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- [00:01]
A
Ready? I was born ready. Welcome to the Advisory Opinions podcast. We are live here at the University of Texas Law School, home of several friends of the pod. Lisa Blatt, Greg Costa. Two I need to name we are going to start with the now famous let's Go Brandon case. Then we're gonna do some Voting Rights act fun stuff with the oral argument at the Supreme Court that if anyone tells you they understand the case, frankly, they're lying. And then we'll talk a little bit, hopefully about the indictment of John Bolton, which hits a little different than some of these previous indictments. And with that, let's kick it off. 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, 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 all right, we're back. David, let's start with the let's Go Brandon case, AKA BA versus Tri County Area Schools. Give a little shout out here to John Ross over at Short Circuit, the Institute for Justice's write up. It's hard to tell who's having the most Fun in this 6th Circuit case, whether it's the majority opinion carefully identifying which expletives were intended by which historical euphemisms, the dissent diligently cataloging the personal insults lobbed at American presidents over the centuries, or the middle school student plaintiff who complied with the directive to remove his let's Go Brandon sweatshirt only to reveal a let's Go Brandon T shirt underneath. But everybody seems to be having a good time. Okay, let's do some facts here. First of all, fact. These two middle school students, their brothers got let's Go Brandon sweatshirts for Christmas from their mom. So they were just wearing their Christmas present from their sweet, sweet mother. These kids just love their mommies, as my two boys do. The school's dress code specifically prohibits any quote, attire with messages or illustrations that are lewd, indecent, vulgar or profane or that advertise any product or service not permitted by law to minors. The two middle school students themselves testified that they had seen some of their peers wearing Make America Great Again apparel as well as other clothing endorsing Donald Trump. So this is not going to be a pure like we've seen in some of the two gender T shirt cases, for instance, where the school was allowing one viewpoint and not another viewpoint. Okay, now let's dive in to let's go Brandon and we will assume a level of zero knowledge on your behalf just so that I can read Judge Nalbandian's majority opinion recitation of the facts because it is so much fun. On October 2, 2021, Brandon Brown, a professional race car driver, scored his first major win at the Sparks 300, a NASCAR Xfinity Series race at the Talladega Super Speedway in Alabama. But it was what happened afterward that propelled his name into the national consciousness. During a post race interview with Brandon, the crowd began to audibly chant the phrase now this is a family podcast so I will censor for this group, but just know that it was not censored in Alabama that day. F. Joe Biden as the chant increased in volume, NBC Sports reporter Kelly Stavost interjected on live tv, you can hear the chants from the crowd, let's go Brandon. While it is unclear whether she had misheard the crowd or whether she was simply trying to put a fig leaf over the chance vulgarity, the damage was done. The clear disconnect between what the crowd was chanting and what Stavis had claimed caused the clip and its audio to proliferate. The phrase let's go Brandon became, for lack of a better term, a meme. From the beginning, the expression had a wide range of meanings. Some saw it as merely a euphemism for what the crowd really said, F. Joe Biden. Others used it as a shibboleth to express antipathy towards the then president and his policies. Still others used it to question what they perceived as liberal bias in media, based on the theory that NBC had been trying to hide the anti Biden sentiment on display at Talladega that day. Now let's move to our case at hand. So they show up with their let's Go Brandon sweatshirts. They asked them to remove it, revealing a let's Go Brandon T shirt. They have to remove that and put on school clothes. The two middle school students comply and then sue, arguing that this is a violation of their First Amendment rights. The principal says that this was simply about vulgarity, not viewpoint, et cetera. Now we have Tinker right? This is the black armband case from the Vietnam War. Under Tinker, schools can generally forbid or punish student speech that causes, quote, a substantial disruption of or material interference with school activities. Nobody Claims that that happened. But there are exceptions to tinker on school grounds. Schools may generally prohibit indecent, lewd and vulgar speech. Two, speech that promotes illegal drug use. Bong hits for Jesus, anyone? And three, speech that others may reasonably perceive as bearing the imprimatur of the school. Okay, this case is about the vulgarity exception. Two questions, as Judge Nalbandian put it. The first is linguistic, asking whether a phrase that lacks explicitly profane words might still have a vulgar meaning. The second is doctrinal, asking whether a school administrator may prohibit student political speech that has a vulgar meaning. David, this was 2 to 1. We have a spirited dissent from Judge Bush, also friend of the pod, basically saying there was no disruption, there was no actual vulgarity. Euphemism is not enough. David, where do you come down on this?
- [06:36]
B
I'm Team Bush on this one. Look, I mean, Bethel v. Frazier is the case that said that indecent, lewd vulgar speech can be banned on school grounds. It was actually related to a student assembly involving a student election.
- [06:51]
A
This is the vice presidential election for the student body. I'll just read a tiny portion of the speech because I had never actually gone back and read the student's speech. All of us will recognize this student from our high school days. Here's how his speech starts. I know a man who is firm. He's firm in his pants. He's firm in his shirt. His character is firm. Jeff is a man who will go to the very end, even the climax, for each and every one of you. So. So vote for Jeff for ASB vice president. He'll never come between you and the best of our high school can be. So they said that that was in fact vulgar and could be banned by the school.
- [07:31]
B
I had three words that came to my mind when I was reading this. Holy forking shirt balls. Sarah, I don't know if you saw the show the Good Place. So the Good Place is this show said in heaven. Allegedly. I don't want to spoil anything, but maybe I just did. It's a show set in heaven. People come back to life after dying and they realize they're in heaven because they're not capable of cursing. And so when they try to say it, it's forking it's shirt. It's whatever. And so it's actually kind of a. You see it in political writing sometimes now more irreverent, political, you know, Holy forking shirt balls. This was, you know, and you're getting through and past sort of the family newspaper censors and all of this, but the back channel reference to it is pretty clear. But as I was reading through this case, it sounds silly, but that phrase kept coming to my mind because it's just the fact of the matter that our language is full of euphemisms. Just full freaking heck dang. I mean, you can just look, growing up in the Church of Christ in the 1970s and 80s with an absolute going to hell prohibition on cursing, I was very adept at every imaginable euphemism, but they're just not the word. They're just not the word. And when I'm looking at a First Amendment standard, particularly around political speech, which is core, absolute, core protected speech, you're going to need to err on the side of speech, not on the err on the side of euphemism for the prohibited words.
- [09:09]
A
Okay, so here's my issue. For instance, if you. This whole episode is going to need an E warning. I'm sorry, we're going to give up on the family aspect of this somewhat at least. Okay. A student wears a shirt that says see you next Tuesday to school, S E, E. You know, next Tuesday. And do Google that if you don't know what I'm referring to. But it's sort of an acronym except for that first letter somehow anyway. Would you say the school can prohibit a student from wearing that?
- [09:38]
B
No, I don't think you.
- [09:39]
A
You don't think you can ban that. So I actually think you can ban that because first of all, to actually make it work, you would need to have it as a C letter, U letter, and then next Tuesday, or else it's not an acronym. And I think that is not a euphemism. I think that's an acronym, which is different, but I think it has no political message. What I think is interesting here that Judge Bush points out. I'll read a little bit from his dissent here. The majority essentially gives school administrators boundless discretion akin to. I know it when I see it. To redefine facially non vulgar speech as vulgarity in order to ban it only by interpreting. Let's go, Brandon. By its political meaning as opposed to a non political meaning, such as, for instance, student speech that cheers the achievements of a classmate named Brandon. Do the school officials claim authority to censor the message? If we allow schools the power to censor political speech by recharacterizing it as vulgarity, we risk turning disagreement with political speech into justification for its censorship, something the First Amendment flatly forbids. So I actually think that I can come up with a rule whereby you can ban the see you next Tuesday shirt, but you still can't ban let's go, Brandon.
- [10:47]
B
Well, I would say euphemism plus political messaging puts it on stronger ground than euphemism alone. But if we're talking with the presumption here, the background presumption is there's no evidence of disruption to the school. Because if there's evidence of disruption, then this is a whole different ball game.
- [11:03]
A
Yeah, the kid walks into class and everyone in class starts chanting, let's go, Brandon. Or the not euphemistic version. Obviously, the sweatshirt has caused that disruption.
- [11:13]
B
But in the circumstance where you're dealing with non disruptive euphemistic speech. I'm not the biggest fan of Bethel, Sarah. I'm not the biggest fan of Bethel. I don't like the ambiguity of the standard. I especially don't like the ambiguity of the standard as it's veering into euphemism. How much are we going to ask our administrators to be up on the latest in Urban Dictionary, if that's even a valid source anymore? I don't know. But the non disruptive euphemistic profanity, to me, that's just getting into very, very vague territory. And you see how vague it is because a lot of the discussion in the case was basically boiling down to how much discretion are we going to give the administrators to make the call between let's go, Brandon, and dang or frick or whatever other kind of euphemistic language?
- [12:06]
A
Also quoting here from the majority, the plaintiff. And there, Amiki can point to several historical examples of euphemism or other avoidance language being employed to disguise a vulgar or profane word, some of which are as old as this Nation. Footnote number two, highly recommend. For example, St. George Tucker, the renowned Virginian jurist and editor of the first American edition of Blackstone's commentaries in 1790, wrote a poem with the lines, g D your books, the testy father said, I'd not give for all you've read. While the meaning behind the first two blanks is self evident, scholars believe that the third is replacing an F, producing the first recorded example of the modern teenage mantra. I don't give an F. What is not to love about this opinion, guys? But look, I think that the majority isn't crazy. I guess either this isn't the place where you get to come up with your random memes, et cetera, with political messages. The fact that they do allow you to wear the straightforward MAGA hat, for instance, and your maga sweatshirt should be relevant here.
- [13:14]
B
Again, the ambiguity here. The ambiguity here is what's troubling to me. But again, if you're going back to the 6th Circuit and the majority opinion, I think Judge Bush has the better of the argument. But I don't think it's a slam dunk because the 6th Circuit is operating under the Bethel framework, and so are the words let's go, Brandon, enough removed from the kind and also reflecting a national political controversy or national political message. Is it enough removed from Bethel to be different? And I don't think that's a clear case.
- [13:48]
A
Okay, here's my problem, because I always fall back on the fact that the school at any point could simply change their dress code to not allow words on their sweatshirts. And that fixes this whole problem because I also feel for these school administrators who are dealing with, you know, 12 year old boys, literally. Like, what are they supposed to do with all of the memes, as you say? Well, you can just ban pictures and words on your clothes and they can wear, you know, solid colors, no problem. But the Frazier case problem, where he's giving this speech about, like, nothing will come between him and, you know, the students here, I don't know how the school's supposed to deal with that, except by saying that school administrators have a certain amount of leeway to say, we know what you're doing, you're not that clever. And no, you're not allowed to make sex jokes in your vice presidential speech, even if they're not overtly vulgar in nature. Except maybe you could argue the disruption thing was that disruptive when he gave it. And if not, who cares?
- [14:43]
B
The more I think about Bethel, the less I like Bethel, period. Unless you're gonna go with sort of a. Our public decency standard is the same as, say, the fcc, which is far more clear and unambiguous than this. But I certainly get the notion that, look, a high school administrator has an interest in not allowing their public speeches and addresses given by students to be defined by the lowest common denominator of student speech. I absolutely get that. My problem is when you're creating ambiguous standards on top of ambiguous standards, because as we've talked about in this podcast many times, the substantial disruption standard is now. It's a mess. It is an absolute mess. It seems to me that we are overdue for a clarifying student speech case. We had our favorite student speech case in modern history with the angry cheerleader recently, but I think we're overdue for clarification. Can substantial disruption Include the heckler's veto. Is that substantial disruption? Does this ban on lewd or indecent speech mean also anything adjacent to reminiscent of euphemistic for.
- [15:58]
A
Can you ban students from wearing a 69 sweatshirt to school?
- [16:02]
B
Well, I don't think they should be able to. But at the same time, all of this just is relentlessly pushing towards the logic of the school uniform, which is sort of one of the ironies is that you're a free speech attorney advocating for viewpoint neutrality and permissiveness. And then because viewpoint neutrality and permissiveness leads to a lot of Lowe's common denominator stuff, what they do is they shut the forum entirely. And so, ironically, sometimes your First Amendment advocacy ends up enclosing the forum. Like the dorm room doors, guys. 25, 30 years ago, dorm room doors were a potpourri of offensive language. Now they're pretty much empty except for whiteboards that people put up or faculty member doors. Faculty member doors. I think now, depending on the school, you're going to have a lot of pretty aggressive political sloganeering on faculty member doors. It's a lot less common than it used to be because, again, because of arguments and fights. And the only viewpoint neutral way to bring peace was to, in essence, close the forum. So I don't want there to be so much chaos that the answer is to close the forum. But also, it's absolutely clear that the current jurisprudence around student speech is kind of sort of a mess.
- [17:18]
A
Well, like I was saying to Professor Collis before this podcast started, I do think it's some sort of metaphor for generational differences that my generation, like, 69 was the, like, most hilarious thing you could, like, talk about in math class. And now the students are all about 67. And 69 was about sex. That's why we giggled. Six, seven is about nothing. And that's what this whole generation is into, jokes about absolutely nothing. All right, after this break, we are going to talk about Calais and the Voting Rights Act. We'll be right back. David. This case was argued last week at the Supreme Court, and the headlines coming out of it were kind of wild. Section 2 of the Voting Rights act set to disappear. Section 2 of the Voting Rights Act, Dead Man Walking was sort of the headline. And I got this call from a reporter that was like, I'm so confused. Were you listening to the argument? And I was like, yeah. And he's like, I'm looking at these headlines. But I listened to the argument, and I don't see how they're getting that. What did you think? And I was like, I honestly got more confused listening to the argument than I went into the case. And I'm more confused about the case than I was six months ago when it was first argued. I continue to get less informed about this case the more information we get. And I wanted to read Derek Mueller's take a famous professor at Notre Dame. I confess I found the litigation saga surrounding Calais quite complicated, including what precisely reargument was supposed to accomplish and why Justice Thomas wrote separately this summer, frustrated at the prospect of re argument and oral argument on Wednesday didn't really help. In short, then, my read is that whatever quote majority might come from the opinion is impossible to tell from oral argument. A range of views seem on the table from a narrow clarification of jingles. Talk about pronunciation problems. By the way, the justices themselves were all over the map on Gingals versus Jingles. It was, I mean, you couldn't even understand that part of the argument. From a narrow clarification of jingles that seemed to spot a problem, the lower court fell into to a broader reinterpretation of section 2 that overturns portions of jingles in the name of constitutional avoidance to, well, something that puts section two more squarely into constitutional question. If Derek Mueller doesn't know what happened in this case, let me assure you that no one else does either. No one should be sure of where this is headed because as Professor Mueller then went on I think to lay out really well, the justices didn't seem to agree on what they were doing there with this case.
- [20:07]
B
So I'm so glad you said all of this, Sarah. I've read the entire oral argument twice and I'm no more clear. I think I know sort of the overall parameters. I think the overall parameters are actually relatively easy to lay out if a political gerrymander is a matter that is non justiciable. In other words, the Supreme Court has already said we're taking our hands off of partisan gerrymandering. When I say political, I meant partisan gerrymandering where we're trying to clump together Republicans or crack apart Democrats or clump together Democrats and crack apart Republicans. Whatever you're doing, if it is a partisan gerrymander, we're not looking into that. That is, that is a matter of the political process. If, however, there has been a history and legacy of racial discrimination in districting, then that is resulting in the election of, for example, in the Deep south, zero black representatives or zero black representatives, zero in multiple across generations, then then you can engage in Some explicit race based gerrymandering to correct the existing race based gerrymandering. If there has been race based gerrymandering to depressed black representation, you can engage for a time in race based counter gerrymandering to restore black representation. Now, all of that in the abstract can make sense. But then when you lay over the fact that the way voting is broken down in the south and especially the Deep south, that the partisan gerrymander is the racial gerrymander and the racial gerrymander is the partisan gerrymander, because what you're dealing with in many of these states, unlike say, states like California or even like Texas, where they're very much more diverse and it's not just mainly white and black, it's white, black, Hispanic, Asian, et cetera, in the Deep south, the partisan polarization and the racial polarization are almost exactly identical. Do you analyze that kind of case under a partisan gerrymander formulation, which is hands off, or do you analyze it under a racial gerrymander formulation which is in limited circumstances hands on? And how do we determine when there's a partisan gerrymander, when race has been a big part of it? That to me has been what's behind all of this. But the actual outcome of the case, I can't discern from the oral argument, nor can I quite discern from the oral argument why they took it in the first place so quickly after Allen v. Milligan, which was the Alabama redistricting case decided in 2023, which I went back and looked because Justice Roberts in the questioning essentially says when the representatives, the oh gosh, was it naacp? NAACP representative gets up there and lawyer and argues and is relying on Allen v. Milligan, as I would if I were her. I would absolutely, I would just circle the wagons around this two year old precedent, plant my flag and say two year old precedent court, don't overrule it. Justice Roberts comes in and says we weren't really analyzing, were we, the constitutionality of Section 2 or the. And the answer was no. But then I went back and I read Alan B. Milligan and it's a deep dive into the history and Authorization for Section 2 of the Voting Rights Act. And so it would be weird to me if they did this deep dive into Section 2 two years ago of the statute that they believe is completely unconstitutional and then applied it anyway and then punted for two years to do the constitutional enact analysis. That feels a little strange. So I'm quite stumped as to how this is going to come out. And then I'll also say in going twice through the oral argument, it is not clear to me. It is not clear to me. And maybe I'm just the total outlier here. And I'm interested in your thoughts here. It's not clear to me that they're going to, in Essence, gut section 2. It was not clear to me from that oral argument.
- [24:25]
A
Okay, so let's remember how we got to this case, right? Louisiana initially has district maps with only one majority minority district. They get sued, just for ease of purposes here. They get sued from the left. No, you need two majority minority districts. The district court issues a preliminary injunction saying, yes, you do. So they're like, you know what? Let's not even deal with this. We'll just create a second one. Fine. Then they get sued from the right saying, nope, that's a racial gerrymander. The preliminary injunction isn't enough for you to do this, so you don't have some compelling governmental reason. And that's basically how we get here. And Louisiana's like, what are we supposed to do? If we have one, we get sued. If we have two, we get sued. This is ridiculous from a political standpoint. Just to explain this for a moment, it will feel in the media as if this is Republicans versus Democrats, right? That Republicans want as few majority minority districts as possible and Democrats want as many as possible. And the interests of black voters is totally circle, circle aligned with the interest of the Democratic Party. That is not reality on the ground. If you are a political operative, you know that Section two is actually something that the Republican Party loves and the Democratic Party hates. And so, oddly, black voters. And again, I'm painting in very broad brushes right now just to get this explanation out there, black voters are oddly aligned with the Republican Party on the use of Section 2 to draw these majority minority districts. Why? Because it concentrates as many Democratic voters as possible into as few districts as possible so that Republicans can then maximize the rest of their districts. Democrats have actually been in a bit of an awkward place in arguing against that, but they would love not to have Section two. It would increase Democratic representation in the House even as it would decrease black representation from Democratic members in the House. That's where this gets politically weird in terms of what its actual, like, non legal, real life effect would be.
- [26:40]
B
I don't know if that's true in the Deep south because the racial polarization in the Deep south is so extraordinary that. So, for example, it just means that.
- [26:49]
A
They get to have these, like, huge Democratic districts. And I mean, believe me, like, we've run all the numbers. There would be much harder districts for incumbent Republicans if they weren't allowed to section two gerrymander because they wouldn't have this packing issue. They are right now able to pack Democrats into districts in the deep South. Okay, but let me get to the legal stuff.
- [27:12]
B
Okay?
- [27:13]
A
Okay. When you experience an oral argument where you can't figure out where things are going and what the vote is, my suggestion to you is to sit there with the transcript and do the little find search for each justice and basically create a separate oral argument for each justice. Put all of Justice Barrett's questions together, put all of the Chief's questions together, and put all of Justice Kavanaugh's questions together, frankly, because they're your swing voters in most cases. And then see if you can see a cohesive like, ah, you know what? As it turns out, all three of them were sort of talking about the same thing. Or here was Justice Kavanaugh over there. Because when you're just listening to the oral argument as a whole, you can actually get a little bit misled by the people who talk the most or sort of have the most interesting questions to you or whatever that's gonna tend to be. You know, Justice Alito, for instance. Justice Alito isn't your swing vote here. Nevertheless, he did ask really good questions. Okay, so I wanna walk through sort of top line for each justice. Chief, he only asked one question, really. And it's all about Alan v. Milligan. To your point, David, it's all about precedent. Remember, this is going to be statutory stare decisis, our strongest precedent. So no surprise, right? The Chief is all about institutional concerns, upholding precedent. There is no vote from the Chief that overturns Alan v. Milligan. But if you're trying to get him on your side, you're figuring out a way to say we're not overturning Alan v. Milligan or changing it whatsoever. Alan v. Milligan didn't reach this, et cetera. Okay? That's the Chief. Kavanaugh. All of his questions were about time. Can we put a time limit on this? Like, sure, section two works. But like, with affirmative action, you only get 25 years or something. Like, what is the time limit? What legally would we base that on? When would time run out? And that's really all he asked about, which doesn't tell you what he would do if there's four votes for something else and his time. There's not five votes for his time point. What does he join? If he even writes a Separate concurrence on the time point. Okay, Justice Barrett, this is where it gets really hard. She's making a totally different point, and I'm going to try to explain it the best I can. Okay. City v. Bernie. This is a RFRA case, Religious freedom case. In City v. Bernie, they hold that the 14th Amendment prohibits states from depriving individuals of life, liberty, or property without due process of law or denying them equal protection of the laws. And then in order for Congress to enforce these provisions through Section 5 of the 14th Amendment, Section 5 just says that Congress can enforce these provisions through, quote, appropriate legislation. What City of Bernie says is that Section 5 does not give Congress the authority to create new constitutional rights or change the substance of the 14th Amendment's guarantees. It only allows Congress to enact laws that remedy or prevent constitutional violations. So the only valid exercise of a Section 5 power by Congress under the 14th Amendment must be congruent and proportional to the constitutional injury it seeks to address, because the statute itself is the remedy. So you're going to have Justice Barrett asking a lot of questions about whether the maps are the remedy for a Section 2 violation or whether Section 2 is a remedy. Because if Section 2 isn't a remedy, it's violating this City of Bernie problem. Right? It's not congruent and proportional. Because Section two. If we go back to sort of how we got to Section 2, right? In Mobile vs Bolden in 1980, the Supreme Court basically said Section 2 only involves the intentional discrimination on the basis of race. You put those voters in there for the purpose of limiting their voting power because of their race. Remember, 15th amendment, right? Now, I'll just read you that. 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. So Mobile versus Bold says on account of race means intentional discrimination. In 1982, Congress amends Section 2 of the Voting Rights act to basically say, totality of the circumstances if the result is denying a racial or language minority an equal opportunity to participate in the political process. So it doesn't have to be intentional discrimination anymore. Is that a remedy or is it creating a new constitutional right? So Justice Barrett is in this very in the weeds, I would argue, if it's not legal formalism, because I don't think it is, but maybe it's the substantive equivalent of legal formalism, which is Justice Barrett's whole dance. Like she is off in her own disco doing a different dance than any of the nine other eight Other justices and like, what a great example of that. So all of her questions are on this remedy versus new constitutional right. Again, where were the other votes for that? I don't know. Again, she's on her own. Then you have Alito trying to make three different arguments. One, partisan advantage versus race. How do you separate the two? They had a decent answer for that. They have studies that show that even in single districts that are all Democratic, that the white Democratic majority is still not voting for black Democratic candidates in the primary. And so they were able to show that it is not simply a partisan difference, but a racial difference.
- [32:44]
B
Can I float something? I don't want to disrupt your flow on Alito, but I think this is a great opportunity to talk about. Are there ways to make this more clear when it's a. When is it a racial gerrymander versus a partisan gerrymander? And one thing that's interesting to me is if you go back to Alan V. Milligan, it said until the gerrymander that was done, until gerrymandering, there was no black representative elective in Alabama since Reconstruction. Until the gerrymanders. Some of the facts in this, no black elected office holder to state office since Reconstruction in Louisiana, zero. I thought. Huh. Because there was a lot of discussion on how long do we keep going with sort of this section 2 analysis. How long? And I thought maybe one of the answers is until you see black candidates consistently elected to statewide office or any black candidates elected in majority white districts. Now, South Carolina, for example, is a state that has elected a black senator to statewide office. But if you're going to look at a lot of these Deep south states, and I looked at it before the podcast, it's stunning when you have, in some cases, 35, 40% of the population. Zero. Zero black office holders statewide. Zero since Reconstruction. So Louisiana, zero black officers.
- [34:10]
A
Yeah. But in the last several decades, there haven't been any Democrats except for the Senate race where you have what's his name who beats Roy Moore, briefly.
- [34:18]
B
The recent incumbent governor of Louisiana was a Democrat.
- [34:21]
A
That's true.
- [34:22]
B
Yeah.
- [34:22]
A
In Louisiana. Sorry, I was on Alabama.
- [34:24]
B
Yeah. So if you have a situation where. But again, this goes to the majority white districts that have not elected a black Republican. Right. And so my question is. Okay, wait a minute. Why are we having the conversation of are we now past the racial problem when you don't even have a single black elected official to statewide office in these states?
- [34:48]
A
I don't think the question was, are we past the racial problem? So Alito's first thing Basically trying to extend Ruso. Meaning if it's partisan gerrymandering, that's enough. As long as you can show that the reason you did this was partisan reasons, then it's up to the other side to show that in fact you did it for racial reasons. So it's about like burden shifting. Basically, he wants the burden to be on the side arguing racial discrimination. We will basically assume good faith partisan gerrymandering. That's his one. Number two, block voting by race and not party. You need to show that it's by race under the jingles test. And then number three, though, and this, by the way, if Calais goes this way, it will have been the least consequential case that anyone thought. Proving my point, by the way, that the big cases at the beginning of the term are not the big cases at the end. The media in particular defines big cases by which ones are divisive. In the end, which ones are six, three. Okay, so Alito's third argument, so to speak, was the jingles test on compactness. And let me just read you your jingles test here. The racial or language minority must be sufficiently large and geographically compact to constitute a majority in a single member district. The lower court, he argues, messed that up. They talked about the district being compact, that it's a pretty square, when in fact the minority group within the district was not compact. And so here's his example. The minority group must be sufficiently large and geographically compact to constitute a majority in a reasonably configured district. Did the Robinson court, which for our purposes is also this court, apply that, or did the Robinson court simply say that the district in question in the illustrative map, the majority minority district was correct. You have people from rural area in the northwest part of the state and you have people from an urban area many miles away combined in a district where just for the purposes of getting over 50% majority minority. I think you might only have five votes for that, David. That they messed up jingles one, that they didn't apply compactness correctly. Send it back down. And we're just going to keep litigating this case forever and ever. Because I can't count to five otherwise.
- [37:08]
B
It's hard for me to count to five for anything, anything, anything. So now this may go down. This may age very poorly that we end up with a 6, 3 gutting.
- [37:17]
A
Section 2 sort of dissertation won them all over.
- [37:21]
B
We may have that. I'm skeptical. We'll see.
- [37:25]
A
All right, David, let's take a quick break. And when we come back, we'll Talk about John Bolton and why this case hits a little different.
- [37:36]
B
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- [38:01]
A
Imagine fast hydration combined with balanced energy. Perfectly flavored with zero artificial sweeteners. Introducing Liquid Ivy's new energy multiplier, Sugar free. Unlike other energy drinks, you know the ones that make you feel like you're glitching. It's made with natural caffeine and electrolytes so you get the boost without the burnout. Liquid IV's new energy multiplier, Sugar free hydrating energy. Tap the banner to learn more. Okay, David John Bolton was indicted for keeping classified information in unclassified settings. Very similar to the indictment brought against Donald Trump in some respects. In terms of the actual charges, Donald Trump had boxes of maybe classified information in the bathroom here. John Bolton is keeping a diary while he is National Security Advisor for a future book and is sharing the diary entries with his daughter and wife who do not have security clearances. And he's sharing it on his AOL account and in unclassified channels. Now, all of these allegations of course, have not been proven in a court of law, but for the purpose of this podcast, let's assume that those facts are accurate. Is this lawfare or is this fine?
- [39:21]
B
Yes. So, but let's talk about a little bit about classified information because a lot of people have a lot of misconceptions about classified information. A lot of people think of classified information as the information on a document that says classified or on an email that says classified. No, no, no. That is not all of the classified information that exists. For example, if I read a document that says classified and I transcribe it and I send or the guts of the information, not even verbatim but the guts of the information and I put it on a non classified system and send it, I have just broken the law. I have just broken the law. Or let's say I receive information. So for example, when I was in Iraq, we knew I was part of the process of deciding what information, when we received information did we send it up through classified or non classified channels. I was very familiar with how we decide what is classified and what's not classified, and made those decisions. What we're dealing with here is him getting classified information, a big mix of classified and non classified information, creating diary entries that allegedly have classified information on them. They're not marked classified, but they have the classified information on them, and then sending them to his family in an insecure channel. And if those facts are proven true, then this would be a proper prosecution. It would absolutely be a proper prosecution if these facts are proven true. But you know who should be reading this right now and being very, very, very, very nervous is our current secretary of defense, Pete Hegseth. Because he did this. He did this. He took classified information. And by the way, I don't know how many people in here have military background, but if any of you guys have a military background and you hear someone say, hey, information on the precise nature of the strike package that we're about to launch from aircraft carriers into enemy territory defended by surface to air missiles, that that's not classified information. I don't even know what to say to you. I mean, I literally. I don't know what to say to you because it's about the very definition of classified information. And what did he do? He took this classified information, shared it on a signal chat that included the editor in chief of the Atlantic, and puts it out there. So this is where you might say, is it lawfare or is it meritorious? Well, yeah, in the four corners of the indictment. There's a lot of merit to this. Again, the four corners of the indictment accepting it as true. Now, on the lawfare element, where it would be lawfare is if he's prosecuted for this, and Pete Hegseth continues to operate as secretary of defense. That's where you see the lawfare. You have a person who has committed the same, in many ways, a very, very, very similar kind of offense that is operating as secretary of defense. And the political enemy, who is the former national security adviser, is facing federal charges for the same behavior. So that's why I say, is it lawfare? Yes. Is it a different case from Letitia James and James Comey? Yes.
- [42:31]
A
But do you think that a selective prosecution motion on. Based on what you said could be, you know, sustained.
- [42:42]
B
If your defense of your client in criminal defense is. I'm going to win on selective prosecution, just go ahead and also present the plea deal. Because winning on selective prosecution is very, very, very rare.
- [42:57]
A
But like, I think Tish James, I don't. I don't think that she will win on that. I don't think James Comey will win on that. But they have a far better selective prosecution motion to write and a vindictive prosecution motion to write. I don't think John Bolton has even a laughable one.
- [43:14]
B
Yeah, let's put the difference here is that with Tish James, with James Comey, you have a direction from the President, you have a firing of a U.S. attorney, you have a hiring of a new U.S. attorney, and you have two rushed indictments immediately after that, without at.
- [43:30]
A
Least one of which the Tish James one has never been brought by the Department of Justice in the way in which this is presented.
- [43:36]
B
So that's if you're going to have a meritorious vindictive prosecution motion. That's about the ideal with Bolton. The investigation began under Biden, and so I think that fact alone is fatal to a vindictive prosecution motion. This is an investigation that began under Biden. There's also. There was litigation around his book in which the judge in the case had UT Law grad. Ut law grad had lots of choice words for Bolton. So again, I'm not prejudging this case. I'm saying within the four corners of the indictment, this is a substantially more credible case than the one brought against Comey and against James. But I also, while I'm watching it, I'm just jumping up and down, waving my arms. Pete Hegseth is the current Secretary of Defense, and he did this.
- [44:26]
A
All right, let's take some questions. If you raise your hand and say your question, then I will repeat a less good version of it, probably. Oh, you have microphones. That's nice. Great. Okay, so the question is, is another version of sort of the narrow Calais outcome about a court order instead of sort of this 15th amendment, 14th amendment equal protection claim? Because there was also some talk about the fact that the state, what they're supposed to do with a court order, a lower court order that they think is wrong, can that be a compelling state interest if the state thinks it's wrong to allow them to do something that would then be unconstitutional? This, again was brought up by a couple of the justices. Actually, it's another very narrow way to answer this that makes it really unnecessary for the court to have taken this case in the first place. I mean, sort of mildly interesting, I guess, but the likelihood of a case coming up in this exact posture where this would have been like this great precedent to hold out in this case, it would mean that when Louisiana got that injunction saying that they had violated Section two, needed to create a second district, that they should have said, no, we think this is wrong and we will continue litigating it instead of then saying, fine, we're going to racially gerrymander a second district which then violated the Equal Protection clause. Yeah, I think that's, I would still call that an escape valve for the court, though, where they're not actually answering Section 2 constitutionality with the Equal Protection Clause and Justice Barrett's proposed point about the remedy and the City of Bernie problem on congruent and proportional section 5 of the 14th Amendment Language and Congress's powers to create the Voting Rights act in the first place.
- [46:13]
B
All I'm hoping for out of Calais right now. I want clarity on when you have a racial gerrymander and you have a partisan gerrymander, and the racial gerrymander and the partisan gerrymander are nearly perfect overlaps of each other.
- [46:26]
A
I don't think you're gonna get that.
- [46:27]
B
I don't think I am either. I don't think I don't get what I want often.
- [46:31]
A
Sarah David, what should the role of public higher education be taxpayer funded when it then conflicts with the First Amendment or academic freedom or any of these other standards?
- [46:44]
B
So this really is an excellent question and one that is for a very long time, for a very long time there was a, a real, and there still is to some degree, but a very real dispute as to what was academic freedom. Was it fundamentally institutional or was it individual? Is it some combination? In other words, the institution has some academic freedom. For example, Utah History Department could decide that military history is understudied now in the modern academy. So we're going to really orient our history program around military history. And so then if somebody comes in and they're a medieval, you know, they're a medieval agricultural historian, they don't have a First Amendment right to be a part of the. But if somebody's a Democrat and a military historian, then sort of screening out a professor because they're a Democrat, even though it meet all of the other criteria, you're starting to talk about First Amendment concerns. So for a long time there was this issue and still to some degree is an issue is this institutional or is this individual? And the Supreme Court, to the extent that it is, really weighed in on any way that's clarifying, has absolutely staked out the ground that it's both, that it's both institutional and it's individual, that there is liberty that an institution has. And this is where the, you know, the median primary voters say really does come into play. So however, that institutional academic freedom cannot fundamentally override individual Academic freedom, because the Supreme Court has said on a number of occasions that the freedom to study, to inquire, to learn in institutions of higher education is so fundamental that if it is deprived, the language that the Court has said is our culture will stagnate and die. That's pretty severe. And so it really does go down to the fundamental nature of what is academic freedom. And I think a lot of people who are in the current culture war, they want it to be institutional so that you can grab the institution from the top down and then direct the ideological education as if it's a K through 12 school, where it's been pretty well settled that to the extent there is anything like academic freedom in K12, it's just institutional. So there are a lot of people who want to seize the high grounds and then direct everything else. But what I would say is that's antithetical to the conception of academic freedom really from its beginning. So if you're going to go back to some of the beginning of the modern conception, you're going back to the German university model, late 19th century, moving into AAUP academic freedom pronouncements in 1915 and then again in 1940, which are really focused around professors and the vital role that the freedom that professors possess from a constitutional standpoint, it's both. It's both. And that's why the Supreme Court in Garcetti reserved the question of teaching and scholarship for this exclusion from free speech for state sponsored speech. So I think the answer is for the university to function as we understand universities now. It's both. However, I will say there are a lot of people who want universities, public universities, to be essentially extensions of K through 12. And if that's the case, then no. Academic freedom, limited free speech. All the academic freedom is institutional, which means state. And so. But at present, that's not where the courts are. That's not where the courts are.
- [50:14]
A
All right, I want to thank the University of Texas and in particular the First Amendment center here at the law school, and Professor Collis and Professor Tara Smith and all of you for having us. We're so grateful. And this has been an episode of Advisory Opinions. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters. And articles, you can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch Podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes. Two gift memberships to give away, access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us at Advisory opinions the dispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.
- [51:53]
B
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- [52:22]
A
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