← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
An Elegy for the Voting Rights Act
01:04:24
Democracy is not what this Supreme Court is all about.
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- [00:01]
A
Hi and welcome back to Amicus. This is Slate's podcast about the courts, the Supreme Court, the rule of law, and you have now just stumbled into our annual end of term breakfast table. That's right, sports fans, this time last year, the 2019 term had been extended because of COVID Ruth Bader Ginsburg was anchoring the left wing of this kind of 441 court. Chief Justice John Roberts was the fulcrum. President Donald Trump was trying to dodge a New York investigation into his financ and starting to set up claims that the election would all be stolen. Here we are a year later. The justices are still doing their public sessions telephonically, but for sure they are not phoning it in. The 2020 term closed Thursday on a year in which Justice Ginsburg was replaced by Justice Barrett. Everyone warned they were going to take your health care away. Nobody took your health care away. The court stayed out of a contentious 2020 presidential election and they surprised a lot of people by not showing up in 63 jerseys all year. But then the 63 jerseys were pulled on Thursday morning with a pair of very contentious cases that I think raise existential questions about two issues that now seem to mean everything in America. Big money, the vote. Now the justices sail off into the summer. No retirements announced as President Biden tries to govern a country that is not entirely persuaded that he won the election. And with news on Thursday that the Trump Organization was indicted by a New York grand jury along with its chief financial officer on 15 felony counts. Ladies and gentlemen, what a difference a year makes for our Slate plus listeners. We have got such a packed show coming up for you with tons and tons of input from our cherished Mark Joseph Speaker Stern. So there is no Slate plus segment this week, but the Amicus plus segment will be back in all its glory this fall as we look ahead to the 2021 term. Remember, Slate plus members get access to ad free content from all of Slate's shows, never hit a paywall on the website and enjoy bonus segments from this show and a host of others. If you are not a Slate plus member yet, it's only a dollar for your first month. Check it out@slate.com amicus plus and as ever, you so so much for supporting the journalistic work we do here at Slate. Okay, here we go. The term that was with a panel of I know I say this every year at the breakfast table, but this year I really mean it. All due respect to other breakfast tables, the best people in and around the courts today. Professor Jeffrey Fisher teaches law and is co director of Stanford Law School Supreme Court Litigation Clinic. He's argued over 40 cases at the Supreme Court. If there is anything he does not know about Supreme Court Supreme Court litigation, I don't want to know it either. Perry Grossman is senior staff attorney in the Voting Rights Project at the New York Civil Liberties Union, where he focuses on litigation and advocacy efforts concerning voting rights and election law. We've yanked him off paternity leave to help us understand the voting rights cases. Melissa Murray is the Frederick and Grace Stokes professor of Law at NYU faculty director of the Birnbaum Women's Leadership Network, and co host of the Strict Scrutiny podcast. And Mark Joseph Stern, who needs no introduction, helms everything good that happens at Slate, particularly this last few months when I have been on my book leave. So friends, all of you, thank you so, so, so much for being with us. I know you are tired and I want to start with the big, big picture. And I think the big, big picture is this. The term was very surprising in a lot of ways. We had cases we thought were big ticket cases. Fulton, the Philadelphia foster care case, the Affordable Care Act. They fizzled into nothing. Really nothing. Deeply surprising lineups all year long, no clear sense of what kind of conservative supermajority we're looking at, if we're looking at one at all. Melissa, what do you make of the end of term, which was, I think, barring Thursday's cases, everybody was saying, hey, you know, this is whatever this is, it's not a 6:3 juggernaut, not a big shift to the right, strange bedfellows, maybe. We've got moderates in Amy Coney Barrett and Brett Kavanaugh. How much I did Thursday confound that narrative? How much did it bear it out? And was that narrative never really true?
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B
I don't think that narrative was ever really true. Dalia and again, thanks for having me back on the show. I think the whole idea that this is a moderate or minimalist or restrained court is really a gross exaggeration and one that doesn't take into account the very significant rulings that have been happening off of the court's regular docket and have been happening on the shadow docket. I think if you consider the shadow docket in tandem with the court's regular docket, a much different picture emerges, and it's not one of moderation or restraint. So it is true that there were some surprising coalitions, some places where the liberal justices seem to have found common cause with their more conservative brethren. But on the whole this is very much a conservative court, and Thursday's rulings really confirmed its conservatism. And even in the places where the rulings appeared on the surface to be more restrained, I think we may have overlooked the degree to which the law did change and change in a more conservative direction.
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A
Jeff I think I want to ask you a version of that same framing question, because I know you have to actually think about this as you organize cases for the clinic. Do you look at this now as effectively the same court that you and I knew, whatever, 15, 20 years ago, when there was Anthony Kennedy and Sandra Day Connor at the middle and that was the middle. And now we have Brett Kavanaugh and Amy Coney Barrett at the middle, and it's essentially the same enterprise. I guess it's a different way of asking. I've been kind of chuckling even this morning at the end of term stories that are like, it's an eight, one court, it's a seven to two court, it's a three, three, three court, it's a five four court, it's a four, four, one court. What is it? Jeff, how is there any way and totally fine to say? Dahlia Too soon, too soon and 65 cases tells us nothing.
- [06:42]
C
Well, thanks for having me as well. It's a huge pleasure. So I do think it's different than the court of yesteryear or even of recent years in that I don't think you're going to have as many 4, 14 divides as in the past. And so we're going to talk later about substance of particular cases, probably. But if you were just to say, is the court better off with two three justices in the middle and different ideological approaches among several of the justices that can result in shifting coalitions, I think we'd say yes. I think in terms of a big group of the court's cases, I think that is actually a positive thing. But I think you're still going to have some cases where it's going to be dramatically divided. I think the voting cases, like on Thursday are those kinds of cases where the court retreats to their camps a little more often, and I think in ways that do resemble the court of yesteryear.
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A
And Mark, I know you and I have talked about it on the Slate plus side of this show all year, but one of the things that I think that is descriptively complicated, even when you look at the SCOTUS blog numbers that kind of describe how many people vote in the majority and who votes with who and what the blocks are and that kind of bump in the center that Jeff is describing, clearly something is happening there. But one of the things you and I have talked about is that not all cases are the same and that also we tend to focus a lot of attention on swearing cheerleaders or on the demise of the aca. And we treat that as though it is the same somehow as an incredibly consequential case. Like, for instance, the voting case from Thursday. So I wonder how you think about this. If you're not going to just slice and dice it as 441 Court and you're not going to slice and dice the 60 whatever merits opinions and say they all count for the same amount. What is the rubric that we use to analyze what happened this year? Because the numbers don't get us to what Jeff just described.
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D
I think the proper rubric is roughly how sad these decisions make us feel inside on a scale of 1 to 10. You know, so a couple of things. It's simply impossible to quantify a lot of decisions in the way that stat nerds want to, especially with this court. Look at a case like Fulton vs. Philadelphia, where the court awarded Catholic Social Services a right, at least temporarily, to refuse to work with same sex couples. There is no way that the three liberal justices would have sided with Catholic Social Services if there were two more justices on the left flank of the court who were ready to side against them. I mean, this was so obviously strategic voting by the liberal justices to limit the damage, to choose the least bad opposition option on the table given the 6:3 conservative split and throw their weight around as much as they can to let Chief Justice Roberts hand down a smallish disaster for LGBTQ rights instead of a major disaster for LGBTQ rights. And again, you know, you can't really sort of put that speculation into a computer and have it spit out stats that the average person can understand. And I think that fact misleads a lot of folks who don't pay close attention to the court, who read the end of your New York Times summary and look at all the graphics where how the court divided and they say, oh, well, Sonia Sotomayor said it was okay to discriminate against gay people here. So this decision must not have been too bad. The other issue is, and this one is maybe even more problematic, there are a lot of cases that the Supreme Court hands down that are really complicated and that prevents, I think, both the media and the general public from really digging into their consequences and their impact. So a case like TransUnion vs. Ramirez, where the court actually split five to four to hold that Congress does not have the authority to create new rights and allow federal courts to enforce those new rights, like certain rights to privacy, for instance. And this is an example of where the 6:3 majority really matters because Clarence Thomas, raging liberal, peeled off and sided with Sotomayor, Kagan and Breyer.
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E
But.
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D
But that didn't change the outcome because there were still five conservative votes to really defang Congress's authority to create and enforce new rights. And most people just didn't pay attention to transunion because it's complicated, because we're talking about causes of action, which makes people's eyes glaze over, which I get. Like, it is a complicated case, but the problem is it's not included in those end of term roundups, how the justices voted on the big cases. It's too confusing, it's too wrapped up in legalese. And so I think that leaves a lot of sort of casual spectators of the Court thinking that we are in better shape than we are, at least from my perspective, and thinking that this court was not as maximalist and conservative as it actually was in cases like that.
- [11:59]
A
So I guess that that brings me to Thursday and to Perry, because certainly it felt like all of those pieces that we were seeing for the last two weeks, like, hey, this is really, you know, not a conservative court, and maybe the center of gravity hasn't shifted. And something really fascinating is happening, you know, between Justice Kavanaugh, who was in the majority, astonishing amount of times, Justice Barrett, that we've got the Chief justice agreeing with the liberals, that the liberals are in majorities, all of the. That grinds to a screeching halt on Thursday with Brnovich. And so Perry, it does lead me to the kind of framing question I wanted to give you, which is when everybody started writing Thursday, progressives started writing, this is it. It's end times. Democracy is done. Stick a fork in it. Is that because this narrative had been arrested, the one that I led with, with Melissa, that, you know, maybe the sky isn't falling, Maybe the court is going to modulate itself, that looks very moderate, or is it that voting rights are different? In other words, are voting rights the be all and end all the kind of gateway drug that gets you everything else? And is that why it really felt like the story turned on a dime and a lot of people who had been inclined to say, hey, this term, you know, couple dings, couple of dents, but we can take it to the shop and the court will be fine. That's not the narrative that emerges on Friday at all.
- [13:36]
E
So thanks so much for having me here, Dalia. It's a real pleasure. And I think the question is a fascinating one. The democracy cases are fundamentally important because they shape the ability of Congress and the electorate to respond to the Court and even to potentially change the Court. And so we've seen sort of this parabolic curve with this particular Court where during the pandemic, you know, we saw a lot of shadow docket efforts to stifle democracy, whether it's to expand voting rights to allow for more absentee voting and other sort of important accommodations. And then we see something of an artificial high water mark around the time of the election and all of the absurd cases alleging stolen election results and fraud and all that. And, you know, the Supreme Court takes the critical, but frankly expected, an uncontroversial step of rejecting those absurd lawsuits. And so I think that's where we got to a place where we were feeling a little bit more comfortable with how the Court was going to approach these issues. But Bernovich is very much a return to the way in which the Court has tamped down efforts to enforce the Voting Rights act and to make sure that the electorate can put forth a Congress that's going to be able to respond in meaningful ways when the Court strikes down federal laws or elect Senators who might be willing to reform the judiciary as we know it. And so we've seen this consistent pattern throughout the Roberts Court, for sure, and even going back a little bit before that, where there's this long term effort to contract the Voting Rights act. But we've seen that accelerate at a really unprecedented pace. And, you know, I think Justice Kagan's dissent is appropriate in its sort of time and historical scope in showing what a low point we are at when it comes to voting rights and the Court's approach to voting rights.
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A
And Perry, before we walk away, can you just tell listeners who are still grappling with what happened in Brnovich what it did and didn't do? Because I think there's been a lot of, you know, they did nothing. It was tiny, it was incremental. Maybe it wasn't that big. You know, what is this elegiac Kagan dissent? You know, the end of voting rights? What is that all about? Can you just give us, to the extent you can, just purely factual, where the goalposts moved on Thursday?
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E
Sure. So Bernovich addressed two different Arizona voting restrictions. One is called the out of precinct restriction.
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D
And.
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E
And that says that if you vote in the wrong Precinct, your vote will be discarded entirely, even if you have perhaps voted for some of the offices in a valid way. So you might not be able to vote for your city council member or school board member, but perhaps you've cast a valid vote for president, senator, member of Congress. Arizona law says that if you vote out of precinct, your entire ballot is thrown out. That's a fairly recent enactment, and it was shown to disproportionately affect voters of color. The other Arizona restriction is a restriction on third party ballot collection. Third party ballot collection is especially important for voters of color in Arizona, particularly the Native American community, where voters may live 45 minutes to two hours from a mailbox and may rely on tribal members, clan members to drive their ballots to the mailbox whenever they have the opportunity to do so. It was also shown to be particularly important to Hispanic voters. And the district court held that the two laws did not violate the Voting Rights act, but there was a pretty substantial record below that showed not just pure discriminatory effect, but that there's a lot of important background facts in the political ecosystem which showed that this is discrimination on account of race. And the district was only reversed by the ninth Circuit en banc. Judge Fletcher writing for that court, Judge Fletcher being a particularly well respected court of appeals judge, and that was reversed by Justice Alito's 6:3 majority opinion. And Justice Alito says that he's not putting forth a new test for evaluating voter suppression claims. Right. So for the moment, hypothetically speaking, the same test that has been in place for nearly 40 years now remains. But the fact is, Justice Alito put in these so called five guideposts which really radically alter the way that voter suppression restrictions can be addressed in court and frankly are an invitation to the kind of point shaving that can make a big difference in elections. So the out of precinct ballot restriction invalidated thousands of ballots in Arizona. It was a small percentage of the 3 million or so ballots that were cast in Arizona. But the difference in Arizona in the last presidential election was 10,457 votes. Legislators and their consultants have a lot of data and analytical methods at their disposal right now to find ways to subtly and more in a more sophisticated way, suppress votes in a targeted fashion. The same is true of the third party ballot collection. Right. There was not specific data which was a complaint of Justice Alito on just how many minority voters the third party ballot collection restriction harmed, but there was testimony on the record that it was hundreds, if not thousands of voters disproportionately Hispanic and Native American voters. So what Justice Alito's opinion really does is invite states to continue the sort of long term trajectory of discrimination in voting, which is to craft ever more subtle and sophisticated ways of suppressing minority votes. To give Justice Kagan her due, she recognized that that's what the Voting Rights act was initially passed to do. In fact, when she discusses the interplay of section 2 of the Voting Rights act, which is the affirmative litigation that we saw here in Arizona, and Section 5, which was disabled in Shelby county, that's really important because Section two was crafted to eradicate existing discrimination, and then Section five exists to block new efforts of discrimination. We don't have Section 5 anymore. And so all we have left is Section 2. And the court recognized as early as 1966 that affirmative litigation alone is not enough to stop discrimination in voting. So when Justice Alito makes this invitation to more kinds of targeted discrimination, small but significant death by a thousand cuts, that becomes a real problem. And he's really stifling what the Voting Rights act was intended to prevent in the first place.
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A
We will be right back with more from our end of term breakfast table after these messages. Jeff, I want to follow up with you and I just want to flag. We had Jessica Amundsen on the show after she argued Bernovitch in March. And she was essentially saying, look, what I tried to say is that voting is good and that the other side is saying that Section 2 is a one way ratchet and that it ratchets us towards there's, quote, unquote, an injury to the electoral prospect. I mean, this is fundamentally, and tell me I'm wrong, Jeff, but this is fundamentally a case about more voting good versus hypothetical vote fraud bad. And it seems as though Justice Alito not only blinded himself to what's going on in legislatures all around the country that are now saying voting fraud is serious and therefore voting bad, but that he actually really put a thumb on the scale for this notion that anxiety about vote fraud is enough to choke off the vote.
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C
I certainly think that's one way to interpret the decision. You know, as I said earlier, I think in some ways voting cases are singular at the Court in the way that they behave. But in another way, I thought you can read Bernovich as part of a much longer running debate in the Court about how you approach discrimination laws aimed at rooting out discrimination. Do we care only about discrimination that is intentionally aimed at harming people, or do we care about discrimination that has disparate impact or disparate effects and the Voting Rights act is expressly written to deal with disparate impact and disparate effects, but that's something that the conservative majority generally doesn't like. And so I think that was really the issue in the case. And one way that I think about how the court behaves in this debate between improper purpose and disparate impact is it reveals what they're most concerned about. Which kinds of discrimination do they think are most serious? And so I think one way to understand the decision in Brnovitch is that the majority does not think that facially neutral laws that have the effect of suppressing the vote in some ways in a disparate impact way are that serious. And I think, you know, Mark mentioned the Fulton case earlier. And so if you take just Justice Alito's vote as kind of a way to, again, say, what does that one particular justice care about in Fulton? He's saying laws that have disparate impact on religious believers and their free exercise should be subjected to the strictest judicial scrutiny, even if they were not at all intended to harm that religious group. Whereas, on the other hand, when it comes to race discrimination and voting, he's taking the opposite approach. And so for each particular justice, and I just used his as an example because he wrote a lot in both cases, but for each justice, you can look at his or her vote and kind of it reveals preferences and their sense, I think, of how serious the problem is out there in the world.
- [23:51]
A
Melissa, I want to talk about the two step. I wrote about this a tiny bit on Thursday, and I wrote about it in the context of Americans for Prosperity, where and that's the case that has to do with a California rule that says that charities have to disclose their major donors. The court in Americans for Prosperity in a big. Mark's going to talk about the case in a minute, but in a big six three decision, the other big six three decision essentially says that First Amendment associational rights need to be protected and donors have an interest in protecting their secrecy and their anonymity. And that's a huge move away from the way we talked about disclosure in Citizens United, the way we talked about it in Dovey Reed. Justice Scalia famously said civic citizenship and participation means standing bravely behind your ideas. And now it means pulling a garbage bag over your head and yelling, I'm not here. Pretend I'm not here. But I want to talk about this very narrowly before Mark explains the case, just in the context of the move that had after citizens united in 2010, we eviscerate campaign finance rules, but say it's okay because we've got disclosure to save us. And the same thing happens after Shelby County. Oh, we're eviscerating section five, but it's okay because we've got section two to save us. And that kind of one, two move where the court does something really radical but says, hey, don't worry because we can all rest on this other protection and then kicks the legs out both from disclosure and from section 2 of the Voting Rights act, that seems to me like a very non trivial move. And to go to Mark's earliest framing in this conversation, it's a move that feels imperceptible. It's not clear to me that people clock what happens.
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B
I think that's exactly right. I don't think that people clock it. I actually don't think people really clock the degree to which there is incredible inconsistency in the positions that some of these conservative justices are taking. So just to preview, you know, as Perry noted in the decision in Brinovich, Justice Alito is very concerned about the prospect of fraud, even though there is sort of of vanishingly rare circumstances in which voter fraud is a real problem in elections. But he notes this is something that states can intervene to take steps against. The concern about fraud is exactly what animates the statute that's at issue in Americans for Prosperity versus Banta. And the Court seems to have no interest in a state's prerogative to try and prevent fraud in their particular processes. And so, I mean, again, it seems like a kind of itinerant commitment to fraud prevention that really only rears its head when it involves voting. In the same vein, I want to go back to the two step part. And again, I think you're exactly right. People don't clock this. But it was Chief Justice Roberts who in writing that opinion in 2013 and Shelby county versus Holder said, don't worry, yes, we are gutting section five of the voting Rights act and eliminating the prospect of pre clearance essentially. But don't worry, there's still Section two of the Voting Rights act, which allows you to bring litigation based challenges to voting rights laws or laws that are suppressive. And here we are, you know, seven years later and the Court is saying, actually we're going to hobble section two as well. And now, you know, the Voting Rights act, which is perhaps the most important and most successful civil rights legislation in history, is basically a shell of what it once was. And it's because the Court came in in this sort of two step pincer move undermined it in Shelby county, actually undermined it even earlier under voting rights. Even earlier in 2008, Crawford vs. Marion county made it harder to bring challenges under the 15th amendment and the enforcement clause of the 15th amendment. And then you have Shelby county in 2013 and now you have Brinovich in 2021. So again, this happens all the time. They are incredibly selective and itinerant in their commitments. Alito, I think is very selective in itinerant in his commitments. If you want to go back just one term to Bostock, he was railing about a textualist read of Title VII and now he's apparently the most textualist in reading the Voting Rights Act. And back then he was really concerned about the purposes of Title vii, which would never have contemplated it being read to prevent discrimination on the basis of sexual orientation or gender identity. And he has nothing to say about the purposes of the Voting Rights act and its intent to prevent racial discrimination and voting discrimination against voters of color.
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A
Mark, I want to tie together the 263 decisions on Thursday. I've made one faint at it by saying they represented this two step that happens over years. I think the cynical version that I saw a lot on Twitter was wow, the court is going to make it easier for dark money to buy elections and harder for people of color to vote in elections. Is that I want you to explain one beat better than I did what happened in Americans for Prosperity. But I want, if you don't mind, it feels to me as though these two big themes about who gets to vote and money are such sort of through lines in a lot of the anxieties that are roiling the court right now. There's this sense of cancel culture and danger and the very dangerousness of being a part of the political process that is happening almost hand in glove with systemic efforts in the states to rig the political process. And I wonder if there's I don't even quite know with precision what I'm asking, but maybe if you can pull a little bit at what happened in Americans for Prosperity and answer the very specific question that I know Rick Hassan raised immediately on his blog. Does this spell the demise of disclosure in campaign finance?
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D
Yeah, I think another way to pair the cases is to say that the Supreme Court thinks cancel culture is real and voter suppression is not. So Americans for Prosperity or AFP is a case about this California law that requires charities, including political charities like afp, which is a Koch run Koch backed group, to disclose their high dollar donors to the California Attorney General not to the public. Yes, initially the California Attorney general inadvertently leaked some of these donors, but they have fixed the system and have not leaked in a while. And so the idea here was that the California Attorney general, who oversees 25% of the nation's charities, would be able to investigate for potential fraud, which is a real problem in this country, by the way. I urge you to read the briefs filed in this case by actual tax scholars who were jumping up and down and screaming, hey, Supreme Court, this is not all pretext. Like charitable fraud is a real problem, especially in California. And the California AG wanted to be able to, for instance, reach out to high dollar donors and say, hey, what did this charity promise you? And say it was going to do with your money, and then investigate whether the charity was actually doing what it promised, which apparently often charities are not. So the, the Supreme Court sort of reinterpreted this law as a barely pretextual attack on specifically conservative donors, donors to groups like Americans for Prosperity. And I do think it's worth noting the Supreme Court's decision by the opinion by Chief Justice John Roberts kind of downplays this, but we're really talking about very high dollar donors here. There's a formula that California used, and if you apply it here, you would have to donate more than $300,000 to Americans for Prosperity to even have your name turned over to the California ag. But Chief Justice Roberts sort of reinterprets all of this as an assault on the freedom of association and says that California is trying to, and I'm reading a little bit between the lines here, but not much. California is trying to scare people out of donating to specifically disfavored groups, which apparently in California are conservative groups like Americans for Prosperity and trying to freak people out by subjecting them to all kinds of threats and intimidation that will chill their exercise of First Amendment rights and therefore violate their own freedom of association as well as the charity's freedom of association. And so Chief Justice Roberts, he applies something that looks like strict scrutiny to disclosure laws. He calls it exacting scrutiny, but it really looks like strict scrutiny. And that is really big news use in the campaign finance context. Because if you apply strict scrutiny to a lot of long standing disclosure requirements that reveal who has donated money to certain candidates to parties to campaigns, those laws may well fall especially under the analysis that the Chief deploys, where he really minimizes the public's interest in learning who is financing all kinds of organizations and probably candidates as well. And I guess there's just a few quick points I want to make about this. First of all, this is a substantive due process case. The original case finding freedom of association, NAACP versus Alabama, that was substantive due process. That was based on the 14th Amendment's due process clause. It was not a First Amendment case. Roberts pretends like this is all First Amendment stuff, but if you read the First Amendment, there is no freedom of association in it. This is derived from the penumbras and emanations of the Constitution. And I think it's noteworthy that the conservative justices didn't even seem concerned about that. Clarence Thomas sort of flicked at situating this in freedom of assembly. But don't be fooled. This is substantive due process. This is freewheeling creation of new rights that a majority of justices think should exist. And I think that's important when you then compare Americans for Prosperity to brnovitch, the Voting Rights act case, where the Supreme Court gazes deeply into the text of section 2 of the Voting Rights act and extracts this kind of crazy test which Justice Kagan calls law free zone, which I think is exactly right, where he says Congress really would have wanted us to uphold most voting restrictions that align with what states were doing in 1982 when Congress amended Section 2, which is really stacking the deck because there was almost no early or absentee voting in 1982. That is a contemporary phenomenon. So Alito is strongly suggesting that cuts to absentee voting and cuts to early voting, which are in all of these voter suppression bills being passed right now in the wake of the 2020 election, all of those new restrictions are lawful under the vra, which is not something Congress ever said. And you can pour over the text of the Voting Rights act and you will find nothing that even hints at the idea that laws in place in 1982 are still okay today. And so I think if you, if you put the two cases next to each other, you see the Supreme Court's conservative majority doing what they always claim they aren't, using a kind of living Constitution or a sort of freewheeling, a textual legislative intent standard to impose new policies on the country that the Congress never intended for the Supreme Court to apply. And that it's pretty clear the framers of the First Amendment or the 14th Amendment never intended the Supreme Court to apply it. Like these are policy driven decisions very thinly veiled in the guise of constitutional or statutory interpretation.
- [36:00]
A
And before we leave Americans for Prosperity, I guess I need somebody to talk about the ways in which, and maybe people on this podcast agree. So many progressive groups signed off with this. And you know you got the Knight foundation, got the aclu. You've got, you know, really important civil rights organizations that are signing off with Thomas Moore and with Americans for Prosperity. It certainly gives John Roberts cover to say, I am making everyone safe from the reprisals and harassment that the bad Internet has brought upon us. Does anybody want to talk just briefly about the. Talk about strange bedfellows. It's one thing to have, you know, Breyer and Kagan agreeing across the boards with Justice Kavanaugh. It's really something to see so many civil rights groups and civil liberties groups agreeing that. That there's something just fundamentally different about vocally participating in democracy because of the Internet.
- [37:15]
B
I noted on strict scrutiny, our podcast, that there was an odd coalition of amicus support for this, and it was very lopsided. Like, lots of groups came out against this California reporting law, and there was not a lot of amicus support on the other side in favor of the state. And that, I think, by itself, is quite interesting. But I wonder if some of these liberal groups that threw their hat in with the Thomas More foundation and some of these other conservative groups might think twice about it in the next go around, because they really were exploited in this opinion. And the chief justice explicitly notes that there is a wide degree of support for the plaintiff's position in this case. And he notes that it is across the ideological spectrum. And I think think he uses it to bolster and justify the outcome, which is one that I think lays a foundation for calling into question a wider range of voting and disclosure requirements in other venues, including campaign finance, which I think a lot of liberal groups would be justifiably worried about. So it's a kind of weird, I don't know, racial capitalism, perhaps, that's being deployed here. I think we've seen it in other venues, like, for example, I've talked about this endless. But I'll raise it here again, in the abortion context, Justice Thomas talking about Margaret Sanger and Planned Parenthood and the early birth control movement, citing clinics in African American communities as an effort to associate abortion with racism and sort of the targeting of minority communities for genocide, in his words. All of this, I think, is sort of of a piece like race is a convenient thing to deploy in certain contexts, but we're also not taking into account the impact of suppressive laws on communities of color, where it really might have an impact on whether or not they are participating in democracy. Again, the sort of selective itinerant commitment to racial justice is one I think you see even here we're going to.
- [39:15]
A
Pause now for a brief message or two from our terrific sponsors. And now let's return to our end of term breakfast table Festival of Supreme Court analysis. Perry, you opened when you started talking about Brnovich, and I posited, you know, are the democracy cases just different? And you said, you know, they're different because in some way they actually inflect on how the court itself participates with government in, you know, either increasing or decreasing democracy. And I guess I feel like say whatever you want about this, but I do think the immediate question that folks had when Brnovich came down, and I guess by folks I mean me, is what does this do to the Biden administration's lawsuit in Georgia? What does this do to SB1 and efforts to increase the franchise? In other words, it's again, really hard to read Justice Kagan's dissent without almost seeing her turning around and importuning Congress and saying, dudes, I done what I can here. I'm in a minority of people who thinks that the Voting Rights act still matters. Something has to happen whether it's in Congress or elsewhere. Was this just her saying, like Joe Manchin, hold me, tiny dancer, because this can't persist the way structurally it is going on. And if that's the case, if this is in fact a dagger to the heart of the Biden attempts to set aside the Georgia voting rights law and going forward attempts to set aside what I think are going to be more and more restrictive laws that were blessed by Vernovich. This looks like a doom loop, I think is what Ezra Klein is calling it.
- [41:09]
E
There's no question that Bernovich certainly makes the Georgia case much harder. It adds a bunch of hurdles to clear that really have no basis in the text of the Voting Rights act or even in the legislative history of the Voting Rights act, the idea that there is some baseline set at 1982 because vote denial had been substantially eradicated 40 years ago is not only ahistoric, it contradicts what Senator Dole even said who engineered the compromise that led to the results test. Certainly he contemplated that decades old laws would be challenged without regard to the intent 40 years ago. And that's where we are now. We are looking at laws, some of which may have been in place in other states, but the concatenation of which right, whether it's the restrictions on absentee voting, the restrictions on drop boxes, the restrictions on early voting, all of which will combine to shave a little bit of the minority vote off in a state that was extremely close in the last election. So that's going to make matters of proof just more complicated, not insurmountable, but more complicated. And the thing that's really troublesome, I mean, there's a lot of things that are really troublesome in Brnovich. But one of the things that I found most troublesome is the way in which one, Alito was just wholly accepting not only of the fraud rationale, but embracing to some extent of the stop the steal type language when referring to the perceived legitimacy of elections. Right. The idea that you can become a firefighter if you commit a lot of arson first. And so we have to have these restrictions in order to repair some of the damage that all of those bad faith allegations of Stop the Steal did. But to me, the bigger concern is the way in which he sort of dismissively refers to the challenge brought by the voters in Arizona to the out of precinct and the ballot collection laws as mere disparate impact. They are not mere disparate impact. There is a fairly complicated and actually really rather impressive test that is set forth by the Voting Rights act that has been endorsed by the Supreme Court in thornburg v. Jingles 35 years ago. And that is a really multifaceted way of looking at not only is there disparate impact, but is that disparate impact the result of systemic racism in the locality? And you know, Alito really ignores the fact that he refers to mere inconveniences. Well, you know, if you can't get to the right polling place because there isn't enough parking or because you've had a lot of chores on the weekend and things like that, that's not what we're talking about here when we're looking at the burdens of voting. The minority voters in Arizona have less access to cars. They are disproportionately poor. They are more likely to have unstable housing situations. These are not accidents of history. These are not random chance. These are the lingering effects. With Congress called the lingering effects of discrimination, that is what interacts with these voting restrictions to create a disparate impact. It is not simply that black Hispanic indigenous voters are just not showing up. It is because of this longstanding lingering effects of discrimination that Congress recognized 40 years ago was a serious problem and that Section 2 was amended to eradicate.
- [44:30]
D
Can I just briefly add three things? First of all, I think it's really noteworthy that Alito does not just say that Arizona did not intend to discriminate, but calls it offensive that anyone would even suggest as much. He says, how dare the 9th Circuit and the plaintiffs in this case suggest that our noble, beautiful, sweet, kind hearted Arizona Republican legislators would ever even consider saying or doing anything remotely racist. What an outrageous and offensive thing to even imply, which I think really aligns with what Ian Millhiser has identified as Justice Alito's strong presumption of white liked innocence. Alito is more offended by the allegation of racism than by racism itself and I think does not bode well for the Georgia lawsuit, which we should note is based on the theory of discriminatory intent. Right. The Justice Department saw Brnovich coming and understood that disparate impact was not going to be enough and used discriminatory intent as its basis. But I am fearful for that suit. I will just say also, Dalia, you had asked me to link together Americans for Prosperity and Elections with regard to campaign finance disclosures, and I do think your implication is absolutely right. That decision really does imperil a whole host of campaign finance disclosure laws that require the disclosure of donors over a certain threshold. Whether it's a few hundred or a few thousand, it varies to to state in different elections. And as you wrote about brilliantly on Thursday in Citizens United, the Supreme Court said, well, you know, we may be opening the floodgates to unlimited corporate spending and elections, but don't worry because we've got these disclosure laws and they're so important and we so love them and we would never do anything to weaken them. We pinky promise. And now, you know, 11 years later, we have the Supreme Court strongly suggesting that the very kind of disclosure law is so praised in Citizens United States might actually be unconstitutional. And then finally, Perry and several of you were talking about Alito deploying this stop the steal language and talking about how incredibly important it is to have public confidence in the integrity of elections. But that reasoning never plays into the Supreme Court's campaign finance rulings. And I think that's notable because so many people in this country are worried about dark money spending in elections. So many people in this country are fearful that anonymous billionaires are purchasing seats in the Senate and purchasing elections and state houses and state supreme courts. And yet the Supreme Court has continually just kind of pushed off that fear and said, doesn't matter, we're not considering it. It's not even a compelling justification for restrictions on campaign finance. But then you turn around and you look at the Voting Rights act and the Court says, well, here in this case, we're very deeply concerned about public confidence in the integrity of elections, even though there's no evidence of vote fraud, certainly not in Arizona and vanishingly little around the rest of the country. So that interest in the public having faith in elections, it seems to sort of flicker on and off depending on what the conservative justices want to do with it.
- [47:55]
A
Jeff, I guess I wanna loop you back what Mark has just described in afp. Again, not to get too philosophical, but it does seem more and more as though some things are visible to some justices and some things are not. What is visible to Elena Kagan in Brnovich is minorities who are trying to vote. What is seemingly not visible at all to Justice Alito in Brnovitch is, you know, a raft of state laws that are making voting harder for no apparent reason. Conversely, clearly, what's visible to the chief justice is big donors who are being harassed and threatened and terrorized and who want anonymity and privacy. But, you know, what is visible to Sonia Sotomayor is dark money pouring into the system. And it does feel as though, and tell me again if I'm just being too philosophical, it just feels as though in a deep way, this court is atomizing into who you can identify with, who is real to you. What, what suffering is real suffering. Mark just said for Justice Alito, if you have the temerity to suggest that a state is racist, it will shoot him into orbit. That's existential pain for him. And I just wonder if part of the weirdness that I have been experiencing, and I guess now is a good time to talk about the fact that now, Justice Gorsuch in an order on Friday, it seems that Justice Gorsuch and Thomas are going to go after New York Times v. Sullivan. There's something really deep happening here in terms of the worlds that these justices inhabit, that there are bubbles that they don't necessarily see outside their world. And I guess I'm just wondering, because you said so eloquently at the beginning, it's always better to litigate in front of a court that has a center right, where stuff is moving and people can be picked off listening to what you're hearing today. As somebody who argues before the court, what, what happens in those 81 cases, in those 90 cases, is it just as Mark says, everybody's being strategic, or are there a handful of cases where the court all looks at the world and sees the same things?
- [50:14]
C
Well, that was like a Briar esque question, Dalia, you went eight different directions, and I'm not sure where to start, but.
- [50:23]
D
Wow.
- [50:24]
C
Ouch.
- [50:24]
D
Brutal, Jeff.
- [50:25]
C
Alex, ouch. So I'll start, though, with your theme there of what certain Justices see and what they don't see. And I guess I see it a little bit differently because these are all incredibly smart people and in general, very well informed. So I don't think it's that they don't see things. I think it's that different justices have different priorities based on what they see. So just to go back to Brnovitch, there's this paragraph in, in Justice Alito's opinion where he says, you know, if the effects test were applied the way the dissent wants, it would invalidate all kinds of voting laws across the country because based on historical, cultural and economic circumstances, people of color find it harder to vote under many of these things than other people do. But then he says we can't accept a law that would therefore invalidate everything. So it's not that he doesn't see the problem, it's just that he doesn't prioritize it to the level of some of the other justices. And so I think that's what explains these cleavages in the Court more often. Not that there's ignorance or they're living in a bubble so much, although maybe sometimes. But I think it's just that priorities and values and, you know, I don't mean to be blithe about this, but I think that just is just a reminder it matters who is on the Supreme Court. I mean, this is not a new phenomenon that, that different people have different life experiences and different philosophies and priorities. And so who happens to be on the Court, just like every single one of us, has our own particular priority sets of priorities that's going to cash out when they have to make hard decisions about how broad laws should reach or whether certain state laws should be struck down or not. I suppose that's the way that's the way I look at it.
- [52:08]
A
That was very, very, very good answer to a briar s question. You, like, pulled up footnote three of the six part prior question, and you knocked it out of the park. And that's why you're you and I'm me. I do want to just end with some of the questions around. You know, all eyes were on Stephen Breyer, who did not retire. All eyes, or some eyes at least, are on Joe Biden Court Reform Commission, which does not seem to be talking about court expansion. If what I said in one of my earlier questions to Perry is true, which is that the Court's meant to be in conversation with Senators Manchin and Sinema, with the Biden Court Reform Commission, with Breyer himself, with Democracy at large. It does feel as though we're in two different movies where there's one movie where, you know, people are running around and saying, the sky is falling. It's gonna be harder for everybody to vote in 2022, and the court is blessing that. And another movie where there's just a lot of talk about, you know, bipartisanship and hail, fellow well met, and we should all just get along and there's nothing wrong. And I guess, Mark, we've talked about this so often on this show, but it does feel either as though sort of the Democratic Party is not rising to the moment and stepping in to do big repair work when it feels like there are very high stakes. Or I guess the other theory of the case is that the court has really risen to the moment and chosen to be narrow and minimalist and to put aside the hard issues for another day and do exactly what a court is supposed to do when it's in the political crosshairs. So. So maybe this is a happy ending, right? I mean, maybe all the talk of court reform had the court moderate itself, and we're. It's all. The system is working. I. I'm looking at your squidgy face on the zoom screen, and I don't think you think the system is working. But I'm wondering who has failed to meet the moment right now.
- [54:19]
D
Did your omelet have magic mushrooms in it this morning, Dalia? Narrow. Is that. Is that what. Is that the term we're using? Okay, I understand the premise of your question, and I will agree to some extent that the conservative justices have, from time to time, this term, on the main docket, not the shadow docket, taken a more moderate position. And I think exhibit A has got to be Fulton, as we've discussed. And Exhibit B is probably the Affordable Care act decision, where even Clarence Thomas had to agree that nobody had standing. But just to at the risk of beating a dead horse, like, you know, they are teeing up a bloodbath for next term. They are teeing up guns, abortion, mandatory state funding of explicitly religious education, and possibly affirmative action and so much more that is going to really kind of reorient American constitutional law in a much more conservative direction that happens to be much more favorable, I think, to Republicans. Brnovich and Americans for Prosperity are part of that. Sort of like starting to make that shift happen. And given how much they hurt, think about the impact of these cases coming down the pike next term. I don't think that Congress is rising to the occasion now, and I don't think Congress will rise to the occasion next term. But I do think that it'll present an interesting kind of natural experiment for the Democratic Party. What happens when the Supreme Court goes all out, when the 6 Justice Conservative majority decides to just say screw it, let's be legends, and overturns Roe and potentially abolishes affirmative action and creates a constitutional right to concealed carry? What do Democrats do? I don't know the answer. I think probably nothing. Maybe put out some very spicy press releases. But this will be the make or break moment for court reform possibly in our lifetimes. And so I think as fascinating as the conversation we're having right now is, I would love to just peer into the future a year from now and think about the kind of Mad Max esque terrain of the Constitution and ponder what our next move is now that 100 years of liberal jurisprudence have been overturned in a single year.
- [56:47]
A
Jeff wants to respond.
- [56:49]
C
My response is I hear everything Mark is saying, but you know, we don't know what's going to happen in the next year. And I think, you know, I was just talking a minute ago about priorities. And I think we never talk enough about the Court's agenda setting power priorities as expressed through which cases they take and which cases they don't. And so certainly the Court has selected off the menu some very, very, very big, potentially contentious cases for next term. But I think it's also worth remembering that the way the Court's internal rules work is it takes only four Justices to grant review in a case, and of course it takes five or more to decide it in a particular way. So if we just try to imagine Fulton as an example, maybe there were four justices or three who want to do something big with that case, we now know. But you know, there was not a majority to do something big. And so, you know, I don't think we should automatically assume, and I will just confess here, I'm involved in some of these cases for next term. But I will say I don't think we should automatically assume that the fact that the Court has put something on its document means there are already five Justices to do one thing or the other. And I think that's what always makes the Court interesting to watch, is the numbers to put a case on the docket do not line up necessarily with the numbers necessary to decide it.
- [58:11]
A
I guess we can't quite wrap this conversation without at least thinking about what's coming down the pike next year. Melissa, maybe you could walk us through what you think is coming and whether there's any relationship between the sort of relative calm of the end of this term and what is to come.
- [58:36]
B
I think if this term was heralded as a triumph of restraint and moderation, which it was not, it really is only as table setting for what I think will be a barn burner of a term next year where the court will take up a number of hot button cases. Abortion is on the docket. Gun regulation is on the docket. There are going to be so many more opportunities for this very conservative court to continue to flex its own views of where the law should go. And indeed, if it's been inching to the right, I think next term we will see more of a lurch in that direction. So again, this is perhaps the not moderate calm before the storm.
- [59:19]
A
Perry, I want to give you the very, very last word because at least among the stuff that I was getting in my inbox post Brnovich, there was a lot of what's to be done, what's to be. It feels as though if, in fact, Section two has been pared down to the bone, Section five is dead. The sort of court is pretty determined that barring the announcement that this is a racist attempt to privilege the Republican Party, which by the way, kind of almost was said not the racist part, but certainly at oral argument in Brnovich, but barring that kind of admission, we're just never going to be able to litigate discriminatory voting practices. I think probably an awful lot of folks just want to know what they can do, what they should do.
- [60:19]
E
So I'll give just a couple of very small, bright sides about Vernovitch. But the short answer to your question is always you can organize, you can vote, you can get out and bring people to the polls and you can donate and you can volunteer vote, make sure everyone you know votes and make sure everyone you don't know votes. That's in the end, the most important thing, you know, in terms of sort of the the takeaways from Brnovich, in terms of upside, is it's an opinion from Justice Alito that's actually full of holes, and there's a lot of places for conscientious, diligent litigants to find places to successfully litigate section two cases. Still, the intent finding. Right. You mentioned that DOJ's case is reliant on proving that the Georgia law is discriminatory. The amount of damage that the Supreme Court did to the intent issue in Bertovich is not that great. Basically, it said that the district court's finding that there was not intent to discriminate was not clearly erroneous, and that was the basis for overturning the Ninth Circuit. So if you can persuade a district judge that there is intent to discriminate, that will get reviewed for clear error. So there's a lot of work to be done to investigate and prove facts on the ground. But in the end, the most important thing is always gonna be this is the landscape that we're gonna have to live with. And all of the litigation of the world is only gonna cure so much of it. And it is just absolutely imperative that we do everything we can to get everyone to the polls all the time, because that's what democracy rests on, is participation.
- [61:57]
A
Jeffrey Fisher teaches law, and he is co director of Stanford Law School's Supreme Court Litigation Clinic. He's argued over 40 cases at the Supreme Court. And there will be more. Perry Grossman is senior staff attorney in the Voting Rights Project at the New York Civil Liberties Union, where he focuses on litigation and advocacy efforts concerning voting rights and election law. And he's a new daddy. Melissa Murray is the Fed, is the Frederick I and Grace Stokes professor of Law at NYU and faculty director of the Birnbaum Women's Leadership Network. She's also co host of Street Scrutiny podcast, which I hope you are listening to religiously. And Mark Joseph Stern covers the courts, the Supreme Court, the law, states rights, voting, LGBTQ issues, pretty much everything else there is to cover at Slate. Thank you all for being with us on this end of term. And I'm very, very excited to have Jeff come back next year and compare me to Justice Breyer again, who will be sitting on the court for the next 74 years. Thank you all for being here.
- [63:04]
D
Thanks, Dahlia.
- [63:05]
C
Thank you.
- [63:06]
A
If you want to hear a little bit more about Amy Coney Barrett, the Court's newest justice, Mark and I will be talking about her first term at the Supreme Court on next week's episode of the Waves. That's Slate's podcast about gender and feminism. Please look for it next Thursday, July 8th. And that is a wrap for this end of the term. Amicus Breakfast Table. Thank you so much for listening in. Thank you so much for your letters and your questions. You can keep in touch@amicuslate.com you can always find us@facebook.com Amicus Podcast. Today's show was produced by Sarah Burningham. We have had research help from Daniel Maloof. Gabriel Roth is editorial director, Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcasts. And we'll be back with another episode of Amicus in two short weeks, when we will launch upon our summer season of conversations about big books, films and ideas that you haven't heard about yet. Sat.