Gutting the Voting Rights Act | Interview: Judge Roy K. Altman

Summary

Advisory Opinions (The Dispatch)

Episode: Gutting the Voting Rights Act | Interview: Judge Roy K. Altman

Date: April 30, 2026
Hosts: Sarah Isgur, David French
Guest: Judge Roy K. Altman

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Episode Overview

This episode dives into two momentous Supreme Court decisions, both on the Voting Rights Act and the First Amendment, and discusses a raft of controversial indictments. The episode culminates in a rich interview with Judge Roy Altman about his new book, Israel on Trial, exploring legal claims against Israel and deeper questions about the American jury system and citizenship. The hosts maintain their signature lively, witty, and insightful tone throughout.

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Key Discussion Points & Insights

1. Supreme Court Decisions Recap

A. First Choice Women’s Resource Centers, Inc. v. Davenport (First Amendment Case)

• Segment Start: [03:45]

• Decision focused on whether a party subject to a state investigatory subpoena can bring a pre-enforcement federal lawsuit for First Amendment violations.

• Key Facts: A New Jersey crisis pregnancy center was issued a subpoena for its donor records despite no complaints against it, raising fears of donor intimidation and "chilling" of free speech.

• Discussion highlighted the bipartisan concern about government weaponization of subpoenas and the trend of state attorneys general leveraging investigations against ideological opponents.

• The unanimous (9-0) Supreme Court opinion, authored by Justice Gorsuch, affirmed access to federal courts for such cases, building on a legacy of robust First Amendment protection.

• Notable Quote:

  • "Since the 1950s, this court has confronted one official demand after another, like the Attorney General's. Over and again, we have held those demands burdened the exercise of First Amendment rights." – Sarah Isgur [14:23] (reading Justice Gorsuch)

• Broader Insight:
  The case echoes NAACP v. Alabama, underscoring the Court’s instinct to protect free association and speech, regardless of the side of the culture war involved. There’s a consensus that modern First Amendment cases are less about abortion and more about broad civil liberties, partly because Dobbs returned abortion to state politics, moderating its centrality to judicial culture wars.

B. Calais – Section 2 of the Voting Rights Act

• Segment Start: [20:53]

• Section 2 case discussed Louisiana's attempts to draw majority-minority districts post-2020 census, ensuing lawsuits, and contradictory lower-court mandates.

• The decision (6-3, opinion by Justice Alito) held that Section 2 liability under the Voting Rights Act requires strong evidence of intentional discrimination, not just disparate impact, significantly narrowing the law’s applicability to redistricting.

• Justice Thomas (joined by Gorsuch) concurred, advocating abolishing Section 2 redistricting claims altogether.

• The hosts trace the law’s textual ambiguities and bipartisan origins (amended in 1982 under Reagan for disparate impact), and explain the rise of racial vs. partisan gerrymandering disputes.

• Notable Quotes:

  • "I mean, you gotta love Justice Thomas coming in with the like, what if we don't do this at all anymore?" – Sarah Isgur [24:01]
  • "You're just a few shrewd racists away from gutting black representation in the South." – David French [40:55]

• Broader Insight:
  The ruling doesn't formally end Section 2 claims but massively raises the evidentiary bar. The hosts explain the "one-two punch": By declaring partisan gerrymandering nonjusticiable, courts now see challenges reframed under Section 2 as "racial" – even as the distinction in the Deep South is often blurred. Kagan's dissent warns of catastrophic effects for minority representation, and the hosts agree the real-world impact will depend on the "pudding" of case outcomes.

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2. Indictments Segment

• Segment Start: [42:28]

• Discussed two new indictments:

  • The Southern Poverty Law Center, accused of fraud by paying KKK members as informants while representing themselves as fighting racist entities — hosts find the theory odd, comparing it to standard police tactics.
  • A fresh indictment of James Comey for allegedly "threatening the president" over a cryptically captioned seashell photo on Instagram — hosts ridicule it as a chilling attack on free speech and political hyperbole, referencing Supreme Court precedent (Watts v. United States).

• The segment explores the chilling effect of such prosecutions, drawing parallels to “messing with the other party’s primaries” for cynical gain.

• Notable Quotes:

  • "It's a joke as an indictment, but it's absolutely an assault on free speech." – David French [44:50]
  • "The point is to chill the next James Comey." – Sarah Isgur [45:40]

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3. Interview: Judge Roy K. Altman – Israel on Trial

Purpose and Methodology

• Segment Start: [52:02]
• Judge Altman describes writing as an American citizen concerned about the rule of law and the modern struggle to discern truth from fiction, especially concerning Israel.
• He identifies six legal claims at the core of mainstream anti-Israel rhetoric (genocide, apartheid, colonialism, occupation, etc.) and applies neutral, courtroom-tested legal methodology in his book to systematically address each.
• The book is structured so each chapter is a discrete “trial” of a different claim, presenting evidence and rendering a verdict (without spoilers).

Deep Dives

• Colonialism Claim:
  • Dissects the concept historically and explains why Israel’s historical, archaeological, and genetic ties mark it uniquely as an indigenous, not colonial, nation-state.
  • "If we care at all about the rights of indigenous people, if we care at all about decolonization struggles... then we should recognize that the modern state of Israel is the great decolonization struggle." – Judge Altman [55:14]
• Occupation / West Bank:
  • Under international law, occupation requires the territory belong to another state, and that multiple peace offers to Palestinians rejected undermine the occupation narrative.
  • “You can’t go to the ice cream store and say...you stole from me because you never gave me the ice cream cone.” [58:24]

On Judicial Speech & Legal Methodology

• Meta Discussion: [65:47]
  • Explores propriety of judges writing or speaking on divisive social and legal topics. Judge Altman insists the distinction is not “politics” but whether opinions rest on legal reasoning and historical evidence, avoiding partisan advocacy.
  • "Just because a legal question can be debated and discussed and brought to the fore in a political context doesn't make it political." – Judge Altman [66:45]
  • The book avoids contemporary political figures/controversy and focuses on timeless legal analysis.

On the Jury System and Civic Duty

• Segment Start: [68:55]
  • Judge Altman expresses deep faith in American juries and the democratic process of collective truth-finding, recounting moving personal stories from his court that illustrate the dignity and gratitude of jury service.
  • Both hosts and Judge Altman lament the declining frequency and cultural esteem for jury trials, agreeing on their unique importance for American democracy.
  • "Jury duty is one of the most incredible gifts that we have been given as Americans." – Sarah Isgur [73:25]
  • "I fled Haiti…for economic opportunity. But…what I didn't know was that we would come to a place where the government would trust us this much, that the government…would give me the right and the power to come in here and look my government in the eye." – Judge Altman quoting a juror [73:25]

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Notable Quotes & Moments

• Humorous Courtroom Moments:
  • Discussion of Curtis Gannon’s repeated involvement in Supreme Court oral argument comic relief (including "we have no bananas" from Justice Scalia) [02:18-03:32].
• Culture War Shift:
  • "For 50 years between Roe and Dobbs, our politics were defined by abortion because it had been constitutionalized...abortion is dropping out of our culture war...because of Dobbs." – Sarah Isgur [10:46-12:44]
• Voting Rights Act Caution:
  • "You're just a few shrewd racists away from gutting black representation in the South." – David French [40:55]

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Timestamps for Important Segments

• [03:45] — Analysis of unanimous First Amendment SCOTUS decision (First Choice v. Davenport)
• [20:53] — Deep dive into Supreme Court’s Voting Rights Act Section 2 decision (Calais case)
• [42:28] — Southern Poverty Law Center and James Comey indictments
• [52:02] — Interview with Judge Roy K. Altman: Israel on Trial
• [65:47] — Judges writing on public/controversial issues
• [68:55] — The American jury system: its value and crisis

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Final Thoughts

This episode exemplifies Advisory Opinions at its best: timely breaking legal analysis, sophisticated cultural commentary, and a passionate defense of democratic norms. It also showcases earnest debate over what counts as responsible judicial engagement with the public and the foundational importance of citizen participation in the justice system. Listeners leave with new perspective on two landmark Supreme Court decisions and a compelling invitation to rethink both America’s legal process and its place in the world.

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For more, check out Judge Altman's book, "Israel on Trial", and stay tuned for the future episode on revitalizing the American jury system.

Transcript

[A]

You ready?

[B]

I was born ready.

[A]

Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we are just gonna have to tick three through the agenda today because we have two decisions from the Supreme Court, both of which were in our top 10 list. And we've got indictments. I mean, they're dumb, but we're going to talk about them. And then, of course, we've got this incredible interview with Judge Roy Altman, frequent guest and very much friend of the pod, about his new book, Israel on Trial, where we get into everything from the book. Sure. But then we head off to talk about the most American thing you can do, your duty as a citizen, and the gift that we've been given and how maybe it's in crisis right now. So stay tuned for that as well. We'll be right back on Advisory Opinions. Now, David, we are not gonna talk about the oral arguments from this week. Cause frankly, we got too much in the opinion handout on Wednesday morning. So the geofence oral argument and the temporary protected status oral argument from the interim docket, we're going to talk about in the next episode. That being said, there was something that is going on. I don't know. There's something in the water. So Curtis Gannon is a wonderful friend of mine. He is a Deputy Solicitor General at the Department of Justice, and he was arguing this week, and there was this amazing moment with the Chief justice interrupting him. We're gonna play it. Hold on.

[C]

Justice Barrett, if I could just pause for a moment. I've been notified that there will be a flyover of four planes at 11:22, and I just want to announce that so people aren't alarmed or told.

[B]

The noise might be big.

[C]

I don't know why they didn't check with me, but justice bears.

[A]

Well, Mr. Gannon, I'll try to get my question out quickly.

[B]

More dialogue between the branches.

[A]

Okay, David, that was a delight. The chief has this wonderful wit from the bench. But here's what's weird. It keeps happening when Curtis is arguing. So at one point, the lights flickered, and the chief says, I guess I should have paid that bill. Curtis was the one at the podium. And then back in 2015, there's this great back and forth. Uh, so Curtis says, you know, he's like, sort of trying to answer this question, you know, I suspect, yes. And then Justice Scalia interrupts and says, yes. Yes, what? I forgot the question. And Curtis says, I've forgotten the question, but the reason why. And, like, tries to fix. Like, they don't know what yes and no means because nobody remembers what the premise was for the question. And then the Chief jumps in and says, I thought it was an unforgettable question. And then basically no one remembers the question. Curtis says, I promise you I won't forget it now. And, and Scalia says, yes, we have no bananas. So somehow Curtis, it's like volleyball, right? He's the setter for the Chief, you know, jumping and running to the, to the net and spiking the ball and like all of the Chief's great last lines. Curtis is at the podium for the last 11 years. Like, that's weird.

[C]

Well, you know, this is the, I guess the opposite of the Lisa Blatt phenomenon because she comes in and she's actually funny. He comes in and he's kind of the straight man. He's the Jason Bateman in the arrested development world. Yeah.

[A]

Anyway, Curtis Gannon, amazing human, but you're right, he gets sort of the drier oral arguments from the government. David, we got two opinions on Wednesday morning. The first one we got was the first Choice decision. Now, when I tell you what it's about, please don't turn off the pod. It's gonna sound like it's not interesting, but it's a super, super important First Amendment political weaponization case. Okay? But here's what it's actually about. Whether a party subject to a state investigatory subpoena can bring a pre enforcement federal lawsuit alleging First Amendment violations. That's when the can. Can girls really start going and lifting their skirts for you? Like that's. So the facts of this case are what make it an important case. This is a crisis pregnancy center in New Jersey. The New Jersey attorney general campaigns on, gives all these speeches on how crisis pregnancy centers are terrible and you know, are anti pro choice places and they want to shut them down and et cetera, et cetera. So even though they never received a complaint about this crisis pregnancy center or any others that I'm aware of, although I think it was specific to this one at the question of oral argument, you know, have you ever received any complaint that would, you know, warrant opening an investigation? And they were like, well, no. But they decide to open an investigation into whether any donors were misled into thinking that the crisis pregnancy center, you know, offered full medical services to women who were pregnant, including abortion. And in doing so, they send First Choice a subpoena for their donors. And the question was, can First Choice get into federal court? Even though in New Jersey you have to actually have a state Court judgment to go enforce the subpoena, or is the subpoena itself having a chilling effect where donors aren't going to want to give because they might have their names given over to the state of New Jersey, which again, has made very clear they don't want people donating to this group. They don't like this group. This was really interesting because of all the amici who came. I mean, there were amici from a bunch of different sides. Sure. But because obviously you could be a blue state, I mean, a liberal group in a red state and have the exact same problem here. There were also social media companies that joined in the amici list because obviously they're the targets of a lot of these sort of weaponized subpoenas, if you will, in an era where that's really what state attorneys general have become. You know, I actually do write about this a little in the book, and I've talked about it a lot. That this idea of the rise of the state solicitor general, bearing in mind, of course, I'm married to one. They're very sexy, all of them, I guess. I don't know. Mine is. But when we got the rise of the solicitor general, it almost proved this model out of state elected officials, whether it's the governor or the state attorney general being able to kind of run, quote, unquote, against a president of the opposing party in power, that they would make their bones by suing that president. Again, with the rise of executive action actions, that became very easy. So you have, you know, Governor Abbott in Texas against Joe Biden, and you have Governor Newsom against Donald Trump. And this is like the new model for how you eventually run for president if you're a governor or how if you're a state ag, you can become governor. So there's a lot more of these subpoenas, a lot more of these lawsuits, and everyone wants to get into federal court. We've had podcasts about why that is. They have more resources to dedicate to your docket. They are supposed to be less state biased, you know, less team sports, often because of the way that they're picked. We've talked about the problems in picking state judges and the partisan process, elections or otherwise, that they get picked. So here we are, David. This case for some people was the NAACP versus Alabama, where again, the state of Alabama wanted the NAACP's donor list and the Supreme Court held that that was chilling. The purpose was to chill their First Amendment rights of association and speech by trying to get their donor lists. So here we are, David. And again, the actual qp, very boring on whether you can get a pre enforcement federal venue basically. And it was a unanimous decision. Justice Gorsuch writing. And the answer was absolutely yes. What'd you think, David?

[C]

So you have a couple of things here. One, you have a very speech protective court. All nine of the justices are very speech protective. So you know, again, we, this is a case, another unanimous case involving where the actual facts involved a conservative plaintiff like the NRA coercion case from a couple of terms ago that was 9 0. But the problem is absolutely bipartisan, this sort of idea that the states can weaponize threats and in our case, or weaponized using donor disclosures in this case, these kinds of things. And the ability of a state government to, to target disfavored ideological groups or religious groups in their jurisdiction. I mean this is a problem. This is a problem. And so I'm not at all surprised it's 9 0. I'm not surprised it's 9 0. Even though it was a crisis pregnancy center. I think the around free speech issues, the abortion distortion is sort of ebbing away right now. And then not only is this a speech protective court, but it's building on precedent after precedent after precedent. I mean we had a, we had the NAACP case that you talked about from the civil rights era not too long ago. We had a Supreme Court case coming out of California involving donor disclosures, challenging the attorney General of the state of California where the court ruled against California in that case involving donor disclosures as well. So you've got speech protective court building on speech protective precedent. And guess what, you got a speech, speech protective decision. Nine zero. It was. You know, the funny thing is, Sarah, I think we listed this top 10 for legacy reasons because it's involving crisis pregnancy center. And we sort of locked this into the abortion arena where that would be any case touching on abortion in, in terms past is front page above the fold news. And now, you know, under my theory of the emerging culture war, these older culture war cases are not the big cases anymore. The next one we're gonna talk about far bigger, far bigger, far more contentious.

[A]

I think you're totally right about that. And look, we've talked about abortion distortion in the past as well. It's interesting, David, as it retreats from our culture war front and center, which maybe we need to have like a whole discussion over whether part of the reason it's retreating from our culture wars is because of Dobbs. You know, we thought that we'd have all of these cases post Dobbs about right to travel and mifepress stone and like we did for the first six months and we have not heard much at all since then because I mean, here's the thesis at least by returning the question to the political process and the 50 laboratories of democracy, a people are fighting it out in the right venues, you know, state elections and ballot measures, et cetera. But also that some form of consensus in moderation wins when you're in that venue instead of a judicial take all world that when you have a ballot measure and you actually want to win, you're going to phrase it a little differently because you got to get to 51% when you're electing people to write new laws that they want to get reelected, they're not going to take the most extreme position because the voters serve as this moderating effect on the political process, which is the way it's supposed to work. And for 50 years between Roe and Dobbs, our politics were defined by abortion because there was nothing anyone could do about it because it had been constitutionalized. And so the reason abortion is dropping out of our culture war, David, my thesis would go, is because of Dobbs, this decision that the left, you know, says that they hate. That's the reason you can't trust the Supreme Court and all of those things. But frankly, they've kind of won. It's moderated all of the politics around that specific question and it's allowed them to move on to what I think is actually more productive political grounds.

[C]

Potentially one of the reasons why, like a lot of the elite anger at over the abortion issue has subsided is in the immediate post Dobbs era, the pro choice side has routed the pro life side by and large. Not exclusively. I mean the, the Florida heartbeat bill narrowly survived, sure.

[A]

But we have read states passing amendments and ballot measures that are hard to describe as anything but pro choice. They certainly weren't pro life ballot measures, let's say that.

[C]

Oh yeah, I mean that that's you know, a time and time and time again and we walked through this after Dobbs when up for the ballot measure, the pro life side lost even in very, very red states. And it almost lost in Florida where you had to have 60% to amend the Constitution to change the heartbeat bill and it got close to 60%. So a majority of Floridians did not like the Florida law, but it survived because of the quirk of the Florida amendment process. So I think part of what's happened, I mean, and this is very negative from the pro life position position is That a lot of the public anger that you've seen from sort of the mainstream left at Dobbs has really subsided because by and large, in the post Dobbs world, they've just won. I mean, we've got a Republican administration that approved the generic abortion pill, Sarah. You've got a Republican administration that has watered down its own pro life plank to meaninglessness. So, like, they're tired of winning at this point. It's, it's, it's incredibly, it's incredibly sad from my perspective.

[A]

Okay, I want to read this last paragraph from the unanimous Gorsuch opinion holding that a subpoena, even it, even if it has yet to be enforced, still can have a chilling effect and still allow you to go into federal court to fight that subpoena. Now, let's be clear. They still have to fight the subpoena and argue that the purpose of this subpoena was to CHILL Their, their First Amendment rights. Here's the ending paragraph. Since the 1950s, this court has confronted one official demand after another, like the Attorney General's. Over and again, we have held those demands burdened the exercise of First Amendment rights, disputing none of these precedents but seeking ways around them. The Attorney General has offered a variety of arguments. Some are old, some are new, but none succeeds. Accordingly, the judgment of the Third Circuit is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. And that's the end of First Choice Women's Resource Centers, Inc. V. Davenport. I don't know that we're going to talk about this again, except when we sort of list out the long line of First Amendment protective cases that have come out unanimously, regardless of which side of the culture war brings them. Because as you say, David, it's an incredibly First Amendment protective court. Even the justices that if you break it down like Justice Alito, is sort of one of the least First Amendment protective of the justices on this court. On this court. But if you put them on a spectrum of all the justices historically, he's still going to be in the extreme of First Amendment protective justices. Okay, David, when we get back, we're going to do the other case. Calais. We got the Voting Rights act decision. Did they end Section two of the Voting Rights Act? No. But did they end Section two of the Voting Rights Act? Maybe. We'll be right back. 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Rates may vary. All right, then the second case we got, David. I wasn't expecting it on Wednesday. I was watching the two year old and definitely blurted out a curse word. Luckily, he doesn't speak great English in any of the words, so I don't think he's picking up that one yet. This is Calais. This is section 2 of the Voting Rights Act. It is 6, 3. Along ideological lines with Justice Alito writing the majority opinion. Justice Thomas joined by Justice Gorsuch with a concurrence. Because there can't be a concurrence without Justice Gorsuch, as I think we've established. That's like a law of gravity. And Justice Kagan writing the dissenting opinion on behalf of Sotomayor and Jackson who joined it. The facts are that after 2020, you know, a bunch of states have to redraw their district lines. Louisiana redistricts with one majority minority district. They get sued by black Louisianans who say that Section 2 requires them to draw two majority minority districts. A district court says that's correct and that if they don't redraw it, the courts will redraw it. And if they do that, one of the incumbents, Mike Johnson, the Speaker of the House, will get districted out of his seat. And so Louisiana is like, no, no, no, we're fine. We'll redraw too. No problem. So they draw then a second majority minority district themselves. They get sued by white voters who say that race predominated the drawing of that district. Because the whole reason they drew it was because they were told they had to take race into account to draw a second majority minority district. And the fifth Circuit says, like, yep, that is an illegal racial gerrymander. And so Louisiana ends up at the Supreme Court in the shrug emoji going, what are we supposed to do? We drew one district. Then the judge says, no, we draw two districts, then the judges say no, okay, Supreme Court, this is not working for us. Literally. There's no. We can't draw a half a district. So what's your plan here? And let me now read you Section 2 of the Voting Rights Act. This is a little bit long. It's maybe not even that clear. But right. Like this is the text we're working with. Part A. No voting qualification or prerequisite to voting or standard practice or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgment of of the right of any citizen of the United States to vote on account of race or color. A violation of that subsection is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a class of citizens protected, you know, by race or color, in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the state or political subdivision is one circumstance which may be considered, provided that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. Now, again, there's lots that's not clear in here, but to break it down a little bit, it's basically internally contradictory. So members of a specific race can't have less opportunity than other members to participate in the process and elect representatives of their choice. But also it can't be proportional. So what are we doing here? And indeed, this has plagued the Supreme Court this whole time. And the Voting Rights act was amended in 1982 by the Republican Congress under Ronald Reagan, by the way, to make this more impact. Disparate. Impactee, which people don't seem to think about a lot. That like, basically the Supreme Court was like, meh, we just look at whether there was, you know, racial discriminatory intent. And Congress was like, no, no, we want to look at impact as well. And the Supreme Court's been like, what?

[B]

How?

[A]

So it's been basically 45 years of that sound coming in every decision from the Supreme Court. David, weirdly, and we don't normally do this. I want to start with the concurrence from Clarence Thomas and Justice Gorsuch, because I think some people are going to be like, yeah, wait, what? I don't understand what this has to do with district line drawing to begin with. Neither does Justice Thomas or Justice Gorsuch. So here's their concurrence. As I explained more than 30 years ago, I would go further and hold that Section 2 of the Voting Rights act does not regulate districting at all. The relevant text prohibits states from imposing or applying a voting qualification prerequisite to voting or standard practice or procedure in a manner that results in a denial or abridgment of the right to vote based on race. How states draw district lines does not fall within any of those three categories. The words in section 2 instead reach only enactments that regulate citizens access to the ballot or the processes for counting a ballot. They do not include a state's choice of one districting schedule scheme over another. Therefore, no Section 2 challenge to districting should ever succeed. I mean, you gotta love Justice Thomas coming in with the like, what if we don't do this at all anymore? That, of course, would mean that only 14th amendment challenges to racial redistricting would ever make it into court, that there would be no section 2 Voting Rights act challenges. And in that sense, it might look a lot like partisan gerrymandering, where you're not going to hear a lot from the courts about it one way or the other. But David, that's not what the majority of the court held. You had six votes. That Section two imposes liability only when the evidence supports a strong inference that the state intentionally drew its districts to afford minority voters less opportunity because of their race. Here's Justice Alito. When the vast majority of voters, regardless of race, favors the same political party, a map that is disadvantageous for members of one racial group cannot be explained on the ground that it was drawn to favor a particular political party. But in a state where both parties have substantial support and where race is often correlated with party preference, a litigant can easily exploit this section 2 for partisan purposes by repackaging a partisan gerrymandering claim as a racial gerrymandering claim. Boy, we have certainly seen that problem plaguing the courts, right? Like once the Court said in 2018 in Ruto that they weren't doing partisan gerrymandering anymore. That, that was a political question. All of a sudden there were a whole lot of racial gerrymandering claims that would have been partisan gerrymandering claims before. David, we can get to the dissent in a minute. Let's just get your thoughts on the majority. Right. They didn't invalidate section 2. This is a relatively narrow just reinterpretation of section 2. Nevertheless, this will have profound implications on the likelihood of success of racial gerrymandering claims, which is to say, very unlikely to succeed without proof of discriminatory intent.

[C]

A ton of the Court's reasoning I'm 100% on board with like the, the idea section two itself says you can't do, you know, you can't just look at the, the proportionate representation and decide this. So in other words, you know, Louisiana is about 1/3 2/3 white, 1/3 black in the demographics of the state. And you can't say, well, it's automatically a section 2 violation unless the representation is 2/3 white, 1 third black. That's not the way it works. At the same time, once you eliminate the same thing that Alito said about, well, if you eliminate a partisan gerrymander analysis, then it becomes. Then we are dealing with all these racial gerrymander claims. The reverse is also true. Because what is happening is if you have a highly racially polarized voting state, like in Alabama or like a Louisiana, then you can just reclassify racial discrimination, racial gerrymander as a partisan gerrymander with these same E's, that you can reclassify a partisan gerrymander as a racial gerrymander. The two are conceptually, in many ways, when you have racially polarized voting that extreme, there's no difference. Okay, there's no difference. If you have polarization, almost 90% of white voters voting Republican and 92 to 93% of black voters voting Republican. About the only way to gerrymander partisan in a partisan way is to do it racially.

[A]

You don't mean to do it racially. You mean that it would look racial, as in it's not that you take someone's race and put them in a district, it's that you would take their partisan voting record and put them in a district. But that will look like it will have the race of the voters in that district.

[C]

I mean, how do you tell the difference?

[A]

Well, if you have evidence in the record that they used race to decide who goes in which district, you have an easy racial gerrymander there. And it's gonna get thrown out.

[C]

Sure. If you're dumb and you say it out loud. Right. Yeah.

[A]

Yeah. Which frankly, plenty of these guys have done in the past. And I don't mean the distant past. I mean, like in 2020. Right. Like, so don't put it past the redistricting experts, quote, unquote, to say the quiet part out loud. But yes, as long as they use D or R, they will be fine. But once they're like, but what race is that guy? Oh, no, he's going into. Yeah, that. Then you've got a problem.

[C]

Yeah. And so this is a problem in a lot of these Deep south states that you don't have in, say, a California or a New York where there is racially polarized voting, but not to the same extent. There are material statistical differences between a bunch of other jurisdictions and a lot of these Deep south jurisdictions. And so part of it is once the Supreme Court said partisan gerrymandering is just beyond our. We're not looking at it.

[A]

I get it. You're sort of making the opposite point that it's not that. Well, that both can be true. Once they said we're not doing partisan gerrymandering, all of these groups then just named their complaints racial gerrymandering. And you're like, yeah, but the other way holds true, too. Once they said they weren't doing partisan gerrymandering, they could do racial gerrymanders by doing partisan gerrymanders.

[C]

Bingo. Exactly. Exactly.

[A]

That's an interesting math point.

[C]

Exactly. So it's the one, two punch. You know how it's like how we were talking about the other day about removing the legislative veto. Like the Supreme Court removing the legislative veto actually ended up amping up the executive outside of the intention. So when Congress passes this in 1982, partisan gerrymandering is reviewable by the Supreme Court. And so, look, I'm not going to peer into the hearts of the redistrictors in Louisiana. I can't say that they were racist in doing this as opposed to partisan. But in the. The problem I have is in the absence of somebody just kind of blurting it out, which, as you note, does happen. I mean, it absolutely does happen. But in the absence of someone blurting it out, I don't know how this opinion preserves, as a practical matter, the Section 2, although it doesn't formally over. It doesn't formally overturn it. Certainly it's a kind of a split the baby decision in a way, but it's a practical matter. What are we dealing with?

[A]

I'm not a redistricting expert, but I've worked on redistricting. So here's the problem with Section 2 as it was being previously interpreted. Every map drawer had to use race in their mapping because they had to make sure that they had complied with Section 2. And so every time you would be able to see in their records that they had in fact used race in the map drawing, and then they would just say, like, well, yeah, because I have to in order to make sure that we're compliant. Now, any use of race in the map drawing will trigger Section two. Actually, that may be good. Like, they can't take race into account whatsoever in the map drawing as far as I'm concerned. Like, why would they need to be having that as a category at all for a voter? So we'll see how you know, this is all done by very sophisticated computer programs at this point, which I don't love. Either, by the way, I think that has hurt us as a country. But, you know, so has social media. So what are you going to do?

[C]

So this is another reason, by the way, Sarah, to expand the House.

[A]

Oh, yes, but like, by a lot,

[C]

by a lot, by a lot. I would believe I would like to see a constitutional amendment that sets the size of the House as a ratio of. Against a ratio of the population. And you know what? If we expand the House considerably, you're going to do a lot to address gerrymandering, both political and racial. It just will become not possible at a certain level to so exquisitely gerrymander if you expand the House.

[A]

Ben Sasse pointed this out on 60 Minutes. If you haven't seen that interview, honestly, I don't say this. I don't think I've ever said this. Stop listening to this podcast and go watch 60 Minutes for 40 minutes. You don't even have to come back to this podcast. I will consider it. Like, I will give you credit in whatever, you know, class credit sense, because that is a more important 40 minutes than this is. But Ben Sasse points out in that, that the only time George Washington stood up in the Constitutional Convention was on this matter, that he thought the numbers should be capped, that a representative could not represent more than 20 or 30,000 people. And in fact, now I think we're nearing up to 800, 900,000 for some districts. You can't know all those people, you can't represent their interests, and therefore you don't even try. And then it's just incumbent protection. And nobody feels particularly like, you know, constituent services aren't really a thing at that level for most people. David, I want to read one more part of Justice Alito's majority opinion in Calais. In considering whether the Constitution permits the intentional use of race to comply with the Voting Rights act, we start with the general rule that the Constitution almost never permits the federal government or a state to discriminate on the basis of race. Such discrimination triggers strict scrutiny, and our precedents have identified only two compelling interests that can satisfy that standard. One compelling interest, not relevant here, is avoiding imminent and serious risks to human safety in prisons, such as a race riot. The only other compelling interest we have found is remediating specific identified instances of past discrimination that violated the Constitution or a statute. That was what was at issue potentially in the affirmative action case at Harvard. They were claiming that it was diversity of their student body. And the Supreme Court was like, no. If you can point to a time that Harvard specifically excluded people on the basis of race, and that you are remedying that. Like, that can be a reason that you can take race into account. But that's not what you're arguing here. And so Justice Alito says the question here is whether we add a third category, which is redistricting, and whether you can take race into account, discriminate on the basis of race, decide that a person goes into this district, but not this district because of the color of their skin, and whether that satisfies strict scrutiny. And Justice Alito and the six conservative justices say, nope. Now, Justice Kagan's dissent, David, let me just read you the top of it, because I think she summarizes it very well. Hers is, you know, the argument you've been making. The effects of this will be catastrophic for voters who belong to a minority group who want to be able to combine their voting power. Consider the story of a hypothetical congressional district in a hypothetical state subjected to a redistricting scheme. The example is admittedly stylized, but in essence simulates the dispute before us and clarifies the immense issues at stake. The district, let's say, is a single county in the shape of a near perfect circle, sitting in the middle of the. Of a rectangular state. The state is one with a long history of virulent racial discrimination, and its many effects, including in residential segregation and political division, remain significant even today. The population of the circle district is 90% black. The rest of the state, divided into five surrounding districts, is 90% white, and voting throughout all those districts is racially polarized. Black residents vote heavily for Democratic candidates, while white residents vote heavily for Republicans. The circle district thus enables the state's black community to elect a representative of its choice whom no neighboring community would put in office. But that arrangement, in this not so hypothetical, is not to last. The state legislature decides to eliminate the circle district, slicing it into six pie pieces and allocating one each to six new, still solidly white congressional districts. The state's black voters are now widely dispersed, and unlike the state's whites, voters lack any ability to elect a representative of their choice. Election after election. Black citizens, voters are by every practical measure wasted. This is racial vote dilution in its most classic form, David. Hard to argue with that. We've explained cracking and packing on this podcast. I hate it. The fact that we have the terms cracking and packing. Pretty disgusting, actually. It's this idea that you want to crack up a group of voters that are, you know, minority voters and put each one of them into a district where they will be swamped by Other voters. That's what she's talking about with the circle being divided up so that the white voters in the rest of the state swamp that. But packing is also bad. Packing is where you pack all of the minority voters into one district so that they make up nearly 100% rather than being 30%, 40%, maybe even 51% in multiple districts. Both of those were considered racial gerrymanders in the past. But look, it's really hard for courts to decide when something has been cracked versus partisan gerrymandered, when something has been pact versus a community of interest. And I think it's been bad for the court. David, you know, the proof is going to be in the pudding here. But it's not that Kagan or the dissenters are wrong about the effects you will have cracking and packing now with no potential remedy unless it's clear that they used race instead of partisanship. But the point you made that now you can use partisanship as a proxy for race is true too.

[C]

Not everywhere. Not everywhere. You know, the interesting thing is what you're seeing is that some of these jurisdictions which were originally pre clearance jurisdictions, these were jurisdictions that had a particularly virulent history of racial discrimination. And by the way, some of that preclearance was all the way up in New York City because New York City had some virulent racial discrimination.

[A]

So, I mean, Boston was racially segregated in where you could live. Chicago, the most recent racially segregated cities in America today are not below the Mason Dixon line.

[C]

So virulent racial discrimination was not confined to the south in the United States. But there are jurisdictions in the south that are just different than other jurisdictions. And so where that in other jurisdictions, the partisan gerrymander versus the racial gerrymander are not near perfect circle in the Venn diagram. They're just not in parts of the South. They're a near perfect circle in the Venn diagram. And so it's, it's very hard for me to see, again, absent somebody just screwing up and coughing up their motivation, that it's very difficult once you have the partisan gerrymander is untouchable and you have to have some explicit evidence of the racial gerrymander. You're just a few shrewd racists away from gutting black representation in the South.

[A]

That's an incredible line. You're just a few shrewd racists away.

[C]

Yeah, totally. It is. That's what it is. And I will tell you, my perspective on this has changed about the south because of my, you know, the experiences of our family in the South. And I will tell you this. You know, I would imagine that we have some listeners here or upper middle class white people in the South. And I'm going to tell you because that's my, my experience, you are probably not encountering very much racism. You're not seeing it in that social circle. Racism is not approved in that social circle. If someone is overtly racist, they keep it to themselves because they want to stay in that social circle. And you get a completely distorted picture of what the prevalence of racism in these jurisdictions that your black friends and neighbors have a very different perspective on. Just very different perspective. And I just worry as I read this, you know, and I read Alito saying that things have changed in the south and they absolutely have. Nobody, nobody can say we're living in anything like Jim Crow, right? No, no. But the question isn't have things changed? The question is, have they changed so much that this combination of precedent with involving political gerrymanders versus racial gerrymanders that this combination of precedent is appropriate to apply in these jurisdictions? And I'm a little iffy on that, Sarah. I'm a little iffy on that.

[A]

All right. With the time we have remaining, let's talk about these indictments. We have the Southern Poverty Law center indicted for fraud that they told voters they were fighting racial discrimination, but they were in fact paying people who belonged to groups like the KKK to be informants for them and that they did not tell their donors that they were in fact funding the same racial and racist organizations that they were claiming to fight. And then we have the next indictment of James Comey. Remember, the first one was tossed out by a judge who said that the U.S. attorney who signed the indictment was. Was not properly appointed. Well, they fixed that problem and they've indicted him again. So now we actually get to the merits or lack thereof of that indictment.

[C]

But indicted him on a completely separate thing from the original indictment.

[A]

Well, the original indictment was perjury for those congressional charges. What is this one, David?

[C]

This one is a threat, allegedly threatening the life of the President in seashells by saying that he came upon a shell arrangement that apparently maybe somebody else had done that said 80, 647. And he takes a picture of that and he puts it on Instagram. And that's supposed to be a threat against the life of the President. That's a joke. I mean, that is embarrassing. Like, okay, a couple of things on this. First, there's actual Supreme Court authority here. There's a case called Watts v. United States, 1969 case involves a guy who. Very different facts, much more egregious facts. Here he says, if I am inducted into the army, quote, the first man I want to get in my sights is lbj. So he's talking about a gun. Far more specific. He's talking about putting the President in his sights. And with only one dissenter in a pure Curium decision, the Supreme Court says, no, this is political hyperbole. That's crude political hyperbole. It is not actionable. And so this is 86, 47, which I'm a former waiter, and I was always 86 in the chocolate lava cake. And when I was 86 in the chocolate lava cake, I was not meaning I'm murdering it. I'm meaning getting rid of it.

[A]

I would have some chocolate lava cake right now.

[C]

I would totally do the same. But it means it's gone. It means it's. We're out of it, it's over. Right? And, and there's, you know, people have been producing, like there were MAGA influencers who had. Jack Posobic is a mag influencer tweeted to 8646, which. That's Joe Biden. Matt Gates tweeted 80 that he was going to be 86 other people. This is a, this is a slang term for like, get rid of. It's over, it's done. It is not a slang term for I will kill you. And, you know, the I, this is this. And it's, it's a joke as an indictment, but it's absolutely an assault on free speech. It's. I don't know what else to say about it, Sarah. I mean, what on earth.

[A]

Well, I've tried to explain this to people that Trump's legal efforts have all failed. Law firms, universities, these types of indictments, all of them have failed or not succeeded yet legally. But politically, they absolutely have had a profound chilling effect that nobody wants to talk about because they don't want to admit that they're chilling their own actions and speech because they don't want to deal with the hassle, be seen by potential clients as, you know, outs with the administration. When those clients don't want to be seen themselves as out with the administration. They're making shrewd business decisions. Or rational business decisions is a better way to say it. And that's a real problem because it makes it attractive the same way. I know it's not the same, but bear with me. You know, when Chuck Schumer spent $60 million on Republican primaries to ensure the MAGA candidates won in the Republican primaries because he thought it would be easier to defeat in a general election. And then all 10 elections, the Democrat did win against the MAGA candidate. And I was like, this is really bad because it was effective. And I was like, so Republicans are gonna do the same thing. Any rational actor is now gonna do the same thing. They're gonna mess with the other party's primaries to get their the worst candidate. And like, yes, that's exactly what we have found. It hasn't been successful in every case. Republicans tried to prop up Jasmine Crockett in the Texas primary against James Talarico, and Talarico won anyway. But right when you see that it's been effective, when your enemies, quote, unquote, by which I mean fellow Americans, no longer are quite as loud in criticizing you, no longer take on clients to represent pro bono that would sue you, you are better off. And so the incentives all get aligned. So, David, it's a dumb indictment. The prosecutor, by the way, who is. Has signed the indictment, became an AUSA on Monday. He had previously been doing Social Security cases for about nine months. Previously, he had been a special assistant United States Attorney. Those aren't rare. They're not bad. They're not dumb, nothing like that. But they are inexperienced as AUSAs. And this kind of proves the point. David, it's not like they put their best guy on this case. They don't intend to win this case. They don't care. They intend for it to get thrown out. That's not the point of it. And the point isn't to chill James Comey. The point is to chill the next James Comey. Anyone else who thinks about, you know, saying negative things about the president, Full disclosure. I'm on Kash Patel's enemies list in the back of his book or whatever. No, I don't know why in particular. It's a lot of very famous people on that list. So part of me is very flattered. Obviously, it hasn't chilled me a whole lot, but I have this platform and I have a law degree and you know, all the things. David, real quick on the Southern Poverty Law Center 1. Isn't this what every police organization does? They pay informants that are part of the gang that they're trying to bring down?

[C]

Yeah, it's a weird indictment. And let me. Let me just say, from the get go, I do not have much love for the splc. You know, I'm not going to say they don't do any good work now. I'M just going to say that they got very left, very radical to the point where they were, they were partisan left, very radical and very, very eager to, to identify people who had, you know, good faith disagreements, say about like, say sexual morality as the equivalent of the Klan, you know, as hate groups, like, like the clan or like the full wolves of Finland or whatever you want to call whatever they are. So I don't know. I do not. I mean, they labeled ADF a hate group. I used to work at adf. ADF is not a hate group. I mean, you can disagree with it, but it is not a hate group. And so I got a lot of problem. I got a lot. I have festivus with splc. But putting my problems with the SPLC aside, the argument that they defrauded the donors because these people were paid informants, I think that just, I don't think that's going anywhere at all. Especially because the SPLC has now come out and said, well, those informants, we actually used information from them that we provided to law enforcement that law enforcement used. The one I do have some questions about and is just questions I, I don't know the answer to this, Sarah, is they have some bank fraud type counts involving some essentially shell accounts that were put up to channel money through and what are the circumstances and what was the bank told? Where did they lie to the bank? Those are questions I don't know the answer to. But the, the initial claim that by paying these informants that rather than trying to dismantle the groups they were funding the groups I, that I, I don't have one raised eyebrow on that. On. I've got two now. And that doesn't mean that I agree with the decision to pay informants. It's just you're going to make a criminal case that paying informants is not to, with the goal of trying to dismantle groups is funding the group.

[A]

I would not have agreed to fund any of these people for any information. I think what they did was stupid. But to paraphrase Justice Scalia's stamp on his desk, stupid but constitutional. All right, David, let's when we get back from the break, go to Judge Roy Altman, author of Israel on Trial. We're going to talk about that book for the first part of the interview, but then we're going to go off on an adventure through jury trials. We'll be right back.

[C]

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[A]

Judge Altman, welcome to Advisory Opinions.

[B]

Thanks for having me.

[A]

Again, we have Judge Roy Altman, who has written a very different book than your fellow judges. Will you just like sort of start from the beginning? Why'd you write this book? You're a judge. All the things.

[B]

Yeah, so I didn't write the book as a judge. I just, I should say I wrote it as an American who cares a great deal about the rule of law. And what I'm seeing is the degradation around us in our ability to discern truth from falsehood. And I think last time I came on the show I talked to you about the hundreds, and frankly by now thousands of conversations I've had all over this country, in most of our 50 states, at churches, at colleges, high schools and law schools all over this country. And I've been very concerned by the way that people are not able to, to tell truth from fiction when they're reading things on their phones. And so I think I came to recognize that the entire discussion about Israel on our college campuses and many of our western media outlets was driven by six main claims about Israel. And actually each of the six claims is a legal claim at its core. Is Israel violating the laws of war? Genocide? Is Israel discriminating against itself, minority citizens, Apartheid? Is Israel taking land that doesn't belong to it? Colonialism? Is it falsely imprisoning Palestinians in Gaza? And so I thought, why not just apply the same legal methodology that judges, lawyers and juries apply every single day in courtrooms and law offices all over this country? It's a time tested methodology that we know works because we've used it for hundreds of years and that we know we trust because we use it where truth telling matters the most, in the courtrooms where someone's life is at stake, and apply it to each of these six claims and see what happens. And that's what the book does. That's why it's called Israel on Trial. We put Israel on trial. Each chapter gets a claim. Six claims, six chapters. We apply the relevant legal methodology, we produce the relevant facts, and then we issue a verdict. But I'm not going to tell you what the verdict is because I want your people to read the book.

[C]

These, these claims, I think are fascinating to explore. And I know we don't have a giant amount of time here, but I'd Love to kind of walk through at least on the, you know, the beginning stages. Just the, just the opening sort of round of argument. And let's, let's start with colonialism because I, I think you have sort of two arg. There are two big arguments of colonialism, One which is related to the existence of Israel itself, that the modern nation state of Israel is a colonialist enterprise. That would be one category of claim. Another category claim would be that the behavior of the modern nation state of Israel in say the west bank with settlement expansion, that settlement expansion is a kind of colonial style enterprise. Talk about both of those. You know, if you could like again, you've got it, you've written it at book length, but at least give some of the introduction to the, to the argument here.

[B]

Yeah, so the, the first point, which is whether Israel, the modern state of Israel is a colonialist empire or a project. What I do is I describe the definition just like I do in every chapter. What's the, what's the definition of the word? Second, what are the historical analogues? Right? The English come to America, they meet people they've never met before. They speak a language that's not spoken there. They have their customs and their form of dress and their religion, Christianity that didn't exist there. They have naming conventions that didn't exist there, right? So even 100 years later, we were so foreign that we were giving our children names like George Washington and John Adams and Thomas Jefferson, right? Names that are clearly not native to the land and still practicing our Christian religion here in the United States. The Spanish empire, right? It comes to Peru and Mexico and Colombia and what's now Venezuela and same thing it brings its Catholicism, its dressing conventions, its naming conventions, its language. Israel is like none of those things, right? There's obviously no ancient lineage of English speaking Christianity practicing kings that ruled in North Carolina in 3000 BC and there's no ancient lineage of Spanish Catholic practicing Spanish speaking kings who ruled in Peru thousands of years ago. And the way the book traces that is it says, look, in a courtroom you can always have somebody come in and say anything, right? You can have a person come in and say, hey, the defendant did X, Y and Z and he's guilty. But we would never end the trial there, right? We bring a lawyer to come in and say, is it true that you were offered immunity for your crimes in exchange for your testimony? And isn't it true that your wife was illegally here and she was given a visa so she could stay? Right? So we really try to focus on evidence that really can't be impugned in that way. That's neutral, that's objective, that's created long before the dispute arose. And so I outlined three different kinds of that evidence. And I summarize them as rocks in the ground, right? Archaeological evidence going back thousands of years detailing Israel's existence. Words on the page, documentary proof. Thousands of years worth of documentary evidence, many of which come from Israel's ancient enemies, which in a courtroom, we would give more credibility because usually they wouldn't be thought to say something that's favorable to your side. The Romans, the Greeks, the Assyrians, the Ottomans took very detailed notes about the Jewish populations living in the land between the Jordan river and the Mediterranean Sea. And then blood in the veins. There have been dozens of genetic studies conducted on every modern Jewish population in the world. And those Jewish populations, the genetic studies have shown, are deeply connected one to the other. That's why I like Sarah so much. And not only that, but they come from one place. They don't come from Ukraine and they don't come from Belarus, and they don't come from Brooklyn. They come from the Levant, the land where Israel is now, 2,000 years ago. Which of course then corroborates the documentary and archaeological proof, which tells us that 2000 years ago, in 70 A.D. titus destroyed the temple in Rome and exiled the Jewish population all over the world, which became the major Jewish populations that we see today. And Jews have lived, we know, and I detail in the book, continuously in Israel since the destruction of the second Temple, all the way until the foundation of the modern state of Israel. And unlike the English colonialists or the Spanish colonialists that I detailed before, if you look at all the different peoples who existed around the world 3,000 years ago and you fast forward to today, there is only one people in the world who still speaks the same language, who still practices the same religion, and who still lives and governs in the same land as they did 3,000 years ago. So if we care at all about the rights of indigenous people, if we care at all about decolonization struggles which they claim to care a great deal about at my alma maters, then we should care and recognize that the modern state of Israel is the great decolonization struggle, the greatest redemption of an indigenous population in the mid 20th century. And now people come to me and say, well, but, you know, does that mean that the Cherokees have to come back and rule America and whatever? And my point is, I'm not saying that that's the only factor we should consider, right? I'm saying under international law, as I lay out in chapter two, there is a mechanism with four elements to decide whether a nation state is legitimate. And Israel indisputably meets all four elements. It has a defined population, defined borders, one effective central government, and the capacity to conduct foreign relations. That's from the Montevideo Conference. My point is that even if you agree with the decolonization studies majors at Columbia University, that all that matters is indigeneity and decolonization, well, Israel then wins that one as well, because they are a legitimate modern nation state under Montevideo, but they're also the indigenous people of the land who were kicked off their land thousands of years ago and who have redeemed their ancient sovereignty over their ancestral homeland. And then as to the second point you asked me about, which is the Judea and Samaria, the west bank, the claim of occupation doesn't work because under international law you can only occupy another state's territory. And the problem that we have here is that, as I detail in chapter three of the book, Israel and the international community have offered the Palestinian Arabs, but they didn't used to be called Palestinian Arabs. There was never such a thing as Palestinian Arabs. This is a modern creation of the 20th century. But let's call them Palestinian Arabs because they do define themselves as a nation today. They have offered what we now know as the Palestinian Arabs, their own state in the west bank and in Gaza on six different occasions. In 1936, in 1947, after the Six Day War, after the Khartoum Conference in 1967, at Oslo, in 1993-1995, in 2000, with President Clinton at Camp David, and then again with ehud Oldmer in 2008. You could argue there was a seventh time in 2005, when Ariel Sharon withdrew unilaterally and completely from Gaza and left Gaza to the Palestinians, saying, you build your own state here with no preconditions. We don't require anything of you. Just leave us alone. And each time the Palestinians rejected the offer to have their own state there. You can't go to the ice cream store and say, I want an ice cream cone. And the guy tells you it's, well, whatever it is now in Miami, it's like 20$25 or whatever it is, and say, no, that's too expensive, I'm not paying you any money. And then say, oh, but you stole from me because you never gave me the ice cream cone right there. The Palestinians were offered a state and they rejected a state because every poll that's ever been conducted, has shown, and that has recently been conducted, has shown Palestinians don't want a two state solution. That's true of over 70, 80% of the people polled by Palestinian pollsters. Also detailed in the book, they want one state, an Arab state, an Arab state that extends from the Jordan river to the Mediterranean Sea. And so there can't be an occupation of, of land that isn't a state to begin with because the Palestinians themselves rejected it.

[C]

You know, one quick thing, Sarah, before you jump in, I would just say to your point about the Cherokees, if there, if you did have a Cherokee revolution in the United States of America, just imagine an Earth 2 where that occurs. The last thing you would say was that the Cherokees had colonized. That would be that you could argue the justice of a Cherokee revolution in the US you could not argue that it was colonization.

[B]

And this is like, and this is what comes up all the time in my discussions with people. Everything for me comes back to baseball. Okay, so in baseball, the shortstop can't push the runner off of second base and then tag him out and then yell at the umpire and say, hey, he's out. The umpire is going to say you pushed him off of second base. It's the same in the law, right? You can't evict somebody from their home and then when he comes back with the sheriff and the key, say, I changed the locks and you can't come back into your home, you're a trespasser, you're invader into your own home. A man cannot trespass into his own home. It's the same situation with the Cherokees. It's the same situation here. If there were an ability for the Cherokees to exercise sovereignty over their ancestral homelands as the opportunity arose for the Jews to exercise sovereignty over the their ancestral homeland, it would be preposterous to say that just because we, the Americans, or in the case of Israel, the Arab Muslims who invaded in 639 A.D. after the battle of Yarmouk, just because we kicked you off of second base, now you're not allowed to be on second base just because we evicted you from your home, now you can't come back to your home. We wouldn't say that in baseball and we shouldn't say that in geopolitics.

[A]

I hope that listeners are getting a sense of why we keep having Judge Altman back. All these groups across the country ask him to speak. This has been a prolific book tour, your honor, as I have watched from Instagram and Twitter, and our. Our text messages. So I want to have a little bit of a meta discussion because I think people have gotten a flavor for what they're going to find in this book. Which is it? It's actually, I will say, you almost need to hear you talk about it to understand, you know, the book could have been painstakingly researched and, you know, you could have had assistance and all of that. You have to hear you talk about it to realize, like, nope, this is just Roy's brain that he put onto paper for you. What an incredible moment.

[B]

I went to California for vacation. I sat at the. I dropped my kids off at surf camp. I had a giant cup of coffee. I was like, I'm here for four weeks. I'm going to write this book in one or two days. So I took the speech that I've been giving, I typed it all down on the page, and at the end of the day, I was very proud of myself. Except that then I went onto the document and it was only 29 pages, and I was like, oh, boy, I got a lot of work to do.

[C]

I know it's a little off topic, Judge, but on which of those pages do you acknowledge that I was correct in the great tire chalking debate of 2025 that we had?

[B]

Wow. You know what? I should write a separate law review article about that.

[A]

Okay, so here's my meta question to you. How should we think about judges weighing in on issues of public debate and partisan, you know, high emotion? All of these things, right? Like, on the one hand, you write this in a very legal way. No question about that. On the other hand, you know, this is a topic that's coming up in the midterm elections in the last election. This is a political topic as well as, again, I don't believe in international law, but if I did, I guess it would be a legal topic.

[C]

Sarah, you just do that to trigger me. I know you do, but. Yes.

[A]

How should we think about judges wading into areas like this? Like, why. Can we come up with some rules of, like, why writing Israel on trial is okay, but writing, I don't know, the abortion is murder book by a different district judge is not okay, or is it okay? I don't know.

[B]

First of all, I don't think it's politics just because it becomes important in political debates. So, for example, you mentioned Judge Sutton's book and Justice Barrett's book. Those are legal questions that are being addressed in those books. Even though obviously the question of, like, who becomes a Supreme Court justice and what their judicial philosophy is and how that judicial philosophy translates into how they rule on issues of abortion and the separation of powers. And all the things that you talk about on this podcast become essential aspects of every political election in this country. So just because a legal question can be debated and discussed and brought to the fore in a political context doesn't make it political. And I don't think any of the things in the book are political in any way. And in fact, people say to me all the time, oh, I love you, but I don't think I'm going to agree with your book because I hate Bibi or I hate Republicans or whatever. And I say, great, the book never mentions Bibi. I don't think. It certainly never mentions Republicans. It has nothing to do with politics. And so you said you used the word partisan. And I would say this has nothing to do with any kind of partisanship. This book is a book based on history and the law. That's it. It tells you what the law is and not just international law, by the way. And I share some of your concerns, maybe not all of them about international law, Sarah, but a lot of the legal rules, as David was getting into it that I describe in the book, are common sense, basic rules that we use in our courtrooms to make it easier for people to assess truth and falsity. Right. I mean, one of the issues that we're having is that for thousands of years, human beings have evolved in order to be able to tell truth from fiction in very peculiar ways. Right? We lived in small bands of people, and it was essential to tell whether the person that was talking about was telling the truth or not. Because he says, yeah, I tested the water well last night. And if he didn't and we all drink from it and it was poisoned, then none of us get to propagate our DNA. If he fell asleep on guard duty and he lied about it while we all get eaten by a saber toothed tiger or whatever. Right. And so it was really important for us to develop a methodology to test the credibility of the people who were talking. Well, how do we do that?

[A]

We burn the witches. Oh, sorry, no. We throw them in the water. What else floats small rocks?

[B]

The Jews. The Jews. So we did it all together, right? As a group, because that would diffuse the prejudice that one person had vis a vis the person who was speaking. We did it face to face, and we did it one issue at a time. Did you test the water? Well, et cetera. Now we're violating all of those rules, right? We are Being asked to digest this information alone, not face to face over our phones, and not one issue at a time, but hundreds of thousands of pieces of information over our phones at one moment. But here's the thing. When we bring people into the courtroom, 12 people all together, not one by one, and we give them the toolbox, the jury instructions, methodology that's been developed over hundreds of years, they get the answer right almost all of the time. I'm constantly amazed by the extent to which 12 everyday Americans who were terrible that morning at discerning truth from fiction on their phones and who will be equally terrible that night at discerning truth from falsehood on their computers, are brought into the jury box. We give them some of the most complicated, momentous disputes in our civil society about antitrust laws and patent law and trade secret act stuff. Sometimes I say to my law clerks, what are those lawyers even talking about in there? And then the jurors get together, they apply the legal rules that we use, that we've been using for hundreds of years that I deploy in the book, and then guess what? They come out with precisely the right and just answer. It's amazing, and it's an amazing thing to watch, and I think it's a very. This is another podcast episode and a separate book, but it's why I think the American jury system is the most important aspect of our democracy, because it allows everyday people to come into their courtrooms on a daily basis and to say, I am a participant in how justice is effectuated in my community and my country. It's a right and a power that's both inspiring and unique. For hundreds of thousands of years, human beings have lived in societies where our governments would never have dreamt of entrusting it with, entrusting us with that power and that responsibility. And so the last point you made, which is, can we come up with a set of rules? We have a set of rules. And the set of rules are easy to follow and easily defined, and I follow them every single day. I don't mention President Trump or President Biden or this candidate or that candidate for office, and never would I never say that this party's policies are good and this party's policies are bad, and never would I never advocate for a particular bill or piece of legislation that's making it through a State House or the Congress or against the particular piece of legislation, and never would. All I've done in the book and what I've done in my speeches time and again is to lay out what the I think Facts are what the history looks like and what the legal regime is. And I think it would be perfectly appropriate for a judge to come in and say, write a history book about the Civil War or about the Revolutionary War or about any other interesting war in history without violating any of these, any of these strictures.

[A]

You know, I, I'm gonna take you up on that offer of a future podcast, if not a future book. I feel like I can't make you do that, but I'd like to because I feel like the jury system is in crisis in the United States and it's been in crisis for 30, 50 years. I mean, like a long time, maybe predating at least Judge Altman and I existing. Obviously David was around.

[B]

Well, I think since 1986 is probably the inflection point since Celatex.

[A]

I mean, again, we need to have a whole pot about this. But like, because there's a few things going on, we have so few cases go to juries. I think that's a huge problem. But I have to tell you, since we have an audience here, another big problem is people making fun of jury duty, trying to get out of jury duty, denigrating jury duty. And I absolutely agree with you. Like, I want to sing the Star Spangled Banner and have everyone, you know, hold hands. Because I think jury duty is one of the most incredible gifts that we have been given as Americans. And I'd like to have like a cultural revolution where people applaud their fellow citizens for serving on a jury duty, are clamoring to get on a jury, but like, not for any particular reason, just because they think jury duty is important.

[B]

You come to my courtroom and you watch the way jury selection is done, because it is, it is to me, my favorite part of being a federal judge is getting to interact with everyday people as jurors. And to the two points that you made. First, I tell them that there are five and only five things I will let them get out of jury service for. And I go through each of those things and then there's one big, big thing I'll never let them get out of jury service for. So I want them to pay close attention. You want to know what that is? And by the way, this came up because when I first became a judge, jurors would use these excuses. So I had to implement this, this, I had to inoculate them in this way. I'll tell you a story. So a recent jury we had, it was a three week triple murder case. It was horrible. And it's a big imposition to take people from their homes for three weeks. And in Miami, you know, like, 80% of the jury pool is, like me, Venezuelan, or they're Cubans or they're Haitians. And they. They came to this country fleeing desperate poverty and also tyranny in their countries. And I had A. So 80% of them are going to be from these countries. And I had a jury recently where I went back every. After every trial, I. I tell them before, when I select them, I say, I'm going to look into your faces. And I will see one emotion there when I select your name as a juror. And that's going to be horror. Right? Why did this judge pick me? I'd rather be, you know, in my office sending and receiving faxes or whatever people do. But then at the end of the trial, I go into. Into the jury room and I shake all their hands and I write out a certificate front for them. And by the way, they usually have a WhatsApp group by then, and they want me to join their WhatsApp group, which I'm like, I don't think I'm going to join your WhatsApp group. And then they're always like, hey, can we take a selfie together? And at first I used to say, let's not take a selfie together, but now I take a selfie with all of them. And so I go in there and I tell them I'm going to see one totally different emotion there, and that is gratitude. It's gratitude for the ability and power that you have in this country to be a represented citizen. Not in an election where you were one out of, like, 100 million voters, but in a jury where every vote matters more than all the other votes combined, where every citizen, whether he's white or black or Latino or whether he's employed or wealthy or retired, stands up, says his or her piece, and is treated with the respect and dignity that an American citizen deserves. And so a few weeks ago, I went back there. By the way I tell all my law clerks when they come, this is going to be the most inspiring thing you will see is talking to these jurors. And they always say, you know, there's. Whatever. That's what the judge has to say. And then they go back there and they're like, all crying with the jurors. You know, it's hilarious. And so we. We went back there and I shook all their hands. And then I went to the last juror, number 12, Ms. Benjamin. She was a Haitian woman, older lady, used A walker. And she said, oh, Judge, I'm not going to shake your hand. So I said, oh, I must have really said something offensive during this trial. And she started to stand up. And I said, no, Ms. Benjamin, I know how hard it is for you. You don't have to stand up. And she said, no, I have to stand up because I have to hug you. And she put her head on my shoulder, and she started sobbing. And then all the other jurors came and started hugging her. We were in, like, a big circle, and my law clerks were there. You know, everybody was there. And she composed herself, and she said, I fled Haiti because I thought that it would provide this country, would provide me and my family with economic opportunity. But what I didn't know was that we would come to a place where the government would trust us this much, that the government. The government would think that I was so smart and so capable and so important, that in this case, triple murder in the newspapers every single day for three weeks, they would give me the right and the power to come in here and look my government in the eye and say, not now, not today. That was just. Or that wasn't. And she said. And this was the last thing she said. She said, I will take this experience with me until the day that I die. This is what jury service does in this country. One of the things I've done in the last three years is I've gotten a chance to go to England and meet with their Supreme Court justices in Argentina and Israel. And one of the things that's lacking in those countries, one of the reasons why I think there's been such a delegitimization of their judiciary. And by the way, there is something of that here in our country, but I think it's a lot. We're a lot more respected than we are than, for example, Congress or the presidency is. And I think we poll a lot better than judges do, and certainly Israel and in England. I think a lot of that is because everyday people who are polled come into our courtrooms every single day, and they see us and they hear us and they understand where we're coming from. And so to go back to Sarah's question, whatever it was 16 hours ago, is it a good thing for judges to be outspoken on things that matter? I think there's a divide for sure among federal judges, and I have very close friends who are federal judges. I'm thinking of one on the Fifth Circuit who, I mean, love me to death and agree with what I'm doing. But would never want to do it themselves and think that judges should totally be siloed in their chambers and issue opinions and never speak at all at high schools or law schools or college campuses. And I disagree. I think. And he and I had a debate about it at Columbia. It was wonderful. And I think it's really important for everyday people to see federal judges, especially now in the 21st century, where we expect to get all our information in real time, to see us up close, to hear what we do, what we care about, to understand that I love this country more than anything in the world, that I consider it the greatest honor and blessing of my life to have been able to serve my country and my community, a community that embraced me and my family with open arms when we came with from Venezuela, with nothing when I was a little boy, to serve it with dignity and respect in my hometown. What an honor. What a privilege. And so I think people will say, hey, I may not agree with that decision that he made. I may not agree with that book that he wrote or whatever. But they, I think will, if they understand who you are, will recognize that it comes from a place of love and deep respect for the constitutional project that hopefully we're all embarked on together. And that's what the jury system provides.

[A]

The book is called Israel on Trial. No, Judge Altman can't run for president currently, unless you'd like to ratify a new amendment to the Constitution. And if you have any other questions, send them into the pod because he's going to come back and talk about how we're going to fix the crisis in the jury trial of not having enough of them. Judge Altman, please go enjoy more of your book tour. I know you're here in D.C. speaking at a ton of places over the next few days and you're traveling the country. If any of you listeners get a chance to go see him in person, do so. You are going to be blown away. Judge, where can they find where you're speaking?

[B]

Definitely. I don't think that's public for security reasons, but are you trying to get me killed? I mean, come on, how are they

[A]

supposed to know what state you're going to how to find you speaking?

[B]

I'll be in a state near you soon. How about that?

[A]

Okay. Thank you, Judge Altman, for coming once again to Advisory Opinions.

[B]

Thanks for having me, both of you.

[A]

So, David, do I have your vote to ratify an amendment to the Constitution that would allow Roy Altman to be president of the United States?

[C]

I am in. I am in favor of that amendment, not just because of Judge Altman, but because I think we have some phenomenal patriotic immigrants who would be wonderful presidents and having that. You know, one thing that I love about hearing Judge Altman talk is the love and the gratitude he has for the country that welcomed his family. It's beautiful. It's beautiful. Some of the most patriotic people I've ever known in my entire life are immigrants. And by the way, you know, that founding generation, a lot of those guys were actually immigrants. I get the reason for the constitutional amendment, but I do think it should be up to the voters as to whether they deem an immigrant sufficiently loyal and patriotic to serve as president. I would bet that there are voters who would be thrilled to do so.

[A]

I would have a long citizenship requirement, like maybe 25 years. Like something really something. Really long decades, for sure. But great conversation. I do want to talk about why we all know we don't have many jury trials anymore, especially in the criminal context. It's something like fewer than 3% go to a jury trial. We all know that. We all think it's bad. But like, what can you actually do within the system to incentivize jury trials that aren't just a waste of time. There's a reason people are pleading guilty. So we'll have that conversation in the future AO episode. We also have to talk about those two oral arguments in the geofencing case and in the temporary protected status case. And David, I just have a feeling we might have more to talk about when it comes to Calais or First Women's Resource Center. And maybe a little bit more about the Ten Commandments case coming out of the fifth Circuit even. There's so much piling up and we're getting into May, and this is what happens every May. And at some point we lose decisions. We have to chuck them out the back window on our way, driving to the end of the term in June. But we're going to try to hit everything we can, y'.

[C]

All.

[A]

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 [e-mail] 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 [e-mail] 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 [e-mail] 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. Sa.