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You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We have a emergency docket, interim docket ruling from the Supreme Court about Alabama's congressional maps. Remember Alan V. Milligan? Well, guess what? They've sent it back over a three justice dissent along ideological lines. We're going to break it down. Who got that one right and what happens now? Plus Virginia actually did file at the U.S. supreme Court. Is it as central urban bonkers town as David and I predicted? And a very special 2 to 1 9th Circuit panel opinion that will define who you are as a judge on that Y axis. The institutionalism thing we've been talking about. Are you a Kavanaugh or are you a Gorsuch? Plus an idea from Jesse Wegman at the Brennan Center. Should we raise the bar for the Supreme Court to strike down an act of Congress? Why are we doing this 5, 4 stuff? Let's make it 7 2. And lastly a special would you rather due process clause or equal protection clause? You can only pick one. All this and more on advisory Opinions.
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Switch upfront payment of $45 for 3 month plan equivalent to 15 dol per month. Required intro rate first 3 months only, then full price plan options available, taxes and fees, extra fee, full terms@mintmobile.com David let's start with, I mean we're back to Calais. We're still doing redistricting at the Supreme Court this time. Alabama. This is the state that had Allen versus Milligan a couple years ago where the Supreme Court said nope, that looks like a Section 2 violation to us. And we did lots of podcasts on it and Alabama was told to go back and draw another majority minority district. Alabama politely declined to do that and kept saying nope, we will only draw one district. It went back to the three Judge panel. And that three judge panel was annoyed. And. And not only said that they were still violating section two because, you know, the Supreme Court said so, but also that they were in violation now of the 14th amendment due pro. I mean, equal protection clause, because they had refused to follow the Supreme Court and that panel's decision that they violated section two by not drawing a second majority minority district. So Calais comes out, Alabama goes to the Supreme Court and is like, how do you like me now? Can we please stick with our maps that we had? And the supreme Court has sent it back to the lower court, vacating the lower court's decision and allowing Alabama to use its old slash new single majority minority district map for, I would say, this election. But that gets kind of messy, David, because it affects some districts and not others. And what the governor of Alabama has said is they will continue with the May 19 primary for the districts that aren't affected, and they will hold a new primary Aug. 11 for the districts that are affected. Talk about a hot mess. There was. This was six. Three. We had dissents. One dissent, but it was written by justice Sotomayor, joined by justices Kagan and Jackson. This is where we're gonna have to, like, go back and explain the 14th Amendment Equal Protection Clause lawsuits about racial gerrymandering for versus the Voting Rights act section two lawsuits about opportunity districts. Because the dissent says, hey, guys, we disagree with this. For all you know, we disagree with Calais. Right? But even with Calais, it's still a mistake to vacate this because Calais only has to do with Section 2 of the Voting Rights Act. But here, that three judge panel found that this wasn't just a Section 2 violation. They found that it was a constitutional violation under the 14th amendment. So therefore they. There were alternative grounds that have nothing to do with Calais. Why in the world are we vacating this? To cause absolute chaos in Alabama. And David, I was like, yeah, that seems like a really good point. I don't understand why the majority would do this now. Yes, that three judge panel could just once again find there's a constitutional violation. But, like, we're out of time by the time they do that. I mean, we're in total nonsense territory here. So, David, I went back last night and look, I want to be very clear. I am by no means an expert on all of the record findings in this Alabama case. The appendix is 561 pages. Okay? The 14th Amendment Equal Protection clause means that you cannot racially gerrymander a district. You cannot use race for the purpose of diluting Someone's vote because of their race. Racial gerrymandering, not allowed under the 14th Amendment. And so you're thinking, wait a second, isn't that exactly what Section two of the Voting Rights act requires? And it's like, yeah, actually kind of required, let's say pre Calais. But basically think about it like strict scrutiny. David, Section two allows you to overcome strict scrutiny if you are using race for the purpose of drawing a, an opportunity district. But we saw these lawsuits all the time. Some would be brought under section 2 of the Voting Rights act saying you must use race to draw an opportunity district. And some that would be the, like, we want you to pack voters in. And some would be brought under the fourteenth amendment equal protection clause under racial gerrymandering, saying, no, no, you cracked the districts. You split up a community of interest in order to dilute minority voters. And that's racial gerrymandering. That's not allowed under the 14th amendment. If this three judge panel really did find that they violated both Section 2 and the 14th Amendment, the dissent would be totally right. It doesn't matter what Calais said because there's a 14th Amendment violation anyway. But David, this is weird. The 14th Amendment violation is predicated on the Section 2 violation because they violated Section 2. Now we hold they violated the equal protection clause, equal protection by not following section 2. So then Calais does matter because Calais says that they didn't violate Section 2. So can they have violated the 14th Amendment if they didn't violate Section 2? And the judges were wrong and Alabama was right.
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So there was no independent analysis separate from the Section 2 analysis. So they just said, if we have Section 2, then if we have a Section 2 violation, then Ipso facto we have the equal protection violation. And there wasn't extra independent analysis.
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That's right. It was an intentional violation of section two. Right. We told you to go draw another district and you didn't and you thumbed your noses at us. So now we're going to say that that is clear, like racial animus, basically. And therefore you have a 14th Amendment violation. And I went through this record to look for any finding that they had used race improperly to dilute. You know, Alabama has the black belt in the middle, right? David? It is both the black belt because of the soil. It's also the black belt because of who works that soil. And they split that into three districts instead of having it as like one community of interest. And so I thought like, well, if they had any in the record that showed that they intentionally split that district because of race or something, then you would have your alternative grounds for the 14th amendment violation. But no, it's all section two. And in fact, remember, Alabama the whole time says, we refuse to use race to draw this. We will only use partisan means to draw this. That was the Section 2 violation, if you remember. And Alan V. Milligan said, look, the history of Alabama, David, you talked about this quite eloquently at that point is just different. And like, you have to use race as a factor to draw these communities of interest together. And Alabama just kept saying, no, we will use partisanship. We're not going to use any race data to the point of Calais. It's going to be very, very hard to ever prove a racial gerrymander if you didn't use race data at all. But David, it is the problem that you've highlighted, right? The black belt is the black belt, but it's also the blue belt. That's where the Democratic voters are. And the two are inextricably linked in most states. That's not true. But in Alabama, it is true that those are the Democrats and they're black. And the coefficient is like 0.9, as in they're highly correlated. So as long as you just use partisanship, you have used race, but you only used partisanship, which goes exactly to
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what I said after Calais. How will you tell the difference? So you know, that's the smart racist versus dumb racist. The smart racist says, oh, there's a 0.9 coefficient. We don't have to use race explicitly at all. I'll still accomplish the exact same thing because of the partisan valence, but also at the same time, I've talked about the smart racist and the dumb racist, but then there is also just the smart partisan. That's a person too. And so it's quite possible, it can be quite possible that someone legitimately, you could put their hand on the Bible, strap them up to a polygraph, and they're going to be pure as the driven snow on a race issue, even as they're completely, totally, utterly partisan on the partisan gerrymandering issue. And this is where this difficulty comes in. And it feels as if the Supreme Court is saying, we're not wading into this, not even in the old pre clearance jurisdictions that had the particularly vicious and virulent history of racism, we're not wading into this. Essentially, if you're going to make the gerrymandering claim and you're going to root it in race, an unconstitutional gerrymandering claim, and you're going to root it in race. You better bring the explicit goods. It's not, we're not going to find it implied.
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I think Justice Alita would reject the coefficient problem. Right. That we're talking about the black belt is the blue belt problem. Because I think what he would say is you have to show intra party racism. You have to show that a white Republican would rather vote for a white Democrat than a black Republican. Otherwise, again, it's just partisanship. And so you would need to show that a white Democrat would rather vote for a white Republican than a white, sorry, a black Democrat. And I think that does sort of highlight the partisan problem here, David. That's a, I don't know that there's any evidence of that. I'd be very open to evidence of that. And I think that would be sort of proof in the pudding of your like smart, racist, dumb racist thing. But if you can't show an intra party racism, for lack of a better term here, doesn't that prove that it is actually partisanship?
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B
Yeah, it's a very interesting question. Like, what do you do with Memphis? Memphis has had a white Democratic representative for some time in an almost, you know, gosh, overwhelmingly black district. And so they have framed it in Tennessee. Is not that you are diminishing black representation, in other words, not that you're diminishing the number of black representatives because redistricting. Memphis doesn't redistrict out a black representative. You're, you're redistricting out the choice of black voters. That's the way it's being phrased in Tennessee. Which, you know, it's interesting, it's one of the very few because I said, you know, recently how many majority white Republican districts have elected a black representative post Reconstruction? And readers came forward with, I think the best example was a Newt Gingrich's old district in 2018. There was a huge upset. I believe that was when Karen Handel lost a race. And then there was a district in Texas as well. And so there are, there have been some very isolated instances that Representative Cohen out of Memphis is a kind of reverse. He's a white representative in a majority black district. Here's what might happen in a state like Tennessee as a result of this gerrymandering. It's so aggressive. And they have diluted red districts so much that what if instead of it being eight, one Republican with the one Democrat coming out of the majority black district, you have six, three Republican, but all three of them are white Democrats. And this is something that happens across the south, where you may have, because of the aggressiveness of the gerrymander, actually end up with fewer Republicans, but because of the way that because of the composition of the primaries, all the new Democrats are white or the majority of the new Democrats are white. So you end up with less partisanship, ironically enough, but fewer black representatives, which would be seem to be a very counterintuitive result if it's all just a partisan gerrymander. But that could be just a product of flying too close to the sun. Right? You're trying too hard to be too partisan.
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All right, well, Back to our 6, 3 here. The majority in the Supreme Court decision did not write anything. They just lifted the lower court's injunction on that map, sent it back to Alabama. But I did want to read this one part from Justice Sotomayor's dissent. The district court explained that the enormous record was replete with sharp departures from and some outright conflicts with Alabama's traditional districting guidelines as the state fashioned redistricting criteria from whole cloth that it had never previously employed. The state, the district court said, had also conjured legislative findings out of, quote, thin air in the dead of the night that, quote, exalted certain white communities while, quote, remaining silent on the heritage of all other communities of interest in Alabama, including the black belt. The district court observed that the result of this tortured legislative process was a precisely engineered set of redistricting rules and criteria that made it mathematically impossible to create a second opportunity district. In short, the record showed that Alabama made an intentional choice to perpetuate and entrench rather than remedy and uproot the racial discrimination that the district court had previously found and that this court had affirmed. The district court thus permanently enjoined Alabama's 2023 redistricting plan and instituted a remedial map without any reference to race. So this will get sent back to that three judge panel, David, and if they can find evidence of a racial gerrymander under the 14th amendment, then Calais doesn't matter. And that 2023 map is still permanently enjoined. But I think I agree with the majority that this is why you send it back to the court. Because if it's only a 14th Amendment violation, because it was a Section 2 violation, then you do have a Calais problem and that's why you send it back. We can't quite tell from reading 561 pages where, like, you didn't need to find a separate 14th amendment violation. They in fact said that they were doing constitutional avoidance on the separate 14th amendment violation. So they weren't going to reach that question. They were only then reaching it because it was part of again, this Section 2 violation. So it's not that I think this is a done deal. It's not that I think the majority even thinks it's a done deal. It's that in this very odd situation, I actually think you need the District 3 judge panel, the trial court to do this again with Calais in mind. It's like why we have GVRs.
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B
I think you're right, Sarah. So if you have a situation in Calais, Calais has said, here is how you interpret section two. And it's about section two. It is not about the 14th amendment. And you get a lower court opinion that says our 14th Amendment decision is inextricably linked in the Section 2 analysis that the Supreme Court has just said should not apply in the circumstance you got, you send it back. That's what you do for the separate 14th Amendment analysis. And you know, it's interesting, it is going to be fascinating to look at all of this after November because it's quite possible that the way voters act make all of us look dumb. In other words, there's going to be voting that occurs in a lot of our projections about how the voting will turn out and the racial composition of the representatives who are elected or not elected. There's a lot of projections being laid upon a situation. This is in a state of enormous flux. And all we have to go back, go by are past results, past performance. That's why, you know, you're really focusing on the high, you know, the extreme racial polarization and voting in the deep South. So that's a very relevant past factor. You've got polling results that are happening right now. You have past election results and you've got a giant question mark in the very near future. And you know, it'll be interesting to do this show after November and really take a look at how. At the South's representation after November. And I think it's. It's gonna be very interesting to see what that. The tale of that particular tape because we're all just guessing right now. We're all just guessing.
- [19:04]
A
The other interesting thing about this is it does raise. We need a new doctrine name. Cause this isn't a Purcell problem, but where a state is being prevented from doing something because of a federal, federal permanent injunction that again is predicated on like a thing that has now been overturned. Right. The majority could have said go back and look at this, but the injunction can stay in place during that Time. But if the federal injunction, this federal injunction is clearly predicated on a case that's been overturned. Now, basically, Alan V. Milligan, do you remove the federal impediment and allow the state to do what the state wants to do until you have Correct. Federal law applied, which is clearly what the majority decided to do here. It's messy because. And this, that's why I say it's like Purcell esque. It's this idea that the federal government doesn't get to just muck around with state elections. That's the state's election to run, you know, sort of unless and until you sort of meet these other standards. This one's a hard one, David, because now we're going to have these mixed. But that's up to the state. Right. They decided to have the Messiest election of 2026 for reasons that. I think you're right, David. Like, we'll see about that. I don't know that it's worth it.
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B
What's happening right now is super bad for our country, guys. It's super bad for our country to absolutely try to stretch your gerrymandering to a point where it's entirely feasible that a majority of voters do not get their way in the House of Representatives, which is supposed to, from the day one, have been the most representative part of the American government. This isn't filtered through the Electoral College. This wasn't set up to be, you know, appointed by, you know, senators. Appointed, not elected. These were folks. This is the House that was designed to be the most representative branch of American democracy, the one where the people got their say. And this radical gerrymander that is deliberately designed to frustrate, that is bad for our country. And everyone who's doing it is hurting us. It's just in on the Supreme Court. I think it's very clear, Sarah, they don't want to be in this business. They're not slamming the door in the face of everybody else. But what they're saying is we're leaving it under an open under this very small crack. Here's the small crack. If you walk in and you've got obvious blatant racism in the record, we're going to open that door and hear you. But otherwise, if it's a big partisan slash racial mess and we can't disentangle it, you deal it. You deal with it. You handle it. And so it's very clear the Supreme Court doesn't want to be in this business. And at the same time that it's. I've Never seen state legislatures want to be in it more.
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A
David, this was just a lovely speech that was given by a South Carolina Republican member who is also the majority leader. His name is Senator Shane Massie. And I'm just gonna. Can I read you part of his speech?
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Yes, please do. I have seen part of it and loved it. So please.
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I've seen it argued on social media. People have told me this, that this is what you're supposed to do with power. This is what you're supposed to do with a super majority. You're supposed to punish your opponents. Really? Is that how it's supposed to work? Is that how it's supposed to work here? I know that's how it works in some other places around the world, but is that how it's supposed to work here? You know, to most people in the country, I think this is the perfect example of just how much elected officials have lost their way. Too many people in power just want to do whatever it takes to stay in power. They'll do whatever it takes to keep it. But I ask, to what end? What do you do with it when you've attained it? Crushing the minority opposition is not a demonstration of strength. It's an admission of fear and a show of weakness. Maybe we become convinced that the only way to preserve the Republic is to implement policies that are contrary to the founding ideas of the Republic. Maybe we turn on ourselves. I believe the legitimate use of power in this context is to make people safer, to ensure they have the freedom to make decisions, to guide their own lives, to offer opportunities for success. You know, this whole outdated idea of life, liberty, and the pursuit of happiness. I don't seek to power. I don't seek power to punish. I want to uplift. I will tell my Republican friends, Republicans are stronger when the Democratic Party is vibrant and viable. We are. Competition makes you better, y'. All. We know it in the economic sector. It also happens in the political sector. Competition makes you better. A legitimate opponent will make a competitor better every time. If you crush the opposition, if you stamp them out, if you don't allow the voice to be heard, people will listen even more intently. Try to silence a voice, which is effectively what this does. Trying to silence a voice is going to result in people wanting to hear that voice. I hear those who say they would do it to you. We've all heard that if the Democrats were in power and they had the opportunity, they'd do it to you. Maybe. I don't know. We've seen that in other places. I would hope that wouldn't be the case, but I'm not naive. My larger question, though, is that the way it should happen? They do it to you, so you should do it to them. Do unto others as you believe they would do unto you. Is that it? Is that what we teach our children? I think you should do what you know to be right. Sometimes you'll get taken advantage of. You should do it anyway. You should do it because it's right, not because you might win because of it, not because it may hurt an opponent. You should do it because it's right. And I believe that good and decent people, those people who make up this state, in this country, they will determine right from wrong and they'll respond accordingly, even if that means at the ballot box.
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B
Inject that into my veins. Just. That's incredible. And every syllable of that is right. I mean, look, what we're doing right now is for a very short, a presumed and a possible, a potential very short term political advantage. We're engaging in long term degradation of our political fabric. We're creating an injury, we're imposing an injury on people as you're trying to deprive them of their voice and their rights to be heard. And we're doing it in a way that's nakedly partisan and as he said, often preemptively vicious. This is a very common argument that you hear, I'm going to go ahead and do this while I have the power, because I know if the other side had the power, they would be doing it. So you imagine the offense and then you preemptively retaliate against the imagined offense. Now, the imagined offense might be real someday, somehow, sometime, but in South Carolina, they're preemptively retaliating against an imagined offense by a political minority that has no immediate prospect of becoming the majority in South Carolina. They're just sort of saying, these people that we've beaten for the last 50 years and have shown no signs of winning in our state, well, in some imaginary future where maybe everything changes in South Carolina politics, they'd be mean to us. So we'll be even meaner to them now than we have been. Wow. And also, I'd say, Sarah, that speech was given after the primary defeats in Indiana, guys, that's what political courage looks like. If you have, if you have seen some of your comrades across the country receive severe electoral punishment for taking exactly the stance that you're about to stand up and take, and you stand up and take it anyway. That's what we need. That is what leadership.
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A
Looks like we'll put the YouTube clip in the show notes so that everyone can go watch it. The actual speech of course is much longer, but all of it is of a vibe. David when we get back we actually have the filing from the Commonwealth of Virginia to the U.S. supreme Court. Is it as bonkers town as we suspected it would be Right after these messages. You know that satisfying feeling when you finally get everything organized after it's been piling up? That's what using Gusto feels like for your business. Bringing payroll, HR and benefits into one place and clearing out the day to day admin clutter so you can focus more on business growth. Gusto is online payroll and benefits software built for small businesses. It's all in one remote, friendly and incredibly easy to use so you can pay, hire onboard and support your team from anywhere. Get direct access to certified HR experts who can support you through any tough situation and enjoy a quick, seamless switch to Gusto by simply transferring your existing data. Plus, you won't pay a cent until you run your first payroll. Try Gusto today@gusto.com advisory and get three months free when you run your first payroll. That's three months of free payroll@gusto.com advisory one more time gusto.com advisory becoming a parent really shifts your perspective. I felt how suddenly everything isn't just about me anymore. It's amazing, but also it comes with a lot of responsibility and plenty of unexpected moments you can't plan for. You start thinking more about the future and what would happen in situations you hope never come. That's why having some kind of safety net matters. Just knowing your family would be protected brings a different kind of peace of mind. Ethos makes life insurance fast and simple with a fully online process. Get a quote in seconds, apply in minutes, and even secure same day coverage with no medical exam, just a few health questions. Online you can get up to $3 million in coverage with plans starting around $30 a month from a network of trusted carriers. Take 10 minutes to get covered today with life insurance through Ethos. Get your free quote@ethos.com ao that's e t h o s.com ao Application times may vary, rates may vary. Okay David, we have the filing. Virginia's Gerrymander Partisan Gerrymander gets struck down by the Virginia Supreme Court 4 to 3, finding that they did not pass it the first time in the legislature before the election because early voting had already started. They did it on October 31. 1.3 million people had already voted. It was A close call, right? Four to three in a not ideological state supreme court. So the Commonwealth has gone to the US Supreme Court and we suspected that they were going to argue a version of the independent state legislative theory. This idea that state courts can't interfere with the state legislature drawing maps, setting rules for elections because that power is given to the state legislatures in the federal constitution. When that idea was bandied about by Republicans several years ago, it was like the biggest threat to democracy ever. The Supreme Court did not accept that theory, but they did leave open the idea that a state supreme court could so, quote, unquote, transgress the ordinary bounds of judicial review that they would have violated the state legislature clause of the federal constitution. And we were like, God help us if the Commonwealth of Virginia Democrats bring that argument to the Supreme Court. Like, this is a joke, right? Well, David, they brought three reasons that the US Supreme Court should step in and fix this for them. One, and usually these reasons are in order of the strength in which they think the U.S. supreme Court will, will, you know, weigh them. Number one, they argue that the Virginia Supreme Court decision was predicated on federal law and an incorrect application or understanding of federal law. It is true that if a state court decision purportedly on state grounds was nevertheless interwoven or with federal law, the U.S. supreme Court may intervene to ensure that the state's court's decision complies with federal law. As in, if a state supreme court is the end of the road on state law, but if they use federal law to do it and they're wrong on the federal law, the U.S. supreme Court can step in and say, you were wrong on the federal law and send it back with the correct understanding of federal law. That's number one. Unfortunately, David, just in terms of how the Virginia Supreme Court actually wrote their opinion, it was not interwoven. They gave federal law as an example of another version of what, quote, an election means. But at no point did they say they were basing it or that I think it was interwoven in any way. This is very unlike the interwovenness of Section 2 and the 14th Amendment in the Alabama case. Number two, the Supreme Court of Virginia's decision transgressed the ordinary bounds of judicial review.
- [32:12]
B
Guys, Hail Marys. These are. These are Hail Marys.
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A
This is the independent state legislature doctrine. Now, they are following the precedent in Moore vs Harper, but this is the argument that the US Constitution gives this power to the state legislature. We, the Democrats, controlled the state legislature, and therefore the state Supreme Court should not get to mess with what we did for sort of these, you know, technical, blah, blah reasons. Number three, David, is this one's not even. They only did a page and a half on this one. Their heart wasn't in it. Candidates and voters would be irreparably harmed absent a stay and the equities way in favor of permitting the commonwealth to hold elections using the maps authorized by the constitutional amendment. Like, it's just sort of like a. Can I have the cookie anyway? You have to eat your dinner. Yeah, I didn't do that, but could I just please have the cookie?
- [33:06]
B
It takes some guts to argue that the equities in this case favor you when the equities would say that a case, a state that's maybe, and I'm being generous here, 55, 45 Democratic. It's, you know, depending in some elections, it's been a lot closer to that. But let's just say it's 55, 45 Democratic. That it's then equitable to restore voting maps that give the 45:1 representative less than 10% of the state's representatives. The equity demands it.
- [33:39]
A
David, I want to tell you something I've been marinating on the underlying 4, 3 decision. Remember I told you it was a really close case for me. Now I'm not, I'm not changing anything I said last time. I think we have too long of early voting. I would like to see it shortened substantially, like to maybe one week of early voting. Early in person voting, ideally, but you know, with the same, like, of course, if you have a disability, if you are a member of the military, like we do mail in early voting for. For specific reasons. But here's the thing, David. If you choose to early vote, you are early voting for election day, right? It's called early voting. It's not. We have six weeks of election day. You are assuming the risk that you're basically saying there's nothing I could learn in the next several weeks that would change my mind. So I'm voting on election day early because I don't need to. There's nothing else I want to learn as a voter. So you have assumed the risk that something could happen between now and election day. And you've already promised nothing would change your mind. Nothing you could learn about this candidate or the legislature and the ballot measure would possibly change your vote. So not only do I favor having a shorter early voting period, but yeah, we, we need to actually hold voters a little bit accountable for this too. Don't vote six weeks early, even if it's allowed. No one's making you go vote on election day if you're so worried that the state legislature could, like, do shenanigans on October 31st. Because I think the election is held on election day and everything before that is just, you know, a convenience for you. But the election isn't held on some previous day. The election's on election day. So I'm with the three. This, by the way, does tie into that Mississippi case of whether you can accept ballots five days later. I tend to actually think the answer to that is no as well. I think the whole thing is consummated on the day of the election, and everything else before and after is nonsense.
- [35:40]
B
So I would construe an election as the process of voting that ends with a selection. But if you're going to have the process of voting be a single day, that's election day. And the term early voting is more colloquial than really legal and technical.
- [36:00]
A
Yeah. I don't think your argument's crazy. I get why you're in the four and I'm in the three. And I think, you know, if I had something different for, you know, dinner last night, I'd be in the four and you'd be in the three. I actually think this is just a really close call. But I've decided Election day is the election and don't vote early. I mean, I do vote early, but I wait. I try to vote like the, you know, Wednesday, Thursday before the Tuesday. But that's because I'm trying to weigh the balance that something could come up on Tuesday that would prevent me from getting there. I get super sick, my kid's super sick, whatever. With the fact that, like, I do want to know everything I can know because things will change my mind. I'm at least open to that possibility. So, yeah. Okay. Well, David, I think that one's going to be a naw dog from the Supreme Court. We will find that out Thursday, I believe, as well as that mifepristone stay also expires on Thursday at 5pm According to Circuit Justice Alito. So, yeah, we'll have. We'll have a lot more on things people are asking the Supreme Court to do on the emergency docket this week coming from the states. David, I would like to move to this ninth Circuit case that I am obsessed with.
- [37:23]
B
I think we're going to come down on the same side on this one. I think we're going to come down on the dissent side of this case. But I'm very curious.
- [37:31]
A
I think this defines judges and justices along that institutionalist spectrum that I've been talking about. Like, forget ideology. This is the perfect case to define who you are and your judicial methodology. I will read from the majority opinion. This was a 2 to 1 out of the 9th Circuit. Again, this is you are going to see there's nothing ideological about this case. Veracool World llc, a cooler manufacturer, claims Igloo Products Corporation said something uncool, wrongfully taking credit as the first to market a biodegradable cooler. We must decide whether Igloo's statements are unlawful under the Lanham Act. The Lanham act creates a cause of action against a defendant who misrepresents the nature, characteristics, qualities or geographic origin of a good. The characteristic must be an observable aspect of the tangible product rather than the ideas or communication that goods embody or contain. Because Veracool's claim concerns the origin of an idea embodied in its cooler rather than the characteristics of the product itself, we conclude it is not cognizable under the Lanham act and we affirm the district court's grant of summary judgment. So David, this is a pure statutory construction case about what is the nature, characteristic, quality or geographic origin of a good? What does it mean to misrepresent those things? And is saying that you're the first to market with a product a violation of that between these two companies over a frickin cooler? I think we can maybe say that. I don't know that I want a ton of our federal court resources and maybe our podcast resources to be going to this kind of silly question. But nevertheless, that was Judge Nelson writing for the majority, a conservative judge on the 9th Circuit. Now let's hear from Judge Bhumite, another conservative judge on the 9th Circuit who is dissenting in this case. The question of what is the nature of a thing? Has vexed philosophers, physicists and poets for millennia. Take the ship of Theseus. Plutarch famously recounts the fate of Theseus ship after the hero returned from his epic voyage. According to Plutarch, the ship was preserved by the Athenians for centuries, a testament to its navigator. But over time, the Athenians had to replace the ship's timbers as they fell into disrepair, plank by plank. Eventually, the ship was composed entirely of new wooden planks, stripped of any original wood. The critical question was the nature of the preserved vessel. What was the nature of the preserved vessel? Was it still the ship of Theseus? Or was it a new ship, a replica of the original? At the heart of this thought experiment is Whether something can be more than its tangible parts. Thankfully, we don't need to settle this age old question here. Instead our job is simply to answer the question whether the nature, characteristics or qualities of a thing includes its intangible nature, characteristics or qualities under the plain meaning of those words. The answer of course is yes. And David, he of course then goes through exactly what those words mean in sort of ordinary use and says so like the identity of the ship of Theseus, whether Verakul's cooler was the first of the original goes to its nature, characteristics or qualities. Indeed, according to Veracool, Igloo's allegedly false assertion implied that its cooler was an imitation or knockoff of Igloo's, when of course the opposite was true. So David, you say that you're with the dissent, say more.
- [41:27]
B
So what I found fascinating about this case was you had this very interesting different approach in the majority. You had here's the act, here's a bunch of the precedent around the Act. It's not exactly, precisely directly on point, but here's the precedent around it and here's sort of the overall statutory scheme. And so if you want to make a claim that says that something is really new, well, that's patent. That's, you know, go patent it, or that there's certain language that you're wanting to use to describe your pot product that's also going to be a lot of that will be in copyright. And so you have other avenues for attacking this issue that are better suited than this Lanham act violation claim. And so it really was sort of assembling the law as a series of jigsaw puzzles and putting them, and kind of putting them in their proper place and saying this is not the proper place for this claim. Whereas Bhumite comes in and goes, I'm just going to read the statute. And look, if you apply the plain meaning of these words, clearly they encompass this case. That I don't have to necessarily go out and look at the overall scheme. I can read the words on the page, apply their plain ordinary meaning and they do apply to this case. And so this really does go back to sort of this idea of how much when you're talking about, I know this is a statutory construction case and not a constitution case, so it's not strictly text history and tradition, but it's adjacent to that. Right?
- [43:00]
A
Gives you this like framework of a house of how you approach these things, whether you're going to look at sort of all of these swirling things around it, right. Precedent and other laws. And frameworks or whether you're just going to look at the text and say, I don't know, characteristic seems to me, whether you were the first to market or not, I think it's super, super y AIs amazing.
- [43:25]
B
Yeah. Is it text, history and tradition, or is it text, history and tradition? And that's, I think that's one of the big differences. And I'm much more of a text, history and tradition kind of person than I am, you know, sort of weaving the text in an equivalent basis to a lot of other external, other factors which are relevant, but sort of external to this specific text that you're reading in this specific moment. But again, it's one of those issues, Sarah, that reminds me of our Virginia Supreme Court decision we just had. They're both really compelling judicial opinions that are very well reasoned, and we're fine as a country under either one of these ways of doing it.
- [44:11]
A
Right. And Congress can change it. Congress can change partisan gerrymandering, Congress can change the Lanham act and whether it only applies to tangible things or whether it could apply to intangibles about the description of the product. David I mean, do you agree with me that Judge Nelson's opinion is the Justice Kavanaugh version and Judge Bhumite's dissent is the Justice Gorsuch version? And so you have your high institutionalists, which again, maybe I just need to find a new word, because this is what I'm trying to describe with institutionalism, this idea of sort of frameworks built up over time that you will the scaffolding. Do you think there's scaffolding to the law, whether it's precedent, other laws, consequences, et cetera, or it's like, no, no, there's no scaffolding. We are hunters and gatherers out in the savannah. And I'm just picking up berries. And I guess I hadn't given a lot of thought to whether I thought he was a a Kavanaugh or a Gorsuch. And then I read this and I was like, oh, my God, he's a Gorsuch. Yep, that makes perfect sense. So I think, David, this is the test I want to give law students. Or if you're a college student right now and want to the Cosmo quiz version, I want you to read this and tell me which side you're on. So we'll put the decision in the show notes so that everyone can use the Lanham act to decide whether you're a high institutionalist or a low institutionalist. David fascinating that you identify here as A low institutionalist. I actually was persuaded by Judge Bhumite's dissent in this case, but I nevertheless think that in general, I'm with Judge Nelson. I like the scaffolding. I'm pro scaffolding. It seemed to me quite obvious that, like, this is a silly claim. And I don't care. Like, at the point that you're accepting that we can now have lawsuits when someone claims that, like they had the first one of these, we really are kind of going down a silly hole. But to your point, David, Congress could change this either way. They could say, like, yeah, we just don't agree with this. We did mean it to be tangible, or we don't agree with this. We want it to be intangible. So I don't think it matters matters. But I was. I was definitely Team Nelson as an overall vibe. I think in this technical case, I was persuaded by Bhumite. But I love this as my new test. Like, if I were the president and picking a new justice, I would give them this hypo and ask them where they come out on it. David, when we get back, I would like to talk to you about a potential reform to the Supreme Court that we have not talked about, that's mentioned in my book. But the Jesse Wegman over at the Brennan center has brought up, and this is the idea, what if you need more than 5, 4 to strike down an act of Congress? Let's break it down. We'll be right back. Your next chapter in health care starts at Carrington College's School of Nursing in Portland. Join us for our open house on Tuesday, January 13th from 4 to 7pm you'll tour our campus, see live live demos, meet instructors and learn about our associate degree in nursing program that prepares you to become a registered nurse. Take the first step toward your nursing career. Save your spot now at Carrington. Edu Events. For information on program outcomes, visit carrington. Edu sci. Okay, David, as I said, this is from Jesse Wagman over at the Brennan center. And he writes, other scholars make the case that Congress can impose what they call a consensus requirement on the justices. That is, the court has the power to strike down an act of Congress in whole or in part. But it can't be by a 1 or 2 justice majority. It must be by a vote of 7, 2 or 8, 1 or even 9, 0. This would ensure that laws would be struck down by the court only when their unconstitutionality was, quote, beyond honest dispute. So, David, obviously, and he notes this, this would not have mattered in Calais. They didn't strike down Section two of the Voting Rights act. They redefined it, which maybe would get to some of the point here. All of a sudden the 5 justice majority wouldn't strike down an act of Congress. They would just redefine it into oblivion. This goes to my point about if you suddenly banned overturning precedent, the definition of precedent would narrow into nothingness. Whether, you know, the guy was standing when the dog attacked him or was sitting when the dog attacked him. But I played with this idea in the back of my book when I talked about reforms because I like more consensus, right? I like the filibuster I am for more justices in order to strike down an act of Congress, for instance. But I just want to be clear because I think one side thinks this would favor them today. That is not a reason to support this. That's a terrible reason to support this because what 5, 4 decisions often reflect is an ascendant cultural majority. So for instance, if we had had this rule, you would not have Obergefell because you wouldn't have Windsor. Windsor was a 5, 4 decision striking down the Defense of Marriage act, which was an act of Congress, which. The Windsor decision held that the federal government had to recognize same sex marriages. Obergefell was five, four. But striking down state laws. The flag burning case was 5, 4. That was again a state law, though some people have played with whether state laws would be included. But even if we only do federal laws, okay, Citizens United would be struck down. I know the left likes that. That wouldn't actually change your problem, though. Sorry. Citizens United wouldn't exist. I mean, not that it would be struck down. I've said this all along. Citizens United is not the case you guys think it is. If anything, you're mad about Buckley v. Vallejo. And that was 7:2, although it was kind of a mess of where exactly everyone was and there were a ton of joining parts and whatever. So a little hard to say on Buckley, but David, I'm curious. Like, I like the idea of consensus. I don't want one side to think it helps them today because overall I actually don't think it does. I think it helps, you know, as I said, ascendant cultural changes when they hit that 5, 4 point. And so if anything, liberals should be the ones that are like, yes, five, four, because we the next thing to happen for us is to get to five Justices, not to get to seven justices.
- [50:53]
B
That's short time horizon thinking. Just think of it over a long time horizon. And here's how I think of it. Sarah, it intrigues me for this reason if one of the central problems of our democracy is Congress is not doing its job. And one of the reasons why it's not doing its job is that the Constitution has essentially provided them with some various escape hatches to not do their job, then what could you do to the Constitution to essentially imagine? It's like you're doing the paddles and clear and you're shocking Congress back to life. Like I've proposed an amendment that limits executive power by redefining or by rewriting the first sentence of Article 2 to say that a President of the United States shall have the power to execute the laws. There's no executive power. That's a freestanding independent thing. That's something that would be shock treatment to Congress or this would be a judicial branch article 3 change that would be empowering Congress more. And so in that circumstance it strikes me as a kind of structural change that would only be appropriate in my view, along with other structural changes that made Congress do its job and sort of replace Congress as Article 1 for a reason. That's what intrigues me about it.
- [52:17]
A
Yeah, look, as I said, I'm intrigued. But let's be clear. If Congress for instance, gets rid of the filibuster and you have a Republican majority as you do now in both houses, do they really want to raise the price of overturning an act of a Republican controlled Congress? No. So I just really want to emphasize this is a terrible idea if you simply think that you're on the liberal side of judicial fights right now because you will hate I think the result of this, this is maybe an interesting idea if you're weirdos like me and David and like want Congress to do its job, are willing to take some pain in the meantime about that. So that as you said David, this would privilege acts of Congress over executive actions and it would lower the cost, if you will, or raise the benefit, I guess of going through Congress rather than doing an executive action. Cause right now the cost looks so much higher to have an act of Congress. And so it's not worth the cost. It's like, okay, yeah, but we'll like will throw in, you know, a shamwow with it. How about that? So I'm really interested in that part of it. But I need to also think through if we get rid of the filibuster and we have a bunch of nonsense pieces of legislation that are hyper partisan passed by a simple majority that is of only one party do, am I really comfortable with the Supreme Court not being able to strike down patently unconstitutional things without having seven votes, that feels high to me. I, I think in my book, I recommend, like, let's talk about six votes. And like, let, let's do this one part at a time, right? Let's move to six and then we can move to seven after we test it out at six. Uh, you know, incremental changes, Burkean changes. But the idea that this will help the left, I think is a, a really bad idea for the foreseeable future.
- [54:12]
B
I would say it would not help the left because there are a lot of right now built in electoral advantages for the right. Number one is the way the Senate is composed when you have a lot of smaller states have equal representation to the larger states, and for this moment in history, Democratic powers concentrated in the larger states. So there's a structural Republican advantage in the Senate and in the House. With census changes and migration patterns in the United States, red states are gaining representation and blue states are losing representation. So in some ways this would be sort of like against blue interest right now because there are a lot of structural red advantages. If I'm a Democrat, I'm really worried about some of these seismic trends that have been, you know, the way in which Republicans were worried with the reelection of Barack Obama. And there was this sense that there were a lot of seismic trends trending in the Democratic column with increasing minority voting and minority voters were overwhelmingly Democratic. Increasing voting by single women, and single women are overwhelmingly Democratic. This was the quote, unquote coalition of the ascendant. There's a right wing version of that as well. That is structural advantage for the Senate, migration advantage of people moving to warmer states, and that will allow us to be dominant in the future. So there's a sort of an emerging demographic majority argument for the right, which is kind of interesting. And so, yeah, this is something that. Don't think of it in a partisan valence, and if you do, it would probably help the right in the short term.
- [55:44]
A
All right, David, lightning round. Would you rather, would you rather have only the due process clause of the 14th amendment or only the equal protection clause of the 14th amendment? Ho, ho, ho.
- [55:59]
B
Only equal protection.
- [56:01]
A
I think it depends on whether we're using sort of the sort of narrow, perhaps original meaning of what due process was supposed to do, or if we're going to have sort of substantive due process? Because substantive due process can encompass a lot of what I need from the equal protection clause. But if we're only talking process, then I'm with you. So as of today, I'm picking due process, but only because we have sort of left the bounds. Okay, that's a fun one. David French we're going to have a lot of emergency docket stuff to talk about next week. I think.
- [56:30]
B
I think you're right. Looking forward to it.
- [56:33]
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 if you 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@the dispatch.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@advisoryopinionsthedispatch.com we read everything, even the ones that say David's right. That's gonna do it for our show today. Thanks so much for tuning in. We'll see you next time.