Limiting the Inevitable Damage | Crooked Media
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October 10, 2022
Strict Scrutiny
Limiting the Inevitable Damage

In This Episode

Melissa, Kate, and Leah welcome Sam Sankar of Earthjustice and Deuel Ross of NAACP Legal Defense and Educational Fund to recap  arguments the Supreme Court heard this week in two big cases. Sackett v. EPA is a challenge to the EPA’s authority to regulate wetlands, and Merrill v. Milligan is a Voting Rights Act case out of Alabama that’s really about whether Congress may ensure the representation and political power of voters of color.

 

TRANSCRIPT

 

Melissa Murray Everyone agrees this looks grim. And I think what this meant to me was that even though the liberal wing of the court is battered, they’re not broken. They weren’t just talking to each other and their colleagues, but talking to the world outside of 1/1 street and, you know, kind of reminding all of us that we can still fight. And to me, at least, this has been such a shitty summer. Like, literally, all I’ve done is, like, think about and deal with the fallout from Dobbs. And it was just a really nice and bullying reminder that we can and should fight like they haven’t given up. It’s hard. It’s going to be hard, but they’re more than up to this task. And so are we.

 

Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court’s efforts to eviscerate the potential for a multiracial democracy on a livable planet. And the three justices who showed up and said, not today, satan. We’re your hosts. I’m Leah Litman.

 

Melissa Murray And I’m Melissa Murray.

 

Kate Shaw And I’m Kate Shaw. And in this episode, we’re going to recap the arguments the court heard this week in two of the big cases we previewed on our last episode. Sackett versus EPA a challenge to the EPA’s authority to regulate wetlands. And Meryl versus Milliken, a Voting Rights Act case that’s really about whether Congress can ensure the representation and political power of voters of color.

 

Melissa Murray We’ll wait to cover the cases that the court is going to hear this week for our next episode, and we’ll recap them there. And we’ll also wait to discuss the slew of new cert grants, that is the cases the justices have announced that they will hear later this term. So we’ll reserve that for the next episode. And we’re saving those things because this episode is going to be a little bit because we’ve got two fantastic guests lined up to help us discuss the cases that we’ll be breaking down. So we have Sam Sankara of Earth Justice. And later in this episode, we’ll also have Joel Ross of the NAACP Legal Defense Fund. So first up, let’s go to the recaps.

 

Kate Shaw And so let’s start our recaps with Sackett versus EPA. The very first case the court heard argued this term and as Melissa just mentioned, to break down this argument, we are delighted to be joined by Sam Sankar, who’s the senior vice president at Earthjustice, the nation’s largest public interest environmental law firm. So, Sam, welcome to the podcast.

 

Sam Sankar Thank you so much.

 

Melissa Murray I love that you are the Earth’s lawyer, Sam. That’s like my favorite Earth Justice tagline, The earth needs a good lawyer.

 

Kate Shaw Needs a good lawyer.

 

Sam Sankar Yeah. Fortunately, there are 190 other lawyers here so that we can provide the good in the lawyering. And I am not solely responsible for providing those services. That would make me very concerned.

 

Kate Shaw Sam is a very good lawyer, but the earth needs more than just one.

 

Melissa Murray Well I mean I think the Earth has way more good lawyers than Donald Trump does, which is saying something.

 

Sam Sankar Yeah, I think that’s fair.

 

Melissa Murray Earth one. Trump zero. Yeah.

 

Kate Shaw That’s right.

 

Kate Shaw The lawyer. Okay, so let’s dove right into recapping the Sackett argument. The issue in this case is the meaning of the phrase waters of the United States in the Clean Water Act. And the specific question is when the EPA can regulate wetlands. So things like swamps and marshes, which are typically kind of transitional between dry land and water.

 

Leah Litman Before we get into the statutory minutia, though, we wanted to ask Sam, like, what are the real world stakes of this issue? Why does it matter whether the EPA can regulate wetlands or not?

 

Sam Sankar So wetlands are a critical part of American waters. They play a huge role in controlling pollution, reducing sediment flow, providing flood control, protection, which is super important, obviously, as we deal with the results of climate change there, they are a critical part of the ecosystems that generate fish and food for a lot of people. So you can’t protect waters if you’re not protecting wetlands.

 

Melissa Murray You’ve made the case for me, Sam. I’m ready to go protect the wetlands right now. But back to the statutory details. So the Clean Water Act allows the EPA to regulate, quote unquote, navigable waters, which the act defines to mean the waters of the United States. Now, Congress later amended the act in 1977 when it adopted a mechanism for states to issue permits for discharges into navigable waters, except for a subset of covered waters, including wetlands adjacent thereto. And so for those waters, that is wetlands adjacent waters that are adjacent to these navigable waters, only the federal government can issue those permit. So that provision indicates Congress’s view that wetlands adjacent to navigable waters are actually covered waters within the jurisdiction of the EPA.

 

Kate Shaw And maybe let’s briefly spell out the facts of this case. So here the SAC, it’s purchased a parcel of land that includes wetlands. And if those wetlands are waters of the United States, then it requires a permit under the Clean Water Act to develop them. But the SEC, it’s dumped something like 1700 cubic yards of gravel and sand into the wetlands without a permit. And this case arises out of an administrative action to get them to restore those wetlands. So, Sam, can you walk us through the legal argument against the EPA’s authority to regulate the wetlands in this case? That is, you know, what are the is arguing?

 

Sam Sankar Sure. Well, as you said, you know, the Clean Water Act starts with this definition saying, you know, navigable waters, the Clean Water Act protects navigable waters. And what’s a little odd is that it then goes on to define navigable waters as the waters of the United States much, much more broadly. So there are always people who are going to seize on the first part of that that phrase navigable waters and say, look, if you can’t sail an oil barge or at least a canoe across this thing, then it can’t possibly be protected. And I think in addition, there’s this background, basically anti regulatory philosophy that’s going on where the concern is, oh, the the jackbooted thugs of the federal government will use. Any possible excuse to come in and take away your stuff if you allow a broadly worded statute to to walk the land. So there is this background idea that, oh, this broad statute, that’s a that’s a dangerous thing, a broadly worded statute.

 

Leah Litman I’m glad you brought up the anti-regulatory trend, because this case just has remarkable parallels for me with West Virginia versus EPA. You know, where in both cases it feels like the parties are arguing, let’s just take Justice Scalia’s views or the Trump administration’s views and make them the law. Because in both cases, you had the Trump administration adopting truly novel interpretations of environmental statutes, you know, taking the position that the federal government’s authority under the statutes was severely limited in West Virginia, that the EPA couldn’t adopt outside the fence line measures, or here that the EPA can generally regulate a lot of wetlands under the Clean Water Act. And those positions were at odds with the views of prior administrations, hadn’t been embraced at any point by a majority of justices on the court, but they were really part of what Steve Bannon described as the war on the administrative state. And, you know, White House counsel Don McGahn then would fill in the details to say that the administration’s judicial appointments were the other side of that deregulatory coin.

 

Sam Sankar It’s worth saying that the SEC, its position is actually even more aggressive than the one that the Trump administration put forward in regulations, a point that even some of the conservative justices were needling them with by pointing out, hey, you know, even the Trump administration thought that wetlands separated by a berm are still covered. Right. And that that is not a great position to be in as a way to.

 

Leah Litman Know when the Trump administration is more pro planet earth than you are, maybe step back and do some rethinking.

 

Kate Shaw Yeah. And Sam, actually, could you just take another beat on what exactly the circuits are arguing? Sort of wetlands that a regular bowl consist of. I mean, it’s not quite as dramatic, at least as I read it, as you have to be able to literally sail your boat across the wetland. They concede that there are some wetlands that the EPA can regulate, but it’s, of course, an extremely narrow vision and as you said, narrower even than the Trump administration’s vision of the EPA’s regulatory authority. So what did they say the EPA can do with respect to wetlands?

 

Sam Sankar Well, the first thing I’d say is it took a while to figure out during this argument and the briefing what their position was. And it has shifted during the course of the litigation. But near as I can tell, by the end of the argument, what we had determined was the Sackett said that the Clean Water Act only covers waters. That quote in ordinary parlance would be referred to as a stream creek, river, lake or the like, and that that water body has to be navigable, in fact. And the only wetlands that are covered are wetlands where that are are literally next to or part of those waters so that you can’t visually determine where one begins and the other ends.

 

Leah Litman So those phrases, those are definitely in the statute. Right?

 

Melissa Murray Streams. Brooks. Rivulettes.

 

Kate Shaw The unidentifiable.

 

Leah Litman Right. Yeah. Yeah.

 

Sam Sankar Or the like. Right.

 

Leah Litman I’m guessing not.

 

Sam Sankar No, no. This is this is their. Their hope to narrow. I mean, look, the industry is behind them. Would love to have this statute narrowed to that definition. Unfortunately, those for them, those words aren’t in there.

 

Melissa Murray So, Sam, what’s the legal argument for why the EPA can generally regulate wetlands?

 

Sam Sankar Well, the first is that is the statutory language which says the waters of the United States. They didn’t say the navigable waters of the United States. They said the waters of the United States. And that was a deliberate choice to remove the word navigable from them. That’s the first thing attached to the statute. That’s what we’re supposed to do, right? We’re supposed to look at the.

 

Melissa Murray Well, we’ve heard a lot about textualism, Sam, but it might not be for everyone.

 

Sam Sankar I know the reality is, you know, especially with the Clean Water Act, which has really broadly worded things, actually with all environmental laws, which virtually always say broad things because you want to do broad things. The Textualist are nervous about those things, so they don’t love them. But in addition to the broad text, we also have the stated purpose of the act, which is, as Justice Jackson repeatedly reminded the court, to restore and maintain the chemical, physical and biological integrity of the nation’s waters. So if, as I said, you can’t really protect the waters without protecting the wetlands, well, that’s a pretty powerful argument for saying wetlands are protected. And then the third part is the history. As you all have already pointed out, there was this history where there was some back and forth in the agencies about whether or not wetlands were covered. And fierce debate in Congress about amending the act to exclude wetlands. But instead, in 1977, Congress added some language that rather clearly suggests not suggests rather clearly states that adjacent wetlands are covered by the Clean Water Act.

 

Leah Litman So all of these points came up at oral arguments. So at the oral argument, you know, a committed textualist on the court explained why the plain text of the statute allows the EPA to regulate wetlands. So let’s play that clip from that. Textualist here.

 

Clip Well, let me give you another example. I grew up in an apartment building in New York City. If I say there are two adjacent apartment buildings, do they have to be touching each other or could be, you know, one is across a side street. You know, again, just I mean, I would say that those two apartment buildings are adjacent to each other because there’s no other apartment building in between them, even if they’re not touching each other.

 

Leah Litman And then in some tag team questioning, Justice Jackson and Justice Sotomayor hammered home this point about how the petitioners were seeking to add words to the statute that weren’t there.

 

Clip So why didn’t Congress say immediately adjacent if they were trying to achieve something different than what the regulations had said about adjacency, if they were balancing their concerns about protecting the integrity of the navigable waters with the property interests in the states, rights to control it. Why didn’t they say immediately adjacent in terms of the of the wetlands coverage. Justice Jackson Why didn’t they use the word they used elsewhere abutting, abutting well? Justice Jackson I don’t believe the term abutting appears in the statute, but. One reason why it actually does assume it does.

 

Leah Litman I have to say I love this for them. Justice Jackson and Justice Sotomayor. I mean, look, the pickings for friends at their workplace are slim. And I’m so glad they found each other.

 

Kate Shaw No shade at Justice Kagan intended by that remark, just to be clear.

 

Leah Litman To be clear, I intended no shade to Justice Kagan there. I can say nothing else, however.

 

Melissa Murray Okay. I’m going to say I really hope they preplanned this like so I’m just imagining them getting together before oral argument and just being like, listen, I’m going to ask him about abutting. And then when I do. You jump in and you tear his ass up and she’s like, Yeah, let’s do that. Like, that’s the point.

 

Sam Sankar Well, if that was the plan, I thought it was interesting that they got Justice Kavanaugh in on the plan because he was asking some pretty tough questions, too. And I actually think that that’s going to be the story of this case, is whether the the real and hard questions that the conservatives were asking are actually part of their consideration of the case or whether they let the deregulatory agenda that supposedly brought them to the court, you know, take over their judicial instincts and their good sense and lead them to a result that the statute and the purpose don’t support it.

 

Leah Litman So maybe we can just play a quick clip of that, you know, Kavanaugh exchange with the lawyer here.

 

Clip In Riverside of you said the contrary to that. Obviously, it said wetlands are included. Statute refers to adjacent wetlands. EPA has said since 77 that adjacent means those wetlands, even if separated by berms, dunes, levees or dikes. Well, Justice Kavanaugh, I don’t want to. Necessarily die on this hill, because obviously the facts in this.

 

Leah Litman I have to say, Sam, I am not super optimistic that these questions are necessarily going to preview where Justice Kavanaugh will be. I feel like I have been burned several times by this before him asking reasonable questions only to adopt an eminently unreasonable position at the end of the day. But. But who knows, right? There’s a first time for everything.

 

Melissa Murray And Sam, it’s probably no surprise, given her extensive experience as a district court judge, that Justice Jackson, in her first argument as a justice, brought a lot of attention to the facts and details and realities of this case. So first, she did so in rebutting a Justice Gorsuch tirade against the administrative state. That surprise was not totally grounded in facts. And here Justice Gorsuch began asking a series of questions that implied a particular story about the facts here, insinuating that because the current legal test to determine what constitutes a water of the United States is unclear. People won’t know whether they’re residing on covered waters and therefore might not know whether they would face criminal penalties for doing something on their land without the EPA’s permission. And Justice Jackson flew in here, responded to this line of inquiry with the following question Is there a process for the homeowner to ask whether the EPA thinks they’re on wetlands, to which the lawyer for the government, Brian Fletcher, a deputy solicitor general, said yes. And so Justice Jackson underscored that that meant no one is really facing criminal liability without the opportunity to get an assessment from the government about whether, in fact, they are residing on wetlands. So check, mate.

 

Leah Litman And, you know, second, she also challenged the narrative that, Sam, you were alluding to previously that Sacketts got this property and then all of a sudden the big, bad, terrible, no good, very bad federal government just magically appeared and unexpectedly told them they couldn’t develop it. And Justice Jackson was like, Come on, they knew this was a wetland. And a prior owner did an assessment determining it was a covered water. And even if they didn’t know that, she suggested, shouldn’t they have gathered information about the property prior to purchasing it?

 

Melissa Murray Personal responsibility Sacketts. Very conservative. Yeah.

 

Sam Sankar It’s also worth noting that, you know, the Sacketts are not probably not clueless about what this means. They are the owners of the very company that was filling in the wetlands when the inspector was out there talking to the you know, the inspectors notes say, well, I talked to the owner of the bulldozer, the guy who was running the the bulldozer or the excavator. And he said, well, my boss is Mike Sackett.

 

Leah Litman Well. Sinead Oh, rebellion.

 

Sam Sankar So they own that. I mean they are the owners of a construction and excavation company. In fact, that the solicitor general sort of gently pointed out in their brief, they are not coming at this as as I don’t think as people who have no idea what’s going on and are surprised to find out that the government occasionally, regularly.

 

Melissa Murray Not poor beleaguered homeowners just trying to get ahead in America.

 

Kate Shaw But what are those facts to get in the way of a good deregulatory time?

 

Melissa Murray So these were obviously not poor beleaguered homeowners, at least not in that telling. And Justice Jackson really wanted to bring that out. So let’s roll the clip.

 

Clip Shouldn’t they have gathered information about the property prior to purchasing it?

 

Melissa Murray So I’m saying this is basically Justice Jackson suggesting that the markets fucked around and found out the emphasis on the record was also a theme in marriage, which we’re going to talk about later. But again, you could read this as the three liberals putting their colleagues on notice that they are going to be all over them on the fast and loose depiction of the facts in oral arguments, and they’re probably going to incorporate this in their many dissents.

 

Leah Litman So as we noted, this was the first argument the court heard and therefore Justice Jackson’s first argument at the Supreme Court, and she was ready and more as we’ve already kind of outlined. You know, her participation in the argument underscored so many reasons why we’re so excited that she’s on the court now.

 

Kate Shaw So let’s start with her very first question, which came, I think less than 10 minutes into the first oral argument in which she said as a justice and it showed to my mind a refreshing dose of both pragmatism, really wanting to understand how the Clean Water Act works and also faith in the legislative process. Right. Wanting to understand Congress’s overall plan, and there has been honestly way too little interest in both of these things in the court’s statutory cases before she joined the court. And so all of this was music to my ears. So let’s play that first clip here.

 

Clip Isn’t the issue what Congress would have intended with respect to adjacency and there was a regulation that defined adjacency to include neighboring. And as far as I know, Congress used the term adjacency and didn’t adjusted to try to make clear the touching requirement that you say was intended by the term.

 

Melissa Murray She actually asked the same kind of question in the original jurisdiction case that the court heard the same day, basically wanting to know what the function of the statutory scheme was.

 

Clip You keep suggesting that larger dollar products are exempted from the statute, things that would be covered by like the disputed instruments they deal with larger dollar in money order. Smaller dollar. What I don’t understand is why that’s the case. I’ve heard you said say that there would be an incentive to include address information for larger dollar products. But if that’s true, then under the common law, we wouldn’t have the inequitable treatment problem. So the fact that the states are fighting about these disputed instruments indicates to me that the disputed instruments don’t have addresses on them, which undermines your argument that larger dollar products would necessarily carry with them the address information. Do you understand what I’m saying?

 

Melissa Murray A couple of other things to highlight about Justice Jackson. She was incredibly impressive here. And I think it’s worth calling this out because a lot of the discourse around her nomination was about how it was essentially the product of identity politics, and the administration should have focused on qualifications rather than the prospect of making an historic appointment of a black woman. She made it clear at oral argument that diversity is not incompatible with merit and that she is very much the equal of her colleagues in every way. And she took the mic and said, You know what, I’m not waiting around to get the feel of this place. It is bad, bitch a clock and I’m right on time. Please get over.

 

Leah Litman It. Yeah, for sure. She is super quick and just deft at argument in a way that, you know, I feel safe saying not all recent justices have been or even current justices are. So here’s an example of her immediately speaking up when a lawyer attempted to poo poo a statutory section, i.e. some text as quote, unenlightened eg. So let’s play Justice Jackson’s corrective to that here.

 

Clip Swank, for its part, said for a. Portuguese is enlightening as to the meaning of waters in the art. Well, let me let me let me try to bring some enlightenment to it by asking it this way. You say the question is which wetlands are covered, which I agree with. But I guess my question is why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of nations waters? So are you saying that neighboring wetlands can’t impact the quality of navigable waters?

 

Kate Shaw We’re going to talk much more about Justice Jackson’s commanding performance at oral argument when we talk about the next case. But just to stay for a couple more beats on Sackett, Sam, you projected earlier on some optimism about how this case may be likely to come out. And it sounded like you were suggesting that that optimism may be largely attributed to the kind of corrective force of Justice Jackson and Justice Sotomayor and Justice Kagan on the course of the oral argument. But tell us why we should not assume that, you know, the insights of those three justices are going to be relegated to their dissenting opinion in this case.

 

Sam Sankar Well, first of all, you can’t be an environmental lawyer and commit your career to public interest environmental law at this point in our nation’s history without being an optimist at heart. So I’m an optimist. But the optimism is based on the fact that Justice Kavanaugh, Chief Justice Roberts, and to some degree Justice Barrett seemed genuinely interested in trying to figure out how to square the petitioner’s argument with some of the language in the Act and clearly with its purpose as well. In addition, they seem to understand that the Trump administration had done something that would have that would have been inconsistent with the circuits argument and and seem to be genuinely trying to think about what is the middle ground here. The other thing that gives me some hope is that when Earthjustice argued the Maui County case a couple of years ago was a sort of similar set up where it was a complicated Clean Water Act factual scenario, but where the industry tried to push it, tried to demand a short and simple line. Here’s the simple task. And the court, you know, kind of went in wanting to put out a legal test that was real simple and bright line, but in the end realized it was a little more complicated. So I think my hope is that the same thing will happen again, that these justices will say, wow, it’s hard to write these bright line legal tests and environmental regulation will offer some advice and some factors and then wag our fingers at the agency to give clearer guidance, which is what they did in the Maui County case. So we’re going to find out, you know, is whether that instinct that they had at oral argument plays itself out in the opinion or whether their agenda, you know, sort of grabs them by the lapels and drags them along to a different result.

 

Kate Shaw I’m going to join you in a degree of optimism, but, you know, probably both. But look, if it if we’re right, I do think it’ll be largely because of the force exerted by Justice Jackson and Sotomayor and Kagan during the oral argument. But we will see what same. Thank you so much for joining us to really shed some light on this argument and on this case. We really appreciate the time and the insight.

 

Sam Sankar Thank you. I think this is the first time this month where my wife said to me, oh, wow, you’re on their podcast? You might actually be cool.

 

Leah Litman Happy to help in any way.

 

Melissa Murray You’ve got to tell her that you’re the earth’s lawyer.

 

Leah Litman Exactly.

 

Melissa Murray That should be impressive enough.

 

Leah Litman Exactly.

 

Sam Sankar Yeah. Cue eye roll.

 

Leah Litman [AD].

 

Melissa Murray So next up for recapping is Merrill versus Milligan, the Voting Rights Act case. And we are delighted to be joined in our discussion about this case with Deuel Ross, Senior Counsel and Director of Professional Development at the NAACP Legal Defense and Educational Fund, who argued Merrill versus Milligan. Deuel was on the show previously to discuss the Supreme Court’s order allowing Alabama to implement its challenge maps in this case as this case proceeded. So welcome back to the show, Deuel.

 

Deuel Ross Thank you. Thanks for having me.

 

Melissa Murray Oh, we’re really glad to have you back. And I’ll just say we did a fairly in-depth preview of this case in our last episode. So we’re just going to sort of gloss over what this case is about now so we can really get into the meat of oral argument. So the question here is the proper interpretation of Section two of the Voting Rights Act and specifically what kinds of vote dilution practices the Voting Rights Act prohibits. So vote dilution refers to circumstances where legislatures draw districts in ways that result in voters of color being substantially less well represented and less able to elect the candidates of their choice. So this is, again, in keeping it in context with the demographics, geography and history of the region. So if all of that suggests that they should have more representation than what is actually featured in the map, that suggests that vote dilution may be going on. And the question is, can section two of the Voting Rights Act be a viable remedy here in these circumstances? So dual justice set the table, the Supreme Court in a case called jingles versus Thornburgh, although Justice Alito might want to call it Gingles versus Thornburg I don’t know what that’s about.

 

Leah Litman Read a book, sir. Sorry.

 

Melissa Murray I mean I mean, maybe I like a hard g. I don’t know.

 

Kate Shaw No.

 

Melissa Murray Jingles versus thornburg.

 

Deuel Ross It’s definitely genius.

 

Melissa Murray Is. Thank you.

 

Kate Shaw Thank you.

 

Melissa Murray Thank you. Jingles versus thornburg established a test for courts and plaintiffs to use to determine whether there has in fact, been vote dilution. So can you remind our listeners what the test is?

 

Deuel Ross Sure. So basically there’s two parts of the test. The first part and in itself is also three parts. So first, you have to draw a district that’s reasonably compact and that is majority minority just to show that, you know, it’s not geography. It’s not that black people live on one side and say versus another that’s keeping them from being a part of a majority minority district. It’s actually possible to do to draw a district. And then the other couple parts of the first preconditions are, you know, showing that there’s racially polarized voting, which means that black voters prefer often black candidates in general elections and primaries, and that white voters vote against those candidates in a way that prevents black voters from from getting representation. And then there’s a second part of the test, which is even more complicated, but basically a nine factor test that looks at whether or not there’s a history of discrimination in the jurisdiction.

 

Melissa Murray And so this case is really being pitched as being about the first jingles factor, which is, you know, is the minority group sufficiently large and geographically compact to constitute a majority in a single member district? Is that fair to say?

 

Deuel Ross Exactly. You know, Alabama tried to make the argument about a lot of things, so they argued that the Voting Rights Act didn’t apply to single member districts. They argued that the Voting Rights Act may be unconstitutional, as it’s been interpreted for 40 some years. But ultimately, even Justice Alito seemed uninterested in that very broad interpretation of the act.

 

Kate Shaw And will go deep on on sort of all those dynamics at oral arguments. But just for listeners who may not be familiar with the background of the case. Right. So background here, Alabama drew a map that resulted in black voters being able to elect a candidate in one of seven legislative districts, even though black voters after the last census represent something like 27% of the voting age population in Alabama. And it would have been easy given demographics and also geography as to I was just alluding to, for Alabama to have created two out of seven districts in which black voters could elect candidates of their choice. And that breakdown, you know, would roughly approximate the demographic breakdown in the state of Alabama. And that’s what the lower court found the Voting Rights Act required. Right. The creation of a second majority black district.

 

Melissa Murray So do when you came to the podcast last time, you talked to us about the Supreme Court’s intermediate stay here, which basically allowed the first map, the map with only one majority minority district to go into effect for this election cycle. So that map is already being used in Alabama right now. So to some degree, in the short term, the legislature kind of won this battle for the short term use of the map. And so the real question in this litigation is whether or not the long term impact of Section two on future maps. So can you sort of explain what’s at stake here?

 

Deuel Ross Sure. I mean, so basically what Alabama is arguing, as you all are alluding to, is that it’s impossible to draw a second majority minority district in Alabama without taking race into consideration and therefore. Our efforts of an expert trying to draw an illustrative map were itself unconstitutional or somehow, you know, racially discriminatory, they would say, against white voters. But I think what’s really important to remember is that Alabama has drawn a very similar map at the exact same time that you’re a board of education plan that had eight districts and thus two of them were majority black. One of them looked very, very similar to our own map. And that ultimately, you know, this is just plaintiffs are required to draw these additional majority minority districts just as examples to say, here’s something that could be done. The state isn’t even, frankly, required to draw a majority minority district ultimately as a remedy. They can draw any kind of district. So if they didn’t like ours, they could have drawn one that that didn’t have the the purported problems that they identified. And so really what again, what Alabama’s are trying to argue is that any time you think about race in redistricting, you know, you engage in some kind of racial discrimination.

 

Melissa Murray That’s Alabama’s argument that in order to do Section two properly, you have to be completely race blind. And as Justice Kagan pointed out, that hasn’t the way the court has sort of thought about Section two previously, which is to say, like, they’ve never interpreted Section two to have this requirement of race blindness. And under the existing Section two jurisprudence, in fact, you all would win. So let’s play that clip from Justice Kagan.

 

Clip What strikes me about this case is that under our precedent, it’s kind of a slam dunk. The three judges below said this is an easy case. It’s not one of the hard wants. It’s not one of the boundary line cases. It was clear that the plaintiffs satisfied the jingles pre-conditions. You know, you’re looking at a state where there are 27%, 7% of the population is African-American, but only one of seven districts where there is incredible racially polarized voting, where there is a long history of racial discrimination in the state. Put all that together and it seems clear that under our existing precedents, the inquiry is complete in just the way that the court also found. And, you know, it seems to me that you’re coming here and it’s totally your right to do it, but really saying change the way we look at Section two and its application.

 

Kate Shaw So, you know, exactly because this case was so straightforward under existing precedent, Alabama was below. And so, of course, that means that the lawyer representing Alabama, who is the state solicitor general, began the argument, and I think his opening framing made it crystal clear where he stood. Right. He referred to what the plaintiffs were seeking as a racially gerrymandered plan, as if there was something improper about an effort to secure black representation precisely as the Voting Rights Act guarantees and requires. So can you talk a little bit about how Alabama, in your view, sort of is seeking to narrow the Voting Rights Act or limit the occasions in which the Voting Rights Act would actually operate to protect against vote dilution? Like what? How would you distill what Alabama says that Section two of the Voting Rights Act should be understood?

 

Deuel Ross You know, honestly, it’s hard to distill exactly what they were arguing. And I think that’s part of what was giving. Even Justice Alito pause was that there was sort of a lack of clarity with respect to what they’re arguing. But I think at base but they’re one of the things that they’re relying on is that we had a separate set of claims related to racial gerrymandering. And Alabama had alleged, when they drew their own state maps, that they didn’t look at race at all. And so to show that they were lying, we ran some computer simulations that showed, look, if if you were telling the truth, your maps wouldn’t look anything like your road maps. You wouldn’t split the majority black city of Montgomery. You will split the county of Montgomery, you wouldn’t split the black belts, and you would end up with districts that would at least, you know, have much higher black voting age populations than than you did. And Alabama sort of took those simulations that they had called useless below and said, oh, well, look, your simulations didn’t come out with two majority black districts. Therefore, you lose the vagaries of computer simulations and are are untested at this point. And then the other ultimately, those computer simulations were sort of showing how Alabama had lied and about Alabama’s intent. And in section two is ultimately a results test as the test that goes to what is the impact of a potentially discriminatory map. And here we think that only looking at the geography of Alabama, it’s easy to draw a second majority minority district, but also thinking about, you know, the political geography of the state. There’s a region of the state called the Black Belt that’s about 18 or so counties that runs through the middle of it. And that that is a jurisdiction that has been split and divided by Alabama for at least going back to Reconstruction. And what Alabama wants to say is, oh, well, we’re just relying on the. Or is it these districts that go back to 1972? But in 1972, George Wallace was the governor of Alabama. Alabama was still passing literacy tests that had to be blocked under Section five. And that was at that point that Alabama decided to split Mobile, the large city in Alabama, from from the black belt, and really drove down black numbers and in a number of congressional districts.

 

Leah Litman It was definitely difficult at times, maybe throughout the argument to tell what exactly Alabama was arguing for, why the plaintiffs should lose, although they were definitely sure the plaintiffs should lose. Not exactly sure why or how, but under one version or some versions of what Alabama was arguing, it seemed like they would turn the Voting Rights Act into a prohibition on intentional racial gerrymandering or intentional vote dilution. So, Deuel, can you explain, like, how at least some versions of what Alabama was like putting up an argument would turn it into a prohibition on intentional discrimination?

 

Deuel Ross Sure. What Alabama’s essentially saying is that if they have some facially neutral rule here retaining the cause of their discriminatory districts, then that alone proves that they didn’t violate Section two. But, you know, a facially neutral rule is the same thing as a literacy test, as a facially neutral rule, but it’s ultimately discriminatory. And so Alabama is basically saying if they can come up with some justification, any justification for their rule, then it doesn’t violate Section two. But that, you know, it really does turn Section two into intent test because you have to question why this rule versus another rule. And really what Section two is about is what is possible and what you can prove with respect to racially polarized voting and the history of discrimination, once you’ve shown that it’s possible to add this this additional district.

 

Melissa Murray So Justices Jackson and Kagan were all over this from jump and they cut in immediately to ask, why isn’t the test? You proposed a test that would just cover intentional racial gerrymandering or intentional vote dilution. And to which I must say hello, 911 I’d like to report a murder. And here’s a little clip of said murder in progress.

 

Clip Are you asking us to reconsider what is happening with jingles to require that challengers compare their original map at step one with a race blind algorithm? The algorithms are not essential. They’re they’re very helpful and illuminating in this case because the million plaintiffs brought them themselves. What do they illuminate? They show that this is what you would expect a race neutral map draw to produce. Why does that matter? I thought Congress is statute said we don’t care about intent. So the race neutral nature of this goes to whether or not Alabama intended the result. And I take your point that, no, you didn’t. So what difference does it make what a race neutral algorithm would do? It matters for at least three reasons, Your Honor. I mean, this Court I mean, every time that a Section two case has come before this court and you’ve had to consider that interaction between Section two and the equal protection clause you’ve reversed for someone using too much race, do you. Think that Section two sets out an intent standard? Your Honor, I think that obvious, undisputed, that intent is relevant. Intent has not been rendered. Sure. You know, nobody disputes that intent isn’t relevant. The question is, is intent required? And when I read your brief, the all over it and you suggest that intent is required, and I thought that we have said on numerous occasions that intent is not required. And the reason we’ve said it on numerous occasions is because that’s what Congress said. We once long ago said that intent was required in voting right in the Voting Rights Section two of the Voting Rights Act. And Congress immediately slapped us down and said, no, we didn’t mean that, and made clear in the language of the statute that it was incorporating a results test and effects test. And yet you are questioning your your arguments, as Justice Jackson has suggested, really say that that’s wrong and that there needs to be a showing of intent in order to make out a Section two violation.

 

Leah Litman So at some point, the Alabama solicitor general’s bloodied corpse was on life support after Justice Jackson was just like bludgeoning him within inches of his life, by the way, in the nicest way possible, I should say. Like she was not being even remotely like, mean or like hostile. She was just like shredding his position very politely, like a polite, nice, almost murder. But anyways, as this was happening, Justice Alito tried to throw the Alabama solicitor general a lifeline, asking him basically, what’s your narrowest argument you could win under do? This is like maybe an unfair question, given that it’s not clear like. What the alternative like narrower argument is. But like was there one? Is there one? Like was like Justice Alito or Justice Kavanaugh or like Justice Barrett offering one? It was like hard to tell exactly like what the argument was.

 

Deuel Ross Yeah. I mean, I, I think the difficult position Alabama is in is that their argument is essentially that, you know, this sort of race neutrality rule, but we know that that can’t be the standard because it’s an intense standard. And then Alabama’s back up argument is these simulations, but they don’t want that to be the standard because their map doesn’t come out in the simulations. The simulations actually create something that is likely to result in two districts where minority voters at least have an opportunity and two districts. So it was really, I think, difficult to understand exactly what Alabama’s argument has been since the briefing. But certainly at oral argument, it didn’t provide any clarity. You know, I think at one point Justice Barrett said something like, you know, accepted that the Voting Rights Act applies to discriminatory results and accepted that the Voting Remedies and Voting Rights Act cases can be narrowly tailored to use race. And sort of that begs the question of why are we even talking about this? If those two things are taken as a given, there’s a disparate impact claim. Narrowly tailored use of race is permissible. Then, you know, this case is, again, as Justice Kagan said, a slam dunk.

 

Melissa Murray We should also note that after Justice Alito offered the Alabama solicitor general a spot in the lifeboat which was very unsinkable, Molly Brown of him, both justices Kagan and Jackson were like, sorry, this boat’s fall. And so here’s a clip of Justice Jackson pushing him out of the lifeboat.

 

Clip But why? So that’s nice. Jeanette Step one Counsel Why is that the question at step one, we’re not even worried about the states map. We’re asking the the challengers. It’s a burden on the challengers. Can you sustain your hypothesis that under traditional rejects redistricting principles, we can have a map that is drawn the way we ordinarily draw maps and has a majority of minorities? It’s not about the state’s map, it’s one. So I don’t understand why we would have to ensure that the challengers map conforms with other legal requirements.

 

Kate Shaw And then maybe let’s play one more clip of Justice Jackson explaining, you know, why it has to be that race neutrality cannot be part of or is not the jingles standard, right?

 

Clip So why are you saying it’s a neutral plan? Counsel? I don’t understand the jingles. Preconditions are designed to establish that there may actually be race discrimination working in this particular situation. Right. We have, as Justice Kagan pointed out, not just the initial hypothesis, which, by the way, is how I look at the first step. I don’t think the first step is, you know, creating some sort of a comparator or anything of the sort. The first step is a burden on the plaintiff, on the challenger, to show that their hypothesis that another district could be drawn, another minority majority, minority district is even feasible given the empirical numbers in this situation. All right. So we accept that that’s step number one. And it contains an assessment of things like racial segregation in housing, because you have to have enough of these people pushed in, compacted in this district. Right. So we already have this idea that there’s some problem because we have racial segregation in housing at step one. Then step two is asking, do we have a problem in the sense that people are voting in racially polarized ways? Step three is also that kind of dynamic. Do we have a situation in which the, you know, majority group is always voting in the same way? These are really tough things to establish and collectively they show that it’s not neutral. The situation that we are approaching in this situation, we’re talking about a situation in which race has already infused the voting system. So can you help me understand why you think that the world of, you know, race blind redistricting is is really the starting point in this situation?

 

Leah Litman And just to underscore what she’s saying, you know, I think are at least two things. One is that the jingles task for identifying vote dilution is all about race, identifying instances where because of residential segregation and, you know, other things, voters of color are underrepresented in the political process. So it’s just incoherent to read race out of the test or to require people to ignore it. And then second, like as part of the jingles test for vote dilution on the first jingles factor, the Supreme Court created a rule that plaintiffs must present a map that satisfies the state’s districting criteria that has an additional majority minority district. But Alabama is now saying that if plaintiffs do that on purpose, which like they have to do under jingles, the map is too race conscious, like it is incoherent, like these things cannot be.

 

Deuel Ross I think that’s exactly right. And I think that, you know, every appellate court to consider this issue has said the exact same thing for at least 25 years, that it’s not unconstitutional to think about race in this sort of first step of the jingles process. And that’s because, you know, even if you’re thinking about an intentional discrimination claim, if you’re going to propose a remedy, you have to be race conscious and in thinking about that remedy. And so, you know, it really is incoherent to say plaintiffs are engaging in some sort of discrimination by proposing a map that A is not even. It’s not a map Alabama has to adopt and be you know, as I said, any remedy in any kind of race discrimination case, whether it’s intentional discrimination or, you know, a results test or disparate impact test, is always going to take race into consideration.

 

Leah Litman [AD]

 

Melissa Murray On a similar beat. I wanted to highlight another CBJ banner on this theme, and I’m just going to call this one using the Master’s Tools 14th Amendment Edition. So let’s roll the tape.

 

Clip Yes, 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, 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 the 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.

 

Melissa Murray I love this so much because, you know, one, I really appreciate that. It’s very clear here that when a black woman tells you she’s so, so glad something has happened, you should run because you are in danger. She is about to body you and she totally body not only the solicitor general here, but also the court’s conservative wing. By essentially using their history and tradition laden originalism to show why race blindness in the context of voting rights is absolutely insane and historical. And she basically said, Your originalism is itinerant and selective, and I’m here with receipts from the archives to explain to everyone why originalism is actually the best lawyer joke around here for it.

 

Kate Shaw Yeah. I mean, I thought any question about her impact on the court, like how she was going to change oral arguments, the decisions the court issues should be decisively put to rest after that moment, right? Like it felt genuinely transformational to me. It was just like so brilliant and operated on so many levels, right? It was clear and direct about how unmoored from history this idea of race blindness is. And it did so just as you said, Melissa, in a way that explicitly responded to the court’s directive to consider history. Right. She literally says.

 

Melissa Murray Your history, your history and tradition.

 

Kate Shaw She says, I understood that we looked at the history and tradition of the Constitution at what the framers and the founders thought about. And I loved her describing the drafters of the 14th Amendment as framers and founders because they were. And yet the majority rarely describes them as such. And so by taking that founding moment seriously, it kind of like recenter debate. And it also, I thought, illuminated the majority’s frequent disregard of the actual circumstances surrounding the adoption and ratification of the 14th Amendment. I thought it was extraordinary.

 

Melissa Murray Like in Dobbs. Like in Dobbs. Imagine if we’d had this moment, like, what does the 14th Amendment have to say about bodily autonomy? Post enslavement, like that would have been really interesting.

 

Kate Shaw Yeah.

 

Deuel Ross Yeah. I think, you know, one other thing that’s really important to note about the sort of originalists and the framers of the 14th, 13th, 14th and 15th Amendments. We fought a civil war for the rights of African-Americans. And then we had a civil rights movement for the same thing. And the really the only the only reference to race direct reference to race in the Constitution is the 15th Amendment itself, which prohibits racial discrimination in voting and gives Congress the power to enforce it. And so, you know, the court has always read that very broadly because it is a very direct right and gets very direct remedial powers of Congress. And so it would be really spitting in the face of. Of history and people who fought and died in this country to ensure the rights of African-Americans and really everyone to be free from racial discrimination.

 

Kate Shaw Deuel, you alluded to this previously, but it might be worth taking another minute or two to talk about this kind of the role of simulations or algorithms, right. So Justice Alito seemed really fixated on the role of computer generated maps in litigation under Section two. He pressed you and also ABA Khanna, who represented other plaintiffs in the same case. So what was he really driving at with respect to the role of algorithms in Section two litigation?

 

Deuel Ross Yeah, I think it’s interesting that the court has any interest in algorithms for Section two litigation, considering that they said what they said of RICO, which is that algorithms are themselves subjective. But it seems like Justice Alito was at least interested in an idea of if you can show through some sort of computer algorithm that you couldn’t get a second majority minority district, that that would be, you know, sufficient. The problem with that, you know, for the reasons I alluded to, is, one, it’s an intent test. But also, you know, computers really don’t it’s really impossible through a 10,000 simulations or even 10 million simulations to show all of the possibilities. Plaintiff’s expert here, Dr. Moon Duchenne, who is an amazing mathematician, testified that, you know, ultimately you would come out with her map if you ran enough computer simulations. And in any given state, there are literally trillions of trillions of trillions of potential maps that could be drawn. And she ran her own simulations in the case, using race not as a predominant factor, but as one of many factors. And she came out with, as she said, literally thousands of maps with two majority minority districts. And so it’s sort of a shell game to find this this idea of computer simulations useless in one context, and to say that it’s useful in another two contexts to really, you know, limit African-Americans and other people of color rights here. If if there was a helpful amicus brief in this case done by Julie Chen and Professor Evans, who is that at Harvard Law School, that it really explained that if you were to apply computer simulations to state legislative districts, to congressional districts, you would lose a lot of existing majority minority districts. And that is because this idea of race neutrality really covers up the fact that we have so many communities that are based on race, like the black belt, like, you know, Harlem or Chinatown in places like New York.

 

Leah Litman So there was, you know, among many revealing moments, a particular revealing moment that I wanted to highlight when Justice Alito let his I’ll just say unnamed flag and let listeners fill in the gaps. Anyway, it’s like when Justice Alito let a certain unnamed flag fly the argument. So I want to play a clip and just like highlight two things about it.

 

Deuel Ross As a practical matter, in every place in the South and maybe in other places, if the first single factor first jingles condition can be satisfied, will not the plaintiffs always run the table? Where where can they win? They’re not going to win. On whether the minority group is politically cohesive. They’re not going to win. On whether the majority votes as a block, which may be due to ideology and not have anything to do with race. It may be that black voters and white voters prefer different candidates now because they have different ideas about what the government should do. Where is the you know, where can the state win once it gets passed, once it loses on the first singles condition?

 

Leah Litman So two things as promised about this clip. You know, one is it seems like he’s basically saying, I’m concerned plaintiffs will win too much under Section two. So I’d like to find a way for the states to win. Unless you think this view is atypical on the Supreme Court. You know, as a lawyer in the Department of Justice, a young John Roberts wrote that Section two claim shouldn’t be too easy to prove. And here Justice Alito is like, well, surely it has to be the case that states get to do some vote dilution, like got a lot them, like do a little vote dilution, just to be fair. And then the oddity of saying the state isn’t going to win even though the groups are voting on the basis of ideology, not race was just like a really like wild leap and characterization, like given the history of this country like and communities like.

 

Deuel Ross I was particularly, you know, I think this case is a good example of how difficult it is to win section two cases. So Alabama below brought up the idea that it was ideology that was driving racially polarized voting. And we had to present evidence that there’s actually racially polarized voting in Republican primaries that when Ben Carson ran for president in Alabama in 2016, he got underwhelming, very little support from from white candidates. And so, you know, and you can see that in how the elections have turned out, it’s that white voters, regardless of their political party, are not the. Voting for black candidates and are not voting for the same candidates that black voters prefer. And that’s true in Alabama. It’s not necessarily true all over the country, but that shows that these cases are not easy to win. And even when you show something as stark as that, you know, you still have to prove all these other factors about a history of discrimination that does not exist everywhere. And again, Justice Sotomayor pointed out that plaintiffs are not on a winning streak with respect to Section two claims. Something like only 60% of Section two claims in the last 20 years have been won by plain or excuse me, only 40%. So most of them plaintiffs are losing.

 

Melissa Murray So Justice Sotomayor was not going to let these remarks, and that was not the only set of remarks reflecting that particular line of thinking. Stan So here’s what she had to say.

 

Clip Justice Alito gave the game away when he said race neutral means don’t look at community of interest because it’s a proxy for race. Regrettably, that is what it is in many situations. That’s why Mobile and Baldwin are together no matter what they talk about being around the river or not. That has very little to do with anything other than race.

 

Leah Litman I would like to now take bets on how soon Justice Alito will be emailing a comment to The Wall Street Journal about how it, quote, crosses a line for someone to say at oral argument that another justice quote gave the game away. But more seriously, I think her comment gets at something to while you were alluding to previously, which is Alabama’s argument is that they look better respected communities of interest by keeping Mobile and Baldwin County together rather than by keeping Mississippi’s black belts together that it is somehow okay and more appropriate to assess communities of interest, but only by ignoring race, which was just very, again, like strange when you just like lay it out like that.

 

Deuel Ross I think the even more bizarre part of Alabama’s argument to say that you should ignore race when redistricting is that they were relying on race to say that Mobile and Baldwin were a community of interest. They were saying that it was a white, French and Spanish community with colonial heritage, which is, you know, infused with this.

 

Kate Shaw No, no, that’s not race. That’s something else.

 

Melissa Murray Those are the communities in which you are interested.

 

Deuel Ross Right? Right. And the black belt is, you know, similarly a community of interest that has is majority black, but is shaped by Alabama’s very long history of plantation slavery and racial discrimination and housing and every other area. So it’s not that even Alabama wants to take race out of consideration in redistricting. They just don’t want black people to have the representation that their numbers would entitle them to in that section to the Voting Rights Act would entitle them to because of the history of discrimination that they face.

 

Kate Shaw So in addition to, Justice Sotomayor’s gave the game away line. Justice Kagan was incredibly direct, I thought, in calling out some of her colleagues, in particular Chief Justice Roberts, but also Justice Alito, both in describing the significance of the Voting Rights Act. She kind of repurposed some of her BRNOVICH dissent in talking about the incredible significance and promise, often unrealized, of the Voting Rights Act. And she decried very explicitly the court’s treatment of the Voting Rights Act. Right. She very dismissively invoked without naming him Chief Justice Roberts in Shelby County. Nope, we don’t need that. You know, Section five anymore. And Justice Alito in BRNOVICH. So maybe let’s play that clip here.

 

Clip You know, this is an important statute. It’s one of the great achievements of American democracy to achieve equal political opportunities regardless of race, to ensure that African-Americans could have as much political power as as as white Americans could. That’s a pretty big deal. And it was strengthened this statute in 1982 when this court interpreted it too narrowly for Congress’s taste. And Congress said, no, we didn’t mean that at all and made this into a results test. Now, in recent years, the statute has fared not well in this court. Shelby County looks at Section five and it says, Nope. Section five. We don’t need that anymore. And one of the things it says is we have section two and then Brnovich comes along and that’s a Section two case. And the court says, You know what, section two, that really dilution claims, you know, this is a denial claim. And and so we can construe that very narrowly. But of course, there’s just all these cases that are dilution claims. That’s really what Section two is about. And now here we are. Section two is a dilution claim. You know, the class act, section two dilution claim, and you’re asking us essentially to cut back substantially on our 40 years of precedent and to make this too extremely difficult to prevail on. So what’s left?

 

Leah Litman This had big like new term, same fuck shit energy to me here. And, you know, Justice Alito is going to have to add an additional comment to The Wall Street Journal about how this also crosses a line. But like, you know, more seriously, just a beat on her final question, like what’s going to be left of this law on some level like this argument? The argument in in Merrill versus Milligan was reminiscent to me of Brnovich, where it seemed like Justice Alito would insist we’re just interpreting section two of the Voting Rights Act for Voting Pre-condition cases like we’re not changing it, but actually at the same time was effectively amending the law by adding like all of these textual factors to it. And I think that no matter exactly how the court goes in this case, like if it rules for the state, it feels like they will be inevitably like diluting the protections of the Voting Rights Act. Like there was one moment at oral argument that was particularly revealing about this for me, and it’s when Justice Kagan asked the Alabama solicitor general whether under his theories, the state could draw a map with the zero zero districts in which black voters would be able to elect the candidate. Said their choice in Alabama was like, well, it depends on what the Voting Rights Act is trying to get at. And it’s like, is that really a mystery? Let’s just play that clip here.

 

Clip So you think that there are circumstances I mean, this is important to me because some of your arguments sweep extremely widely and maybe most of them that there are circumstances in which a population that is 27% of the state’s population could essentially be foreclosed from electing a candidate of their choice. Anywhere. Your Honor, there’s always going to be that intensely local appraisal to see what was going on there. Obviously, if we had had these guidelines and we passed a map that took us from one down to zero where we retain the cause of districts one through six, but not District seven, that would be an easy case. That would be, Lou, like all over again and be an easy case to bring. And also, I don’t think it. All depends on, you know, just it all depends. Well, it all depends on what section two is trying to get at. And I don’t think. Okay, well, I think what Section try is trying to get at is it’s trying to ensure equal political opportunities.

 

Deuel Ross The clip is really telling because, you know, Alabama for from 1970 to 1992 didn’t have any majority minority. Well, even before that, from from about 1870 until 1992, didn’t have any majority minority districts. And it’s only because of litigation brought under the Voting Rights Act that Alabama agreed to add the existing majority minority district that they have. So it’s not as if Alabama woke up one day and decided they were going to help black voters have representation. Alabama had to be sued 30 years ago to add even the district that they have now.

 

Leah Litman So we’ve spent a good amount of time recapping this case, talking about, you know, the like really dazzling performances by not just you do well, but also Justices Kagan, Sotomayor and Jackson. And a part of me wonders if Taylor Swift’s track on tonight’s question might be about some of Justice Jackson’s and Justice Kagan’s questions during this argument. I don’t know whether this is Sotomayor is a Taylor Swift fan, so I’m not sure if she’s covered, but if she is, I’m sure she would be anyways. Melissa, you had a great thread on Twitter about how the Democratic appointed justices willingness to fight and take it to Alabama mattered and across all of these interventions, even if it might not matter to the outcome in the case. So would you mind kind of recapping or sharing some of that with our listeners?

 

Melissa Murray Sure. I don’t want to sort of overstate things, you know, and Deuel, ou did an amazing job, but I think everyone agrees this looks grim and. I think what this meant to me was that even though the liberal wing of the court is battered, they’re not broken. And they showed up. They were ready to fight and they were ready to really take it to the other side to point out the inconsistencies, to point out the selective use of history and to absolutely be dazzling. And it functions on two levels. I mean, I think there’s a jurisprudential level at which, you know, they are trying to limit the damage that will inevitably come from the decision that this conservative bloc is going to reach. So limiting it so it doesn’t completely wipe out section two. But then I also think their performance is registered on the level of demos. Prudence like they weren’t just talking to each other and their colleagues, but talking to the world outside of 1/1 street and, you know, kind of reminding all of us that we can still fight. And to me, at least, this has been such a shitty summer. Like, literally all I’ve done is like think about and deal with the fallout from jobs. And it was just a really nice and bullying reminder that we can and should fight like they haven’t given up. Like, it’s hard. It’s going to be hard, but they’re more than up to this test and so are we.

 

Deuel Ross I think that’s absolutely right. That the you know, I I just Chief Justice Roberts voted to deny the stay. And that’s because the case was so straightforward. And Justice Kavanaugh wrote a concurrence where he said that, you know, it’s really 5050 on which way it could go. So taking Justice Kavanaugh at his word that he believed it was 5050 before the argument, I am certainly not giving up hope on the fact that the Voting Rights Act and this case can withstand whatever the new test the court may or may not come up with. And I think that, you know, really we have so many great facts in this specific case about a very clear black community that has been discriminated against as long as there’s been an Alabama and a really clear history that this is race and not politics or policy difference that are driving the lack of black representation in the state. And, you know, I remain hopeful and I think everyone should. That’s why we’re here. Sometimes you do litigation, sometimes you do write law review articles, sometimes you’re in the street protesting. But all of those things are important to continue to make sure we have the democracy that we want.

 

Kate Shaw Yeah, I think that’s a great place to end. Well, Deuel, thank you so much for taking the time to break this case down with us on a week at which you probably got like no sleep. So we are so grateful and more broadly, we’re so grateful to you and your LDF colleagues for all the amazing work you do. So thanks for being with us.

 

Deuel Ross Thank you.

 

Melissa Murray All right. That’s all we have time for today listeners. Remember, we gave you a jam packed episode this week, but next week we’re going to go back to some of our regular programing. So we will not only have recaps of oral arguments and previews and all of that stuff, but we’ll also cover the new cert grants that are going to be heard this term. And we’ll also come back with a little court culture, because it seems that the Federalist Society wants us to talk about them. So we’re going to talk a little court culture, clerkship, culture and the Federalist Society when we come back. So just stay tuned for that and thank you for listening.

 

Leah Litman Don’t forget that our first ever Strict Scrutiny, Crooked merch is here. This drop is all the excitement of a surprise ruling from the Supreme Court with none of the terror about losing any fundamental rights. It’s just two really cool T-shirts. So if we’ve been helping you get through the court’s current YOLO era with some vibes, this collection is for you. Head to Crooked dot com slash store to check it out. We also wanted to send well-wishes to our listeners who may be receiving the results from the bar exam that they took this past summer. And we wanted to give a special shout out to one of our earliest listeners, Tina Tabawata, for passing the bar exam. You go, girl!

 

Leah Litman Strict scrutiny is a Crooked Media production hosted and executive produced by me Leah Litman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell, Audio Engineering by Kyle Seglin Music by Eddie Cooper, production support from Michael Martinez, Sandy Girard and Ari Schwartz and Digital Support from Amelia Montooth. You can find us on Twitter @StrictScrutiny_ and on Instagram @StrictScrutinyPodcast. Meet us back here next week for recaps of the oral arguments of the second week of the term.