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- [00:01]
A
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And we have a very special return of a friend of the POD for for you today because we're going to do some Voting Rights Act Equal Protection clause redistricting. God knows it's in the news enough right now. And text history and tradition, the three stages of originalism. What's wrong with this? Coming up on Advisory Opinions and don't miss my email from a listener at the end. I want to talk to my fellow attorneys for a moment. Do you really want to spend time on the technical side of briefing blue booking tables, attention appendix assembly bait stamping or would you rather focus on your argument? Type Law can take your draft and exhibits and transform them into a court ready rule compliant E brief and appendix. Overnight they've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn more@typelaw.com and use referral code advisory to save 10% on your first order. That's TypeLaw.com this episode is brought to.
- [01:23]
B
You by Progressive Insurance. Fiscally responsible financial geniuses, monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds. Visit progressive.com to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations.
- [01:51]
A
And let's welcome returning friend of the POD Professor Joelle Alicea from Catholic University and director of the center for the Constitution and the Catholic Intellectual Tradition. Welcome back.
- [02:04]
B
Thanks Sarah. Glad to be here.
- [02:06]
A
So I tricked you into coming on this podcast to talk about your law review article on Bruen, but haha, we're going to start with redistricting which you know in constitutional law world is almost as far away from bruin and text history and tradition as you can get. And so this is a test of your emergency con law knowledge to get listeners up to speed on the latest news. We had two orders from the court that are of great interest to your podcast hosts. One in Turtle Mountain Band versus Howe, who's the Secretary of State of North Dakota. Remember this was a case where the 8th Circuit two times actually said that the Voting Rights act didn't create a private right of action. Meaning that if your if you as a voter felt like the district lines violated the equal protection clause, you could write a very strongly worded letter to the Department of Justice or to your congressman to call the Department of Justice but that you yourself couldn't file a lawsuit about that, that the Voting Rights act only allowed the federal Department of Justice to bring a lawsuit against that state. Our other friend of the pod, Judge Lee Radofsky in Arkansas, was the first district judge to hold that it didn't create a private right of action that was upheld by the 8th Circuit. This is actually the second then case, but we got an interesting order from the Supreme Court about a day before that decision was going to go into effect, meaning that any districts that had been redrawn because of lawsuits from groups or voters was going to be nopes. And the application for stay presented to Justice Kavanaugh and by him referred to the court is granted. Justice Thomas, Justice Alito, and Justice Gorsuch would deny the application. So if we're doing like the very highest, most simplistic version of this, basically, the six Justices, Kavanaugh, Barrett, the Chief, Sotomayor, Jackson, and Kagan probably think that the Voting Rights act does have a private right of action, or at least think that the 8th Circuit might have gotten this wrong enough that they want to put a stay on the whole thing. And then you have, of course, the other three justices saying that they agree probably with the 8th Circuit got it right. Again, if we're doing sort of likelihood of success and tea leave reading. The Supreme Court doesn't usually step in unless they think it was wrong. So, professor, will you talk a little bit about congressional acquiescence, which I think might be the best argument for why the 8th Circuit got this wrong. Textually, the Voting Rights act doesn't seem to talk about individuals getting to sue, but we've had individuals suing for 50, 70 years, however long it's been.
- [05:02]
B
Yeah. So congressional acquiescence is the idea that when the Supreme Court has interpreted a statute a certain way and Congress has legislated against the backdrop of those interpretations that that could be viewed as in some way congressional sanction or approval of the Supreme Court's interpretation of the statute. Now, there's a more extreme version of congressional acquiescence where Congress not intervening in the statute at all, with the backdrop of Supreme Court decisions is sufficient to be deemed congressional acquiescence. But that's a more difficult argument to make. So I think the argument here would have to be along the lines of your saying that perhaps congressional amendments or changes to the Voting Rights act against the backdrop of the. The Supreme Court's interpretation of a private right of action might very well constitute acquiescence. At least that seems to be the argument that you have in mind.
- [05:58]
A
It is. But now tell me why conservatives aren't big fans of congressional acquiescence.
- [06:04]
B
Legal conservatives tend to be skeptical of imputing congressional sanction to Supreme Court interpretations of a statute when you don't have better evidence that Congress actually was considering or aware of the Supreme Court's interpretation. So, for example, if you have a Supreme Court interpretation of a particular section of a statute and it's well established, and then Congress comes in and amends that exact same part of the statute or re enacts that exact same part of the statute, that seems like pretty good evidence, right, that Congress was fine with the Court's prior interpretation. But there are other situations where the Court has been willing to read congressional acquiescence into a statutory scheme where you don't have that kind of clear manifestation of congressional awareness of the specific interpretation on point.
- [06:59]
A
And vra, the Voting Rights act is somewhere in between. So it's going to get passed. You know, back in the 60s, there's going to be plenty of Supreme Court cases that kind of deal with the Voting Rights act, but none of them deal with the private right of action. But many of the cases were brought by private parties. But the question wasn't before the Court. But the private parties were before the court. They could have reached it. Maybe, maybe not. If it wasn't really briefed below, they didn't have to. Then let's use the 1980s amendments to the Voting Rights Act. You know, they changed the jingles test to the Voting Rights act, for instance. So they definitely went in there and messed with the mechanics of bringing Voting Rights act claims. But nobody said anything really about whether private parties could bring actions or not. And just let's stipulate, for my purposes, it didn't come up in any of the debates one way or the other. And so here we are. The text of the statute doesn't say anything about private parties bringing cases. It definitely contemplates DOJ bringing cases. But also, it's been 70 years. Congress has amended the statute, but they haven't touched this part. In the backdrop of the Supreme Court upholding the Voting Rights act, but not necessarily this part of it. Big picture. Professor Alicea, what do you think?
- [08:15]
B
Well, with the facts that you just laid out, it would strike me that the case for acquiescence is not very strong because you don't have the Supreme Court having addressed the issue in question. Right. It has at most been kind of as you, as you've described it, drive by rulings where the Court is just assuming something to be true, but hasn't actually squarely said so.
- [08:36]
A
I like drive by Rulings. Okay, so keep that listeners in your pocket as we talk about the next case, the big one, let's say now. Lot of dispute over how to pronounce this because it's Louisiana v. C A L L A I S. As a Texan who grew up near Louisiana, I would pronounce that Calais or Calais. Justice Barrett, who was in the oral argument for this when it was argued last term, never said the word. And she is of course from Louisiana, so I would defer to her as being the adjacent more expert than I am. However, we do have a pronunciation from the Chief justice who is not from anywhere near Louisiana, but usually tries to get the pronunciations right of people's names in particular. And he's called it. I'm going to play you the audio of how he said C A L L A I s. And remember, it's in Louisiana, so we always give those little French Cajun pronunciations. Are you ready for this?
- [09:42]
C
We will hear argument first this morning. Case 24 109, Louisiana vs. KLA and the consolidated case.
- [09:51]
A
What?
- [09:52]
C
Okay, so can I intervene here? I'm no Justice Barrett, but I did spend my entire first grade year living in Baton Rouge. And so how old are you in first grade? Six years old. So, yeah, so my six year old self descents from that pronunciation. I'm thinking Kale. Kale.
- [10:16]
A
All right, well, sorry that we cannot provide you more expertise on this podcast on the pronunciation of this, but the case itself is really interesting. It was argued last term and the Supreme Court at the end of the term was like, never mind, we're not deciding this this term. We're going to set up for re argument next term and we'll let you know why later. Well, it is now later. And they gave us a new question presented that the parties are supposed to argue about, which is whether the state's intentional creation of a second majority minority congressional district violates the 14th or 15th amendment to the U.S. constitution. That's a thunderclap. That's a really big deal in redistricting and Voting Rights act world. So let's. I'm going to do a very brief history of Voting Rights act litigation in the last 10 years or so. In 2019, we get the Rucho decision, which basically was the courts doing the Homer Simpson into the bushes when it comes to political redistricting. So if you're just arguing over whose map is more partisan and too partisan or not partisan enough, the courts are like, not our problem. That's a political question. Work it out amongst yourselves and Your voters who can hold you accountable for having maps that are so stupid. But we're not doing it anymore. However, when it comes to racial gerrymandering, the courts are very much still in the business of that. And two terms ago, this is three weeks before the Harvard affirmative action case was decided, they decided a case called Allen v. Milligan out of Alabama. Alabama is next door. Well, one more over from Louisiana. So it's like Louisiana, Mississippi, Alabama, Alabama's in the 11th Circuit, Louisiana's in the 5th Circuit. Some of that may be relevant if you think about it. Maybe not. Okay. In Allen v. Milligan, they struck down Alabama's attempts to have, quote, race neutral map drawing because of the requirements of Section 2 of the Voting Rights act and those jingles factors that I mentioned, that basically, if there's a minority group that votes together that has been historically discriminated against, that you need to sort of honor their political cohesiveness and draw them a district. Again, we're doing sort of rough justice here. But the point is, David, when you and I talked about Allen v. Milligan, we did not think this would be the outcome. It's one of those cases that I think I got extra wrong. And in the end, you were like, okay, I sort of see this history of discrimination, but. But they struck down Alabama, who was like, we are not taking race into account when drawing these maps. And the Supreme Court was like, oh, yes, you are, says the Chief justice of the United States.
- [13:01]
C
Yeah, it's very interesting, this new qp, because in some ways you would think, you would think that the 14th Amendment, parts of the. Part of the reason for the 14th Amendment was to take actually race into account for correcting. Correcting past racial discrimination and present racial discrimination, certainly when the amendment was ratified. And so when do you. When does an equal protection issue arise here? Obviously, if race has been used negatively, if you have been discriminated against on the basis of your race, steps can be taken to correct that. And that becomes. That's the Allen B. Milligan case. This is one where Justice Roberts, you know, in the, in the statement of facts, very vividly talked about how difficult it was for Alabama to elect a single black representative, just even one black representative, over the course of a very, very long time in the absence of this kind of legal intervention. And so on the one hand, it's designed from the ground up to deal with voting rights, to deal with racial discrimination. Okay, well, then let's flip it on the other side, though, and say, okay, what if there isn't the Direct, immediate past history of racial discrimination. And you're just saying, hey, we've got a certain racial composition in our state, our elected representatives should reflect that racial composition. Well, that's not going to fly. I don't think that's going to remotely fly under current Supreme Court jurisprudence where you would sort of say, okay, let's just in the abstract, look at the racial composition of the state and try to create a congressional delegation that matches that. That's going to be an unlawful racial gerrymander, but one that says, here's a long history of past discrimination of which we have a lot of concerns. It continues. That's when race is classically taken into account. And so it feels a lot like you have door number one versus door number two. Is this a racial gerrymander that's designed to create a certain racial outcome independent of existing or past discrimination, or do you have a racial gerrymander that is directly aimed at addressing the effects of past discrimination? That strikes me as two different kinds of analyses. And one thing about Allen v. Milligan that was interesting is how much that case depended on the specific history and the specific facts in Alabama, which kind of in some ways almost revived the pre clearance sort of analysis, except post clearance. In other words, there are certain states that are going to have in certain jurisdictions, they're going to have greater scrutiny than others. It's a very confused area of the law.
- [15:51]
A
What Dave is describing is called proportionality. This idea that if 10% of the population of your state is of x race, then 10% of your representatives need to be of X race. And we're going to draw maps to make sure that happens. That's the no go. But David, what you're overall describing, though, I think is still within section 2 of the Voting Rights Act. And that's where I think this new QP question presented is really interesting. But hold on a sec, because I need to tell you the facts of Allen v. Milligan or the process, I guess, and the process of Calais to really highlight the difference. So in Alan v. Milligan, Alabama draws its maps and a court's like, no, you need to take race into account. And Alabama says no. And they go up to the Supreme Court on that. In Louisiana, they draw their maps. A group sues and says, you need to take race into account. And Louisiana says, okay. And so they do. And they draw a second black majority minority district. And then a group of non African American voters, as they're called, sues on the other side and says, now it's a racial Gerrymander the other way. So Louisiana is getting batted around like, you know, a mouse with two cat paws on either side. On the one hand, they, you know, when they only had one district that was majority minority, they get sued. When a judge is like, oh, yeah, that's not enough. And then they create a second majority minority district, they get sued, and then the judges are like, yeah, no, that's too many. You're taking race into account. You're not allowed to do that. So. So the arguments the first time around looked much more like Alan V. Milligan in the sense that it was like, all right, let's look at the Voting Rights Act. Let's figure out what Section 2 requires. Let's look at this map. And you had the court say, we're not deciding it this term. Justice Thomas dissented from that and said we should have. Presumably he thought he had the votes for his side already. Who knows? And you have this new QP that isn't about section 2 at all. I'll read it again. Whether the state's intentional creation of a second majority minority congressional district violates the 14th or 15th Amendment to the US Constitution. The actual question presented here is whether Section 2 of the Voting Rights act violates the Equal Protection Clause. I mean, that's what I mean by a real thunderclap. That basically what Louisiana has argued, I think quite successfully, and Louisiana is defending their districts, but that, like, a judge was going to create their district maps. They were going to district Mike Johnson, the Speaker of the House, who's from Louisiana, against, you know, someone else. And it was going to be this, like, battle royale against five of their incumbents, one of whom, again, is the speaker of the House. And they were like, no, then fine, we'll draw the second majority minority district. That's fine with us. But they acknowledge that in doing so, an individual voter, I mean, many individual voters, but was put in one district versus another district because of their race. How does that not violate the Equal Protection Clause? Unless you take David's reading that the point of the Equal Protection Clause was to take race into account, at least to some extent. But again, Alan V. Milligan decided three weeks before the Harvard decision. So on the one hand, they knew Harvard was coming out, they knew what the vote was, and all of that. On the other hand, this is the first redistricting case after the Harvard decision, which says, look, there may be some time that you get to remedy past discrimination. In the Harvard affirmative action case, it was 25 years. You've had a lot more than that to do racial gerrymandering, the good kind or the bad kind, whatever. So either you should have fixed the problem or this isn't a good way to fix the problem. Either way, Section two of the Voting Rights act, maybe it didn't always violate the equal protection clause, but now in 2025, we think it does. Professor Alicea, I'm curious for your thoughts on any of that, but also why can you just talk to us a little bit about questions presented and the strategy when you're going to the Supreme Court? You know, I think Louisiana or Alabama for that matter, would have loved to have had this question presented, but they didn't pick that question presented. They picked much, much narrower ones. Sometimes advocates pick several ones. The Court rarely rewrites a QP. Why? Just like the what's the world behind these QPs, which are kind of the whole ball game.
- [20:21]
B
Yeah. So I think you touched on the, the biggest issue in thinking about this, this new qp, which is the timing of race conscious remedies. That was what Justice Kavanaugh pointed out in Allen vs. Milligan and his concurrence when, when he agreed with the majority that Section 2, the VRA, doesn't violate Congress's remedial authority as a general matter in requiring race conscious redistricting in some instances. He did nonetheless point out that in that case, the issue of whether the race conscious remedy was going on for too long past the point where it was still constitutional had not been presented. So Justice Kavanaugh left open the idea in Allen vs. Milligan that it could be that the VRA Section 2 race conscious remedial scheme is unconstitutional now, even if it wasn't previously. And I think it was notable that in the oral argument last term in I guess it's Kayle, Justice Kavanaugh's first, I'm pretty sure it was his first question at oral argument was about this quest, this issue about the timing of a race conscious remedy under section 2 of the VRA. Has it gone on for too long and become unconstitutional? And he circled back to that again during the oral argument. So I, I think there is a way to reconcile Allen versus Milligan's constitutional holding with SFFA and the potential holding in this, in this case, this, this Louisiana case that might say that the race conscious remedial scheme under section 2 is no longer constitutional. So I think exactly as you said, the, the, the big question will be is it no longer constitutional for the VRA to require race consciousness redistricting in some instances?
- [22:13]
A
And worth mentioning, the Vote in Allen, by the way, had the Chief, Kavanaugh, Jackson, Kagan and Sotomayor on the Alabama can't draw race neutral map side. So when it comes to this new QP and our tea leaf reading, we're really looking frankly at Justice Kavanaugh, to your point exactly.
- [22:34]
B
On the QP issue in general, QPs are really mysterious in a lot of ways. There are all sorts of strategic considerations, as you said, that go into the formulation of a QP by the petitioner. And the Court often does not rewrite the qp. It's actually unusual for the Court to rewrite a qp. It's even more unusual to do what it did here, which isn't to rewrite a qp, but to add a QP and hold over the case for re argument. I don't know how often that's happened. The last time I can remember, just from off the top of my head, was in Citizens United.
- [23:15]
A
That's the only one I can remember. Citizens United gets held over for oral argument with a new QP exactly like this. But I don't think there has been one in between 2010 and now.
- [23:25]
B
Yeah, I can't think of one if there has been one. And of course, that did lead to a much more far reaching decision in Citizens United than the case was originally argued under in the prior term. The fact that the Court has issued this order at least suggests that they were not able to get to five votes to resolve the case on the narrower grounds that it was argued in the previous term and that they might need to reach this more far reaching question to resolve the case.
- [23:52]
A
Some other thoughts here. David, to your point about historical types of discrimination, perhaps shoring up the constitutionality of something like Section 2 of the Voting Rights act, how do we think about the fact that voter turnout and registration rates look really different than they did when the VRA was initially passed? Or that, for instance, when we look back at the amendments to the VRA and some of the Court's big decisions in the 1980s, where these states were moving from, you know, when the VRA was really doing its work, you know, the big heavy lifting in the 1980s, a bunch of these states moved from single member districts to multi member districts for the purpose still of preventing black representatives from getting elected in those single member districts. So once again you have the VRA coming in and doing some real heavy, you know, bottom level clearing of the land to root out obvious intentional race discrimination in a way that again, you look at the voter registration numbers, the voter turnout Numbers. And really what we're arguing about here, it sure looks a lot more like politics these days than it did, for instance, in the 1980s or certainly the 1960s.
- [25:08]
C
Well, you know, one of the things that you've had emerge over the long sweep of time is that particularly in these states of the old Confederacy, the Deep south states of the old Confederacy is it is very difficult to distinguish between what is a partisan gerrymander and what is a racial gerrymander. It's so difficult, it's virtually impossible. So if you look at the racial breakdown in votings, in voting in other states, you will see, you will see racial differences in partisanship. Black voters, for example, are overwhelmingly Democratic all of all across the country, but white voters are not overwhelmingly Republican all across the country. So, you know, in a state like California, you'll have a majority of white voters who are also Democratic. But in the Deep south, what you have is very, very sharply distinct racial gerrymandering patterns. And so I mean racial voting patterns. So, for example, I've got the stats. This is from sort of the, when I wrote about Alan V. Milligan, 91% of black voters in the state voted For Biden in 2020, only 20% of white voters voted for Biden. And if you go through the states of the Deep south, you have very similar numbers. And so if you have in many of these states a partisan gerrymander, you actually end up with a racial gerrymander. And that's not exactly the same in other states. The, the Latino vote, for example, really shifts from state to state and location to location, which is one of the reasons why it was really weird for Democrats, for example, to think that a greater Hispanic population was going to mean greater Democratic control.
- [26:49]
A
When Texas is doing their mid cycle redistricting this time, part of what they are doing is trying to capture more majority Hispanic districts on the border that they think will then make up those five additional seats that they can pick up. That's based on in many ways a different type of partisan slash racial gerrymander about Latino voters. To your point, David.
- [27:11]
C
And so I think one of the key questions here that the court's going to have to wrestle with is what happens when a racial gerrymander and a partisan gerrymander are exactly the same thing. If you are going to do a partisan gerrymander to maximize your representation, let's say you're a majority Republican state, you're going to create basically the exact same map that you would create if you were a dyed in the wool racist. They would be the same map. One motivation is partisan, one motivation is racial. And that seems to me, Sarah, to be the core, the core conundrum in these Deep south gerrymander cases.
- [27:48]
A
It also seems like, again, looking back to what was happening in the 80s and the discrimination that the VRA was meant to combat, I talked about the single member districts moving to multi member districts and the purpose behind those. It's also the case that when we think about gerrymanders, right, the point is that it's supposed to look like a salamander. They were drawing salamandery districts for the purpose of denying majority representation to black voters. Now, in Louisiana, at least, it's really the opposite problem. The. In order to draw that second majority minority district, that's how you're getting these salamanders. So to go back to Allen v. Milligan in Alabama, for instance, they were having to connect a population in Mobile with a black population in Montgomery and having to argue that they have more in common, even though they're having to, like, travel 160 miles to make that district than black voters in Mobile would have with not black voters in Mobile. You know, maybe they both work on the docks together, maybe their kids are going to the same school, but, oh, they're different races. So that voter's gonna be with someone in a different city altogether. And I just think that's really hard to square, professor, with sffa, the affirmative action case, because this starts to look a lot like affirmative action for redistricting. And you look at those four factors from the Harvard, the Grutter cases, you know, race stereotyping. Now, I'll grant David that, like, the stereotype may be 91% accurate, but it's still stereotyping on the basis of race in a way that we just said you can't do in education. But Section 2 of the Voting Rights act may demand, which again, is why you get to the point where you're like, does that mean that Section 2 of the Voting Rights act violates the Equal protection clause in 2025 in a way that it didn't potentially in 1985?
- [29:41]
B
Yeah, I think that's right. That, that's a. The real conundrum here is that Section 2 of the Voting Rights act focuses on the effects on different races of changes to redistricting and other voting procedures, not necessarily intent. And so you might have redistricting, as David was saying, that was done on the basis of politics, but that has racial implications in terms of where. Where different voters are, are sorted and to then be required under the vra to consciously take race into account to allow for majority minority districts runs right into some of the language in sffa, as you were saying, Sarah. And I think that the, the best argument that the Defenders of Section 2 are going to have is to make the argument that such race conscious redistricting is still necessary to deal with racist state legislatures or other racial problems in voting in a way that wasn't true for affirmative action. That's the kind of argument I think they're going to have to make. And I agree with what I take to be your skepticism as to whether the court will accept that kind of argument.
- [30:51]
A
There's also this Russo problem. I brought up the political, the partisan gerrymandering and the court finding that that was a political question that they're going to get out of. Because some of this, I mean, the Louisiana facts are so perfectly teed up to make you question the appropriate role of judges and whether there is a discernible test that they're supposed to be using. When Louisiana has one map and judges are like, no, you didn't use race enough, and then they draw another map and a judge says, well, judges say you used race too much. What are we doing here at that point? Clearly, judges don't have a cognizable test for how much you're supposed to use race. So that states actually can draw constitutional and legal maps. Because, and this is worth maybe just a little bit of explanation, if the state doesn't draw a map that the judge thinks is lawful under the 14th Amendment and the Voting Rights Act Section 2, then the judge draws the map, which pulls judges into some pretty crazy stuff. And we've seen, for instance, that maybe one of the parties gets to draw the map, maybe the judge hires a map drawer and draws his own map, that it gets pretty messy. And I think that this court, what we're seeing recently, you know, Trump v. Casa is obviously the biggest example. They're really starting to think that judges have mission creeped beyond their article 3 lanes and racial gerrymandering again, where you have one set of judges saying you didn't use race enough and another set of judges saying you used race too much for the same state in the same redistricting cycle. I start thinking we have a Trump because of problem too.
- [32:33]
C
Well, I'm so glad we're talking about this in the backdrop of the Harvard case because, Sarah, remember we talked a lot about how much the historical context mattered and how much the universities, if you're going to look at sort of the longer sweep of the evolution of the jurisprudence. It really ended up mattering that they began with. If you go back to the Bakke decision, which was the first decision that really allowed for affirmative action, that's a case out of the University of California system, not out of Ole Miss, not out of Alabama. It's California. And one of the interesting decisions made early on in trying to justify affirmative action was we're doing affirmative action not to redress past discrimination, but we're doing affirmative action for the sake of diversity and that there's a compelling governmental interest in diversity. And one of the things that we talked about after Harvard was, would this have been different if instead of a Harvard decision, what you had was, say, an Ole Miss decision or an Alabama decision or a decision from Mississippi State or whatever, where you had a very, very, very different history, where that past discrimination was much more obvious and apparent? And this strikes me as the voting rights equivalent of a higher education diversity case coming out of the Deep south as opposed to coming out of the Northeast or the west, with the additional twist of the reality that the partisan gerrymander and the racial gerrymander just can't be pulled apart unlike other states, you just cannot pull this apart in the way that you can in a California or where elsewhere. So I. This strikes me as just a thorny, difficult case because as you were saying, Sarah, if the rule is a partisan gerrymander, even if unfair, sort of in a political sense, is just going to be fine. That's not justiciable. That's one rule. And the racial gerrymander, however, we can dive in and we can look at the racial gerrymander and the reason for it, et cetera. That's justiciable. Then you've got the situation like you have in Louisiana, and I don't know how you cut that knot. And it might be that the Supreme Court just basically washes his hands of the whole thing.
- [34:52]
A
All right, when we come back, we're going to viciously attack Professor Alicea over his latest article on text, history and tradition. As the days cool down, the coffee routine around here shifts. Comforting warm mugs in the crisp mornings, refreshing iced coffee in the sunny afternoons. No matter the season. Hot or cold. Trade recommends beans you'll love, Roasts them to order and delivers them right to your door. It's like having your favorite cafe on standby without ever leaving home. Trade is the number one coffee destination in the United States for both hot and cold coffee drinkers. They've sourced the best beans from over 50 top roasters across the United States. For cold brew lovers, they've teamed up with 15 roasters to create a special collection made just for cold brew. So every cup comes out smooth and delicious every time. Take their quiz and in under a minute they'll recommend coffees you'll love. If that first bag isn't quite right, no problem. Trade will replace it for free until they nail it. Right now Trade is offering 50% off a one month trial at drinktrade.com advisory that's drinktrade.com advis advisory to get 50% off your first month drinktrade.com advisory all right, we're back. So what do you should we start with the face? The body blows? What do you think? We have talked about Brahimi, as David Ladd has coined it, the Court's Second Amendment jurisprudence, where they have replaced tiers of scrutiny as we use in other parts of the Constitution, with text, history and traditional. You've written a law review article defending text, history and tradition, not just against those on the left who don't like it, but as you've noted, text history and tradition has really united legal scholars across the ideological landscape in opposition to its stupidity and unworkability. I'm not using your words here or theirs. So if you could start with the two steps in Bruen of how you do sort of a Second Amendment analysis under text, history and tradition and then defend yourself, I mean, defend the court, defend all of this, because we're pretty skeptical.
- [37:00]
B
You're right to say that as I note in the in the article, Bruen has managed the remarkable feat of uniting originalists and non originalists, progressives and conservatives alike in saying that Bruen was deeply wrong and mistaken its methodology. And I just think that all these scholars are mistaken.
- [37:20]
A
You're the only one who's right.
- [37:22]
B
I'm not the only one. Well, I'll say that Will Bode and Robert Leiter have also said some things in defense of Bruin. So I'm not totally alone, but mostly alone. So as you indicated, Sarah Bruin, its methodology, in my view, establishes a two step process for evaluating claims under the Second Amendment. The first step is a textual analysis and the second step is a historical analysis. So the first step, you ask whether the rights claimant, the person who's seeking protection under the Second Amendment, has shown that their proposed course of conduct falls within the plain meaning of the Second Amendment. And you do that just based on a linguistic analysis of what did these words mean when they were ratified? When they were ratified is itself a question, you know, 1791 versus 1868, we can get into that if you'd like. But whatever the relevant year is, that is a linguistic analysis, and most of that analysis has already been done by Heller. So there's not a whole lot new to do on that. You're just taking what Heller said about the meaning of the Second Amendment's text and applying it to the facts at hand. If the rights claimant succeeds in showing that his conduct falls within the Second Amendment's plain text, that means that the Second Amendment presumptively protects that course of conduct. And then the burden shifts to the government at step two to show that there's a historical tradition that supports the regulation that the government is defending. That is to say that the government must show that the regulation that it is defending relies on some underlying principle that can be found in the historical tradition of firearms regulation in our country. If the government can't do that, the regulation is invalid. If it can, then it carries its burden and the regulation is upheld. Which is what happened in Rahimi, where the federal government did succeed in showing that at step two, there was a historical tradition that supported the federal statute in that case.
- [39:30]
C
So, okay, let me, let's just, let's just get into it. I think that text, history and tradition is the, the phrase that we'd use in the Army. Is it briefs? Well, in other words, like in theory, that sounds like a great way to do originalist jurisprudence. After all, it's about original public meaning. What was the original public meaning? How do we discern what the original public meaning was? Well, one of the ways you might do it is look and see how people in that contemporary area reacted to it. But there's this blazing inconsistency here. So on the one hand, the Supreme Court has said when it overturned Chevron, for example, that if you have an agency that is not the judicial branch, so you have these, these administrative agencies, they're not the judicial branch. Their job is not to interpret the Constitution. Okay, so their job, that's not their job. But then we have this whole text, history and tradition thing where we're going back and we're looking at like the town council and Tombstone, the city council in Cincinnati, the state legislature in Kentucky, as if they're interpreting the Constitution. That's not their role. Now, of course, you know, even a member of a city council is supposed to uphold and protect the Constitution and attendant a Kentucky state legislature. Why are we looking at to bodies, law making bodies that are not interpretive bodies to discern the meaning of a constitutional provision, especially when there isn't even evidence often that these people considered the Constitution at all, at all in their decision making, which is often, by the way, very common in legislating now, is that these legislative bodies do not consider the Constitution. So I'm very curious as to this approach that says we're going to help interpret the Constitution by the interpretation of the Constitution by non interpretive bodies when we don't even know that they were actually interpreting the Constitution. Help me out here, Professor.
- [41:30]
A
To put it another way, the court wouldn't look to the Houston City Council now to determine the scope of the First Amendment. They would determine whether the Houston City Council had correctly determined the scope of the First Amendment. I'm thinking of that Houston Community College case from a couple terms ago. So if we wouldn't look to them now as authoritative, in fact we would be looking to determine whether they got it right or wrong. Why does 200 years matter?
- [41:59]
B
Yes, you all raise a lot of different issues there. I'll try to go through them one by one. So to begin with, there's no glaring inconsistency between Bruin and the court's decision to overturn Chevron in Loper Bright because you've just lost sight there, David, of the distinction between who is the relevant lawmaker, right. In the case of Loper Bright, the lawmaker is Congress and the President acting jointly to enact a statute. That means that what we care about is how Congress might have understood the law that they enacted. In the case of the Constitution, it is the people themselves. The people are the lawmaker, which means we care how the people would have understood the ratifiers would have understood the Constitution and in the Second Amendment's case, the ratifiers of the Second Amendment. And that means that it does matter what kind of practices we see in 1791 if that's the right year to look at as to popular understandings of the right that's enshrined in the Second Amendment. As Bruen says, the Second Amendment is not creating a right out of whole cloth. It is a pre existing right, a natural right that was understood long before 1791. And because it had a well understood meaning before 1791, looking at contemporaneous practices of the people as manifested through all sorts of lawmaking bodies throughout the country is good evidence of how that right was understood in 1791 when it was put into the Second Amendment or I should say declared and recognized in the Second Amendment. And I think your point just goes way too far, David, because it would basically mean that we also shouldn't look at treatises, we shouldn't look at newspaper accounts, we shouldn't look at anything that isn't the actual institution like Congress that proposed the Second Amendment's text, even though those are in fact very good and conventional originalist ways of getting at what the original understanding of that text was. Now, as to Sarah's point, Sarah's hypothetical about the Houston Town Council now, well, of course that is irrelevant because of a timing issue. We care about what the original understanding was, not what the understanding right now of Houston City Council is.
- [44:14]
C
Well, let's imagine that we amend the Constitution to limit the pardon power. Well, that wouldn't be it. We've amended the Constitution for X. Or yes. In the first five years after we amend the Constitution and then 100 years from now, if we have a new amendment to the Constitution and the Houston City Council is passing a law relevant to that topic, 100 years from now, the Houston City Council matters.
- [44:37]
B
If the Houston City Council is being used, I take your point to be there could be an example where a current amendment is being interpreted based on current practices as of today, including the practices of like some local city council. Is that the question?
- [44:54]
A
Tomorrow we ratify an amendment changing the pardon power and the next week the Houston City Council liquidates that language and is like, here's how we're interpreting that. I don't think the Supreme Court would say, well, the Houston City Council said X, so we're going to go with their liquidation ideas instead of our own.
- [45:11]
B
Right. I think that there's a pretty good reason why, and this is somewhat fighting the hypo. So if you'd like, we can tweak the hypo. But I think there's a good reason why the court probably wouldn't look to the Houston City Council's views in that specific situation. And that's because the pardon power is a pure positive law thing. It's something that just exists because it's in our Constitution that has no kind of pre existing natural right that's widely understood throughout society.
- [45:39]
A
You're right. I'm going to change the hypo. We have a new amendment changing basically superseding citizens United States. So readjusting the First Amendment and speech related to donations and contributions and expenditures.
- [45:54]
C
And the Houston City Council passes a regulation governing elections in the state, in the town.
- [46:01]
B
Yeah. So I do think that insofar as a constitutional provision is recognizing or altering the contours of a preexisting well understood Right. Then contemporaneous practice is good evidence of what that right was understood to mean at the time. And so it might very well be that in your hypothetical you would look at practices that were widely shared at the time. That's another point that I would make in response to your hypotheticals, which by focusing on one local city council is trying to load the dice to make it seem ridiculous. But of course, Bruin doesn't do that. Bruen looks to representative, well established, broadly held practices, not just something that one local city council did.
- [46:47]
A
I think you do a nice job in your piece of identifying the three major buckets of criticisms of Bruen. So the fallacy of absence. Right, We've discussed this as like, just because Congress didn't ban individuals from owning machine guns isn't great evidence that they didn't think they had the power to do so. Machine guns didn't exist. Or more to the point, the problem of mass shootings didn't exist. So why would they be legislating something that wasn't a problem? There weren't a whole bunch of people trying to get machine guns. So this idea of looking at the absence of legislation and being like, aha, well then, you know, we don't have a problem. Your pushback to that is that again, it's this pre existing. Right. But what if the problem didn't exist?
- [47:31]
B
If the problem didn't exist, then the.
- [47:33]
A
Problem of mass shootings didn't exist, then that to me, I think the fallacy of absence, the idea that they weren't legislating is not even related to whether they thought they had the power. There wasn't any problem that they needed to legislate against.
- [47:46]
B
Oh, well, nothing in Bruen prevents modern legislatures from dealing with problems that didn't exist in 1791. It's not like because there were no laws in 1791 relating to mass shootings, therefore legislatures today have no authority to deal with mass shootings. That is a simplistic understanding of what Bruen says and it's not what it says. What matters is whether there's some sort of historical principle that can be identified in the founding that supports the modern regulation, even if the specific problem being dealt with today was not present in 1791. Bruen is explicit about that.
- [48:20]
A
Yeah, but then you get to your bucket number two about the level of generality, because as we saw in Justice Thomas's dissent in Rahimi, I mean, that was a real level of generality. Thumb wrestle. They were having Justice Thomas, of course, writing Bruin creating Text, history and tradition. And then he's the sole dissenter in the next text, history and tradition case where they're all like, yeah, yeah, we're definitely applying text, history and tradition. And Justice Thomas is screaming, no, you're not. I am the liquidator of text, history and tradition. Speaking of original public meaning, this is my flipping test. And I'm telling you, you're not doing text, history and tradition because you're discerning principles up in the air, in the ether. And it should need to be a relatively one to one comparison. Which gets back to my problem of like, well, if mass shootings didn't exist, you're not going to have the one to one comparison. Or in the Rahimi case, domestic violence wasn't really a recognized crime. So of course you're not going to have domestic violence restraining orders, and you're certainly not going to have disarming people based on domestic violence restraining orders. Women, except in New Jersey up until 1807, couldn't vote.
- [49:26]
B
Yeah. Although I'll note that Justice Thomas did not dissent because he thought that you needed to find something as specific as a law that, that went, that dealt with domestic violence in particular. Right. He, he wasn't even going to go that low a level of generality in, in Rahimi. He had other reasons why he thought that the historical traditions relied on by the majority were at too high a level of generality. I think that Rahimi actually is a good example of the court getting the level of generality right, and that that level of generality did support the federal statute at issue in that case. And there are principled ways to figure out what the right level of generality is. That's not to say that there isn't an element of judicial judgment involved in this. Of course there is. In the same way that when a court is trying to figure out what was the holding of a prior case that could be stated at different levels of generality depending on what features, you know, the facts of the prior case you deem relevant or not to the holding. It's the same thing with historical tradition, that you have to look at a historical tradition and figure out what are the relevant features, legally relevant features of these prior practices that constitute the tradition and that establish a legal principle that we can now apply to a modern regulation.
- [50:41]
C
So I'm just curious how all this isn't just intermediate scrutiny. Anyway, let. Let's talk about text, history and tradition and AR15s or the equivalent assault weapon style. There were no, there's no Historical analog for those in the historical record. The firearms that existed were single shot firearms certainly in the 18th century. By the time you had some repeating of arms in the mid late 19th century, still nothing remotely like an AR15, like nothing in that. Certainly not widely available to the public. Nothing like an AR15. And so then if you're arguing about the regulation I've seen, okay, do we look at for example, historical regulations of firearms in the 19th century or do we look at historical regulation of say bowie knives or knives in the 19th century? Because the knives actually could be used repeatedly in a way that a listeners could not see me make a stabbing motion with my hand while I was doing it, but they can be used repeatedly, whereas the muskets at the time were just these single shot weapons. No even conception of what a mass shooting would look like, but a mass stabbing people could imagine that. So did then we look at knife regulation. Do you see how at that point it's just all judge, it's just the judge's judgment here at this point. Do I look at regulations involving flintlock muskets or to look at regulations involving big nasty knives? Which one is most relevant? That strikes me as very intermediate scrutiny. Ish, Professor. But is that fine? I guess. Is that just okay?
- [52:25]
B
I think that there's a pretty important difference between the scrutiny tests and the kind of analysis that you rightly point out a court would have to make, which is judging what kind of historical comparison is the right comparison to make. One analysis, The Bruin analysis is comparative in nature. I'm comparing a modern regulation with some alleged historical analog and trying to figure out whether they match up or not. That's a quite different analysis than under the scrutiny test, which ask whether I, the judge think that the government's interest is sufficiently important, whether I the judge, think that empirically what the regulation is doing really is satisfying the government's asserted interest. That comes down entirely to my own normative and empirical judgments. And that's not true under the Bruin analysis, where what we're trying to do is something that's conventional legal and historical work of comparing one set of practices with another. That's no different than what courts do every day in the common law tradition where they are comparing this case versus a prior case and trying to decide are they similar enough. And we wouldn't say that that is just unhindered normative judgment in the way that I think is true of the scrutiny tests.
- [53:46]
A
All right, we will come back and have more of Professor Alicea being wrong as well, as my three seasons of originalism explained right after this.
- [53:59]
D
Martha listens to her favorite band all the time. In the car, gym, even sleeping. So when they finally went on tour, Martha bundled her flight and hotel on Expedia to see them live. She saved so much, she got a seat close enough to actually see and hear them. Sort of you were made to scream from the front row. We were made to quietly save you more Expedia made to travel savings vary and subject to availability. Flight inclusive packages are atoll protected.
- [54:30]
A
And we're back. Let's do some bottom lining here because we have been doing originalism since let's call it 1985. And I've sort of put this and I don't want all the emails about Rehnquist 76 article. I really let's call that pre1985. It's proto originalism. Starting with Mies's speech in 85. I'm going to call that day one of the originalism project that I'm then going to put into Taylor Swift. Like the three eras of originalism. Originalism 1.0, frankly, it's in dissent. It's really easy to be in dissent. And just like there's all this low hanging fruit of atextual aconstitutional analysis that had come out of the Warren and Burger courts. So originalism 1.0 is just pulling down ripe mangoes, easy stuff. They don't even have to get on their tippy toes. Originalism 2.0, I'm going to, you know, kind of call the Scalia era. That's going to be sort of Scalia in his prime in the, you know, I don't know, mid to late 90s up and through his death in 2016 where yeah, originalism now is having to do some real work because the easy originalism is taking place at the circuit courts. If it's getting to the United States Supreme Court, they're having to decide some of the things that like easy originalism doesn't take care of that. Originalism 1.0 if you will. So like that's where we're, we're moving from oh, the intent of the founders to like ah, no, it's the ratifiers. It's original public meaning. We're putting more emphasis on the historical meaning of certain words at the time. My quintessential cases for this are Kyllo and Jones. The like GPS tracking device and the infrared technology and the Fourth Amendment. That's like pure originalism 2.0 Scalia era. Now we're in like, originalism, the college years. I'm wondering whether we maybe took a wrong turn here somewhere, because, yes, the end of the Scalia era, there were just questions that were. Originalism wasn't answering is maybe just the easiest way to say it. And so now you have Justice Thomas. You know, in the movie Glory, the flag has fallen. When Justice Scalia passes away, Justice Thomas picks up the flag to charge the rest of the Sandy Hill to take the parapet and I don't know, man. It concerns me that there is so much confusion at the lower courts. It concerns me that judges are having to become historians. It also, though, concerns me that you couldn't do text history and tradition except in an era of this level of technology, modern digitization of records and laws, and research tools that you can use to do text history and tradition. Originalism 2.0, with all of its failures, was really like, what do we think search and seizure meant at the time? And you could kind of sit there and work it out and give your best arguments. But now, yeah, we're looking at affray laws from, you know, 17, whatever, New Hampshire, I don't know. I don't know.
- [57:27]
B
Again, a lot of. Lot of points there. I'll just quickly say on the worry about district courts and lower court judges having to be historians. That's a problem from originalism 1.0 onward. Right. I mean, any form of originalism, if it actually reigns, is going to have to be requiring lower court judges to do historical work. That's always going to be an issue with originalism. So I don't think today's originalism is different than past originalism in that respect. On the disagreements among the lower courts, I think this is vastly overstated. As I say in my piece, Bruin was right. People are drawing pretty sweeping conclusions about disagreements in the lower courts based on, I think, very thin evidence. And attributing disagreements to Bruen's methodology in a way that I don't think is at all clear is attributable to Bruin's methodology. But leaving all that aside, I don't think it's true that Bruen is only possible. The methodology that Bruen requires is only possible now, as opposed to, you know, in 1791 or 1868. And the reason I say that is because when you look at legal sources from that period of 1791, for example, you see people making arguments very much like what Bruen requires, like saying, this is what the law is now in our practices, either in treatises saying that or courts or some political actors saying those types of things. So it's not as if people didn't have an awareness or an ability to understand, like what was the common practice set of historical and legal practices at a particular moment in time, absent our very sophisticated technology. It's just that now, with the distance in time, we need that kind of technology to recover something that was more broadly understood at the moment of ratification.
- [59:16]
A
All right, we're not going to let you leave just yet because we do have an important email to read.
- [59:21]
C
The beating shall continue until morale improves.
- [59:24]
A
So, David, I don't know if you've had a chance to read this email from a listener. I'm trapped in the United Club at o' Hare after a deposition. So I figured I'd regale you with something that will hopefully tickle your fancy. Ray. Advisory opinions. Dating games slash relationship advice. My lovely fiance and I first started dating in law school, due in no small part to advisory opinions. She came to the law school a Hillary fan girl. She founded Gators for Hillary and a religious listener to strict scrutiny. I was obviously a fed sock AO kind of guy. Long story short, but y' all had a podcast that dealt with an issue we were reading about in con law, and I borrowed summarized heavily from you and David. After class, she asked me how I knew to ask those questions. I said, advisory opinions. And so she started listening to advisory opinions. We then started grabbing coffees to talk about advisory opinions. By the end of the semester, we were great friends. Our first week back 2L year, and she pulled me aside and asked if I wanted to make out. She's going to hate that I said that, but it's a direct quote. The rest, they say, is history. Given that we had small section together, it's truly a miracle that she didn't try to stab me after a year in every waking academic minute together. But I'm not complaining. Today we listened to AO on our commute in beautiful Houston, Texas, or on laps around Memorial Park. She asked me to include that our favorite Tex Mex is condante, which I recognize makes us bourgeois yuppies. But alas, she's not wrong, David. We did it.
- [60:51]
C
I mean, at some point, Sarah, are we going to have to have an AO meetup of all of the AO couples? And then years later, there's going to be another one, and you're going to have the generations of AO babies spawned by the AO couples. I mean, this is generational change here, Sarah.
- [61:09]
A
It is. And just so you know, we were invited to do a live Pod from the wedding.
- [61:16]
C
Oh, my gosh. You want to talk about a memorable wedding in all the wrong ways? How is the wedding? Well, most of them, they give us great food, and you dance and there's a good band. The food was all right, but we listened to a legal podcast and they talked about standing like. What?
- [61:37]
A
Thank you for sending us the email, you two.
- [61:39]
C
That's a wonderful email. Thank you.
- [61:41]
A
Congrats on the wedding, which is happening in September. Our best wishes to the bride. And, you know, maybe we shouldn't do a live podcast at your wedding, but let us know if maybe there's something else that would be more appropriate. So, Professor Alicea, I think that proves that we're right about text, history and tradition. Like, you know, like, look, we made. We're making future AO babies has. Bruin is right. Your law review article made any potential babies?
- [62:13]
B
Not to my knowledge, no. So. So if that's. If that's the metric, then you're right. You. You've won.
- [62:22]
C
Little did you know that. That it is no longer is your law review article frequently cited. It is no longer. Is it mentioned in a Supreme Court opinion. It is. Did it create any relationships? That's. That's what we need to know.
- [62:40]
A
Professor Alicea, thank you for joining us on this special episode of Advisory Opinions, where you defend text, history, and tradition. As much as I enjoy sparring with you, you really made some excellent points. Again, the piece is called Bruin is Right. And I think what's great about it is you do tackle the best arguments against it and in a lot more detail than we were able to cover here. So I hope people will go and enjoy it. That being said, I still fear this is a bit of an originalism cul de sac. Even with all of your great defenses, though, part of your article we didn't get to was pointing out why tears of scrutiny is worse. I'm not sure I even disagree with you on that point. I want a third option. So listeners, I don't like tears of scrutiny. I don't like text, history and tradition. I want a better originalism 3.0, and I task you all with doing that. Figure it out, smart kids.