Advisory Opinions – "Drive-By Rulings | Interview: J. Joel Alicea"

Podcast: Advisory Opinions | The Dispatch
Date: August 7, 2025
Hosts: Sarah Isgur (A), David French (C)
Guest: Professor J. Joel Alicea, Catholic University (B)

Episode Overview

This episode features Sarah Isgur and David French in discussion with Professor Joel Alicea about some of the most pressing legal questions before the Supreme Court: the evolving landscape of redistricting and Voting Rights Act (VRA) litigation, “drive-by” rulings, and the methodology behind the Court’s “text, history, and tradition” test (particularly in Second Amendment cases). The conversation weaves through the details of recent Supreme Court orders, the philosophical underpinnings of congressional acquiescence, the confounding overlap between partisan and racial gerrymandering, and ends with a lively debate about the strengths and pitfalls of current originalist theory.

Key Topics and Discussion Highlights

1. Voting Rights Act and Redistricting Orders

Timestamps: 02:06 – 08:36

• Background:
  The Supreme Court has recently issued stay orders in controversial redistricting cases. Central to one dispute is whether the VRA allows private citizens to sue or only authorizes the DOJ.

  • Case Highlighted: Turtle Mountain Band v. Howe (North Dakota): The 8th Circuit ruled the VRA creates no private right of action—the Supreme Court put that on hold.
  • Tea Leaves Reading: Majority of justices (Kavanaugh, Barrett, Roberts, Sotomayor, Jackson, Kagan) see at least enough doubt to stop the 8th Circuit’s ruling, while Thomas, Alito, and Gorsuch would let it stand.

• Congressional Acquiescence Explained:
  Professor Alicea (B) describes the doctrine (05:01):
  “It's the idea that when the Supreme Court has interpreted a statute a certain way and Congress legislates against that backdrop, that could be viewed as congressional sanction or approval.”

  • Conservative skepticism: Legal conservatives hesitate to assume congressional approval unless Congress clearly addresses the interpretation at issue.

• Drive-By Rulings:
  So-called “drive by” rulings—i.e., decisions/assumptions not squarely addressed by the court—create ambiguity for these statutory rights.

2. The Louisiana Redistricting Case (“Calais/Kale”) and the Supreme Court’s Surprising Move

Timestamps: 08:36 – 34:52

• Pronunciation Snafu:
  The team has some fun with how to pronounce “Calais,” with a brief audio from Chief Justice Roberts—no one agrees.

• Case Significance:
  The case’s procedural oddity: The Supreme Court held it over for reargument and added a new and far-reaching “question presented”—whether intentionally creating a second majority-minority district itself violates the 14th/15th Amendments.

• Past Jurisprudence Recap:

  • Rucho v. Common Cause (2019): Political (partisan) gerrymandering declared non-justiciable—a “Homer Simpson into the bushes” moment for the courts.
  • Allen v. Milligan (2023): SCOTUS struck down Alabama’s “race-neutral” maps for not sufficiently accounting for historical racial discrimination.

• Subtitle: “Batted Around by the Courts”
  Louisiana’s predicament:

  • Draw a map without a second Black district: sued for underinclusion.
  • Draw one with a second Black district: sued for overinclusion.
  • Judges disagree—no clear standard for the “right” amount of race-consciousness in map-drawing.

• Key Legal Tension:
  Sarah (A) sums up:
  “How does intentionally placing someone in a district based on race not violate Equal Protection?” (19:07)

• Potential Landmark:

  • The new question essentially asks whether Section 2 of the VRA is now itself unconstitutional as applied—given the Harvard affirmative action ruling’s apparent limits on race-based remediation.

• Notable Exchange:
  Professor Alicea points out Justice Kavanaugh’s focus:
  “He did nonetheless point out that...whether the race conscious remedy was going on for too long past the point where it was still constitutional had not been presented.” (20:21)
  The Court’s unusual re-writing of the QP (question presented) draws a comparison to Citizens United—a rare move with major potential consequences.

3. Partisan vs. Racial Gerrymanders: The Impossible Knot

Timestamps: 25:07 – 32:32

• Deep South Dynamics:
  David (C) lays out:
  “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.” (25:07)
  Stats show Black voters overwhelmingly Democrat, white voters overwhelmingly Republican in the Deep South, so every partisan map is also a racial map.

• Evolution of VRA Cases:

  • In the 1980s, VRA targeted overt structural barriers; today, the disputes look much more like nakedly political turf wars.
  • Louisiana, to create new majority-minority districts, must create “salamander” or convoluted districts previously seen as gerrymanders to undermine minorities.

• Affirmative Action Parallels:
  The episode draws a direct analogy to Harvard’s affirmative action ruling and wonders whether Section 2 now faces the same “expiration date” for race-based remedies.

• Judge’s Role (“Rucho Problem”):
  Sarah (A) underscores the risk of judicial mission creep:
  “It makes you question the appropriate role of judges and whether there is a discernable test...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...you used race too much.” (30:50)
  The system “pulls judges into some pretty crazy stuff,” with no clear rule for legislatures or courts to follow.

4. Text, History, and Tradition: The Bruen Debate

Timestamps: 34:52 – 53:45

• Setting the Stage:
  With Alicea’s new law review article as the backdrop, the hosts challenge the workability and coherence of the “text, history, and tradition” framework for Second Amendment cases (as embraced in Bruen).

• Summary of Bruen Two-Step:
  Alicea (B):
  “The first step is a textual analysis and the second step is a historical analysis...If the rights claimant succeeds...the burden shifts to the government...to show that there's a historical tradition that supports the regulation...” (37:21)

• Major Critiques:

  • David (C): Why look at old city council laws as reflective of constitutional meaning, when such bodies aren’t interpreters—especially given the Chevron reversal?
    Quote: “Why are we looking at to bodies, law making bodies that are not interpretive bodies to discern the meaning of a constitutional provision?” (39:29)
  • Sarah (A): Why would the Supreme Court rely on the “liquidation” of the Constitution by local councils 200 years ago but not today? (41:29)

• Alicea’s Defense:

  • Distinguishes between evidence of “popular understanding” at the Founding versus the views of modern legislatures.
  • Asserts that broad, widely-established early practices are important evidence—not just the acts of one outlier city council. (46:00)
  • On the absence of specific historical regulation (e.g., no Founding-era machine gun bans): “Nothing in Bruen prevents modern legislatures from dealing with problems that didn't exist in 1791.” (47:45)

• The Slog Over “Levels of Generality”:

  • Sarah points to the Rahimi case—where even the author of the test, Justice Thomas, dissented over the level of abstraction, exposing subjectivity.
  • Alicea concedes that “judicial judgment” is involved, but analogizes it to ordinary legal reasoning—the comparison of new facts to precedents. (53:45)

5. Originalism’s Evolution – And Its Unsolved Problems

Timestamps: 54:29 – 59:15

• Three Eras of Originalism:

  1. Originalism 1.0 (“easy dissent” era): Correcting clearly unconstitutional Warren/Burger Court decisions.
  2. Originalism 2.0 (Scalia’s heyday): Gradual movement to textual public meaning, more demanding historical analysis.
  3. Originalism 3.0 (“the college years”): Judges as historians, heavy reliance on digitized archives, confusion among lower courts.

• Sarah’s Skepticism:
  “It concerns me that there is so much confusion at the lower courts. It concerns me that judges are having to become historians...you couldn't do text, history and tradition except in an era of this level of technology.” (54:29)

• Alicea’s Pushback:

  • All originalism demands historical inquiry.
  • Disagreement among lower courts is overblown.
  • Founding-era lawyers and judges made these arguments using contemporary practices; today’s research tools just help us see what they already saw.

Notable Quotes & Memorable Moments

• On VRA Acquiescence:
  “The case for acquiescence is not very strong because you don't have the Supreme Court having addressed the issue in question...drive by rulings...”
  — Alicea (08:14)

• On the Supreme Court’s Unusual Conduct:
  “[The Court] rarely rewrites a QP. Why? Just like the...world behind these QPs, which are kind of the whole ball game.”
  — Sarah (19:40)

• On Racial-Political Overlap:
  “If you are going to do a partisan gerrymander...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.”
  — David (27:11)

• On Bruen and History:
  “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.”
  — Sarah (34:52, introducing the debate with a wink)

• On Law Review Article Impact:
  “Bruen is right. Your law review article made any potential babies?...If that's the metric, then you're right. You've won.”
  — Alicea (62:13), after a listener credits the podcast with his (literal) love life

Listener Email – AO Love Story

Timestamps: 59:21 – 62:22

• A charming email from a listener reveals that Advisory Opinions played cupid for him and his now-fiancée, a Hillary supporter, in law school.
• The couple listened, debated, and bonded over the podcast, which indirectly led to their first date and upcoming wedding.
• Sarah and David riff on the prospect of an AO-themed wedding and the generational legacy of “AO babies.”
• Sarah (A): “We were invited to do a live Pod from the wedding.” (61:09)
• Alicea (B): “If that's the metric, then you're right. You've won.” (62:13)

Final Thoughts

Timestamps: 62:22 – End

• Alicea’s article “Bruen is Right” is lauded as a robust defense of THT, even as Sarah challenges the methodology and calls for an “originalism 3.0.”
• The hosts leave listeners (and the constitutional bar) with an open challenge: To invent a better path forward for constitutional interpretation than the current clash between tiers of scrutiny and Bruen’s history-heavy approach.

Segment Timestamps

| Topic | Start | End | |---------------------------------------------------------------|---------|---------| | VRA, Private Right of Action, Drive-By Rulings | 02:06 | 08:36 | | Louisiana Redistricting Case – Calais/Kale and QP Twist | 08:36 | 23:52 | | Changing Racial/Political Dynamics and Judicial Confusion | 23:52 | 34:52 | | Bruen, Text/History/Tradition, and the Bruen Article | 34:52 | 53:45 | | Originalism's Past, Present, and Problems | 54:29 | 59:15 | | Listener Email & Lighthearted Closer | 59:21 | End |

Tone and Style

The conversation is lively, sharp, candid, and—despite the wonky subject matter—frequently witty. The hosts are unafraid to challenge their expert guest, and all parties move nimbly from high theory to concrete case facts, real-world consequences, and the human dimension of law and courts.

Useful for New Listeners

• This episode is a primer on the current VRA and redistricting battles—with deep dives on historical precedent, legal theory, and courtroom strategy.
• It’s also a field guide to today’s hottest constitutional methodology debates, delivered with clarity and a good deal of charm.
• Fans of legal history, SCOTUS watchers, and constitutional theorists will find lots to love—and plenty of food for thought about the future of originalism.