← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
“An Injury To Their Electoral Prospects”
01:12:01
Inside the arguments in a case that could gut voting rights even further.
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- [00:06]
Jessica Ring Amundsen
Arizona already has laws that prevent fraudulent ballot collection. This law actually criminalizes non fraudulent ballot.
- [00:16]
Michael Carvin
Collection because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game.
- [00:23]
Jamal Green
Rights don't arise because someone has wronged you. Rights arise because you disagree with other people, because you have different values and different commitments from other people.
- [00:40]
Dahlia Lithwick
Hi and welcome back to Amicus. This is Slate's podcast about the courts and the law, the Supreme Court, the rule of law. I'm Dahlia Lithwick. I cover those things for Slate and we have somehow achieved a milestone anniversary on this show one year today. Podcasting from the basement. I do hope you and yours are well. Since we last spoke, there's been a good deal of legislative action to relieve Covid, to relieve economic suffering in general, and also to attempt to protect the vote. Merrick Garland was confirmed as Attorney General this week and John Roberts dissented alone for the first time ever. On this show, we're going to dive in on two issues that are very top of mind, at least for me. One, voting rights to rights. So we're going to talk to Jessica Ring Amundsen, who argued a key voting rights case before the U.S. supreme Court last week. And then we're going to talk to Jamal Green, who has been examining where rights and the law have gone astray in his new book, How Rights Went Wrong. Later on in the show, Slate plus members will get to stick around with us. For my regular catch up and gossip with Mark Joseph Stern, we're going to talk about that lonely John Roberts dissent and racism at law school. And if you're not a Slate plus member, do join us. Membership means benefits like zero ads on any Slate podcast, bonus episodes of shows like Slow Burn and Dear Prudence and extra special members only segments like my conversation with Mark and and this is important, you'd be supporting the work that we do here on Amicus. I want to say we really, really appreciate that support now more than ever. Slate plus membership is only $35 for the first year. To sign up, go to slate.com amicus pl so, yes, it's a packed show. Let's get started. First, we want to revisit oral argument in a pair of cases that were heard last week at the Supreme Court, Brnovich versus the dnc. It's not just the first big, big voting rights case of this Biden era. It's also, I think, a pretty good trial balloon, signaling how the Roberts court plans to look at voting restrictions that, as you know, are just blossoming everywhere around the country. Brnovich arises from a pair of Arizona regulations that make it harder for some voters to cast a ballot. And this case comes as red. States around the country have passed huge amounts of new laws seeking to limit voting. As of February 19, 2021, state lawmakers have carried over, pre filed, introduced 253 new bills with provisions that restrict voting access in 443 states. This is the most significant wave of voting restrictions that we have seen, quite literally since the Jim Crow era. An analysis in this week's Washington Post suggests that if these things go into effect, they would create hurdles for tens of millions of voters going forward. The two provisions that we're going to talk about today were challenged under Section 2 of the Voting Rights Act. And one of the lawyers, Jessica Amundsen, who represented Katie Hobbs, Arizona's secretary of State, is here to try to talk us through the issues at the argument. Jessica Ring Amundsen is co chair of Jenner and Blocks Appellate and Supreme Court practice. She's chair of the firm's election law and redistricting practice. In 2018, she was named an appellate MVP by Law360, which recognizes five attorneys in the country who had extraordinary wins and contributed most to their practice area. In the past year, she also serves on the advisory committee to the Voting Rights Institute. She's a member of the Litigation Strategy Council for the Campaign Legal Center. Jesse, it is a treat and a pleasure to welcome you to amicus.
- [04:40]
Jessica Ring Amundsen
Thank you so much. It's a pleasure to be here.
- [04:42]
Dahlia Lithwick
And I think I also want to start by asking you, if you don't mind, to just explain those two provisions that were challenged in the cases last week because I think at first blush they sound like they could be reasonably benign efforts to protect, quote, ballot integrity.
- [05:03]
Jessica Ring Amundsen
Sure. So the first is actually a policy and not a law. It's the out of precinct policy and that requires that any voter who votes in the wrong precinct that their ballot will be discarded even though they may have been eligible to vote for, in fact, all of the races on the ballot. If there are only statewide races, if it's, for example, just president and governor, they of course would have been eligible to vote for those races. And that is a policy that is part of the elections procedures manual in Arizona that is promulgated by the Secretary of State, Secretary of State Katie Hobbs. And so one of the things that we pointed out to the court is that in fact, Arizona no longer really uses a precinct based voting system that in the 2020 election, 75% of voters actually were in counties that were not using a precinct based system. So the attorney general's kind of justification that this policy was needed in order to protect the integrity of a precinct based system is somewhat suspect. And in fact, of course, Secretary of State Hobbs is the state's chief elections official and was there telling the court that actually the out of precinct policy is not needed and that it's perfectly administratively feasible to count ballots that are cast out of precinct. So that's the out of precinct policy. The second policy is, is a statute that the Arizona legislature passed to ban anyone other than a family member, a caregiver, or a household member, or a postal worker, of course, from possessing a voter's voted ballot. And so this Arizona already has laws that prevent fraudulent ballot collection. This law actually criminalizes non fraudulent ballot collection. So even help helping a neighbor to deliver their ballot is punishable by up to two years in jail and $150,000 fine. And this law is particularly difficult in Arizona, which has a number of reservations where Native American voters do not have home mail service. And in fact, many families share post office boxes that are quite far away from where they live. So this has a real impact for Native American voters and Latino voters particular in Arizona.
- [07:40]
Dahlia Lithwick
So, Jesse, you had said this briefly, but it's, I think, a bit confusing. You're on this case on behalf of Katie Hobbs. She is Arizona's secretary of state. But she declined actually to defend these two provisions after she took office. So if you would, that puts her in the world of all these state election officials who are really caught between rocks and hard places in this litigation. Can you explain to us A, why you were in this case on her behalf and B, what that's been like for her?
- [08:16]
Jessica Ring Amundsen
Sure. So Secretary Hobbs was elected in 2018 and she never defended the ballot collection statute. She was actually in the legislature when it was passed and knew full well that the purpose of it was to disenfranchise minority voters. So she immediately declined to defend that statute after the ninth Circuit's en banc decision came down and she consulted with county officials. She also declined to continue to defend the out of precinct policy because it was perfectly administratively feasible to actually count out of precinct ballots. And the attorney general nonetheless took the case to the Supreme Court. And so she elected to be on the other side of the case and to retain her own counsel. So that's how we came to represent her. You know, the secretary is the chief elections officer of Arizona. She ran against an opponent whose platform included no longer printing voting materials in Spanish. And she is someone who you know, in connection with the 2020 election, faced tremendous criticism and even, you know, threats for just doing her job, which is protecting the voters of Arizona. And that's why she wanted to stand up in the Supreme Court and continue to try to protect voters and be on the side of ensuring that more voters can vote, and particularly minority voters don't face unjustified burdens on their rights.
- [09:58]
Dahlia Lithwick
And now I'm going to ask you to do the heavy lift, which is the quick refresher on the Voting Rights act of 1965. Listeners know, I think, that the court struck down one of the most important sections of the Voting Rights act in Shelby County. Right. This is the crown jewel of the civil rights movement. And then attention shifts to section 2 of the Voting Rights Act. And I wonder if you would just very quickly explain what Section 5 did and what it doesn't do and what Section 2 kind of moves into the space to try to do in its stead.
- [10:32]
Jessica Ring Amundsen
Sure. So Section 5 was a provision that applied to covered jurisdictions, and there was a formula to determine what was a covered jurisdiction. And the court in 2013, in a case called Shelby county, struck down the coverage formula, which essentially rendered Section 5 inapplicable. So even though Section 5 is technically still in effect because the coverage formula was struck down, it no longer applies. And what Section 5 required was that in those covered jurisdictions, if they were going to make any sort of change in voting policy or procedures, they had to have those changes pre cleared by either the Department of Justice or the District court in Washington, D.C. and so it was extremely effective. Even though most changes were in fact pre cleared, it was a deterrent to those states not to actually enact policies or procedures that were going to cause minorities to have less opportunity to vote. So they would have to be pre cleared to make sure that the ability of minority voters didn't retrogress so that they didn't sort of take away opportunities that minority voters otherwise had. So that was Section five. And then once Section five was essentially rendered a nullity by the striking down of the coverage formula, suits began to be brought more under section 2. Section 2 is a more cumbersome procedure than section 5 because for section 5, the burden was on the covered jurisdiction to show that their policies did not retrogress minority voting rights. In Section two, the burden is on the plaintiff to come forward and show that their rights are, in fact, that they are being denied or abridged the right to vote on account of race. And so Section two suits are much more resource intensive, complex. So it's certainly not a replacement for section 5, but it is now really the only tool that minority voters have to try to challenge policies that cause discrimination in voting.
- [12:48]
Dahlia Lithwick
I guess it behooves us to just note that quite literally within days of Shelby county, we saw jurisdictions falling all over themselves to enact all sorts of burdens on minority voting. In some sense, that raft of new laws that I flicked at at the top of the show, some of those, at least in the sort of pre cover juri jurisdictions, they would have had to be approved. So we are living in a kind of wild west world now where absent section 5, no holds barred, you can try your best under Section 2, but certainly I think it's fair to say, but tell me if it's not, that had Shelby county not gone the way it had gone, we would not be living in the world we live in in this month where voting restrictions are being just willy nilly enacted all over the country and there's an immense burden on plaintiffs to challenge them. Right?
- [13:47]
Jessica Ring Amundsen
That's right. Any of the covered jurisdictions would have had to pre clear those laws. And you're right that for example, in Texas and North Carolina, literally within 24 hours of the Shelby county decision, the Texas voter ID law went into effect. And in North Carolina, a whole host of various voting restrictions were introduced. So, so that's absolutely true that both of those were subsequently challenged under Section 2. But those are laws that likely either would not have been submitted for preclearance because they would have known that they would not have been pre cleared or had they been submitted actually wouldn't have been allowed to take effect.
- [14:32]
Dahlia Lithwick
Okay. This is the only other wonky table set I'm going to ask you to do, Jesse, which is just explain section two and the quote unquote results test. Because I think what's complicated in this case is the difference between intent and effect and results. And Section two, I think was supposed to just prohibit state electoral regulations that result, quote, in a denial or abridgment of the right. But it's just not that simple anymore, right?
- [15:03]
Jessica Ring Amundsen
That's right. So in 1982, in response to Supreme Court decision called city of mobile versus bolden, that decision held that section two did no more than the 15th amendment. So it did no more than prohibit intentional discrimination in voting. And so in 1982, Congress amended Section 2 of the Voting Rights act and added what has come to be called the results test. And for many years after that, primarily what was challenged under Section 2 were vote dilution claims. So Redistricting schemes were challenged, and at large districts were challenged, things that diluted the power of minorities to vote. Post Shelby county, you started to see more vote denial claims, sort of the kind of restrictions that we're talking about here, like the out of precinct policy, voter ID law, cutbacks in early voting ballot collection statutes, things like that, where people are being denied the right to vote because of these new policies. And so the results test is meant to measure whether minority voters have less opportunity as compared to non minority voters. And so the challenge has been that the court has said that sort of racial disparities are not enough. And kind of what more needs to be shown is what I think the court is going to be addressing in this most recent decision.
- [16:42]
Dahlia Lithwick
And can you just explain as briefly as possible what it is that the ninth Circuit decided when they looked at this, the two Arizona provisions and what the test was that the court of appeals used in striking down those two provisions?
- [17:02]
Jessica Ring Amundsen
Sure. So the ninth Circuit used a two step test that most of the other circuits have used, where first it looked to whether minority voters as compared to non minority voters, whether there was a disparity in opportunity. And then at the second step it applied what have been called the jingles factors. So that is basically kind of trying to look at the whole context. And what section two, the statute actually requires is a consideration of the totality of circumstances. And so the jingles factors were meant to sort of help guide that inquiry. And so they involve things like looking to the history, to the. The kind of effects of discrimination that continue to persist today in terms of education and opportunity. And so the ninth Circuit in this case looked at the facts on the ground and saw that, for example, with the out of precinct policy, that Arizona was disenfranchising 11 times more voters than any other state with that policy. And that the disparity was that minority voters were being disenfranchised at a rate of 2 to 1. And the district court found that because there were only a relatively, in its view, small number of minorities being disenfranchised, 4,000 in the year 2016, I'll say also 11,000 in the year 2012, which is more than the margin of victory in the presidential election in Arizona was this past year. But the district court found that that was sort of too small a number to sustain a Section 2 claim. And the Anbang court rejected that. And then with respect to the ballot collection statute, the en banc court likewise found that although there were not kind of specific numbers in terms of the actual statistics of the disparity between minority and non minority voters. It was undisputed that ballot collection was relied on by minority voters and not by white voters, and that it would in particular hurt Native Americans on reservations and in rural areas who depended upon ballot collection as well as Hispanics who had traditionally used ballot collection. And then sort of beyond just the results test, the court found also that the ballot collection statute had been enacted with a discriminatory purpose. And there was abundant evidence in the record, including kind of a video where, where the chair of the Maricopa County Republican Party is. There's a video of a man who appears to be of Hispanic heritage bringing ballots to the county. And the kind of commentary that accompanies the video is speculation on whether the person is a dreamer or an illegal alien or a thug and is trying to stuff the ballot box. So the en banc court found that all of that racially tinged and unfounded accusations of ballot fraud with respect to ballot collection were what caused the statute to be enacted with discriminatory purpose.
- [20:26]
Dahlia Lithwick
We'll be right back with more from Jessica Ring Amundsen on the battle to decide what tests courts will use to decide if your vote is being suppressed under Section two when we come back. And you said this, but I think this is the gist of the question. The fight in the court was what test are we going to use? How are we going to smoke out what is discriminatory result? How are we going to what are we going to use? And one of the things that quickly becomes manifest is that there's two different tests being floated just by your opponents in this case. They're not even actually positing the same method of figuring this out. So I wonder if you could just sort of briefly sketch out. I know it's never fair to say, can you represent what the other side was saying? But what is it that they were asking the court to use as the benchmark?
- [21:26]
Jessica Ring Amundsen
Sure. So there were two petitioners on the other side. So first was the Arizona Republican Party, and then was the Arizona attorney general. And the Arizona Republican Party's position was that sort of anything that is a ostensibly neutral time, place and manner regulation that imposes no more than the ordinary burdens of voting is just kind of per se fine. And that courts shouldn't be looking behind those sorts of regulations to see how they're affecting voters on the ground. So they so that was certainly their position in the briefing. I think that they walked away a bit from that position at the oral argument, but that at least was their position in the briefing that time, place and manner restrictions don't even sort of get Section two scrutiny. The Attorney General's position was not quite that extreme, but the Attorney General was mostly advocating that you would have to have a substantial disparity. Although rather than actually focusing on whether the disparity was substantial, the Attorney General seemed more focused on whether the number of people affected was substantial. So yes, you're right that the petitioners did not necessarily even agree on what they were asking the court to adopt.
- [22:45]
Dahlia Lithwick
And can you, I think you've already said it, but can you just as crisply as you can articulate what the standard is that you think the, the court should be holding to?
- [22:55]
Jessica Ring Amundsen
We think the standard that the courts have been using in the lower courts, the two step test, is a perfectly manageable standard that courts have had no trouble applying. We did also point out in our brief that the Solicitor General had offered still a third sort of way of thinking about these claims. And we pointed out that in many respects that test would work. Well, we pointed out that there were some issues with that test as well. The, the primary one being that the Solicitor General's brief had argued for a proximate causation requirement and they had never done that previously. And we don't think that's supported by the case law. I realize this is getting into highly technical area. And then the Solicitor General subsequently withdrew its support for the test that it advocated in its brief. So hopefully have realized that approximate causation requirement is not actually part of, of the text or the way that Section 2 has been applied in the vote dilution context.
- [24:01]
Dahlia Lithwick
So your average listener, correct me if I'm wrong, Jesse, but your average listener now is looking at like the buffet at Circus Circus, right? There's a whole bunch of tests. There's two different tests being floated by your opponent. The SG's office is in and then out of this other test, you're asking for something else. And then each of the conservative Justices, I think, would, was spitballing on what a new good test would be. And this all seems very, ha ha, you know, Marx Brothers. But of course there's deadly serious right to vote here, particularly for minorities that are quite literally being disenfranchised. There's a funny moment where Elena Kagan asks you. She's like, I don't even know what the standard is that anyone's talking about anymore. Let's listen for one second, Ms. Amundsen. The longer this argument goes on, the less clear I am as to how the party's Standards differ. How do you answer that? I mean, I know how you did answer it, but this seems as though it's become this sprawling octopus of confusion. It's not actually that confusing until you've got 70 different standards floating around. Right, right.
- [25:15]
Jessica Ring Amundsen
So what I think Justice Kagan was probably reacting to there was that she had asked the attorney for the Arizona Republican Party a series of hypotheticals, kind of putting to the test his position that neutral time, place and manner restrictions are just immune from Section two review. And he seemed to at least his answers seemed not consistent with that position. And so I think what she was saying is it seems to me like everyone is actually in agreement that you need to do more than just come in and say this is a neutral time, place and manner restriction. You need to actually look behind this and see what's actually happening on the ground that the statute mandates consideration of totality of the circumstances. And that means looking at the actual kind of social and historical. Historical factors that are affecting why minorities are being disenfranchised.
- [26:17]
Dahlia Lithwick
And let's be really clear here, Jesse, because I think Michael Carvin, who was representing the Republican Party, was quite literally, at least initially, it sounded like a literacy test would have passed the test that at least was proffered in the brief. Right. Elena Kagan, here she is asking him about whether you could force everyone to vote at a country club. The state says, we're placing all our polling places at country clubs. And that decision means that black voters have to drive 10 times as long to the polls and have to go into places which, you know, are traditionally hostile to them.
- [27:01]
Michael Carvin
Yeah, I would think that would provide them with less opportunity than non minorities.
- [27:05]
Dahlia Lithwick
And why is that?
- [27:06]
Michael Carvin
Well, because they have to travel further into hostile territory where non minorities can travel one block to very sympathetic under any definition of whether or not they're less opportunist.
- [27:18]
Dahlia Lithwick
But as you said, it seemed as though over the course of the argument, he was at least somewhat retreating from the notion that, quote, unquote, anything goes. Right.
- [27:27]
Jessica Ring Amundsen
It certainly seemed that way that the position that all you had to do is say this is a neutral time, place and manner restriction. He later in the argument called it sort of laughable that you wouldn't kind of look at the actual demographic realities on the ground. So, yes, I think he was kind of retreating somewhat from that position at argument.
- [27:47]
Dahlia Lithwick
I suggested earlier that I counted at least maybe three. I can't tell if it's three or four different variations on the standard that would was being floated by various members of the Court, maybe four, maybe five. I just wonder if anyone in your view was positing something that you could live with, even if they in the end decided as it looks like they're going to do, to uphold those two provisions. But is there anything that you heard that made you sanguine that maybe robust protection could still survive? Or was it all, again, I don't want to make light of it, but was it all just smoke and mirrors that is working toward disenfranchising a lot of minorities?
- [28:35]
Jessica Ring Amundsen
I think that the Court was struggling with coming up with a workable test and with looking at what the Court below did and with seeing how to apply that going forward. But there certainly did not seem to be any appetite for the let's just take everything off the table when you come in and say it's a neutral time, place and manner restriction. So that was certainly heartening that it didn't seem like that was a position the Court was prepared to embrace. I think there were various members of the Court had various concerns and various issues. Justice Breyer asked. I think all of the advocates about kind of the traditional disparate impact test that is used in Title VII and in Fair Housing act cases. I think they're trying to come up with something that will hopefully, as you said, will be able to live with and will be able to continue to challenge disenfranchising policies, particularly because Section 2 really remains the only tool to do so.
- [29:42]
Dahlia Lithwick
And Jesse, I guess the follow on meta question that I have is this anxiety and we've heard this at the Court before and certainly we've heard it in the voter ID context and we've heard it in the vote purges. Right. There's been a whole line of cases in which the Court has blessed schemes that make it harder to vote. And it's always under this blanket of, well, voter fraud, voter integrity. The people are worried. And we are now quite literally coming off an election where a very significant proportion of the population, regardless of what the fact on the ground are, believe that there is immense fraudulent hoaxing, lying stolen ballots and it doesn't matter what the facts are. And of course this is completely self fulfilling because then it allows the Justices to say things like here's Neil Gorsuch saying do we have to wait till the fraud happens? Can't we just avert the scourge of vote fraud that is all around?
- [30:48]
Jessica Ring Amundsen
Your Honor, with respect, there was no such evidence of there ever being any ballot collection fraud in Arizona.
- [30:55]
Michael Carvin
I didn't say Arizona. It was in another state Does Arizona have to wait for fraud to occur in Arizona using a practice.
- [31:05]
Jessica Ring Amundsen
No, your honor. No, your honor. But as this court has said in it.
- [31:10]
Michael Carvin
Okay, so it doesn't matter. Then you agree it doesn't matter that they're harvesting hasn't resulted in fraud in Arizona. How many states, how many elections does it need to affect out of state before Arizona can take cognizance of it in its own state?
- [31:25]
Dahlia Lithwick
And in that sense, I guess you have this uphill battle because you're fighting this fantastical, non truthful belief that people increasingly have, which is that the ballots are all completely fraudulent. And this is rampant. And I wonder if there's this weirdness in this posture you have to take, which is actually there is not immense ballot fraud. What there is is immense vote suppression. And I don't want to fight that first thing because the second thing is true.
- [31:56]
Jessica Ring Amundsen
It's certainly extremely disheartening that there are legislators across the country who are undermining voters confidence in democracy while simultaneously saying that we need new restrictions on the right to vote in order to increase voters confidence in democracy. And we tried to point out in this case that there is literally no record of fraud with respect to ballot collection and in fact that the restriction at issue doesn't target fraudulent ballot collection. And so one of the things that I tried to point out at oral argument and that I hope the court will sort of think about, is that in its campaign finance jurisprudence, the court does not accept a legislature just saying, well, we think that there's corruption. And so we are going to place limits on expenditures and contributions because we want to be sure there's no appearance of corruption. Instead, the court actually requires the legislature to have record evidence that the danger that they are attempting to prevent against actually exists. And so in response to Justice Gorsuch there, what I said was that the court ought to give at least the same level of scrutiny to restrictions on the ability to participate in the political process through spending money, as they do on the ability to participate by voting. So hopefully the court will look to its campaign finance jurisprudence at least to say that you need to have some record that this is real, and you need to actually look behind the legislature when they claim to be needing particular restrictions to protect the ballot to see if that's really true.
- [33:55]
Dahlia Lithwick
Jesse, before I say goodbye, I want to ask you about the moment in the argument. It wasn't you talking. It was a colloquy between Amy Coney Barrett and Michael Carvin where she essentially said to him, why is the Arizona Republican Party, even in this case. Why do you care about keeping these laws on the books? And he had this quote that I think blew up Twitter for at least a day. Let's listen. What's the interest of the Arizona RNC here in keeping, say the out of precinct voter ballot disqualification rules on the books?
- [34:33]
Michael Carvin
Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game and every extra vote they get through unlawful interpretations of section two hurts us. It's the difference between winning an election 50 to 49 and losing.
- [34:49]
Dahlia Lithwick
Okay, thank you. My time is up. And folks characterized this as saying the quiet part out loud. Everybody read it as well. Well, there he is. He's just saying it. The reason the party is invested in this is because this is how politics is played now. And this is a zero sum game and we have to suppress the vote. I've heard some pushback to that, that that's over reading what Carvin was saying. But I wonder if there's some utility in just calling it what it is that we just are now naming this thing, which is one party is going to continue to make it harder to vote, particularly for minorities, particularly for communities of color and the poor and the young, and one party is going to wildly try to encourage a bigger franchise. That's what HR1 is all about. That's what the John Lewis act is all about. And I wonder if there's some utility for you as an advocate in just having it spoken out loud. This is the name of the game. We're not going to pretend this is about fraud. We're not going to pretend that this is about integrity or public confidence in democracy. We're just gonna say we have to suppress a vote. Is that useful for you going forward or is that just totally depressing and cynical?
- [36:06]
Jessica Ring Amundsen
Well, certainly what I tried to say in my closing and what I firmly believe is that candidates and parties should be trying to appeal to voters on the basis of their ideas. The petitioners in their brief kind of repeatedly referred to Section 2 as a 1 way ratchet. And you know, why is that a bad thing? We live in a democracy, right? We want, we should want everyone to be able to access the vote, to have their vote counted. Yet, you know, the saying the quiet part out loud, it was also part of their reply brief. They characterized enforcement of section 2 for purposes of their standing argument as a, quote, injury to their electoral prospects. And I can't sort of say it better than what they said themselves. That's why they told the court they were here because they view enforcement of Section 2 as an injury to their electoral prospects.
- [37:08]
Dahlia Lithwick
And it's so interesting. I'm looking at a tweet from Ari Berman. Earlier this week, an Arizona State Republican just flat out said, quote, everybody shouldn't be voting. Quantity is important, but we have to look at the quality of the votes as well. And that's another step towards exactly what you're describing. Right. This is straight up Jim Crow. We're not even going to pretend that one person, one vote is a principle that we adhere to. We're not going to even pretend that a broad franchise is good for democracy. We're just going to start making arguments about the quality of the voter that I guess I'm just going to end by asking you, did you ever in your life think we'd be back in a world where we are now sort of saying there are two classes of voters, the voters that we like and the voters that we don't like? And it doesn't matter if that latter class just loses the franchise? That's an amazing reverter to something that I thought was gone.
- [38:08]
Jessica Ring Amundsen
It's very unfortunate. But, you know, that is certainly not a world that I want to live in and is certainly a world that I'm going to try to fight to prevent from happening. But, yeah, I mean, that's the world of literacy tests. Right. And that's not a world we want, I don't think, in the United States of America.
- [38:30]
Dahlia Lithwick
Jesse, it's been such a treat to have you here and I hope we can have you back when the case is decided. I know you are crazy busy. This is open season in election law land. So we really, really appreciate your time here today. Jessica Ring Amundsen is co chair of Jenner and Block's appellate and Supreme Court practice and chair of the firm's election law and redistricting practice. Jesse, thank you so very much for joining us this week on the show.
- [39:00]
Jessica Ring Amundsen
Thank you so much. It was a pleasure.
- [39:01]
Dahlia Lithwick
We're going to pause now to hear from one of our great sponsors on this show. And then we will be talking to Jamal Green to find out out why the way we've been thinking about our rights is all wrong. Our second guest today is Jamal Green. He's actually joined us on the show before. But this week we're going to talk about his brand new book, How Rights Went Wrong, why our obsession with rights is Tearing America apart. It's a really interesting deep dive on this question of how obsessed Americans have become with framing justice in terms of. Of rights Often at the expense of any other principle and often in ways that lead to incredibly destructive zero sum battles. So it's an interesting moment to rethink what I think has been sub theme of so many of our shows about rights. Rights, rights, rights, rights. Jamal's here to shake us up a little. Jamal Green is Dwight professor of Law at Columbia Law School. He's a graduate of Harvard College and Yale Law School and a former law clerk to John Paul Stevens. Jamal, it is a treat to have you back on the show. Congratulations on the book.
- [40:17]
Jamal Green
Thank you. Good to be here.
- [40:19]
Dahlia Lithwick
And I guess we're just going to start from what feels like an incredibly counterintuitive proposition, which is what you lead with that, you know, in a world that loves to tell the story about. And then Brown v. Board and the sun came up and then Griswold and the crickets and the harps and all became right with the world because of these landmark rights affording cases. And I think you don't actually dispute that those are good things, but I think your just general thesis is that we have become so. I love this word, right, sist. So obsessed with the zero sum, winner take all win rights that were actually inching toward something really terrible that is the opposite of justice. That's the very counterintuitive proposition from which you lead. Yeah.
- [41:09]
Jamal Green
Yes. And I'm glad you say it's counterintuitive because that means I'm saying something interesting. So, yeah, you're right. Brown, Griswold, I like these cases. I think they're rightly decided, but I don't think they're rightly decided because, you know, rights are great. They're rightly decided because these particular rights were decided correctly in relation to the particular context in which they arose. So Brown is about white supremacy. It's not about just rights being great. It's about there are times when the government is really trying to put you down. And in those circumstances, judges really do need to have some courage and show it. And Griswold is a case about denying people birth control. It's about denying women in particular the right to live their lives. That's a really significant burden. And so you better have a good reason. But it's not just rights. It's not just, you know, anytime a right's at stake, you know, the heavens must fall before the right. It has to depend on the particular circumstance.
- [42:10]
Dahlia Lithwick
One of the through lines that I really catch throughout the book, and I think you say it in all sorts of really different and interesting ways is that we all just have to. To live alongside one another. We have to get along, we have to work this out. You have, toward the end of the book, you have this nice line, we can't quit one another. And I think that again, it seems like a fairly self evident declaration of something true. But you were, I imagine, because you write about COVID a little bit, writing this at a time when we were actually living in two completely different planets in terms of the rights of COVID Right. Like we were fighting, there were people marching around saying they had a right not to be masked. Not a right I've ever heard of. And on the other side, you know, very, very broad claims of rights from state and local governments under, you know, police power, saying they could do whatever they wanted. And I thought it was such an interesting way to approach this book, which is we all have to live together. When it seems like we are making both declarations of rights that kind of zero out the other person's interests, but also almost assume we don't have to live together even when we're in the midst of a pandemic, when we are quite literally killing each other with these decisions.
- [43:27]
Jamal Green
Yeah, I mean, I suppose it's right that we don't have to live together. We can create as balkanized a society as possible. I don't think judges should be trying to get us to that place. I think they should be trying to get us away from that place. And it's very interesting that you bring up the pandemic. I wrote most of the book before the pandemic hit. And the original title of this book was the Rights Epidemic. And I used that term before the pandemic. And I used that term because I wanted to emphasize that rights are part of the human condition and they're going to conflict and they're going to cause pain and we've got to figure out a way out of them. And then when the pandemic hit, I remember that my editors and I got together and said, I don't want to look like I'm making light of this. So we changed the title. But. But there are some references in the book and in some of my talking about the themes of the book since then. I actually wrote an article about masking a few months back. And I actually think there's something productive in conceding the point that someone has a right to walk around without a mask. And part of that is that. And it goes back to the ultimate themes of the book, which is, you know, if you tell someone who feels really strongly about something, even if they're being totally unreasonable, if you tell them they feel really strongly about something, you know what? You just got nothing. Your Constitution doesn't care about you. You're not asserting a right. The real rights are the ones that I'm telling you that exist or the ones that my favorite justice has declared. They're going to either just reject that out of hand. It's a conversation stopper. And part of the book's charge is to get us to try to think about rights as conversation beginners rather than conversation enders. And so let's talk about when you gotta wear your mask and when you don't have to wear your mask rather than say, oh no, you just, just whatever the governor tells you, you gotta listen to him. And I think that just doesn't work in our society.
- [45:33]
Dahlia Lithwick
I think that's a really nice segue to this broad theme of the book, which is it's one thing to afford people rights, like you say. Maybe it's a useful piece of rhetoric and concession to say, hey, maybe you do have a right not to mask. And I'm not going to take that away from you or say, you're an idiot. But I think your larger point is that we actually afford very few rights and then we make them very. Your word is strong rights. There's not a lot of, of lesser rights. And then these strong rights are kind of put in crystal cases for break the glass moments. And I think this is what you're. The point you're making right now about masking, which is instead of having these hyper fetishized handful of rights for which we live and die, to spread it all around, lots more weak rights and then we negotiate them. That's the premise.
- [46:29]
Jamal Green
Yeah, yeah. That's the basic idea. And in some ways it's, I think, necessary. You know, if you say that rights are really, really strong or absolute, you just can't have that many of them. Right. Because they're going to come into conflict with each other. One of the underlying premises of the book. Right. And this goes back to your emergency break glass moment, is, you know, rights don't arise because someone has wronged you. Rights arise because you disagree with other people, because you have different values and different commitments from other people. And that's a controversial premise, I get that. But I feel very strongly about it. And I think it's even more obvious as we push through modern American history that there are certain values that we have that are irreconcilable at wholesale. Right. It's either you're with us or you're against us. Right. And if you're in that space, the question becomes, well, what's the role for a constitutional decision maker? And that's whether it's a judge or a politician, a constitutional decision maker. In that, in that situation, you can either decide which side is the right side and which side's the wrong side. But, you know, I don't think that is very encouraging for our future. There are better ways of thinking about rights at retail rather than at wholesale. Right. And to think about the specific factual context. And that's a lot of what the book urges.
- [48:01]
Dahlia Lithwick
And I think underlying that point, you're also critiquing the decision makers. And we'll talk in a minute about all the ways that judges get it wrong. But I think one of the things that you say is there's no agreement across the boards about these should be our strong rights. And we all come together and say, this is the stuff we're all going to fight for. It's that judges, and historically that means largely wealthy, privileged white men are going to say, these are our strong rights. And you have this nice line where you say, given the backgrounds of judges, it should come as no surprise that many of the problems invested with the solemnity of constitutional rights are the worries of the first world man. Access to politicians, to pornography, to open shutters, workplaces, rights more essential to the poor, such as the right to food or shelter or health care, those are left out altogether. So I think that the point is we haven't even really come to a consensus about what these break the glass rights are. We just have a bunch of privileged white men who say, you know, what really matters? Speech, guns, business. That's what matters.
- [49:14]
Jamal Green
Yeah, that's, that's exactly right. And you know, we could, you could imagine a constitutional system that looked different from ours. Right. So that was really super specific about all the rights people had. And there was broad agreement that if the thing wasn't listed there, then you don't have it. So you're going to list 4,000 rights and you've got all of them listed there. And if you want another right, you go to the, maybe get a simple majority or something easy to amend constitution. You could imagine that kind of. But we certainly don't have that kind of constitution. In fact, the US Constitution is the, the second shortest in the world behind Monaco. And most of the rights that we argue about are not super specific. They're really quite vague. And so to then say, well, the reason why You've got a right to hardcore pornography is because First Amendment says it. Well, no, no, it doesn't say it. It says freedom of speech. Right. It also says Congress. It doesn't say states. So you have to interpret the Constitution and it's not obvious how to apply it in modern circumstances. And so what I'm really urging is that we not sort of pretend that these values conflicts we have about whether to honor the rights of one person or another are just determined by the Constitution or determined by some consensus and rather think of them as things that we fundamentally disagree about and have to figure out how to mediate. So thinking about judges not as deciders of existential questions or abstract legal questions, but to think of them as mediators of disputes. And you know, the more you think about judges in that way, I think the more judges can try to be problem solvers rather than declarers of rights.
- [51:04]
Dahlia Lithwick
Do you have a theory for why it is. I think you open the book with this argument that Americans have this very essentializing, very exceptionalist view that this rights based doctrinal view of the world as we are the freest people in the world because we have these strong rights and how actually out of kilter it is with almost every other comparable constitutional democracy. Do you have a theory for. Is this just kind of a fondness for the story we tell about the framers and history and how old the constitute? I mean, what is the basis for this idea? Because I think your point is it's actually counter programmed by almost every other country in the world. But we're very, very, very enamored of the notion that this strong right, zero sum fight to the death, winners and losers view of freedom makes America the freest country in the world. Is there a reason other than it's always been that way?
- [52:11]
Jamal Green
So without conceding the empirical premise that America is the freest country in the world, certainly that's part of the way we talk about ourselves as Americans. And I think there's a lot of stories you can tell about how we get there. You can tell a story about frontier mentality or something. You can tell a story about something. Something Framers, framers. The story that I want to tell and I don't just talk about it in comparative perspective. And you're right that this way of thinking about rights is very American and is not very common in other parts of the world. But it's also not something from our past, it's our recent past, I think post 1960s and not something that I would tie to the Framers, even though we often tell that about ourselves, because we tie everything to the framers in some way or other. But the framers would not have recognized this version of rights. They were very communitarian about the way to think about rights. Where I think this actually comes from, in part, and I don't want to deny any other story, but what I think this comes from in part is our particular history with race and how that interacts with how we think about rights, is that America's rights culture comes out of the civil rights movement. And so it comes out of a seed where strong rights is actually really important. When you're talking about Jim Crow and You Lionize Brown vs Board of Education as your foundational rights case, then it's very easy to associate the very idea of rights with the ideas in a case like Brown versus Board of Education. And then everyone in the society wants to claim rights. And so people say, well, my rights should be just the same as anyone else's. I see Brown. I see people making strong rights claims arising out of Brown, and here's my rights claim. Why isn't it equally strong? Right? So I think once we get to the 1960s and 1970s, when you get a really strong explosion in rights claiming from a very wide cross section of Americans, free speech rights, women's rights, sexual revolution, criminal procedure revolution, rights to government, welfare, lots and lots of different ways of thinking about rights on the margins, rather than situations in which the government is just denying your citizenship entirely or just loathes you. What we're talking about is governance, but governance that has blind spots. That's very different and has to be. And I think legal decision makers have to think about that situation very differently than you think about a pathological government like the Jim Crow South. And I think we just haven't reconciled that disjuncture. We just sort of chalk it up to all being about rights when every situation's a little different, and that's complicated and that's hard, but judges get paid the big bucks. Well, not the big bucks, but they get the fancy titles in order to resolve hard questions.
- [55:07]
Dahlia Lithwick
I want to go back, if we could, to framers, framers, blah, blah, framers. Because I think one of the things that you put the lie to is the story everybody likes to tell about the framers being very, very agitated about the right of the individual as against the overweening government right and the rights of minorities and the ways in which the Bill of Rights sets the individual up against the government. And I think your point is Actually, that that narrative, as you just suggested, that's a much later narrative. And that what the Bill of Rights contemplated, what the Framers contemplated, was a founding era thought it's very de Tocqueville ish that the folks who were best suited to do this work of mediation, reconciling competing rights demands of different entities wasn't the courts, it was God forbid that it would be the judges, it would be local political entities, it would be churches and your family and local legislators and juries maybe. But the idea that judges would come down with a flaming sword and grant you the rights against a tyrannical government was just not the plot, that was not the point. And we've kind of gone back and reverse engineered that story to comport with how we think about rights today.
- [56:31]
Jamal Green
Yeah, I think that's exactly right. The framers of the US Constitution, of course, they all had slightly different views. So we shouldn't essentialize the views of the framers. But by and large, and when we look at the Bill of Rights in particular, what they were concerned about was self government. They wanted to govern themselves. And that didn't just mean self government against the British right, that meant self government in local communities. So US Federalism is about self government in that sense is local legislatures, local juries in particular. And almost every right in the Bill of Rights is at some level about juries, local militia. Right, your local churches. Establishment clause is originally understood in these federalism terms. Don't interfere with our local churches. These local institutions of government, where politics is going to help to mediate among people who might have different political views was the essence of self government. And that was entirely consistent with rights, because that's what you institute government in order to. And in fact, that's what the Declaration of Independence says when it refers to the unalienable rights to life, liberty and the pursuit of happiness. The next line isn't and therefore we have a federal judiciary. The next line is and therefore you have government. That's why governments are instituted in order to pursue those objectives. And I think we've lost that lesson in lots of ways. I think there was good reason to lose it at the time because of the Founders community was a very narrow one. They didn't include highly relevant parts of the population in political decision making. So those decisions have no legitimacy. And that form of government had no legitimacy at the time. But the idea that when you think about rights, you have to integrate that into an idea of self government, I think is something worth recovering. And the challenge is to marry that to genuine pluralism, to genuine and disagreement and genuine difference and people from different backgrounds and we're still not there. We've never quite figured out that those things have to be blended in some way. And the answer to that can't be decide what the real rights are and decide what the real rights aren't. Because that rejects the pluralism part.
- [58:51]
Dahlia Lithwick
Right. That goes back to your we all are gonna need to get along. And so hoping that some court is gonna come along and vindicate our rights and that all these other interests, intermediate institutions, don't matter is not a super smart way for us all to get along in part, as you suggest throughout the book. Because if there are winners, there are losers. Using this construction.
- [59:12]
Jamal Green
That's right. It's a Manichean frame for thinking about rights when rights are the byproduct of government. And that doesn't mean that you ignore them, but it also doesn't mean that you ignore the legitimate governmental interests that produce the Jamal.
- [59:29]
Dahlia Lithwick
Talk a little bit about. Again, one of the things that's super interesting is all the ways in which the United States is an outlier as compared to other countries. And one of the interesting stories you tell is abortion and the path that the United States took post Roe and comparing it to a pretty profoundly different path taken almost at the same time in Germany. In the book, you describe it as, you know, this violent, apocalyptic conflict over abortion rights wasn't inevitable. This was a choice. And I wonder if you can just lay that out as a very, very concrete example of what the other version of the same story is.
- [60:12]
Jamal Green
Sure, I'll try to tell it as succinctly as I can. It's the sort of middle chapter of the book. It's a fairly dramatic story because there's a kind of parallel universe going on with abortion rights in Germany at the same time as the U.S. where Roe is decided in 1973, where many states, but specifically in Roe, Texas, and companion case Georgia, have statutes restricting abortion in various ways. And the question in Roe is, do the rights of the autonomy rights of women overcome whatever governmental interest that there might be. Germany at the same time is approaching it from exactly the opposite direction. So they've. They've had abortion restrictions forever. They pass a liberalization bill, and that's challenged by the Christian Democrats, who then say, you're not respecting the rights of the fetus enough or the constitutional value of fetal life is not being respected through this liberalization statute and they win. So the Christian Democrats get the law overturned. But at the same Time, the court doesn't say, well, well, fetal life has value and therefore abortion rights don't matter. They say, you've got to respect all of the various rights and values at stake here. And eventually, over time, the way that the Germans come to see it is that the way to respect fetal life is to give women genuine choices. And giving women genuine choices involves lots of investment in pregnancy, lots of investment in families, work guarantees and so forth. Now, I don't want to tell too simplistic a story, right? Germany is very different from the United States in lots of ways. But it shows you that even starting from a premise that from a US Perspective would look extremely conservative, you get to a place where people are actually having political conversations. And there's a big compromise Bill in the early 1990s around political compromise Bill called the group Bill because it was a big compromise among people who have very different values. So the court helps to convert the issue into a grand political issue. And it's a much, much less controversial issue there than it was in Germany in the 1970s. In fact, it was more controversial in Germany in the 1970s than it was in the US at the time. And now it's, of course, way more controversial here. And Roe, among other things, rejects the idea that fetal life has constitutional value. It does so in order to say that the rights of women have to take precedence there. But the point is maybe you don't necessarily need to choose and that maybe if you do choose, you can have unforeseen consequences. Because what happens after Roe, and there's a lot to this story, and it's been told many times by many people, but one consequence of Roe is a split of the anti abortion movement and a radicalization of that movement that hollows out the political middle. And it's in some ways in perfect alignment with the way in which the choice is described in the case, which is either you're with the life of the fetus or you're with the choices of women. And I think most Americans understand that there are complicated questions that have to show some respect to both of those things. Things. But the court makes you line up on one side or the other and that then our politics end up mirroring that again in complicated ways. But the point of the chapter is really to show, look, there are other ways of thinking about even extremely controversial issues and there are other places that have shown a way of doing it. Now, that doesn't mean it's going to work here necessarily, especially on that particular issue. But it is almost eerie how the paths cross following court decisions, and two court decisions, in fact, that take very different approaches to this issue.
- [64:10]
Dahlia Lithwick
Yeah. And I think one of the things that you explore in the Masterpiece Cakeshop context, in so many contexts, is what it signals to a polity. When you have a winner takes all framing and you're telling one set of litigants, you don't matter, you're erased. You know, you're just, you have zero rights. Go home. And all the ways in which no political entity should be doing that, least of all the courts that are supposed to be doing this other thing called justice. I do. Your whole bunking on Oliver Wendell Holmes is so great, but I think we're not going to get to it today. But trust me, listener, he bonks on Oliver Wendell Holmes. But I think the thing I do do want to end with, because it's the thing that worries me, is that if we agree, and I think we agree that the conversation right now in the United States is we have judicial supremacy, it's out of control. We need to pack the courts, we need to expand the courts, we need to strip jurisdiction. Those are all artificial ways of constraining this rights explosion. Right, this strong rights explosion, you're saying? No, we, we actually need judges to engage in a completely different enterprise. And the enterprise isn't pouring over dictionaries and fighting over interpretive skills and looking at history books. It is mediating disputes and realizing that people actually have common interests more often than not. I guess my question for you is, dear God, judges can't even do the technical thing of looking at dictionaries, Jamal. They can, can barely do the thing they've tasked themselves with, which is this quasi oracular interpretive function. And now you're asking them to be like Old Testament judges who are fair and just. And I just, I worry that whatever the constraint is, even if it's artificial, right, Even if it's just the empty talk of minimalism and humility, at least it's a constraint. And, and I wonder if what your answer is to do we really want to have a layer of jurists who just do right? It seems awfully open ended and scary to me.
- [66:25]
Jamal Green
So I don't know if I would quite describe what I'm urging as just do right, although I think they should always be aiming to do right. I'm reminded of my favorite quote from Ronald Dworkin, who I disagree with on a lot of things, but who once said in response to someone who said, why do all of your constitutional interpretations have happy endings and he said, well, the only alternative is to have sad endings. Of course we're going to go for happy ones. I think you should always try to do right. What I urge is, is an attention to facts. And in a case like Masterpiece Cakeshop, I want to know what are the alternatives available? I want to know what does the landscape actually look like here? I want to know. Tell me something about exactly what this baker is actually saying about this. Is he saying he doesn't serve gay customers? Because that's a pretty serious thing to say. Well, what would he bake a cake for? Try to gauge exactly what his claim is so that we can see if we can figure out a way of resolving this dispute that respects what we assume are what we presume to be his religious interests and also the equality interests of the couple. Right. So it's not a sort of Solomonic, just sort of do what's just. I mean, I believe in the rule of law. I believe in the Constitution. I think the Constitution has. Has something to say about these conflicts, but what it has to say about these conflicts are grounded in their particular facts. Now, the other thing I'll say is I'm not a utopian, so I'm not suggesting that if judges do what I say they'll do, we can all sort of hold hands and dance in a circle. Judges are going to do this poorly, just as they do the things they do now poorly. But at least the things that will be arguing about are the things that matter. We can argue about whether the facts are as the judge claims they are, because our rights conflicts are political conflicts. Now, there are ways in which judges can play a role in setting the boundaries of those politics. But the idea that you're going to convert it from a political conflict into a conflict about dictionaries takes away from the rest of us the capacity to argue about those things in the language of justice, which is in the language in which we talk about rights. And we start to think that, no, what a rights case is really about is the dictionary. And the only ones who can do that are these oracles. And we're going to give them the task of doing it. And I think that that is not healthy, that we're supposed to work out our rights through politics. And so I'm trying to help judges to get us back to that space and then take a step to the side after that.
- [69:17]
Dahlia Lithwick
And are you sufficiently utopian to think that Americans, having fallen in love with this exceptionalist notion of liberty by way of strong rights, could ever work their way back to this, even if we could get the judges on side, Jamal, would America ever, ever let go of the rightist view of what justice is, or we're too far down that path?
- [69:48]
Jamal Green
Well, I think it'll be hard. I'm trying sort of one podcast at a time, to get through to people. I will say that most people I talk to about this agree with me once we get into it. They may not agree with me from the beginning, but so I'll just try to persuade people one person at a time, and then we'll see where we land. Anytime you write a book, your aspirations can only go so far. But I think that I'm saying something totally reasonable. And also as an academic, you judge your legacy 100 years from now rather than a few months from now. So come back to me in 21:21 and we'll see where we are one.
- [70:33]
Dahlia Lithwick
Podcast at a time. It's the new Federalist Papers, Jamal Green's amazing, really, really worthwhile new book, How Rights Went Wrong. Why Our Obsession with Rights Is Tearing America Apart. Jamal is Dwight professor of Law at Columbia Law School, a graduate of Harvard College, Yale Law School, and a former clerk to John Paul Steven. Jamal, it's a pleasure. And this was actually a really good curative for some of my grumpiness of the last year. So thank you for your utopianism blended with one podcast at a timeness. Thanks for being here.
- [71:12]
Jamal Green
Thank you so much. My pleasure.
- [71:14]
Dahlia Lithwick
And that is a wrap for this episode of Amicus. Thank you so much, as always, for listening in. Thank you so much, so much for your letters, your questions, your comments. You can always keep in touch@amicuslate.com or you can find us@facebook.com Amicus Podcast. Today's show was produced by Sara Burningham. We had research help this week from Daniel Maloof. Gabriel Roth is editorial director, Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcasts. We'll be back with another, another episode of Amicus in two short weeks.