← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
A Huge Shift is Underway at SCOTUS
00:48:04
Voting rights have gone from a SCOTUS sidebar to the main dish this term, as the right-wing supermajority disassembles the second reconstruction.
Loading summary
Transcript74 lines
- [00:00]
Wise Ad Narrator
Support comes from wise the smart way to manage the currencies you need around the globe. Fed up with losing out to hidden fees when you send money abroad with your everyday bank? Choose the smart way Wise. You can count on the exchange rate you'd usually find on Google. No unwelcome surprises. Plus, ditch that where's my money feeling. Most transfers arrive in under 20 seconds. Join millions saving billions on hidden fees. Be smart, get wise. Download the wyze app today. Ts and Cs apply hi, this is Jonathan Fields, host of the Good Life Project. What if your home could welcome you
- [00:36]
Pam Karlan
at the door, energize your kitchen and calm your bedroom all automatically?
- [00:40]
Wise Ad Narrator
With Pura's family of smart diffusers, you
- [00:43]
Pam Karlan
can send every space perfectly.
- [00:45]
Wise Ad Narrator
Choose premium clean fragrances, adjust the intensity
- [00:49]
Pam Karlan
and set schedules right from your phone. Is whole home sending designed for the way you live?
- [00:55]
Wise Ad Narrator
Build your Pura system today@pura.com Wholehome.
- [01:06]
Dahlia Lithwick
This is Amicus Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithwig.
- [01:17]
Mike Johnson
I'm not saying it's rigged. I'm saying it stinks to high heaven. And everybody knows that you really have
- [01:22]
Pam Karlan
created this world in which the Supreme Court has essentially said we're not going to protect democracy anymore.
- [01:29]
Mike Johnson
Everybody knows instinctively something is wrong here.
- [01:32]
Pam Karlan
And now the Supreme Court is saying not only aren't we going to protect you, but we're not going to let Congress protect you either.
- [01:38]
Mike Johnson
We need people to believe in the integrity of our election system. It is critical to maintain a constitutional republic.
- [01:44]
Pam Karlan
You know, if you want to say the Constitution is colorblind, you it's hard to say that about voting since the voting amendment in the Constitution talks about race.
- [01:58]
Dahlia Lithwick
This was one of those weeks at SCOTUS where we cautiously approached what might have been a big can of exploding snakes on Thursday's decision day and instead just got a plain old can of three worms. Mark Joseph Stern and I will be discussing that in our bonus episode for PLUS Members and exploring why Justice Ketanji Brown Jackson Jackson found herself atop the mountain again this week, trying to ring the alarm bell about what this right wing majority is up to when it says it understands congressional intent better than, well, Congress. Go to slate.comamicusplus to become a member and hear that conversation. But here on the main show, I am turning to one of the very smartest constitutional scholars that I know to talk about perhaps the most fundamental issue of this moment, a moment in which we are beset on all sides by urgent crises. That issue is, of course, voting in elections and the growing sense that this Supreme Court has decided it's done with the death by a thousand cuts approach to voting rights in free and fair elections, instead opting for death by bazooka. Pamela Carlin is the Kenneth and Harle Montgomery professor of Public Interest Law and a founder and co director of the Supreme Court Litigation Clinic at Stanford Law school. She's argued 10 cases before the Supreme Court and is one of the nation's leading experts on voting and the political process. She has served as a commissioner on the California Fair Political Practices Commission, an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund, and twice as a deputy assistant attorney general in the Civil Rights division of the U.S. department of Justice. Pam Karlin, welcome back to Amicus.
- [03:46]
Pam Karlan
Thank you so much for having me. Maybe you should subtract the three voting rights cases that I argued at the Supreme Court from my total.
- [03:53]
Dahlia Lithwick
I think you get to keep them and then we get to stand around and like warm our hands by the fire. This term, Pam, I think, is going to go down as a watershed year for voting rights. And it seems to me that constitutional and statutory voting rights have gone from being kind of a SCOTUS side hustle to the main dish. And I'm not always sure that that shift has been obvious to everybody. But maybe the failure to notice was because it's just too easy to keep getting caught up in the and the kind of tit for tat of polls and primaries and the redistricting wars and maybe to miss the big picture of like the sea change that is happening in front of our eyes. So maybe just to set the table, Pam, can you try to encapsulate for us what has shifted on the ground in the last couple of weeks at the court?
- [04:47]
Pam Karlan
Sure. So what's shifted on the ground is the Supreme Court has now decided to completely eviscerate the Voting Rights act of 1965, which is a statute that President John called the most monumental act in the history of American freedom when he signed it and which Ronald Reagan referred to as a crown jewel when he signed the reauthorization of the act in 1982. That was the subject of the case that was in front of the Supreme Court.
- [05:14]
Dahlia Lithwick
Maybe before we get to that macro view on fair elections, we can touch on one of the latest repercussions of the Roberts Court, declaring that the Constitution is now officially colorblind and that is this startling new Justice Department opinion that would wipe out a half century of civil rights protections in the employment context. This past Tuesday, the Justice department's office of Legal Counsel released a 25 page opinion taking the position that disparate impact liability should no longer be sufficient for liability under title vii. There has to be proof of discriminatory intent now. And I wonder if you can translate that into terms that are more readily understood by non civil rights attorneys and also explain how it is that the office of legal counsel tries to hang this on Calais, which was a case that was entirely about voting rights and non employment discrimination.
- [06:09]
Pam Karlan
Yeah. So, you know, I think the kind of position of the second reconstruction, which is what we often refer to the kind of landmark civil rights statutes that were passed by Congress and approved by the Supreme Court, I should say. So this is not the first time these issues have been at the Supreme Court. The landmark civil rights statutes of the second reconstruction recognized that requiring plaintiffs to show a racially discriminatory purpose missed the point that the point of these statutes was to fully integrate black Americans, Latinos, Native Americans into all aspects of American civic life. So public accommodations, employment, voting, housing. And the idea here is that if we have statutes that for whatever reason are excluding people because of their race or their ethnicity, there's a problem there and we should fix that problem. And we shouldn't require that you have to point a finger at somebody and call them a racist before you can say using a high school graduation requirement for janitors excludes people who are perfectly capable of being janitors, but who have been subjected and whose families have been subjected to discrimination over the course of American history. And saying that Congress can't fix that, is the Supreme Court really arrogating to itself the enforcement of the Reconstruction amendments from the first Reconstruction amendments that specifically say at the end of them, Congress shall have the power to enforce these articles? The people who ratified the 14th amendment did not trust the Supreme Court to protect our civil rights alone. They knew that Congress would have to do that. And now what the Supreme Court's really doing is saying Congress doesn't really have very much power here. And what the office of Legal Counsel is saying is Congress and the president don't really have much power here.
- [08:12]
Dahlia Lithwick
So, Pam, you had a piece recently that went up in just security and in Slate and you just declared a homicide. You said that. Kelly, this is the Louisiana redistricting case decided the end of April, killed the Voting Rights act dead like it's over. And we've talked about Kelly a lot on this show we're gonna keep talking about because what it has Left is really chillingly negligible. But I wonder if you could just trace your review of how it is that Justice Alito comes onto the court and then after this arc of his career, more or less in Calais, just like Cha Chas, his way out from under the Voting Rights act forevermore in this case.
- [08:58]
Pam Karlan
You know, one of the things that I discovered, I don't know why I discovered this, is when Justice Alito applied for a job in the Reagan Justice Department, he said that the thing that inspired him to go to law school and to care about constitutional law was his dislike of the Warren Court's decisions on school prayer and criminal justice. And those are pretty typical ones for a lot of conservatives and reapportionment, that is one of the signal victories in the Warren Court was the decision to apply one person, one vote to legislative elections and say you can't have one district that has 100,000 people in it and another district that has 700,000 people in it the way some states did prior to one person, one vote. So this is a guy who from the very outset of his career has disliked the Supreme Court's democracy protecting decisions and has decided to do something about it. So if you look at the arc of the last 40 years of redistricting, so if you go back, and it's kind of ironic for me because that was the year I was clerking at the Supreme Court, was 1986, and we're now in 2026. Supreme Court decided two in 1986 that are really important for this. One of them was a case called Davis against Bandemer and the other was a case called Thornburg against Jingles. Davis against Bandemer said that you could have a political gerrymander that's so extreme that it violates the Constitution. Thornburg against Jingles said when Congress passed the amendments to the Voting Rights act in 1982, it amended Section 2 so that you don't have to prove that a voting practice or procedure which can include redistricting, it can include registration requirements like you don't have to prove that that is purposefully discriminatory if the result of that practice or procedure is that members of minority groups have less opportunity than other voters to elect the candidates of their choice. That's the so called results test. So that was 1986. Over the arc of the next 40 years, the Supreme Court on political gerrymandering moved from it's justiciable and here's our standard in Davis against Bandemer to it's unconstitutional. All nine justices in VITH against Jubilee in 2004 said extreme political gerrymandering is a violation of the Constitution, but they split three ways. Four of the justices said, it's unconstitutional, but we can't do anything about it. That's the Justice Scalia position. Four of the justices said, it's justiciable and we have a standard for it, although they split three ways on what the standard was. And then Justice Kennedy said, mm, I don't know. You know, I'm gonna swing here a bit. So over the next decade and a half, people tried to come up with ways to give him a standard he would like. And ultimately that failed. And in Rucho against common cause in 2019, the Supreme Court said, political gerrymandering is inconsistent with Democratic values, but we can't do anything about it. You know, let Congress fix it, let the states fix it, but we can't do anything about it. But they still agreed at that point that it was a bad thing. They just disagreed on whether they could do anything about it. So that's the arc of the political gerrymandering cases. The arc of the section 2 cases is Thornburg against Jingles put out a kind of framework for assessing whether you had vote dilution of minority voters, voting strength that looked at could you draw districts from which they would be able to elect, and was there racially polarized voting in which the white majority voted one way, the racial minority voted another way, and the white majority's votes just overwhelmed the votes of the minority? And that transformed the south, it transformed California, it transformed a lot of northern states, especially with regard to local elections. And all of a sudden, you started seeing minority communities electing candidates of their choice to Congress, to city councils, to county commissions, to state legislatures. I mean, it really. There's a great book about this called Quiet Revolution in the South. Okay, now we come back to the two strands joining each other, really, in Calais, which is Justice Alito has now announced it's not that we can't do anything about political gerrymandering. It's the political gerrymandering is legitimate. That is, it's a legitimate government purpose for the party that's in control of redistricting to screw over its opponents. And it's so legitimate a purpose that it outweighs any claim by the minority community that it's unable to elect candidates of its choice under the Voting Rights Act. So what he has done is completely reverse what the Supreme Court did 40 years ago. And what he has said is essentially as long as the Republican party is willing to screw over white Democrats, it's free to screw over black people as well, because black people vote overwhelmingly in the south, in particular for candidates who are Democrats.
- [14:02]
Dahlia Lithwick
More in a moment with Professor Pam Karlan. This episode is brought to you by Monarch Summer is almost here, and that means it's time to start planning your vacation without having to worry about whether you can afford it. And if you're anything like me, the key to all of that is keeping your finances organized so you can spend less time worrying and more time enjoying your summer. Monarch is the personal finance app that tracks tracks everything, accounts, investments, savings goals and spending. And maybe the most unexpected gift for me is that it also creates a channel and a shared language so suddenly you and your partner can just track your spending, set your budgets, visualize your mutual financial goals, and do so all in one place. Get your first year of Monarch Core for half off just $50 with promo code and Amicus Monarch takes the mental load of tracking your finances off your plate with AI weekly recaps and diagrams that help you avoid spending spikes and understand exactly where your money is going every month. One thing I quickly learned from their cash flow visualizations is just how much of my income goes to all sorts of monthly subscriptions for things I don't even use and didn't know I had. Use code amicus@monarch.com to get your first year of Monarch Core half off at just $50. That's 50% off your first year at monarch.com with code amicus. This episode is brought to you by Gab. The youth mental health crisis is all over the news and we know social media is driving it. 45% of girls and 32% of boys feel overwhelming stress from being on social media and together 20 25% of both feel worse about their own lives. Listen, I've watched firsthand what social media does to my boys and I am pretty comfortable saying it makes them feel smaller and sadder and less than so. Here's the good news. A company called Gab is tackling the problem by doing something no one else is doing. Their approach is tech in steps. Tech in Steps works by providing safer phones and watches for kids with no social media. Social media tailored to every age, from GPS tracking enabled watches for younger kids to phones with parent enabled apps for tweens and teens. I can't recommend Gab enough and right now use our code to get the best deal on a kid's phone. That will make parenting easier and give you more peace of mind. Visit gab.com amicus and use code Amicus for an exclusive offer that as gabgabb.
- [16:49]
Mark Bittman
Rally caps, lucky socks, never stepping on the foul line. Baseball is full of superstitions. We hope give us an edge, but let's be honest, most of it's just luck. That's how I used to feel about hair growth products until I found Nutrafol, the official hair growth partner of Major League Baseball. It's physician formulated, clinically tested and recommended by dermatologists. An actual game plan for thinning hair. Nutriful has formulas for men at every stage. There's Nutrafol men for guys 18 to 49 to help grow thicker, fuller hair in three to six months. And Nutrafol Men 50 plus, designed specifically for men 50 and up who want to keep the hair they've got. Go to nutrafol.com promo code baseball for $10 off your first month subscription and free shipping. Find out why Nutrafol is the only hair growth supplement Brand trusted by MLB at neutrophil.com spelled n u t r a f o l.com promo code baseball that's neutrophil.com promo code baseball.
- [17:57]
Dahlia Lithwick
Let's return now to my conversation with Pam Karlan. So there's three prongs to this, and we're going to braid in the third, which is Purcell, because I think you've now talked about the two big shifts. One is the complete. You know, we're gonna hold our nose and allow some political gerrymanders. It kind of sucks. But, you know, what can we do to. They're amazing. Good faith.
- [18:24]
Pam Karlan
Yeah, they're great.
- [18:25]
Dahlia Lithwick
And then section two, then the third piece of all this is Purcell. Yes. You recently wrote it was entirely foreseeable that the court's decision in Calais would set off a series of attempt states under Republican control to eliminate majority black and Latino districts. Even before the court took the extraordinary step of issuing its mandate immediately to enable Louisiana to eliminate its second majority black district. Although the primary election was already underway. And you go on to say, and I think this third strand is important and hard to understand, quote, so Calais marked not only the gutting of Section 2, but also a rollback of the Purcell principle, which directs federal courts to hesitate before altering the legal landscape to an election. And I would love for you to bring in that third strand of what the court did to subvert. Again, Purcell was a principal. You know, it was never, I guess, a hard and fast rule, but they turned it on its head in Calais as well.
- [19:26]
Pam Karlan
Purcell was a, actually was a shadow docket case itself. And what the court said in Purcell is you really shouldn't change the rules of an election once the election is underway, because that causes voter confusion, and voter confusion may depress turnout, thereby denying people effectively their right to cast a vote. Right. If you're so confused you don't know what district you're in or the like, you might not vote, and then your preferences, your views about who should represent you won't count. And the court has used Purcell again and again over the course of the years since it decided the case to stop federal courts from putting into effect remedies for actual voting discrimination, because it's too close to an election. And what they did here is they raced to make it possible to change elections that were already underway. Having earlier said, once an election's underway, you really oughtn't to change the rules of the game. And they come right out and say at one point in their Alabama decision, which I think is where we might be going, it's okay if the state wants to do this. It's just not okay if a court wants to do this. But notice there were court orders in effect, so a court actually has to do it to enable this, because there was an injunction in Louisiana in place when the election began, and the Supreme Court raced in to lift essentially that injunction. There was an injunction in place in Alabama, and the Supreme Court intervened to change that injunction, essentially to allow Alabama to go ahead and try and get rid of one of its majority black districts. And notice this round, the states are only trying to get rid of the districts they were forced to draw after the 2020 census. But the other majority Black district, the first majority Black district in Louisiana and the first majority Black district in Alabama were also the product of voting rights litigation. This was litigation in the 1980s. So if the court really saying that the Voting Rights act doesn't require any of this stuff, it's not clear why those districts aren't vulnerable the next time around, because, let's face it, those districts are electing Democrats. And if it's okay to get rid of a district because it's electing a Democrat, indeed, it's a legitimate state purpose to get rid of all of the Democrats, then why not get rid of those districts as well the next time around?
- [21:56]
Dahlia Lithwick
So you've led us here. We have to do Alabama now, because this is another earthquake that happens.
- [22:03]
Pam Karlan
Well, this is. Yeah, this is a total outrageous earthquake.
- [22:06]
Dahlia Lithwick
Okay, go ahead.
- [22:08]
Pam Karlan
So a couple of years ago, the Supreme Court held that Alabama had violated the Voting Rights act by not drawing a second majority black district, which Alabama could easily have done, but didn't do, and sent the case back to the district court for remedial proceedings. And the district court said to Alabama, draw a second majority black district. And Alabama said, go fish. So the court drew a district, and in the course of drawing that district, it said, look, Alabama, not only did you violate the Voting Rights act, but you essentially did this for a racially discriminatory purpose. And you'll remember the Voting Rights act doesn't require you to say that, But a three judge district court in Alabama, a court that's familiar with Alabama, you know, two of the judges, the district judges, are from Alabama. They actually are Trump appointees on top of everything else. And they said, look, look, Alabama, you purposefully discriminated here because when you came up with your quote unquote remedial plan, that didn't remedy anything. You talked about how you were going to protect the Spanish and French colonial heritage of white areas along the Gulf of Mexico, AKA the Gulf of America. And you didn't talk about the heritage of the black belt, which is where a large part of Alabama's black population lives. It's called the Black Belt because of the soil, not because of the people. But that's where a large number of black Alabamians have lived for centuries now. So it drew a remedial map that created a second majority black district. And Alabama appealed that issue to the Supreme Court. And the Supreme Court right after Calais went back and said, okay, Alabama, you get to use the map that the district court found was not only a violation of the results test of section 2, but actually a violation of the Constitution because it was purposefully discriminatory. And the thing that makes this especially outrageous, and Justice Sotomayor gets at this in her dissent from this remand order is in Calais. The Supreme Court said, we're not saying anything that undercuts our decision in the Alabama case, which is a case called military. And now they've done this in Milligan itself. You know, so it's sort of liar, liar, pants on fire and on the shadow docket and on the shadow docket and after the election had already gotten underway in Alabama. So what Alabama has now done is it has, you know, congressional district primary going on in some parts of the state, but it stopped the same election in other parts of the state because it got to redraw the district so that it can get rid of one of the majority black seats. I mean, it's just, it's Just insane.
- [24:57]
Dahlia Lithwick
Okay, so that leads to my actual next big question, which my brain can't bear. The load of this insanity, which is what you're describing, is this kind of near and medium term race to the bottom, administering elections, you know, just tit for tat. You said to the New York Times last month. It raises the, of, quote, the torrent of tooth and claw partisanship. And there's no way to look at this other than, you know, it's like electoral bloodsport. To the victor goes the spoils based on what we've just seen in Milligan and in Calais. And what I'm interested in is this question of does the court not understand how nakedly political this looks? I mean, there's no other lens through which to view this.
- [25:49]
Pam Karlan
As long as the court didn't hold that political germaning was just non justiciable, the kind of implied threat that if you went too far, the Supreme Court might do something about it, actually held it quite a bit in check. But once the Supreme Court announced we're not going to do anything about political gerrymandering, the gloves were off. But the gloves are off in a kind of asymmetric way, which is the Republican Party in the south can screw over black voters with no consequences to itself to maximize its power. But of course, since black voters are part of the Democratic coalition, the Democrats can't do the same thing when it comes to districts in the North. And you also have this weird kind of race to the bottom that comes from the fact that a number of the blue states in the period between 2000, let's say, and 2015, 2016 around there, started to try as a matter of state constitutional law to limit naked partisanship, you know, in the spirit of good government. But what those states now find is that they've been kind of sucker punched because if they continue to adhere to their rules about fair districting and Republican states decide, screw the rules on fair districting, we're just gonna go ahead with naked partisanship that has an effect on the overall composition of the House of Representatives and, you know, and the like. And so you saw, for example, California had an independent redistricting commission, but after Texas announced it was gonna take five seats away from the Democrats in a mid redistricting, California had a special election essentially to take seats away from the Republicans in California. And New York is kind of hamstrung by its constitution. Whereas Florida, although it has one of these rules on fair districting, is just going ahead and redistricting to try and take away another Democratic seat. So you really have created this world in which the Supreme Court has essentially said, we're not going to protect democracy anymore. We're going to let whoever's in power do whatever they want, and we're going to essentially declare the second reconstruction over, which is the. That Constitution is colorblind language, language that, you know, if you want to say the Constitution's colorblind, it's hard to say that about voting since the voting amendment in the Constitution talks about race. You know, it's not a colorblind amendment. It doesn't say, you can't abridge people's right to vote because of whether they are urban voters or rural voters or farmers or miners or like. But it does say you can't do it because of their race. And so for the Supreme Court to say we think the Constitution's colorblind is a little bit like what the Supreme Court said in the cases that are called the civil rights cases from 1883, where it said, you know, the time for protecting racial minorities is over. But here's the deep irony about that for me, is when the Supreme Court said that in 1883, they said, you know, the time for us to protect the rights of the freedmen is over. They should protect themselves using the ordinary modes of politics that other people use. Well, that's exactly what the Voting Rights act was. People demonstrated in the streets, people marched and died in the south, and the political system decided to fix the exclusion of racial minorities from elected office by passing the Voting Rights Act. And now the Supreme Court is saying, not only aren't we gonna protect you, but we're not gonna let Congress protect you either.
- [29:28]
Dahlia Lithwick
So I think that's the part where the record skips for me, Pam, is that the court has now declared, as you and I have both said, you know, the Constitution is colorblind, not our business to, you know, get involved in this. But then I think by blessing shameless political gerrymandering, it's just hard not to accept that the court is letting itself look nakedly, openly political. And I don't know how they get out from under that. Or maybe what you're saying is they don't care.
- [29:59]
Pam Karlan
I don't think they care. There's that line of Leah Lippman's about this being the YOLO court, you know, the you only live once court, or maybe that beer commercial grab for all the gusto you can. They have just decided they have the power right now to undo the second Reconstruction, and they're happy to do that and they don't care that it's obvious that that aligns with a particular wing of the Republican Party and say particular wing because it's important to understand the Voting Rights act was passed by a bipartisan majority in Congress. Two of the architects of the Voting Rights act in some ways were Robert Dole, who was later the Republican candidate for president, and Henry Hyde of the famous anti abortion Hyde Amendment, went to the south, heard the testimony in 1981 and was so shocked by what was going on in the south that he became a supporter of the Voting Rights Act. So the Voting Rights act has been bipartisan up until quite recently when you now have a Republican Party, especially in the south, that has no interest whatsoever in attracting black votes. And in Texas it's a little bit iffy because it is trying to attract some Latino votes. But but you know, again, it's a party that is not interested in being a multiracial, multi ethnic party.
- [31:27]
Dahlia Lithwick
We're going to take a short break, but if you want to listen to Amicus ad free, you can become a Slate plus member at slate.com amicusplus.
- [31:40]
Mark Bittman
Hi, it's Mark Bittman from the podcast Food with Mark Bitman. It's grilling season and Whole Foods Market has everything you need from their 365 brand ground meat to the New York strips and ribeyes. There are also grill ready beef and chicken kebabs and house made sausages. Yum. All the meat at Whole Foods Market is no antibiotics ever and all of the seafood is either responsibly farmed or sustainable wild caught. So fire up that grill and get all of this and more at your local Whole Foods Market market. For in store shopping as well as
- [32:15]
Wise Ad Narrator
pickup and delivery support comes from Wise the smart way to manage the currencies you need around the globe. Fed up with losing out to hidden fees when you send money abroad with your everyday bank, choose the smart way Wise. You can count on the exchange rate you'd usually find on Google. No unwelcome surprises. Plus, ditch that where's my money feeling. Most transfers arrive in under 20 seconds. Join millions saving billions on hidden fees. Be Smart, Get Wise. Download the Wise app today. T's and C's apply.
- [32:52]
Dahlia Lithwick
And we're back talking elections, the law and the Supreme Court with Pam Karlan. I'd love for you to talk just for a minute about elections at large or one party delegations because in your writing post Calais you've been warning us about this possibility of returning to that reality and your warning about returning to that reality in this moment of, as you say, hyper polarized politics. Can you just walk me through the analysis there?
- [33:21]
Pam Karlan
Sure. So long ago, the supreme Court said the whole point of having districts for an election where you're electing a lot of people. So if you're electing seven Congress members or you're electing, you know, 54 members of Congress or whatever, the whole point of having districts is to have a fair system than you would have if you did what's called election at large, or what they called in the 19th century election by the general ticket. Because in an at large election, say you're electing seven people and everybody gets seven votes for the seven positions, a bare majority, literally 50% plus one person of the people who cast ballots can control all of the seats. And the Voting rights Act, One of the things we absolutely know about the Voting Rights act is it was intended to address the problem of at large elections in the south. That was the predominant way that county commissions and city councils and boards of election were elected in the south in 1982. Majority of them were elected that way. And Congress wanted to get rid of that because it said that was unfair. Now what we have is the ability of states like Alabama or Louisiana to draw their districts in a way that essentially turns it into an at large election where a bare majority of the population can elect all of the members of Congress. So you will have a completely Republican delegation. You know, and if you look at the flip side, so this is not just a Republican problem, it's a Democratic problem. In California, you know, probably 38% of the voters, 40% of the voters vote for Republican candidates. I mean, it's a clearly blue state, but, you know, it's not like there are no Republicans here. We're not gonna have, I think, 52 of our 54 seats or 50 of our 54 seats elected by Democrats because we've redrawn the districts to ensure that we're responding to Texas. And you know, this is not a better country if what we have is an all Democratic congressional delegation from California and an all Republican congressional delegation from Texas. We'd be a much better off country if Democrats in Texas are represented, but also the Republicans in California. Having a bunch of black Democrats in the north elect people to Congress, but having no ability of black Democrats in the south to elect people to Congress doesn't respond to the regional and local needs that are really important. It's just a much worse system. And that's what the Supreme Court is happy to see Us have.
- [35:54]
Dahlia Lithwick
So that's a nice segue, Pam, to something you said that freaked me out a little. You gave an interview to our colleague Shirin Ali at Slate for the Executive Dysfunction newsletter after Calais and you were trying to explain that Democrats are not necessarily going to win the big redistricting gerrymandering wars. And one of the things that you said that struck me at the time and strikes me now as I'm listening to you talk, is that the answer to almost everything in our system is if you don't like the candidate or the party or the platform, you vote and you change it. But what you're saying is there's no way to vote yourself out of this kind of gerrymandering war and that the original sin that the court has just like granted us is that having blessed partisan gerrymandering forever and ever. Amen. If you get screwed over by the other side, you have no recourse other than to. And then you suggest, you know, you can create some kind of ground up movement. You can like go back to the drawing board, you can try to invent a system to prohibit partisan gerrymandering. But it is like this Sisyphean ask to tell people you can't go to the ballot box to repair this. Best of luck, America.
- [37:20]
Pam Karlan
Well, that's what's so outrageous, is people did go to the ballot box and they did change this. That's what the Voting Rights act was. The Voting Rights act was a national movement that changed this. And Congress made a judgment and that judgment created at least some restriction on gerrymandering. Not all kinds of gerrymandering, but it prevented the south from engaging in political gerrymanders that completely eliminated black and Latino representation. And that's an important constraint. It's not a full constraint, but it's an important one. And the Supreme Court just came in and said, you can't do that. That and Congress theoretically has the power under the time, place and manner clause in Article 1 of telling states what to do. That's why we have congressional districts in the first place. Because in 1842, Congress passed a law that said you've gotta draw single member districts. And that law requires you to use contiguous territory. You can't have like Bantistans. And it also, both as a constitutional matter now and as a, a statutory manner, requires that they be equal in population. But how much power is the Supreme Court prepared to cede to Congress? That is, if you had a political movement that came back and said, you said in Calais you were just Updating and aligning the Voting Rights Act. What if Congress came back and said, no, actually, we'd like to update and align it back to where it was. The Supreme Court's not going to let them do this. And that's kind of outrageous because the Constitution gives Congress, not the Supreme Court, the power to enforce the commands of the 14th and 15th amendments.
- [39:00]
Dahlia Lithwick
And I think we need to do one more beat on this because I think one of the points you've made that I think gets lost in the shuffle is what all of this does to voter confidence, to voter turnout, to the voter's sense that their vote vote matters. Once you raise the stakes this high.
- [39:20]
Pam Karlan
Yeah, I mean, if you, if you tell voters, no matter what you do, you're not going to elect a candidate of your choice to one of these very important offices, which is in what we're talking about now is the House of Representatives. That may depress voter turnout, not just for the House of Representatives, but for presidential elections and gubernatorial elections and senatorial elections and down ballot elections, you know, for the school board or for county sheriff worth election, which will decrease people's confidence in the democracy. I mean, if the Supreme Court tells you no matter what you do, we're going to allow naked partisan incumbent protecting gerrymanders, why vote?
- [40:04]
Dahlia Lithwick
So I think we have to talk about California for a minute. Much as it pains me, Pam, because I'm sure nobody is less surprised than Pam Karlin that the GOP and Donald Trump and his Justice Department are immediately making claims about the widespread fraud in California in last week's elections. And Bill Asale, the first assistant U.S. attorney for the Central District of California, is already insisting that people are going to be charged over alleged voter fraud. But the piece of it that I think again kind of like sends a chill down my spine is House Speaker Mike Johnson last Monday.
- [40:41]
Mike Johnson
I'm not saying it's rigged. I'm saying it stinks to high heaven. And everybody knows that. Let's remove the appearance of impropriety. Let's have. What a concept. Let's have votes on an election the day of the election. That's what many states are able to do. I think California is playing around with
- [40:57]
Pam Karlan
this, but what evidence is there to
- [40:59]
Dahlia Lithwick
prove that there was a race?
- [41:00]
Mike Johnson
I don't. Some of these efforts are so diabolical and so far upstream, it is impossible to prove. But I think everybody knows instinctively something is wrong here. And that's a concern. We need people to believe in the integrity of our election system. It is critical to maintain a Constitutional republic.
- [41:15]
Dahlia Lithwick
So this is unfalsifiable, right? This is, oh, there's vote fraud, rampant vote fraud, but it's so nefarious that
- [41:23]
Pam Karlan
we can't find it. That we can't find it. Yeah, we've looked and looked and we can't find it. And that proves that it exists.
- [41:29]
Dahlia Lithwick
Right. This is the Kris Kobach playbook. I mean, this goes. This is a long standing play. And again, it's part of the authoritarian playbook too. Right? Don't believe the evidence. Believe what we're telling you. The evidence would show if it existed. But for me, I think, again, it puts so much strain on anybody who's trying to believe that elections are not routinely stolen and routinely thrown to the highest bidder. It's utterly costless for Mike Johnson and Donald Trump and apparently Trump's first assistant US Attorney for the Central District of California to just make claims that the whole election was tainted by fraud.
- [42:11]
Pam Karlan
First of all, the election wasn't tainted by fraud at all. And there's another case that hasn't yet come down from the Supreme Court. This is a case that involves Mississippi. But Mississippi has a similar law to California's where if you vote by mail, as long as your ballot is postmarked by election Day, you have a grace period for it to come. In Mississippi, I think is five days. Here it's seven days. And the question that's in front of the Supreme Court is, does that law violate the election day statute when it comes to federal offices, that is in voting for the president, electors, Senate and House? And we'll see what the Supreme Court does with that. And then we'll see how Purcell principled, like it's going to be about whether if it says you can't have these laws, it changes them for the ongoing 2026 election or not. But the problem in California is not a problem of fraud. It's a problem of slow counting of perfectly legitimately cast ballots. And it's ironic. I know Mike Johnson is a big one on the, you know, on the Bible. So there's that line in the. He's about you not seeing the log in your own eye, but you see the speck in someone else's. He sees the speck of maybe 100 people in a state of 40 million who weren't entitled to vote but actually cast a ballot. And he's obsessed on that. And he doesn't see the log in his own eye, which is the state of Louisiana screwed over black people in order to make sure that his seat was safe. It's that weird combination of not recognizing that the system is unfair and then demonizing this possibility that some person who's not a US citizen or not a resident or hasn't gotten their rights restored after they were released from custody, voted as the problem. I mean, it's just ridiculous. I mean, if you think about it in even remotely rational terms, if you're not entitled to vote, vote, and you know you're not entitled to vote, going to vote is one of the stupidest things you could possibly do because your chances of affecting the election are close to zero. I mean, other than Christine Todd Whitman, who didn't vote in an election where there was a tie in New Jersey, I don't know anybody else who could have cast a decisive ballot in an election. So you run the risk of prison in order to do something that will have no effect at all. And so when you actually look at the prosecutions of people who are prosecuted successfully for voting when they shouldn't have, it's people who didn't realize their rights hadn't been restored after they came out of prison, or it's people who, they were legal permanent residents, they went to get a driver's license and the numb nuts at the DMV said because the nvra, the National Voter Registration act says do you want to register as well? And they thought they could. Good, right. It's never people, you know, organized bands of aliens from another planet coming and trying to steal our elections. So it's so ridiculous. I mean, I remember this from the Supreme Court's voter ID case in Indiana a couple of years ago, the Marion county case, where Indiana was asked how many examples of in person voter impersonation fraud have there been in documented examples in Indiana history? And they couldn't point to any. And the closest anybody could come to this was pointing out that boss Tweed in 19th century New York used to have people go in and vote multiple times. And if the best thing you can say is, well, in the 19th century we seemed to have had some in person voter impersonation front, that's the best thing you can say. Then having rules designed to prevent that, that actually prevent lots of living human beings from voting is such a bad trade off.
- [45:57]
Dahlia Lithwick
It's a bad trade off. But I think this is not about the trade off, this is about saying something so often that it becomes part of the political and legal conversation. And you're exactly right. I think the only response has to be to like laugh coffee out your nose and say, you know, if you've Got visiting Martians, like coming down and voting, please, you know, show me the photos. But it is maddening that it all seems to be ramping up, up to what's coming in the midterms.
- [46:28]
Pam Karlan
Well, of course, because the Republican Party's claim, its fundamental claim is if we don't win the election, it must have been fraud. Right, right. It's just a ridiculous claim to make. But that's the claim they make.
- [46:43]
Dahlia Lithwick
Pam, let's end on this, which is in fact one of the myriad worries that keeps me up all night. We started by talking about what I think is a real change from a Supreme Court that used to do this in tiny increments over years and years and then turn around and say, like, look, you know, it's always been thus. It's ever been thus. And suddenly that's not how the majority is approaching these election cases. And I keep thinking, and Mark Stern and I, in our end of term kickoff a couple weeks back, we talked about this. Why the rush? What is the Roberts court hurry. They've got a super majority that will endure for a long time. They are, in my view, stepping on the gas. And I'm not completely sure if this is just kind of doctrinal Overton window moving that just is accelerating or if there is some internal abiding fear that lose the midterms, they start to pack the court. Like, I cannot figure out for the life of me, Pam, why the step change happens and it happens under our noses in terms of voting and what's driving it. And this is rank speculation. It's speculation o' clock on amicus. But do you have some thoughts on why this is on rocket fuel right now?
- [48:10]
Pam Karlan
Well, I think some of it is, you know, they have a super majority today, but that super majority could disappear for any one of a wide variety of reasons. You know, I mean, remember that if you go back to the end of the Obama administration when Justice Scalia died, the court could easily have tipped the other way. Right. I mean, every time I see nmg, you know, when the Supreme Court court lists all of its opinions and they put on their official website the initials of the justices next to them and you see, you know, EK for Elena Kagan or CJ for the Chief, and you see NMG for Gorsuch, all I can think is not Merrick Garland. And, you know, suppose that the Democrats take the presidency in 2028. At that point you have several justices who are not young anymore, more. And if those justices either were forced to retire from the Supreme Court or died or the like, there wouldn't be a super majority necessarily anymore. And so one of the lessons that I think, you know, especially Justice Thomas and Justice Alito and the chief learned, is you've got the power now, but you may not have the power five or 10 years from now, you know, and you've got Justices Justice Thomas and Justice Alito in particular, who really dislike the second Reconstruction. I mean, they really, really dislike it, and they have the power to get rid of something they really, really dislike. Why not take it? Especially if your view of American institutions is as cynical as theirs seems to be.
- [49:58]
Dahlia Lithwick
So it's a twofer. You get rid of the second Reconstruction, and at the same time, you do the best that you can to break all of the voting rights progress that we've accrued, and you're hedging against. Even if we lose, we're going to keep winning on these.
- [50:16]
Pam Karlan
Yeah. Get rid of this stuff and, you know, make it more difficult for people in the future to do this again. I mean, we're going to need a third reconstruction in some ways, and this Supreme Court is going to make it as difficult as possible to get this there.
- [50:30]
Dahlia Lithwick
Pamela Carlin is the Kenneth and Harle Montgomery professor of Public Interest Law and a founder and co director of the Supreme Court Litigation Clinic at Stanford Law school. She's argued 10 cases before the Supreme Court and is one of the nation's leading experts on voting and the political process. She has served as a commissioner on the California Fair Political Practices Commission, an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund, and twice as a deputy assistant attorney general in the Civil Rights division of the U.S. department of Justice. Pam, this was incredibly illuminating, if depressing, and I believe that on that note, you're gonna play us out with a little ditty that you call yesterday.
- [51:16]
Pam Karlan
Sure. Yesterday all my troubles seemed so far away Then the Supreme Court decided Calais oh, I believe in yesterday Suddenly they're not rights the way they used to be There's a shadow hanging over me oh, yesterday came suddenly Very suddenly but, well, very suddenly.
- [51:41]
Dahlia Lithwick
Dulcet. Dulcet tones of Pamela Carlin.
- [51:44]
Pam Karlan
Well, you can see why I want to be a lawyer, not a singer.
- [51:48]
Dahlia Lithwick
Thank you, Pam.
- [51:49]
Pam Karlan
Thank you, Dalia.
- [51:51]
Dahlia Lithwick
That is all for this episode, but Amicus members, looking forward to seeing you in the bonus boombox where Mark Joseph Stern is going to join me to unpack the latest legal news that we couldn't reach here on the main show. Today's Amicus plus bonus episode delivers another tour de farce from the Broadview six prosecution in Chicago. With the release this week of the full grand jury transcripts. And as jaded as Mark and I are, the prosecutorial misconduct that is laid bare in those transcripts is jaw dropping. And we're in Opinion Palooza mode as we explain why a hyper technical case about securities provoked a truly stirring dissent from Justice Jackson, who points to Amy Coney Barrett's Three Card Monty that ensures that no matter the hand it's dealt, the Supreme Court always beats the House. If you want to get unlimited access to all of Opinion palooza, join slaves slate plus to get unlimited reading@slate.com ad free versions of Amicus and bonus podcasts, including emergency episodes when the biggest decisions come down. Visit slate.comamicusplus to join. You can also subscribe to Slate+ directly from the Amicus show page on Apple Podcasts and Spotify. Our latest bonus episode is available for you to listen to right now. We'll see you there. Thank you so much for listening and thank you so much for your letters and your questions. Keep them coming. We are reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube, or rate us and review us on Apple Podcasts. Sara Burningham is Amicus supervising producer. Our producer is Sophie Summergrad, Hilary Fry is Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts, and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week. Until then, take good care. Think of a toilet as just an everyday object. Your entire perspective shifts the moment you experience a Kohler Smart toilet. Design changes everything, transforming a basic routine into something extraordinary.
- [54:23]
Pam Karlan
With standout aesthetics and intuitive controls.
- [54:25]
Dahlia Lithwick
These are functional works of art, stunning
- [54:28]
Pam Karlan
design that never sacrifices performance.
- [54:31]
Dahlia Lithwick
Enjoy customizable features for elevated comfort and convenience. Convenience.
- [54:35]
Pam Karlan
It's more than a fixture.
- [54:36]
Dahlia Lithwick
It's a cleaner routine and a more refined space. Experience the difference of Kohler Smart toilets.
- [54:43]
Pam Karlan
Find more@kohler.com when finance professionals need trusted insight, they turn to CFA Institute. Now, as private markets become essential to modern portfolios, we bring the same commitment to ethics, education and professional excellence that has defined our work for over 75 years. With professional certificates, a new private markets pathway in the CFA program, the latest research and more, we are helping professionals build deeper knowledge and stronger judgment in a complex field. Visit cfa institute@cfainstitute.org to learn more.