B (5:52)

I can absolutely see the other side. But if I'm reading, if I'm reading this, this is the key language. The principal reason for the 32 day default rule is to give a losing party time to prepare a petition for rehearing. In other words, this is not a 30 day or 32 day rule. There's just like, everybody needs to take a breather. It's 32 days because you're going to have an opportunity in that time to file a petition for a rehearing. And then it says, but here the Robinson Appellees have not expressed an intent to file such a petition, much less set out any ground on which a petition might be based. And the need for prompt action by the court is clear. The date scheduled for the beginning of early voting and the primary election is already passed. So I would feel very differently about this. If there was an intention to file a petition for rehearing and the petition for rehearing had good grounds to be filed and they, if they issue and they, and they just go ahead and go straight to judgment anyway, I would be thinking you're doing something unusual in contradiction for the meaning, for the reason for the rule. Here he's saying, yeah, we have a reason for the rule, but it doesn't apply here. And so in that circumstance, I feel like it's unusual but acceptable because of the facts that he explained in this opinion. So, so I have my own issues with Calais, as we have discussed. I have fewer issues with this because of that reason.

A (7:31)

Okay, now let's get to the meta question. The conservative honey badgers, Alito, Thomas and Gorsuch, they write this concurrence for the purpose of responding, quote, unquote, to the dissent. And it ends with this. The dissent accuses the court of, quote, unshackling itself from, quote, constraints. It is the dissent's rhetoric that lacks restraint. Let me read you now the end of Justice Jackson's dissent. The court unshackles itself from both constraints today and dives into the fray. And just like that, those principles give way to power because this abandon is unwarranted and unwise. Respectfully, I dissent, David. I get being frustrated with Justice Jackson. She, she does write these separate dissents more often than really any justice we've seen in Modern history. And she started doing it in her first year on the Court. You know, I think justice, the Chief justice rather took 10 years to write a solo dissent. She did three in her first term, something like that. Then again, he's Chief justice, she's not. I gotta say, I don't think there's anything inappropriate about her dissent here. I think it's written like every other dissent where you disagree with what the Court's doing. And she says, respectfully, I dissent, I don't agree with her dissent, but I have no beef with the tone.

B (8:57)

Interesting. I have beef when it says those principles give way to power. And the reason I have beef is that's an attribution to me that feels like they're attributing motives. It's not that I believe the reasoning is wrong, which I'm completely fine with that argument. But to then to say you have abandoned your principles, I would agree with that. If, for example, as I said earlier, there is an incoming motion for rehearing and they're going to short circuit at that by not following the 32 days. But if there's no motion for rehearing and the whole, and the purpose of the 32 days was to allow for rehearing, I don't, I don't know, I, I don't know. Maybe I'm particularly sensitive to sort of like the attribution of motives kind of argument that I really hate. I really dislike that form of argument unless there's very, very compelling reason for it. But yeah, I don't know. I, I, I thought that was a bit much.

A (9:54)

All right, David, it's time to get to questions. When we get back, didn't we say Congress do your job? They did. They passed the Voting Rights Act. All this and more coming up.

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A (13:13)

Let's get to some of our listener questions that we've gotten in about Calais because they were so great and so smart and made me think about a lot of different things about this. And I think it will illuminate the case further for every other listener. So thanks for raising your hand. Those of you who sent in these questions, let's start with one that Justice Jackson herself brings up, which is the idea that the court is violating the Purcell principle. Basically, the Purcell principle is federal courts should be thoughtful to allow elections to go on under a state's preferred voting requirements or maps or other rules or we've seen this in indictments of candidates potentially. It's come up in all sorts of contexts. And frankly, I think the Purcell principle has been stretched like taffy to try to cover whatever you think the other side is trying to do. If it's anywhere close or dealing with an election, it's like, well, Purcell principle, you can't change the rules three years away from the election. And the taffy has torn at this point. David, I think the Purcell principle is far beyond what the actual Purcell principle was about, which was basically in 2006 on the emergency docket, the shadow docket, whatever you want to call it, the Supreme Court vacated a lower court's order that had blocked an Arizona voter ID law during the 2006 midterm elections. And basically they were like, look, it might be one way or the other, but like, we're right before the election. We're not going to change this right now without explanation and everything else. The ninth Circuit hadn't provided any explanation. And the idea is about issuing these orders so close to an election. That's the basis for the original Purcell. So, David, we got two questions about this. One, doesn't Calais violate the Purcell principle? Right. They just issued a major opinion, you know, within weeks of various filing deadlines when these maps have to be confirmed. And now it's thrown the whole thing into chaos. And isn't that what the Purcell principle is about? I don't know that what I'm about to say is accepted by legal scholars across the spectrum or even by judges on the bench. But let me give you my take on this, David. The Purcell principle applies to lower courts dealing with last minute election challenges. Now, the last minute election challenge doesn't need to be the general election. It can absolutely be a primary election or a candidate filing deadline, if that's what the lawsuit is about. Right. So if you file a lawsuit having to do with a candidate filing deadline a month before the candidate filing deadline, that may trigger Purcell all by itself. But here's what I think. Purcell definitely does not apply to Supreme Court merits docket cases. Remember, this case was re argued, in fact. So this case has been at the Supreme Court for two terms. They have to issue the decision at some point. I don't think Purcell covers this whatsoever because this is a merits docket decision at the highest court. Purcell, I think, is Only lower courts. And I think it's, you know, again, injunctions, orders, stays, non merits based decisions.

B (16:38)

Interesting, because I had the same Purcell question myself as I thought about it in particular, because as we've seen some of the reaction to this, as we've seen a number of states trying to move to redistrict super fast, and that has raised Purcell questions for me. Must say that I've not previously thought Purcell is a procedural rule for non merits decisions in lower courts. So I, I had Purcell questions about this and I feel like the Purcell questions were being the reason for the Purcell questions are being amplified as we're watching sort of this wild scramble taking place in a lot of Southern states to try to, you know, for example, in Tennessee, they're trying to district out the Memphis representative to make the Tennessee slate 90 Republican in a state that's about 60, 40, 65, 35 Republican, Democratic. And so I had Purcell questions myself.

A (17:37)

I do think there's a separate Purcell question with issuing the mandate faster. That's of course, what Justice Jackson is talking about in her dissent. That's one of the two constraints she said the court had thrown off. That is at least closer to a procedural question to me than a merits question, though. Again, I think when you're talking about the Supreme Court issuing a mandate, the Purcell principle doesn't apply. I would also just say it's a principle, it's not a rule. There's nothing in the Constitution, there's no statute about it. And I feel like it is being weaponized by both sides. This isn't, you know, partisan, but rather this idea of I will prevent the federal courts from wading into this because Purcell is, is only used by the side that, you know, wants to benefit from Purcell. Like, and you're supposed to, you're a lawyer and an advocate. But I'm getting a little bit over the, the expansion of Purcell. I think Purcell needs to be kind of narrowed to its strongest form, which again is those lower court injunctions that people ask for right before an election that have to do with state rules.

B (18:42)

Yeah, it's, it's very interesting and you know, it. Part of, I do wish the Supreme Court had issued the, an opinion earlier, although this was still issued well before the end of the term. So it's issued, you know, before that June 30 end, when a lot of the most controversial cases, cases are, are issued. But interesting distinction. I'm not sure I'm on, I'm not sure I'm convinced.

A (19:11)

I'm not sure okay, David, let's go to more questions. This is from a listener. I was reading someone's substack about the decision where he began with slavery and then segregation, leading up to the passage of the vra. The writer wondered aloud if this decision could be remembered down the road in the same vein as Plessy v. Ferguson, which, if memory serves, involved the state of Louisiana. His reasoning is akin to Robert Kagan's the Jungle Grows Back. My question is, could it. Could this ruling unleash not just gerrymandering on steroids, but also actions that could disenfranchise blacks in Southern states? I know the court is concerned about process and not outcomes, but Plessy did, at the very least, cement some outcomes until Brown versus Board. A little background on me. I'm a native Michigander whose father grew up in Jim Crow Louisiana, Alexandria, to be exact. He told me stories of dealing with racism as a kid and joined a lot of blacks in moving north in the 1950s. David, what do you think?

B (20:10)

I'm worried about this. I'll be honest with you, Sarah. I think that there is going to be a scramble to gerrymander as much as possible. Now, there is going to be a possibility of raising, of creating the dummy mander because you do have, you know, some like Louisiana is a 6040 or 6633 state when it comes to black white. Mississippi might be, say, 60, 40 or whatever, and you're going to cut your margins a lot closer so that, you know, if you had a true wave election, you might end up. Things might not work out the way the gerrymanders want. At the same time, it is very possible that we will see just a decimation of black representation from the south, just a decimation of it. It's going to be hard honestly, to look at that and justify that to. To sit there and say, well, having. Having a region that is still, I believe, has the highest percentage of black representative or highest percentage of black citizens in America, having that represent, having almost no black representatives or very, very fewer black representatives because there was this extreme wish to, for a, quote, unquote, partisan gerrymander. When we both win, it's going to. Because of the racially polarized dynamics of the south, it becomes almost impossible to pull out and parse what's a partisan gerrymander versus a racist gerrymander. Unless somebody just verbalizes it and says it's for race reasons. I'm having a very hard time to seeing how it's good for the United States of America. Much less good for the culture in the American south. To just decimate black representation in the south in a head over heels rush to implement the most extreme partisan gerrymanders imaginable, and that is not going to be good for us. It's not going to be remotely good for us. It's going to heighten racial tension in the United States. It is a very bad deal. And I do think that we could look back in this, not necessarily because the decision itself and the language of the decision is bad, but because of the way that bad faith actors exploited this decision. I, I think is. I'm very worried about it. I'll be honest, I guess.

A (22:30)

David, look, I think this will gut black representation in Congress from the South. There's no question that that will be the effect of this decision. But it seems to me that the decision to read Section 2 of the Voting Rights act after the 1990 census to allow for blatant racial gerrymandering, this idea that you will draw districts because of race so that one racial group can elect someone from their racial group, that seems to me the thing that was kind of crazy that in 1990 we basically decided that one racial group gets to have districts drawn from them because we believe that they want to elect people of their race group. And so we're gonna draw districts to ensure that that can happen. And in doing so, by the way, allow the Republican Party to pack those districts with all of that racial group so that they can only elect one person and they will actually have less representation in the rest of the congressional districts that might be in that area, that, to me seems pretty gross. On the flip side, I completely accept your point that having less representation is not good for America.

B (23:49)

So I think the thing that ameliorates the gross. So I would say if you're just talking about, like walking in blind and you just say Mississippi is 60, 40 white black, and we need to draw districts so that the 40% of black citizens get to vote for black people and the 60% of white citizens vote for white people. Yeah, that'd be super gross. I think that'd be super gross. If you're walking into a system that has said that for hundreds of years the 40% have had every kind of procedural maneuvering possible thrown at them to deny them the ability to vote for and to actually have representatives of their choice, then it changes the equation. And this is why I had a really interesting sit down conversation with the folks in the Fifth Column podcast recently about this, which was a great conversation. When you watched the whole thing when you watch the super short clips that were clipped and edited and put on Twitter and very misleading. Here's the problem you have in the South. You have a situation where if this was actually sort of a really moving towards a post racial society, the best argument for that is the election of Tim Scott. Like South Carolina Senator Tim Scott. He's coming from the state that's the cradle of the Confederacy. He's a black Republican. He's won big margins, he's won a lot of white voters. And so that's a good argument that, look, we, we've made progress, but in interesting ways. He's almost like the exception that proves the rule. Because if you're looking at how many black representatives have been voted for by these majority white districts in the hundred and you know, X numbers of years since the end of Reconstruction isn't is the answer. It's either zero or close to zero. Like zero or close to zero of House districts that are majority white districts in the American south have voted for a black candidate. And so that's remarkable. That is absolutely remarkable and absolutely contradicts the idea that we have achieved anything like what we are hoping to achieve as far as sort of a post racial American society. And a lot of people hear me say that and they think, oh, David's saying that nothing has changed in the South. No, tons of things have changed in the South. It is a lot better than it was. But look, if you're looking at this and you're saying of hundreds of House races across more than thousands of House races across more than hundred years, and 0 times 0 times a black candidate has won in the white districts, zero or close to zero. I, I tried to find examples. That's alarming to me, especially when you come from an environment where you had the most virulent form of de Jura. You know, you had slavery, you had Jim Crow, you had all of this stuff, I just don't think we're as far advanced as we'd like to think we are.

A (26:57)

Oklahoma has had a few Watts, Shannon, Will Hurd in Texas, but I take your point. Okay, next question. First, I generally agree that Congress. Do your job is pretty much always the right answer, except maybe in the case of the Voting Rights Act. I'm not a lawyer, a cancer surgeon, so nowhere close. And I am just going on facts heard from different sources. But it seems like Congress did in fact update the Law in 2006 and the Supreme Court seems to have really just taken a significantly different interpretation of the law. So to me, this does read as the court acting politically. I did not hear anything about major questions in this debate. Great question. And we got lots of versions of this question, David. Right. Like we're railing about Congress doing laws. Well, look, they did a law and now the Supreme Court. Yeah, they didn't strike it down, but they basically were like, yeah, we're not actually gonna do that thing or it would violate the Constitution and we would strike it down. So we're not going to just on the major questions doctrine point, that is only about the President acting and whether Congress acting gave the president authority. So that's why major questions doctrine didn't come up in this debate. But the underlying point is definitely worth talking about. David. In the 80s and 90s, we were worried about Congress being the threat to the constitutional order. Right. So you have the Supreme Court restraining Congress by having more expansive or rather less expansive readings of the commerce clause. They strike down congressional laws saying actually Congress is supposed to have limited powers under the Constitution. They're not like a freewheeling righting of wrongs legislative entity in this case. Right. This is a tough balance to strike. I want Congress to do more stuff, but at the end of the day, I still want the Supreme Court to be counter majoritarian and to protect minority rights against the majority. Now, David, you raise all sorts of reasons why this case might have been wrongly decided. But if there were a case of Congress passing a law that categorized people by race that violated the equal protection clause, I would still want the court to strike that down even though it undermines my Congress do your job thing.

B (29:13)

Well, implicit in Congress do your job is the word constitutional. Constitutionally. In other words, it is within every, you know, within the executive branch, the legislative branch. Everything about do your job is subject to constitutional review. And so when Congress do your job, implicit within that is pass constitutional statutes. Now, I know that there's going to be dispute and good faith dispute as to when they've done that and not done that. But I'm just going to say section two, we read it aloud. When you, you read it aloud when we first started talking about Calais, it's not self evident how that is to be interpreted. Right. I mean, this is not a sharply precisely written statute. And so, you know, the question then is how much is the court going to defer to whom on interpreting it? I mean, it is not a cleanly written statute. Let's just get that out there.

A (30:18)

Yeah. And of course, like I've said many times, it was not applied, you know, thought to have Anything to do with redistricting from 1965 until after the 1990 census was the first time that we started doing this, which is what then flooded the courts with these racial gerrymandering cases. And I kind of think this is just another case of the court wanting to get out of the business of things that have pulled it into partisan fights. You saw them get out of the business of it with partisan gerrymandering. You're. And then everyone brings more racial gerrymandering cases because now they can't bring partisan gerrymandering cases. And the court's like, no, we're not doing these either. These are political questions. This is for the political process. If it is a partisan gerrymander, we're not doing it. And just because you call it a racial gerrymander, you better have proof that it actually is a racial gerrymander. We're not just dressing up partisan gerrymandering claims as racial gerrymandering claims, because that just pulls us back in once again to all of the fights we were in with the partisan gerrymandering. But now we just have to say whether it's a racial gerrymander. And the proof in the pudding, of course, is Texas and California do partisan gerrymanders. And the first thing we see are immediate lawsuits arguing that they are racial gerrymanders. And the court in both those cases is like, no, those maps are staying. And by the way, David, they weren't crazy cases. If Section 2 were interpreted the way that the, you know, plaintiffs who had brought those cases argued that it had been interpreted. I think both Texas and California fall as racial gerrymanders because they're required to take race into account, but only so much. Not too much. What is enough but not enough? Not too much. Oh, well, we're gonna have to run to court every single time to do that. And it was turning into a mess. Okay, next question. David, I don't understand why it's even a big deal to consider race and the furtherance of equity specifically for voting. Doesn't the 15th Amendment explicitly empower Congress to do exactly that? It literally says race a bridge. Congress can pass appropriate legislation. We always complain about Congress, do your job. But here Congress did a job explicitly given to them, and it was overturned. I get the 14th amendment might seem to push against this slightly, but don't higher ordinal amendments supersede lower ones? That's part of the definition of the word Amendment. Why wasn't this case two lines? The plain reading of the 15th amendment allows this. The Voting Rights act stands. This is breaking my textualist brain. Please help. David, I love this question because I love the idea of the 15th Amendment actually amending the 14th Amendment, which we haven't talked about this podcast for. Frankly, I haven't read law review articles about this, and of course that's exactly right. Anything the 15th amendment says that contradicts the 14th amendment, the 15th amendment wins.

B (33:15)

Yep, yep, true. But let's read it. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. The Congress shall have the power to enforce this article by appropriate legislation. So that means people of all races. All races have. They're protected by this. So what the court is essentially saying is if you're taking into account race to increase black representation, that might actually violate the 15th amendment. Because if you are doing a racial gerrymander that would limit the election of other candidates because you're wanting to allow for the election of another candidate on the basis of race, isn't this an actual kind of an equal protection. Isn't the 15th amendment actually an equal protection amendment with that extra, really time bound provision of previous condition of servitude because there are no currently living, you know, former slaves? So that what this is saying is that, in essence, you can't deny anyone on the basis of race or color, not just people who have been historically oppressed on the basis of race or color. So it really does read to me as a kind of equal protection provision. And so therefore, then that makes it very difficult because in some states in the union, as Justice Alito said in the opinion, there has been such explicit racial targeting of black voters that you're going to be allowed to do racial, racially conscious remedial measures to correct the explicit racial targeting. And it strikes me that the central question of our moment really is have we progressed far enough where that explicit remediation is not only no longer necessary, but then becomes unconstitutional itself? That is the $64,000 question. That is that really, when you're talking about voting rights cases in Louisiana and Alabama, it hits that much more than, say, a college admissions question in California or Massachusetts.

A (35:34)

All right, Dave. And we get back. We're getting to my favorite question, the one I've been waiting for us to answer. It's the whole reason we're doing this episode, frankly. Why is it okay to use race for reasonable suspicion, immigration stops, but not okay to use race to increase black representation in Congress. We'll be right back.

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A (36:28)

okay David, here's the question. We got many versions of this, but here's the one I'm reading with the ruling today. It feels like from my non legal background that the general rule that courts have been following is that if race is considered when providing a benefit like admissions or representation, that is illegal. But if race is considered for hurtful actions, travel bans, ICE profiling, that is okay so long as the stated point is not racism. David, I gotta tell you, I know this will annoy people because we do sort of a slow burn on this podcast sometimes where we have to sit with opinions for a long time to decide what we actually think about them. After we explain them on the podcast, I would like to revisit Noem Vasquez Perdomo. This was if you remember the emergency docket interim docket case about these immigration stops in California and a majority of the court lifted the injunction saying that they could continue doing these stops. I want to read you from Justice Kavanaugh's concurrence. That's why they're called Kavanaugh stops now. Now I am still annoyed that they're called Kavanaugh stops. You're, you know, criticizing the court for not writing down their thoughts for the emergency docket, but then you criticize them when they do write them down. But okay, whatever. Here's from the concurrence Immigration stops based on reasonable suspicion of illegal presence have been an important component of US Immigration enforcement for decades across several presidential administrations. In this case, however, the District Court enjoined U.S. immigration officers from making investigative stops in the Los Angeles area when the stops are based on the following factors or combination of factors 1 presence at a particular location such as bus stops, car washes, day labor, pickup sites, agricultural sites and the like two the type of work one does three Speaking Spanish or speaking English with an accent and four apparent race or ethnicity and then when he describes the holding in this interim docket decision to stop an individual for brief questioning about immigration status, the government must have reasonable suspicion that the individual is illegally present in the United States. Reasonable suspicion is a lesser requirement than probable cause, et cetera, et cetera. Here, those circumstances include that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area, that those individuals tend to gather in certain locations to seek daily work, that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English. To be clear, apparent ethnicity alone cannot furnish reasonable suspicion under this court's case law regarding immigration stops. However, it can be a relevant factor when considered along with other salient factors. David, I think that's just incorrect. I think it's incorrect based on the exact cases that this listener is citing. I think it's incorrect based on the Harvard case. I think it's incorrect based on the Calais case. This idea that anytime you are grouping someone because of their race, you are violating the 14th amendment is correct. That's why affirmative action is unconstitutional. That's why racial gerrymandering is unconstitutional, and that's why using apparent race or ethnicity as any factor in a reasonable suspicion stop is also unconstitutional. Remember, when it comes to gerrymandering, you couldn't use it as the primary factor. You couldn't do, you know, put someone in one district versus another because of race. It was just one relevant factor. In that sense, it looks a whole lot like the reasonable suspicion test. Both cannot be true. I much prefer living under a constitution that is black and white on this, so to speak. You cannot treat someone differently for any purpose, be it good purpose, bad purpose, helpful, harmful because of their race. It's not a relevant factor. The end of rant. How about you?

B (40:49)

Well, let me ask you. This person robs a bank and the part of the description is they're a black male, 6ft tall, 190, et cetera, and you're trying to find the person to arrest the, the robber, or they're a Hispanic male or a white male. They're. You're not. If you, if you went and you arrested me because I was wearing all of the. Everything exactly the same.

A (41:11)

So this is different, right? You don't know that Tom is an illegal alien and he's from Mexico. So now I'm looking for a Mexican illegal alien named Tom. No, you're stopping groups of people based on at least one relevant factor being their race, not because you know one guy committed a crime. You're doing reasonable suspicion stops. You know, if, again, if you're assessing someone as an individual and you know their race, nothing unconstitutional about that. No 14th amendment problem. But when you are treating someone as part of a group, you are violating the 14th Amendment, whether it is for good reasons or for bad reasons.

B (41:50)

Interesting, because I don't think the 14th Amendment is saying that you cannot consider race. It's an equal protection. It's an equal protection provision. Not a race is irrelevant.

A (42:01)

They have less protection. Right. If you are white and standing at a place where day laborers gather because you're from Syria or Norway or wherever the heck else, you are not subject to equal protection of the laws as the guy who's from Central America or Mexico because you might get stopped more often based on your race, not because of anything about you as an individual.

B (42:26)

I would agree with you. If, for example, we had huge waves. If we had huge waves of Norwegian immigration, illegal immigration, and huge waves of Mexican immigration and we said Hispanic ethnicity was a factor and not whatever Norwegians look like. Are they blonde? I don't know. So that would be an equal protection violation to me is if you had big waves of Norwegian immigration, you had big waves of Japanese immigration, you had big waves of Mexican immigration, and Hispanic identity was one factor among many. That would. To be. To be. But if you. Let me put it. Let's imagine you had something like, we've got a. You know, we have serious concerns about a Haitian terrorist ring. We could look for race as a factor there. It strikes me that there are circumstances in which race is relevant, but we can't choose that race will be relevant for one racial group and not for another racial group under the same circumstances.

A (43:29)

But do you see the tension between Perdomo and Calais?

B (43:32)

I. Absolutely. It's one of the questions as to why I'm questioning whether Calais is rightly decided.

A (43:38)

Oh, interesting. You're the other way. I think Perdomo is wrongly decided because I agree with Calais. You think Calais is wrongly decided because you agree with Perdomo?

B (43:48)

Yeah. So, for example, if you had a history of white slavery and white deprivation of voting in the south and not black, the distinction you have here is you have a very specific history that is related to race. Where you would violate the Constitution is if you did not give a similarly situated. Because the core principle of equal protection is not treat everyone the same that is not the same. That is not what equal protection means. Otherwise you would have 9 year olds able to get driver's licenses because it would be, you know, everyone has to be treated the same. No, it is similarly situated. People should be treated alike. And so who is similarly situated? And that's why I bring up the notion of like, if you had a Norwegian illegal immigration wave and a Mexican, and then you put out APBs for everyone to look like looked Mexican but not Norwegian, there's your equal protection violation.

A (44:43)

I think I really like this. I think this is the most important part of this podcast because I love that you're being consistent in the opposite way that I'm trying to be consistent. And I'm going to have to chew on this next question. David, I've also been trying and probably butchering this to square your Sarah Institutionalist consequentialist axis with the ideological axis on Calais. At a surface level, I could have seen Barrett Roberts Kavanaugh feeling institutionally pulled to uphold the new map and preserve the VRA framework. But instead it seems like the hierarchy of values tilted the other way and the ideological side won out. I'm sure that's an oversimplification, so I'd be curious how you think about that tension. Okay, first of all, David, I of course think ideology plays an important role in lots of cases, just not all of them. And just not, you know, all the cases that someone disagrees with the outcome of. So that's part one. But it's not that there's no ideology involved, of course there is. But two, in terms of how I would lay out the institutionalist concerns in Calais. And again, taking away any of the sort of merits question about Calais, it's back to that idea of the court continuing to be pulled into these partisan fights where it's a lose, lose, you're in a 5050 country. So every time the court has to decide an election case where the outcome will benefit one side and hurt the other side in a zero sum election, the court as an institution is being hurt by that. And so if you can avoid those cases, for instance, by saying we don't do partisan gerrymandering until and if Congress actually gives us principles by which we would do that, factors to consider when something is too partisan or not partisan or whatever, we're getting out of that business. Same thing again with the racial gerrymandering. People were dressing up partisan gerrymandering claims as racial gerrymandering claims. And they're really to your point, David, about section Two being incredibly vaguely written, there really weren't factors set by the statute. Instead, they had been judicially created and built up over time that created this sort of bizarre racial gerrymandering world where again, you must take into account race, you must not take into account race too much, which is how Louisiana gets sued when they only have one majority minority district and then they get sued again when they have two majority minority districts. And both times they lose in court. Like what? How can this be? So that's where I think the institutionalism factor weighs in here. Again, having nothing to do with kind of the merits.

B (47:23)

Let me just say I agree with the Kavanaugh concurrence that you cannot use race as a factor by itself. Like, you can't just say, well, I see somebody who's Hispanic, stop them. I just want to make that absolutely 100% clear. Okay. Anyway, this is a very good question because I do think that there are some cases in which the institutionalist concerns are. It's not clear. There are situations where I would say an incrementalist decision is clearly an institutionalist decision. But I didn't see that kind of path here. This seemed to be a pretty binary, this map or no. And it didn't strike me as very clear which one is the institutionalist path and which one isn't, I would suppose. Yeah, that's a very. I'll have to think about that more.

A (48:14)

Well, one non institutionalist path would have been to strike down the VRA because of the 14th Amendment, which they did not do. In that sense, they did take the more institutionalist, narrower decision. They did not. This was not a constitutional decision. This was a statutory interpretation case where they said, we don't think that Congress intended to force states to use race to draw these maps. So if a state uses race to draw its maps from now on, we absolutely will strike it down as a racial gerrymander. Anytime you use race in your map and there is evidence of you doing that, that is actually a much narrower decision than Section 2. Congress can never include, you know, a version of Section 2 of the Voting Rights act because it violates the Constitution.

B (49:01)

The reality is then, if you're talking about that they actually did do an actually more incremental decision. This is institutionalist in important ways. It's just that the public reaction to it is almost as. The public reaction to it is almost as big as it would be if they struck down section 2. The interesting consequence of it may be, almost especially in the Deep south, may be the same as if they struck down section 2. In other words, at the end result, if you're talking about decimating, gutting black representation in the south, the end result may be the same, even though, oh, the court did not go as far as it could have gone. In that sense, it's almost like an institutionalist decision, but because of the political atmosphere surrounding it, will have the same effect both in the public square and on the ground, as if they went all the way.

A (49:57)

All right, David, last question. Great show. But here is the sentence from the dissent in Louisiana versus Calais that I wish you would have read. Politicians have free reign. To adopt partisan gerrymanders is something every day to regret, not to use as an excuse for stripping minority rights. It boggles my mind that the spoils of victory in this country, if you are in the majority, is to banish your opponent via a redistricting map. We can go to the moon and back, map the entire genome, operate on a fetus's heart in utero. But the Supreme Court just throws up its hands when it comes to preventing a person's vote from being nullified. To me, it's frankly disgusting. David, again, we got lots of questions with this version of. Voting rights are being stripped from black Americans in the South. Their votes are being nullified. The sort of Jim Crow aspects of this. I want to be clear. I don't want to equate these two things. Race is different. There's a reason race is different in the Constitution and in our laws. But we don't consider it nullifying someone's vote in New England if you're Republican or in a rural part of Massachusetts, for instance. The vast majority of Massachusetts is actually relatively rural. So New England as a whole is about. What do you think, David, at 65, 60% Democrat to 40%, roughly Republican. It's actually more divided, like, more closely divided than I think people think.

B (51:29)

It's probably a complete mirror image of, like, Tennessee and Mississippi and Alabama, you know, it's. It's 65, 35, 60, 40.

A (51:36)

Yeah, something like that. There are zero members of Congress from New England that belong to the Republican Party. Again, I'm not equating this with race, but rather pointing out we didn't nullify someone's vote in New England just because they're a Republican and they don't get to have the candidate of their choice, you know, or a district drawn to ensure that Republicans get 40% of the districts in New England. So I don't. I'm very unsympathetic, I guess, to the nullification or that voting rights are being taken away from black Americans. There might be good reasons, David, and you have made them, for why we might want to or need to draw districts to ameliorate past discrimination for black Americans in the South. But not doing that is not taking away their right to vote or nullifying their votes just because they are not a majority by race in the district that they are voting. Or the black Americans who don't live in majority minority districts. What, their votes haven't counted this whole time? Like, nope, that's not the way we do this in this country. We do not have proportional representation by race, by party, by religion, or by anything else, or we wouldn't be able to have Congress. Right. Congress is not representative of proportionality, of all of these things that we think of ourselves. LGBTQ status, religion, race, ethnicity. Nope, we do not do that. We do it by where you live. And as long as you have the right to vote, you don't have the right to have proportional representation in Congress based on the status of your choice.

B (53:13)

So two things. One, I loathe what partisan gerrymandering has become. I think it's absurd that there are zero Republicans coming out of New England. And by the way, it would be better for America if there were, because you would have a greater diversity of Republicans. You would have more. It would be a bigger tent. Because to win in New England under fairly drawn districts, you would have to be a more moderate Republican in the same way that if you would have a ghost of chance of winning in the south as a Democrat and are more fairly drawn districts, you'd have to be a more moderate Democrat. Right. And so I think the partisan gerrymandering has become terrible for us. We took something that was bad and we turned it into something that was dreadful. Okay. And then you layer onto that Calais into this environment. And I know the court is not supposed to consider the surrounding cultural and political atmosphere. The Constitution is the Constitution. But you lay over this environment into the Calais decision, and that partisan gerrymandering is now going to be on steroids. So I loathe partisan gerrymandering, and I would want Congress to step in to do something about it. So that's number one. Number two, I really just think that we are getting to a point where there's almost this diametrically opposed view that people have on how much race, how much American racism still matters. And it's so funny. I've just been through, like, days of being absolutely piled on online about this from both sides. So on the one side is when I talked about Calais and how Calais could really give sanction to a lot of gross racism as long as they're quiet about it, which I think is nobody's like rebutted that on the merits. I think it's just true. It absolutely could do that. And then the argument is, well, that's absurd because that's just not the country we live in anymore. That just doesn't happen. And I'm thinking, are you sure about that? Really? And then on the other side, it's like if you have this view, you know, if you have a view where you are that you're against affirmative race based affirmative action or, or that you want American society to be moving in the more colorblind fashion, et cetera, that you're just like, you've got your head in the sand. You're an idiot. We're very much more like Jim Crow than you could possibly imagine. And it feels like we just get into this diametrically opposed set of extremes where we're one inch from Jim Crow on the other side and we've already achieved the colorblind paradise. And it's just the race hucksters on the left that are keeping us from achieving the, you know, the equal protection nirvana that's been envisioned by the 14th Amendment. When the reality is the truth is in a very messy middle ground there where it is actually true in parts of the country, racism is much more alive and well than you might like to think. And it is actually true in other parts of the country that sort of, that identity based politics that is reducing everything to race, trying to be in this quote, unquote beneficial way and is actually been incredibly toxic and incredibly damaging in certain parts of America. We had this incredibly, I don't know if you remember, but there was this great report we published in the Times about the identity sort of the DEI infrastructure at the University of Michigan and how toxic that had been and how intolerant that had been. And we're in a country where that can exist side by side with another part of the country where there's really actual serious, real racism that's much more reminiscent of Jim Crow than we might like. To think. That both of these things can be true at the same time, I think is breaking a lot of people's brains.

A (57:12)

All right, David, we're going to leave it there for this advisory opinions, the kaleopalooza of advisory opinions. And on the next episode. I mean, who. Who even knows? David? The Wall Street Journal highlighted a religious liberty case out of Massachusetts, and I don't know, we haven't done a lot of circuit deep dives since the Distillery circuit split between the fifth and the sixth. So I feel like there might be more to come on that front next time on Advisory Opinions.

C (57:41)

Okay, David, that's it for us today.

A (57:43)

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C (57:44)

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A (58:06)

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A (58:47)

Sam.