Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: "Clarence Thomas is Color Blind" (May 28, 2017)

Episode Overview

This episode delves into a landmark Supreme Court decision on racial gerrymandering in North Carolina (Cooper v. Harris), focusing on the surprising alignment of Justice Clarence Thomas with the Court's liberal justices. Host Dahlia Lithwick and Slate legal correspondent Mark Joseph Stern explore the nuances of race and partisan gerrymandering, the evolving legal landscape for voting rights, and the implications of the decision for future cases.
The second half of the episode addresses immigrant rights advocacy, featuring Jorge Baron of the Northwest Immigrant Rights Project (NWIRP) discussing an alarming Department of Justice action targeting their work.

1. Supreme Court Strikes Down North Carolina’s Racial Gerrymander

[00:33–20:32]

Background and Context

• Cooper v. Harris:
  • Supreme Court ruling on whether two North Carolina congressional districts were unconstitutional racial gerrymanders.
  • Eight justices heard the case (Gorsuch not yet on the Court).
  • All agreed District 1 was unlawfully gerrymandered; for District 12, the Court split 5–3, with Clarence Thomas joining the liberals.

Key Discussion Points

• Complexity of Voting Rights Jurisprudence
  • Litigation has been ongoing for decades, particularly over weirdly-shaped districts in NC.
  • The dual obligations: Not to use race as a predominant factor (as per Equal Protection) but also to comply with the Voting Rights Act and avoid diluting minority voting power.
• Recent Unanimous Decision
  • Previous week, the Supreme Court declined to hear an appeal regarding NC’s stringent voter suppression law (struck down by 4th Circuit), thus letting the appellate decision stand—technically on procedural grounds, not merits ([04:50]).
• The Supreme Court's Precedents and “Threading the Needle”
  • The difficulty for states in drawing districts that are neither unconstitutional racial gerrymanders nor illegal dilutions of minority power, especially in the South where race and party often overlap ([08:10]).
• Justice Elena Kagan’s Majority Opinion
  • The ruling says using race as a proxy for party—even when it serves as a pretext for targeting Democrats—is still a racial gerrymander and thus unlawful ([10:27], [11:22]).
  • Quote: “If you use race in any capacity, if you're using it to try and figure out who the Democrats are and disadvantage them, you are still using race. And that means ... you have committed a racial gerrymander.” – Mark Joseph Stern (11:22)
• What’s Changed and Why It Matters
  • States can no longer defend race-based gerrymanders by claiming partisan intent.
  • This ruling is anticipated to alter ongoing and future gerrymandering litigation ([12:12]).
  • Quote: “Monday’s decision stands for the proposition that when a state divides its voters on the basis of race for the purpose of redistricting, it has pretty much broken the law.” – Mark Joseph Stern (11:29)

Justice Clarence Thomas’s Role

• Thomas’s Consistency
  • Despite the liberal outcome, Thomas's vote is rooted in his longstanding opposition to any use of race in public policy, seeing all race-conscious measures—benign or otherwise—as unconstitutional ([12:36]).
  • Quote: “Thomas is still righteously pissed off at any state that takes race into account. And he'll follow that principle even when it leads him to a liberal outcome.” – Mark Joseph Stern (13:15)
  • Quote: "He gets to virtuously say, I am for race blind, whatever that leads me, I am for strict scrutiny whenever race is used." – Dahlia Lithwick (14:19)
• Future Implications
  • Unlikely Thomas will consistently support liberal justices in other types of gerrymandering cases, particularly those about pure partisanship ([15:01]).

2. The Horizon: Partisan Gerrymandering and What's Next

[16:24–20:32]

Gill v. Whitford and Justice Kennedy’s Influence

• The Case: Wisconsin’s partisan gerrymander challenged on grounds that it so disadvantaged Democratic voters as to violate their constitutional rights ([17:12]).
• Role of Justice Kennedy
  • He signaled concern about partisan gerrymanders but has been wary of judicial involvement without a clear, manageable standard.
  • Key Question: Will the “efficiency gap” formula—designed to measure extreme partisanship in redistricting—be the standard that sways Kennedy?
  • Quote: “You know, the larger problem of partisan gerrymanders.... What Kennedy thinks about partisan gerrymanders is almost the only game in town.” – Dahlia Lithwick (16:24)
• Uncertainty Ahead
  • Kennedy’s recent alignment with conservatives in the NC case has voting rights advocates worried about the Supreme Court’s approach to pure partisan gerrymanders ([19:10]).

3. DOJ Targets Immigrants Rights Project in Seattle

[20:33–38:18]

Interview: Jorge Baron, NWIRP

[21:26–38:18]

What is NWIRP?

• A 33-year-old nonprofit providing legal services to immigrants in Washington state, both through individual representation and advocacy/litigation ([21:43]).

Systemic Issues: No Right to Counsel in Immigration Proceedings

• Immigrants in deportation proceedings are not entitled to government-provided legal representation; thus, nonprofits fill the gap ([22:21]).
• The “traffic court” vs. “death penalty” hearing analogy: High stakes with limited procedural protections ([23:44]).

The 2008 DOJ Regulation

• Targeted “notario fraud”—unqualified individuals posing as legal professionals.
• Rule says anyone preparing documents for immigration court must file a “notice of appearance,” committing them to full representation. Nonprofits, with limited resources, have worked out informal arrangements to provide limited scope help ([25:15]).

The Cease and Desist Letter

• In April 2017, DOJ issued a letter to NWIRP ordering them to either fully represent or completely withdraw from the cases—essentially banning “unbundled” legal help ([24:56], [27:44]).
  • Quote: “It immediately had an impact on us because we had to stop and hit pause on a lot of work that we do day in and day out with people who are facing deportation proceedings.” – Jorge Baron (27:44)

Legal and Constitutional Challenge

• NWIRP files suit, arguing DOJ’s enforcement of the regulation violates their First Amendment rights and oversteps federal authority (raising Tenth Amendment concerns) ([29:26]).
  • Quote: “There's a lot of long line of Cases at the Supreme Court level that talk about the right of association and the freedom of speech of lawyers...” – Jorge Baron (29:26)

Selective Enforcement? Retaliation?

• Only NWIRP received such a letter; DOJ could not cite any client complaints or harm ([29:00], [31:24]).
  • The timing, right after NWIRP’s involvement in lawsuits over Trump’s travel ban, suggests possible retaliation ([35:04]).
  • Quote: “It's the equivalent of there being a mass casualty event and you're a doctor trying to stem the bleeding from a number of different patients and somebody comes in and tells you, actually you can't help all those people. You just gotta like stick with one.” – Jorge Baron (36:32)

Temporary Victory and Next Steps

• Judge Richard Jones grants NWIRP a nationwide injunction, allowing them and similar organizations to continue providing limited help while further litigation proceeds ([32:38], [38:18]).

Notable Quotes & Memorable Moments

• “If you use race in any capacity... you have committed a racial gerrymander.”
  – Mark Joseph Stern (11:22)

• “Thomas is still righteously pissed off at any state that takes race into account. And he'll follow that principle even when it leads him to a liberal outcome.”
  – Mark Joseph Stern (13:15)

• "It's the equivalent of there being a mass casualty event and you're a doctor... and somebody comes in and tells you, actually you can't help all those people.”
  – Jorge Baron (36:32)

• “What Kennedy thinks about partisan gerrymanders is almost the only game in town.”
  – Dahlia Lithwick (16:24)

Timestamps for Key Segments

• [00:33–13:15] – Cooper v. Harris Ruling and Racial Gerrymandering Jurisprudence
• [13:15–15:01] – The Unique Consistency of Clarence Thomas
• [16:24–20:32] – The Future: Partisan Gerrymandering and Gill v. Whitford
• [21:26–27:44] – Interview with Jorge Baron: NWIRP’s Work and DOJ Attack
• [27:44–32:38] – Legal Reasoning and Court Response
• [35:04–38:18] – Broader Immigration Enforcement Context, Judge Jones’ Injunction

Summary Takeaway

This episode highlights a pivotal moment in Supreme Court jurisprudence—clarifying that when race is used, even as a proxy for party, in redistricting, it constitutes unconstitutional racial gerrymandering. Justice Clarence Thomas’s consistent opposition to any governmental use of race, regardless of political alignment, is explored in detail.
In the second half, the discussion spotlights a worrying DOJ directive that threatens to curtail legal services for vulnerable immigrants, underlining the crucial role of nonprofits and the chilling effect of selective enforcement. The episode is both a celebration of legal victories and a cautionary tale about the ongoing fragility of civil rights and access to justice.