 4 majority that included now liberal squish Brett Kavanaugh stayed the lower court’s decision, and it allowed that map to be used in the 2022 midterm election. They followed that binger up with a similar decision involving a Louisiana district map, and there was also a lower court in Georgia that allowed maps to be unlawful, maps to be used on the ground, that they were following guidance from the Supreme Court. And so I think it is not an understatement to say that the court’s actions on the shadow docket in 2022 completely distorted the electoral landscape in the midterm election and possibly gave the Republicans control of the House of Representatives.

 

Janai Nelson So a couple of things. One, you are 100% correct about.

 

Melissa Murray Say it again.

 

Janai Nelson The impact of this.

 

Leah Litman Melissa’s going to make this our new intro for the show, just so you know.

 

Janai Nelson This is going to be on a loop on the Internet. Just get ready now. My husband’s going to wake up every morning. But you are 100% correct that these decisions on the shadow docket, the decision to stay, these lower court decisions, one in Louisiana involving three Republican appointees to the court and two Trump appointees in the Alabama case. And I only note that we are a nonpartisan organization. I note that just to emphasize that this is actually not political, that this has everything to do with a fair application and objective application of the law, regardless of any political affiliation. And so, yes, our current Congress is actually there. The composition is a result of racially discriminatory maps. That means the entire country is affected by the racial discrimination that happened in these states. So this is not an Alabama issue. It’s not a Louisiana issue. This is a national concern. So you’re right. So the question I think that you’re teasing here is why did Chief Justice Roberts grant the stay along with Kavanaugh and then do this.

 

Leah Litman New cabinet change? Right. The chief wouldn’t have granted the state. He wrote this opinion that was like, well, I wouldn’t grant the stay because granting the stay would require me to change the law. But I am changing the law. Curious, my eyes open to the possibility of doing it after an argument. But then he said, No, I’m not going to do it. And then Justice Kavanaugh, who had granted the stay, then walked it back and, you know, said, Nope, nope, nope, nope. We are going to keep the law as it is, reaffirm these existing principles and and say full throated.

 

Melissa Murray These maps are unlawful today.

 

Janai Nelson Yeah.

 

Melissa Murray So June 8th, right. If that was the case, why weren’t they similarly unlawful in February 2022?

 

Kate Shaw So I do think that going into this case, the fact that the court had previously allowed them out to be used. Obviously, John Roberts history, both as a young lawyer in the Justice Department and as a justice, as the author of Shelby County and as someone who has seemed to demonstrate real hostility to the Voting Rights Act and to voting rights more broadly, that he would authored this opinion and that Kavanaugh would come over for most of it. I think we’re all still trying to puzzle our way through. So you talked about some of the reasons that you think might explain all this. But so if you were going in, you were expecting this. So let me say one word, because I do think it’s important for people to understand the difference between what was at play in the state and what happened on the merits. So during this day, the reason for granting this day was a particular principle called Purcell, the suggestion that if a voting change is going to happen to close in time to an election, it shouldn’t happen. We should just let everything ride out, lawful or not, just let it ride out and then deal with the after effects later. So that is what happened. That’s the principle that that drove this. Fully disagree with the application here. We filed that lawsuit as soon as one could possibly file a lawsuit after the drinking plans were passed by the Alabama state legislature. We got a decision in January of of 2022. And nonetheless, the court said that this was too close in time to the November election. So. But totally disagree.

 

Melissa Murray Math time, that’s nine months to a full gestation period. Yes, correct. You can have a baby because you can’t have an abortion. Why can’t you figure this out in nine months? The math is not math.

 

Leah Litman You’re supposed to put the challenge in a drop box and wait for it to materialize. Two years later.

 

Melissa Murray Lady Safe Haven votes. Yes. So I say this only to.

 

Kate Shaw Say that there was ostensibly some legal cover to that decision, whereas there’s no legal cover for the decision that the state of Alabama wanted in the merits case. Right. So so there’s a distinction there. But to the element of surprise, so did I think that we were absolutely going to win? Of course not. There’s no way that anyone could be sober minded before this court and think that you have any chance of a guaranteed win. But did I believe that if there was any case to push this court to do the right thing, that it would be this case because the facts were so egregious, because our record was so strong, because our advocates were so on point? Absolutely. And that’s what made me believe that there was a possibility for this to happen. And I’m very thankful that it turned out to be correct.

 

Melissa Murray So are.

 

Leah Litman Yeah. So I wanted to kind of add two additional, I think, semi-related explanations for why it’s not totally surprising or what may have happened here. You know, one is that I guess my intuition is another thing that happened in between the stay and the merits decision is there has been a lot of criticism and public pressure on the. War and the court’s plummeting approval ratings. And these things matter, in my view, like public outcry about the court’s radicalism in granting the stay and what was at stake in this case with the legal theories that matters. And the court knows, I think they’re going to be spending down some capital in future cases this term. And when Kate says, you know, LDF, ACLU, other groups lawyered the heck out of this case, like that’s part of what I think is involved in lawyering. The heck out of cases right now is speaking to the public about what the arguments in a case mean and how there was a risk that the court would embrace them and what would happen if they did. You know, the justices in their clerks, they read this stuff. They can tell how people react to them and their decisions. And I don’t frankly think the chief wanted offense. It said a decade after Shelby County, the chief justice kills like the other section of the Voting Rights Act.

 

Kate Shaw Especially not when in Shelby County Chief Justice Roberts said, But you have Section two. So so in many ways. And also, I mean, you can point to Dobbs as well if you say, well, if you want a right to abortion, if you want, you know, to weigh in on reproductive rights, you can vote that way. But we’re taking away your ability to elect candidates in Congress who can represent your interests. It’s it’s so thoroughly hypocritical that I think this was part of validating some of the offerings that he made, whether they be legitimate and truly, truly heartfelt or not. But it really would undermine every other argument he makes if he limited the right to vote in this way.

 

Melissa Murray I also think there’s something about the particular psychology of Brett Kavanaugh here and something you said. Janie reminded me of an earlier decision, I think, from 2019 Flowers and Versus Mississippi, which is a Batson challenge. And again, that was a case where Brett Kavanaugh in the majority, ruled that the prosecutors had violated a black defendant’s rights to a fair jury trial. And again, the facts were so egregious, I mean, really, really egregious. And it just may be the case that for Brett Kavanaugh, a father of daughters and the first man to have an all female chambers is really egregious. Racism is, in fact, racist.

 

Leah Litman Civil rights icon Brett Kavanaugh, the strongest black woman on the court that’s Sam Alito. Right, right, Right. But but I do also want to emphasize something you were also saying today, which is like this decision to me is also a reaffirmation of the idea that I truly believe in the darkest of times, that law and lawyers can sometimes matter, like we said. Right. I mean. Right. I know. I know. Right? Like, sometimes it’s not just you know, it’s not just the fact that like LDS and ACLU and, you know, the SGA, Emily’s group, like lawyers, were great. It’s also how aggressive and outlandish and absurd Alabama’s arguments were. Like, they were sloppy and they were slapdash. Like, this was the oral argument when the justices were pressing Alabama, like, what exactly is your theory? And in what universe does it possibly make sense?

 

Melissa Murray There was one lawyer here who did an A-plus job in addition to do well. Ross. She doesn’t get the billing that she deserves for being a top lawyer here, But that lawyer was actually the court’s newest justice. Justice Jackson, who started. Justice Jackson started her maiden term on this court. She came out with just a banger of a term. She was not like sitting back as a wallflower. She came to play and she started out in this case by reaching into her purse and pulling out a CVS style receipt, which she read out loud to her colleagues about the origins of the Voting Rights Act and the reconstruction. Congress’s efforts to try to include newly freed African-Americans in the project of democracy, and the fact that on the heels of slavery, these people understood that race conscious measures might in fact be necessary to include these individuals in the project of democracy. And her participation in this oral argument, I think, was absolutely transformative. So let’s hear a clip of that.

 

Clip I am so, so glad for Justice Barrett’s clarification, because I had the same thought about what you were arguing, and I’m glad that you clarified that. Your core point is that the jingles test has to have a race neutral baseline or that the first step has to be race neutral. And what I guess I’m a little confused about in light of that argument is why, given our normal assessment of the Constitution, why is it that you think that there is a 14th Amendment problem? And let me just clarify what I mean by that. I don’t think we can assume that just because race is taken into account, that that necessarily creates an equal protection problem. Because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought about. And when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause of the 14th Amendment, the 15th Amendment, in a race conscious way that they were, in fact, trying to ensure that people who had been discriminated against the freedmen in during the reconstruction construction period were actually brought equal to everyone else in the society. So I looked at the report that was submitted by the Joint Committee on Reconstructed Reconstruction, which drafted the 14th Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves. The legislator who introduced that amendment said that, quote, Unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crushed to death the hated freedmen. That’s not that’s not a race neutral or race blind idea.

 

Leah Litman And also think about how Justice Jackson and Justice Kagan were hammering the Alabama lawyer on how Alabama was trying to make the Voting Rights Act, of all things race blind, like the famously race Neutral Voting Rights Act, and transform vote dilution into an intense standard, which it most certainly is not.

 

Kate Shaw And to our minds, it really is important to be able to recognize that, you know, all of this together evaded the immediate destruction of what remains of the Voting Rights Act and the tools it provides to facilitate multiracial democracy. And there were some really important principles embedded within this Roberts opinion. Roberts says voting is fundamental. I am not sure Roberts, in his own voice, has ever written that sentence in a judicial opinion before.

 

Melissa Murray He’s probably at home right now in the fetal position.

 

Kate Shaw But he can’t take it back. It’s there. And that’s what I what I mean when I say this is, you know, this is a section two vote deletion case. But the principle should transcend this particular context. He talks about the importance of deferring to Congress his choices here. Right. This particular.

 

Melissa Murray Subpoena choices.

 

Kate Shaw But otherwise, you take what you can get with this court. But but it is you know, the Congress made a choice when it passed the Voting Rights Act and when it amended the Voting Rights Act to correct the court’s earlier crabbed vision of Section two, which would have only prohibited intentional discrimination. Congress corrected that, said no. The importance back to story decisis, which Gina, you mentioned earlier, the importance of not just junking tons of precedents. That too, is an important throughline in this case. And then again, I can’t believe I’m saying the sentence, but John Roberts says we can’t blind ourselves to the consideration of race. I think he he wrote that. Yes.

 

Leah Litman And he wrote U.S. reports are to be believed like.

 

Kate Shaw It’s still up on the.

 

Leah Litman Supreme Court’s website.

 

Kate Shaw And so both for this case and for hopefully the court’s future encounters with cases involving democracy. All of this should really matter. And this is from the man who said that efforts to bring greater diversity and integration to schools and in the area of redistricting in a case went back in 2006 or seven, said that this is a sordid business, this divvying up by race. And this man is now recognizing, especially now in a climate where the truth of the history and the ongoing effects of racial discrimination is being so contested in the very states that we’re talking about. And I’d be remiss if I didn’t mention something that he wrote about the Black Belt. You know, we all know the history of the Black Belt. And Chief Justice Roberts actually identified the black Belt as a community with a high proportion of similarly situated black voters who share a lil Neil connection to, quote, the many enslaved people who were brought there to work in the antebellum period. He recognizes that history. I mean, it’s a little bit sanitized, I would say. I mean, they were just brought here to work. If a great assignment opportunity was a little bit different than that. But but just that recognition and the rejection of this idea that there is some community of interest of white folks who share some French colonial ancestry is is.

 

Melissa Murray Important.

 

Kate Shaw Fantastic I think is what you.

 

Leah Litman So if that’s right that has to mean that it’s not just LA that’s doing the work here because those principles, they all sound right to me. They don’t necessarily sound like the principles that Justice Kavanaugh, the chief justice, have always followed in other cases. And I guess I think no one should let this court’s opinion and the fact that they ruled for, you know, the black voters here by reaffirming, you know, existing law, undercut the work of the people who put themselves out there to draw attention to this case and the risk that it posed. And in the process, I think helped to make this case happen, like we shouldn’t make the mistake of thinking that this result was inevitable or that that kind of work won’t be necessary the next time around.

 

Melissa Murray So we should definitely shout out folks like Evan Milligan, who was at the forefront of this. And again, Jewel Ross, who had such a masterful command of this case at oral argument. But as is my watch, I have been a bit of a turd in the punch ball on this case for the last couple of days. And mostly it’s about the media’s coverage of this case and the way it has been presented as a cause for celebration or victory. And I just want to take a beat on this. And again, I do think this is a victory for civil rights and for voting rights. And yes, voters and multiracial democracy won here. But I don’t think we can let up on this court, and I don’t think that we can give this court credit for issuing a victory that was ours in the first place. Steve Lonegan I wrote a piece in The Washington Post this morning that was really to tweet threads that we brought together when two or three threads needed to make it on that. And the point is, look, there’s context here. There’s Shelby County versus Holder. When the court eviscerated preclearance, which would have stopped this map from going into effect in the first instance. There’s Brnovich and 2021 where this court hobbled Section two. There’s the shadow docket decisions that allowed these maps to go into effect and may have actually affected electoral outcomes in this country. And so, yes, this is a victory, but I don’t think that we should celebrate this court finally doing the right thing when they could have done the right thing in February 2022 or in July of 2021 or in June of 2013. And we have to stay on their necks and we can do both. And, you know, Sherrilyn Ifill came at me a little bit, and that’s fine. Like I love Sherrilyn Ifill is Sherrilyn Ifill told me to go to hell. I’d put on flame retardant pajamas. And I was. I would go like, it is a victory and we should celebrate LDF do well, the ACLU, but we need to stay on this court’s neck. It’s like anything is proven by this. It’s staying on their necks. May have helped us get here.

 

Janai Nelson Well. I couldn’t agree more. And what I will say is you if I had a dollar for everyone who said we should not have brought this case, that this case was dead on arrival. I’d be a rich woman. And I think that is staying on the court’s neck. So there’s no question that that is happening. And there’s no question that this case did that. What I take issue with is the idea that people can feign surprise over this and say, oh, my God, this was shocking, this was so unexpected, but yet this wasn’t a win. That is thoroughly inconsistent to say in one breath you were surprised, but this is somehow not a win. If we did not think that the court would produce this justified result when they actually produced it, how is that not a win for our democracy? And let me say this. I distinguish wins from progress. Yes, this validated the status quo. This reinforced critical principles for our democracy. This was a reaffirmation of stare decisis. We talked about the many ways that this clarified a number of issues and importantly, which we haven’t really teased out. This was a clear validation of disparate impact and effects test that will have implications well beyond Section two of the Voting Rights Act into Title seven, into the Fair Housing Act, into so many other civil rights laws. So to suggest that this is not a win is something that I think fails to take into account the full context in which this decision was made and also the real world impact that it has the potential to have. So we are in agreement that this is not progress, this is not a radical transformation of the Voting Rights Act, but it is an absolute, unequivocal win for democracy in countless ways.

 

Melissa Murray And we could have other victories for democracy. This is a victory for democracy, and it would be even better if it were complemented by maybe a court that was more expansive in its understanding of voting rights. But more importantly, if it were complemented by a Congress that could do more to bolster the VRA as it had done in the past.

 

Janai Nelson That’s right. And fortunately, it’s what will complement this decision are the state VRA that are being passed, one that the Connecticut state legislature just passed earlier this week as the sixth state to enact the John R Lewis Voting Rights Act at a state level and it now you now have a Supreme Court decision that makes racial gerrymandering like what happened in Alabama crystal clear for purposes of preclearance in those states. And as more states begin to enact these voting rights acts, then we will see greater progress on the state level. But we should again not forget the fact that this decision itself may enable a new Congress to a newly composed Congress to actually enact the federal legislation that we need, like the John R Lewis Voting Rights Act and the Freedom to Vote Act.

 

Kate Shaw And the State of the State Voting Rights Act, that the acts are a very important development, but I think conspicuously haven’t been enacted in any of the states in which they’re the most needed. And that, I think, is why a federal solution is so critical. So, you know, we talked about Roberts and we talked a little bit about Kavanaugh, Kavanaugh switch, of course, from the shadow docket decision, which, as Janai pointed out, was, you know, dealing with some different legal questions, but it’s still a very conspicuous shift. And I’m really curious about how to understand Kavanaugh’s vote here. So the influence of Chief Justice Roberts is one possibility, the influence of the newest justice, Jeetendra Brown Jackson, who’s, you know, doesn’t write separately in this case, but whose fingerprints really feel from the way she shaped the oral argument as though they were all over this opinion. Was Kagan advocating? I mean, again, Kavanaugh is the critical switch here. So I’m curious if folks have theories about what explains his move.

 

Leah Litman I mean, one is he really wants those cocktail party invites and his I’m a good guy. I’m just unleashing terror on women. Concurrences weren’t doing the trick. So, you know, he had to actually back it up with some actions. And you know what? I’ll I’ll do this in light of his vote here. I will not call him dumb for at least one week. Having said that, I do need to point out some things about his concurrence. So he wrote a concurrence saying that starry decisis is really important in statutory cases, trying to distinguish, of course, Dobbs overruling Roe and maybe preserving a basis for the affirmative action cases coming up. This is something he’s been on for a while, dating back to Ramos versus Louisiana. But in this Voting Rights Act case, we in the court relied on constitutional law precedent about what Congress can do under the reconstruction amendments, specifically in providing race conscious remedies. And I did want to highlight some troubling passages at the end of his concurrence. There’s this ominous passage where he suggests that the constitutionality of Voting Rights Act, Section two safeguards against vote dilution might have an expiration point. You know, similar to what Justice O’Connor had written about affirmative action and similar to what the chief Justice had written in the opinion striking down Section five of the Voting Rights Act in Shelby County. So Justice Kavanaugh approvingly cites Justice Thomas’s claim that, quote, The authority to conduct race based redistricting cannot extend indefinitely into the future, but then says Alabama did not raise that temporal argument in this court, and I therefore would not consider it at this time. And I just worry this is giving me like Roberts fanboy energy like that McKay Coppins profile of him.

 

Kate Shaw To take a beat on the Thomas dissent.

 

Melissa Murray Yeah, yeah, I definitely won’t talk about that.

 

Kate Shaw Okay. I just want to make one point about it, and then I want you to do the mike Melissa, which is that he keeps referring Thomas in his dissent to Roberts opinion as a plurality opinion, which is just so petty. Like Kavanaugh joins nearly the entire opinion. A plurality means you don’t have five votes. That’s not what this is. But Thomas insists on calling it that. I don’t know if it reflects there was actually a vote shift at some point along the way, and the dissent wasn’t updated to reflect that. But but that was the one thing I want to flag. But, Melissa, for yours.

 

Melissa Murray I do want to say more about Justice Thomas and his dissent, because it was really something. So just again, for context, this is literally the second black person to sit on the United States Supreme Court. He’s sitting in the seat formerly occupied by Thurgood Marshall, a graduate of this law school, and he wrote a 50, almost 50 page screed. It’s almost twice the length of the majority opinion in which he contests a decision that vindicates the rights of black people to vote. Let that sit for a moment. It is a love letter to the fiction of colorblind constitutionalism and a love letter to the prospect of showing intent to make out any kind of claim of race discrimination. And if you don’t think this is just him limbering up and getting hydrated for his majority opinion in the affirmative action cases, you need Jesus like this. Just a warm up. Yeah.

 

Kate Shaw Well, yeah, you know, but let’s see what what side of the decision he’ll be on. You know, the other thing that struck me, this is like hope or feeling right now. No, but. But what struck me was also the resurrection of the deeply offensive term by the deceased, Justice Antonin Scalia, that Section two, somehow a racial entitlement. So it’s it’s just more evidence of a distancing from civil rights principles, from a full understanding of the reconstruction amendments and what they were purpose for. And and just an attack on, as you say, the voting rights of black people in this country by this justice.

 

Melissa Murray Yeah. If you haven’t seen the Frontline documentary, watch it. It’s oh, my God, so much popcorn, so much cheer.

 

Kate Shaw I was riveted. Like.

 

Melissa Murray I mean, it’s not often that Kate gives recommendations for TV. And so this was a banger down.

 

Kate Shaw And actually the second episode of the current slow burn season about Justice Thomas dropped a couple of days ago and who have you, if you haven’t seen that one yet, get the popcorn ready. It’s wild.

 

Melissa Murray All right. But on that hopeful note that maybe Justice Thomas will be a liberal squish in the affirmative action cases. Thank you for that, Janai.

 

Janai Nelson I’m not sure that’s exactly what I said. I love your interpretation.

 

Melissa Murray Thank you for joining us. Thank you so much for your leadership of LDF and the great work that you all did in conjunction with the ACLU in Merril Versus Milligan, Allen versus Milligan. Such an amazing victory. Congratulations to you all and thank you so much for joining us today. Thank you.

 

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Melissa Murray For those of you who aren’t here at the live show, Janai Nelson just left the stage to a standing ovation, which I imagine is exactly what happens when Justice Jackson comes into conference.

 

Kate Shaw It should be. It should be.

 

Leah Litman That’s my president. So we got another surprising decision this week in Health and Hospital Corporation of Berrien County versus Solecki. This decision was authored by Justice Jackson. So we talked up Justice Jackson’s lone dissent in the labor case, Glacier Northwest, last week as a tour de force. And this one is, too. She is making a play for the Taylor Swift of the Supreme Court in the face of challenges, namely all of the men’s around her. She is just writing banger after banger.

 

Kate Shaw And I’m guessing she will have a lot of material in the next couple of weeks to continue of this era. All right. So but back to Solecki. So in this case. The state’s argument basically sought to limit private plaintiffs ability to sue, to enforce laws if those laws were enacted under Congress’s power under the Constitution’s spending clause. So the state and some a mickey were basically saying here, yes. So section 1983, which is the general federal civil rights statute, says that you can enforce laws. But when laws are passed under the spending power of Congress, those aren’t laws. Those are contracts. And it sounds like it makes no sense. It really doesn’t. But that was the theory. The statute makes no distinction between spending clause statutes and other statutes. But again, not making a ton of sense doesn’t always stop this court. And so we were really nervous going into this case.

 

Melissa Murray Well, we’re nervous for a lot of reasons. Congress passes a lot of laws. Apparently, they are also erstwhile contracts under the spending clause, which means that if the state’s argument had been accepted here that these laws were actually contracts. It would have had huge consequences across a swath of different federal spending programs. And it would mean that the federal government could not bring cases for every violation of those programs and how they were carried out. It means that many of those laws would basically gone unenforced or under enforced. So again, this theory had enormous implications.

 

Kate Shaw Right. And the decision was somewhat surprising or we were at least bracing for a potentially terrible result because over a series of earlier cases, the court had cut back on the enforcement of some spending clause statutes and some individual justices, although not the court, had floated the question that maybe spending clause statutes could never be enforced via the general civil rights statute.

 

Melissa Murray Which brings us back to Justice Jackson and her transformative participation in the oral argument in Tallahassee. Just to be really clear here, she gave a read about the history of section 1983. She made clear that Section 1983 was intended to address the inadequacy of state common law remedies and the inadequacy of state courts as venues for the protection of federal right. So let’s hear a snippet from her at oral argument.

 

Clip I don’t understand your suggestion that an express cause of action, which I think we can all agree is what, 1983 is that says that you can sue to vindicate individual rights that are created by the Constitution or laws of the United States. I don’t understand why that carries with it a common law that preceded it under circumstances in which you couldn’t sue. So you seem to be suggesting that there isn’t a this isn’t a situation in which Congress was actually providing a cause of action where there wasn’t one before. Right. Which when you look at the actual history of 1983, that was precisely what Congress was doing. It was a part it 1983 of the Ku Klux Klan Act, where Congress had looked at the situation of states not giving forum, not giving a cause of action to people who were being terrorized. And instead of adopting and incorporating those principles in saying, here’s this new law and we’re going to incorporate the common law of excluding you from the court. In fact, Congress created the right in order to allow people to go to court. So while there might be situations in which we carry old will soil into our interpretation, I don’t understand how you can interpret a an express grant of authority to go to court to enforce rights created by law consistent with the opposite situation at common law, and say we have to limit the current right because in common law, you didn’t have that right.

 

Leah Litman I just realized that the through line in both this case and the Voting Rights Act case is that in both cases, one party was asking the court to create new spending clause statutes and the Voting Rights Act as law ish rights rather than laws, and the court rejected that its word anyway. So this spending clause argument was also the oral argument where Justice Kagan had mocked the lawyer who suggested that the court should narrow the ability to sue under the general civil rights statute by incorporating, of all things, the Supreme Court’s Armed Career Criminal Act jurisprudence. Nice try some geniuses. So this decision preserves the protections and rights contained in spending clause statutes Medicaid, you know, health care, education, child care, elderly care, nursing. You know, this particular case involved the Federal Nursing Home Reform Act. And as such, you know, I think this is a huge civil rights and disability rights win.

 

Melissa Murray So in addition to telepathy, we also got an opinion in do then versus United States. Now this decision narrows the federal identity theft statute and says that the use of another person’s identity has to be integral to the crime in order to constitute identity theft. In this case, the defendant overcharged Medicare by something like $100, and in doing so, he mis described the services that were provided to another person and that other person’s name wasn’t a key part of the crime. So that’s the setup.

 

Leah Litman And this decision is really part of a trend of the court narrowing the reach of federal criminal law. This was a unanimous opinion by Justice Sotomayor. Just a side note, like how embarrassing is it for the federal government that they lost Sam Alito in a criminal case? If that doesn’t prompt some soul searching in U.S. attorney’s offices, it’s hard to know what will.

 

Kate Shaw So Neil Gorsuch, who we like to refer to as our little stopped clock, is very occasionally correct about something had some righteous anger and ridicule directed at the government’s theory in this case, and he couldn’t help himself from really just this fantastical formulation of it. So he wrote, Whoever among you is not an aggravated identity thief, let him cast the first stone.

 

Melissa Murray Who thought it was a good idea to give this guy a Bible.

 

Leah Litman Like what he’s got to prove. He learned some things on those trips to Italy, Melissa.

 

Kate Shaw So he listed a bunch of things that that would be identity theft under the government’s theory, like overcharging someone on Venmo. And he concludes with what I think he sort of intended as a mike drop moment, and that was the statute fails to provide even rudimentary notice of what it does and does not criminalize. We have a term for laws like that. We call them vague.

 

Leah Litman Fantastico. Yeah, we call that fantastico.

 

Melissa Murray Okay. We also got an opinion and one of our favorite cases, Jack Daniel’s versus VIP products. Yes. Everyone clap and rule can be read. We spent a lot of time discussing this case after the oral argument because both the facts and the oral argument were actually incredibly entertaining. And again, the bar is low for Supreme Court oral arguments, but if you like your dog jokes intermingled with scatological humor, this was the oral argument for you. So this case involved a line of dog toys called Bad Spaniels, and they look like a bottle of Jack Daniels are made to look like Jack Daniel’s bottles. But rather than saying old number seven brand Tennessee sour mash whiskey, they say instead the old number two on your Tennessee carpet. Get it? It’s because dogs poop on your carpet. Okay. The Ninth Circuit found for the dog toy company. And this was pretty crass going for Jack Daniel’s. I’m not above a pun.

 

Kate Shaw Unfortunately, the opinion itself was way less funny than the facts of the case or the oral argument. So to summarize it briefly, the court vacates and remand directs the courts, the lower courts, to use a different legal test to assess the claims on infringement. The court concludes that the only relevant question is whether consumers are likely to be confused, which I have a view on that. But, you know, the courts are supposed to take a look. No one is going to try to drink this dog toy. It’s just not going to happen. But on dilution, which is separate from infringement, the court found the lower court was wrong to basically conclude that every parody is necessarily noncommercial. Something can be a parody, but still be commercial, especially because here bad spaniels allegedly misused the mark. That is the source identifier, right? Like who made the product rather than just say, a reference to or a use of the name.

 

Leah Litman And the opinion was written by Justice Kagan. Pop culture maven, who included a reference to Aqua, was Barbie Girl in the opinion announcement, including reciting the lyrics, quote, I’m a blond bimbo girl in a fantasy world. You know, I like the idea that she can have a little fun and that she had Justice Jackson and Justice Sotomayor get to smile and have something of a reprieve for a second. But that’s all the opinions. As we said at the outset, we have 23 opinions for the court to crank out in a little more than two weeks. So rest up and hydrate because it will be a wild sprint.

 

Melissa Murray We also wanted to highlight some lower court opinions and other developments that seem to coincide with Pride Month. So happy pride to all of you. And we’re going to talk a little bit about some of the Pride landscape. So in a rare piece of good news, a Trump appointed district court judge in Tennessee struck down that state’s unprecedented laws banning drag shows in public or any place where children might see them. The court found the law was unconstitutional on first and. To make grounds, concluding that the law was unconstitutionally vague. Neil Gorsuch might have had a hand in that overbroad and had been passed, quote, for the impermissible purpose of chilling, constitutionally protected speech, end quote.

 

Kate Shaw So this was a good, important win. But, you know, I don’t think it should obscure the fact that the legal landscape, this pride month is incredibly alarming. Right. Even though the law at issue in this case Morse was just talking about was the first of its kind. The Washington Post reports that 26 other similar laws have been introduced already this year targeting drag performance and performers. That same analysis counted 400 anti-transgender bills already introduced this year, up from 150 bills last year. So this attack is fierce and widespread and the legal victories are really important. But there is much, much more work to be done.

 

Leah Litman And just because we are doing this at this live show, you know, I’d like to note that as we were getting ready for the show to pump ourselves up, we watched the video of a new dress. And Marsha, Marsha. Marsha is lip sync to boss bitch because it’s invigorating and filled with joy. And do not talk with drag queens like.

 

Kate Shaw Just don’t do it. Don’t be thieves of joy.

 

Leah Litman And I wanted to shout out Strict Scrutiny listener Melissa Stewart, a recent law school graduate. She is on this case and we love hearing about and being able to celebrate the best listeners in the world doing incredible things. As we noted in our interview with Professor Joanna Schwartz a few months ago there, there’s a real need for civil rights lawyers, especially in places outside of DC, New York, California. And there are so many opportunities to do this work because there is so much work to be done and don’t wait to do it. You know you can do it. Now.

 

Melissa Murray We should also note, since at Howard that the NAACP Legal Defense Fund launched in 2021 its Marshall Motley Scholarship program with the goal of training and seeding the next generation of civil rights lawyers doing work in the South. And we often think about the South as being a place where civil rights work focuses on race discrimination and voting. And it does. But there’s also a lot of issues around LGBTQ rights that are going on in the South as well. And according to the Williams Institute at UCLA, a significant portion of the LGBTQ plus population are people of color, and even among that group, many reside in the South and are deeply, deeply impacted by the wave of anti-trans anti-gay actions that’s going on in this region. So it’s terribly important work, and the ACP Legal Defense Fund is doing really important work that we should support and seating that cohort of civil rights lawyers.

 

Kate Shaw And to highlight another recent and successful challenge to one of these laws. Last week, we got a decision from a Florida district court invalidating one of the provisions in Florida’s anti-trans law, specifically the restrictions on providing affirming health care to transgender kids. The district court judge in that case noted the elephant in the room should be noted at the outset Gender identity is real.

 

Melissa Murray The judge went on to say that, quote, The defendants say, in effect, that organizations were dominated by individuals who pursued good politics, not good medicine. If ever a pot called a kettle black, it is here. The statute and the rules were an exercise in politics, not good medicine, end quote. So these cases and the laws undergirding them are going to keep coming. If you want to stay up to date on what’s going on. We wanted to highlight the work of Chris Geithner, who’s doing a lot of the compiling and documenting of all of these attacks. He does it at a substack called law talk you know you are one is okay. He does amazing independent news and analysis and it’s always timely, always in-depth. Please follow him. He’s doing great work.

 

Leah Litman And because it’s pride. One final thing to highlight, which is an exchange that happened in a recent Fifth Circuit oral argument in a challenge to book banning and library restrictions. I’m not going to go into depth about the law or legal challenge in the case. I did want to highlight some comments from a friend of the show, Stanford Storm Trooper Kyle Duncan, who is a judge on the Fifth Circuit and was on the panel that heard the oral argument. In this case. It is pride and I am going to use this as an excuse to twirl on Kyle Duncan. So, again, some of the issues are just about the lawfulness of book restrictions. And Judge Duncan decided to offer his perspective on the kinds of books that libraries can obviously restrict.

 

Clip Law and boy and gender queer if they don’t meet the definition of pornography. I don’t know what does. Your Honor, with all due respect, the definition for First Amendment purposes is not pornography. Of those books, it’s obscenity. Okay, Obscenity. Sorry, I misspoke.

 

Melissa Murray What were these? Obviously damnable books. One is called Lawn Boy. It’s a semi-autobiographical coming of age story by Jonathan Everson that received the American Library Association’s Alex Award for adult books that appeal to teen audiences. The other was Genderqueer, a graphic novel by Maya Cobb about Khabib’s journey to adulthood and identification as non-binary.

 

Kate Shaw Okay, so why are these books banned? Well, first, Judge Duncan says it’s because they’re pornography. And then he says, I misspoke. It’s because they’re obscene and therefore not protected by the First Amendment.

 

Leah Litman Like what? Yeah. So does he not know what porn is or the difference between pornography and obscenity? You know, putting aside the pettiness for a second, you know, the pettiness of expecting that a judge would know something like the law, the fact that, you know, he thinks that these books code as porn and obscene to him is significant because it’s almost like the existence of queer people, bisexual people, nonbinary people is itself like obscene to him. And this relates to the argument in the 303 create a case from this term which is still pending. We’ll get a decision any day there. One of the arguments that the lawyers representing the website designer are saying or seem to be making was that the very existence of queer people is expressive and threatening and justified service providers refusing to offer their services to same sex persons. But more generally, like from listening to the clip, I just wonder, like, why are straight cis people so weird? Queer people are not running around trying to ban young adult books about straight relationships. Like when is the last time queer people tried to ban a book because a boy and a girl kissed and a boy was like, Yeah, I’m into it. You know, In twilight, a teenage girl has sex and a whole ass baby with a vampire and is literally dying and nobody said anything. And in Beauty and the Beast, a woman gets together with an actual beast. And the gays are not coming for Twilight or Beauty and the Beast. I mean, the Barbie Girl song that Justice Kagan quoted has lyrics like, You can brush my hair, undress me everywhere. Kiss me here, touch me there. Hanky Panky. Hanky, Panky. Not triggering to Kyle. Don’t get it. For some reason, it feels like we need to declare a national emergency on straight people until we can figure out what the fuck is going on. And that’s why I’m always posting. That was a reference to the Swifties syndrome.

 

Melissa Murray Sometimes we just let her go on and it was the best. All right, so some quick caught culture. Before we end, I just want to note and my dish puke Hall would also like you to note that Clarence Thomas got an extension on filing his financial disclosure form. Insert meaningful. Look here. I don’t know. I guess you got to categorize that. Private jet travel, super yacht travel, Galapagos trip and private school tuition really accurately. Now, it takes time. It takes time. It takes time.

 

Leah Litman And he is requesting and obtaining an extension is, of course, another occasion to think about the harshness of his jurisprudence when it comes to deadlines, you know, including in capital cases. We previously mentioned, you know, Bowles versus Russell, where an out of time filing meant, you know, a challenge could not proceed or Coleman versus Thompson where an out of time appeal that again, someone who was sentenced to death could not proceed with their case Or same thing with Maples versus Thomas.

 

Kate Shaw It seems that Alito has also gotten an extension on his filing. And here we are not sure why. Like one theory, solidarity. One is he’s like auditioning. He wants a billionaire to notice that he’s he’s he’s out there, too, and he’s open for business. Maybe just I really don’t care. Do you kind of message he is communicating? We’re not really sure.

 

Melissa Murray Like the nosey bitch I am. I went through everyone’s disclosure form. I did woo so much T and that I found out where they all travel. They found out whose kids are going to college. I also found out that Justice Jackson received a 1200 dollar congratulatory flower arrangement from Oprah Winfrey and hashtag goals. Also.

 

Kate Shaw Melissa is also open for flower deliveries, but also how on brand that Jay, of course, I bet she got hers in early.

 

Leah Litman Obviously. Really? How big are those flowers?

 

Melissa Murray Flowers like, Oh, my God, he looks like a Conner and Kim level floral arrangement. Like, just like bathing her chambers in rose petals.

 

Kate Shaw That’s why I got to see those pictures.

 

Melissa Murray Okay. All right, Now we’re moving into some uncharted waters. We’ve always said that our strict scrutiny listeners are the. Most creative, awesome, inventive audiences in the podcast biz, and you all keep proving it to us. Not only are you here at a live show in the middle of a workday. You also send us the best homemade Internet means and other court inspired gifts. But we never we never imagined that you would branch out into songwriting. But here we are, one of our Facebook listeners who I believe might be here today. Neil Johnson sent us a little take that he did of Marvin Gaye’s Sexual Healing. He’s very clear to underscore that he loves sexual healing. It’s a great song. He just wanted to write a little parody inspired by Neil Gorsuch, his love of textualism. So I will not read the whole thing to you, but let me put a little flavor in your ear. Textual Healing by Neil Johnson. Oh, baby. Now let’s make law tonight. Ooh, baby, I’m hot Just like an oven. I need some standing and work with us Whenever precedents are falling and my emotional stability is leaving me, There is something I can do. I can get on the phone and call you up, baby And honey, I know you’ll be there to relieve me. The footnotes you give to me will free me if you don’t know the thing you’re dealing. Oh, I can tell you, darling, that it’s textual healing. Get up, get up, get up, Get up. Let’s make Lord tonight.

 

Kate Shaw Oh, my God.

 

Melissa Murray Neil, That was first rate and great for educating the public about so many court adjacent issues, including textualism, rewriting statutes from the bench, legislating from the bench, standing ethics. It really was all in there. And so I commend you. And I also recommend to the whole audience the Marvin Gaye Sexual Healing, which again, is a great song and might make you pregnant.

 

Kate Shaw Textual healing almost certainly will not. Oh, no. I think that’s where we’re going to have to leave it. We got some. Thank you. So thank you. First to the great Ginny Nelson for joining us. It was such a pleasure to have you here. Enormous thanks to everyone at Howard Law for the incredible hospitality. The students that we matched were incredible. Good luck to the bar study ers shout out to the Howard Law Class of 2023 and Antoinette Orozco, who started law school in the pandemic along with her classmates. You all are amazing. You did it. And we can’t wait to see what you do next.

 

Leah Litman We also wanted to thank the many folks at Crooked for their hard work organizing this live show. We also have a couple notes before we go crooked is raising money for Vote Save America as Fuck bans leave queer kids alone. Funds supporting organizations on the ground in states that are banning care and targeting trans youth. Our original goal was $50,000, but because you all are so amazing and have crushed that already, we’re now doubling it to 100,000. You can donate to either political impact organizations or tax deductible non-profits or both. Head to vote save America dot com slash fuck bans to learn more and donate today and you can gear up for a summer of trials and tribulations with strict scrutiny. Merch for. I’m wearing some at the live show for your closet Dust and Morning coffee. We have some brand new strict scrutiny merch featuring our very own very classic logo. The new line includes Crewneck T-shirts, a mug, and a nice notebook where you can jot down some novel legal theories or doodle Justice Alito in the tank he gets driven around in. I’m definitely going to be drinking my coffee out of this mug, especially with the nonstop news from the court we’ve had lately a huge coffee mug. It’s crucial. Check it all out at crooked dot com slash store.

 

Melissa Murray And don’t forget to follow us at Crooked Media on Instagram and Twitter for more original content hosts takeovers and other community events. And if you’re new to strict scrutiny or you just really love this episode because it was awesome, make sure you rate and review us on Apple Podcasts and subscribe wherever you listen so you never miss an episode.

 

Kate Shaw Strict scrutiny is a crooked media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by the one and only Melody Rowell. Melody, are you in this room? Yes. You stand up for a second. Nobody deserves all of that and more. Ashley Mizuho is our associate producer. Audio Support from Kyle Seglin. Music by Eddie Cooper, production support from Michael Martinez and Ari Schwartz, and digital support from Amelia Montooth.

 

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