Is SCOTUS Diluting Your Vote? (with Doug Jones)

Summary

Stay Tuned with Preet

Episode: Is SCOTUS Diluting Your Vote? (with Doug Jones)

Air Date: May 26, 2026
Host: Preet Bharara
Guests: Joyce Vance (former U.S. Attorney), Doug Jones (former Alabama Senator, former U.S. Attorney, gubernatorial candidate)

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Overview of the Episode

This episode explores the recent legal and political developments surrounding gerrymandering in Southern states, focusing in particular on Alabama and the impact of recent Supreme Court decisions. Preet Bharara, alongside co-host Joyce Vance and guest Doug Jones, breaks down the complexities of ongoing litigation under the Voting Rights Act, examines new rulings from a three-judge panel in the Milligan case, and discusses the broader implications for voting rights and the credibility of the Supreme Court itself.

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Key Discussion Points & Insights

1. Background: Gerrymandering and the Voting Rights Act

• Joyce Vance sets the stage by reviewing the impact of the Supreme Court’s recent Calais decision, which many interpret as giving a green light to Southern states to pursue aggressive gerrymandering.
• Alabama stands out due to the Milligan case, which required the state to add a second Black opportunity district—an unprecedented shift in the state’s congressional representation ([01:02]).

2. The Milligan Case Explained

• Doug Jones provides context:
  • The Milligan case is complex because it involves both Voting Rights Act (Section 2) claims and Fourteenth Amendment (equal protection) grounds ([01:56]).
  • The recent Calais decision by the Supreme Court distinguished Alabama’s situation, with Justice Alito noting specifically that the Milligan precedent remained intact despite broader rulings on gerrymandering.
  • The three-judge panel has now issued a new decision enjoining Alabama from using its legislatively enacted maps due to intentional racial discrimination ([04:47]).
  • The Alabama legislature’s hasty, arguably poor, legal strategy after the Calais decision contributed to ongoing chaos in the state ([03:36]).

3. Analysis of the Three-Judge Panel’s Ruling

• Preet Bharara highlights the forcefulness of the panel’s language:
  • Notably, on page three, the opinion states:
    "We do not lightly intrude in state affairs. But our previous review of the undisputed evidence left us in no doubt that Alabama's legislatively enacted plan intentionally. Intentionally is the key word here. Discriminated based on race in violation of the constitution." ([04:48])
  • This level of clarity on “intentional discrimination” raises the stakes for any further appeal to the Supreme Court.

4. Likely Outcomes at the Supreme Court

• Joyce Vance expresses cautious optimism, based on the uniqueness of intentional discrimination in Alabama’s case and the potential sensitivity of Chief Justice Roberts and Justice Kavanaugh to the court’s reputation ([05:33]).
• Doug Jones is even more optimistic that the Supreme Court will not overrule its previous (Milligan/Allen) decision, especially given the explicit language in Calais keeping that precedent intact ([06:37]).

5. Supreme Court’s Institutional Credibility

• A key thread is whether the Supreme Court’s conservative majority cares about the court’s legitimacy in the face of public criticism.
  • Joyce Vance:
    • Believes Chief Justice Roberts is concerned with legacy ([09:30]).
    • Posits that even Kavanaugh and Amy Coney Barrett may be sensitive to the institutional damage recent decisions have caused.
  • Doug Jones:
    • Echoes concern for institutional reputation but acknowledges the possibility that “six members of that Supreme Court...don’t really give a damn anymore” ([09:58]).

6. The Deeper Question: Do SCOTUS Conservatives Support the Voting Rights Act?

• Preet Bharara poses a direct question:
  • “Among the Supreme Court conservatives among the six, how many of them do you think...believe deeply and honestly and genuinely in the purpose of the Voting Rights Act?” ([10:39])

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Memorable Quotes & Notable Moments

• Doug Jones on Alabama’s legal team:

  “You had some kind of bad lawyering from the state that's frankly inured to the benefit of the plaintiffs. I mean, really kind of bad lawyering. There's just no doubt about that.” ([03:36])

• Three-judge panel (quoted by Preet Bharara, original opinion):

  “We do not lightly intrude in state affairs. But our previous review of the undisputed evidence left us in no doubt that Alabama's legislatively enacted plan intentionally. Intentionally is the key word here. Discriminated based on race in violation of the constitution.” ([04:48])

• Doug Jones on Supreme Court strategy:

  “I got a hard time believing that...they would overrule [Milligan]. Now, having said that, not having seen the whole opinion, my concern is that a Lot of the chaos...was because the state...prohibited the canvassing of votes from our primary just last week.” ([07:32])

• Joyce Vance on Chief Justice Roberts:

  “I think John Roberts cares about the legacy of the court that bears his name, although he's done some things that I think history will judge very harshly.” ([09:30])

• Doug Jones (on loss of credibility):

  “One could look at what's happened at this court over the last year or so and think there are six members...who don't really give a damn anymore. And let's let the politics outweigh everything.” ([09:58])

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Timestamps for Key Segments

• [01:02] – Joyce Vance outlines the context: recent Supreme Court gerrymandering decisions and Alabama’s unique situation.
• [01:56] – Doug Jones explains the Milligan case and its different legal bases.
• [04:48] – Preet reads a forceful quote from the new three-judge panel decision.
• [05:33] – Joyce and Doug debate what’s next at the Supreme Court and the potential for a surprising outcome.
• [06:37-09:16] – Discussion on the credibility and motives of the Supreme Court, especially Roberts and Kavanaugh.
• [10:39] – Preet asks about the genuine commitment of conservative justices to the Voting Rights Act.

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Conclusion

The episode offers a detailed, expert breakdown of high-stakes legal maneuvering over voting rights in Alabama, set against the broader backdrop of a Supreme Court that’s lost significant public trust. The hosts’ exchanges blend legal nuance, candid commentary, and strategic speculation about upcoming Supreme Court actions, making this episode particularly timely and engaging for anyone following America’s ongoing battle over fair representation.

Transcript

[A]

Hey, folks, Joyce Vance here. Preet and I are out with a new episode of the Insider podcast.

[B]

This week we discuss how gerrymandering in Southern states is threatening voting rights.

[A]

Joining us is Doug Jones. Doug is a former senator from my home state of Alabama and a former U.S. attorney for the Northern District of Alabama. In fact, he was my boss. Now he's running for governor of Alabama.

[B]

Then we break down a judge's decision to throw out the criminal charges against Kilmar Abrego Garcia.

[A]

Listen to the full conversation now in the Insider feed. And if you're not yet a member, we hope you'll join our community to help support our work and get access to exclusive subscriber benefits.

[B]

Head to cafe.cominsider or staytuned.substack.com now enjoy a free excerpt from our conversation. So why don't you start with the beginning, why we're talking about the Voting Rights act, what happened in Louisiana, what's happening in some of these other states. Joyce, you want to set it up?

[A]

Yeah, I think so. I mean, we've talked about Clay. Clay is the gerrymandering decision that essentially says it's all good Southern states have at it and they have had at it. But Alabama is a little bit of a different case because Alabama had a case called Milligan that was in play, a case about gerrymandering. And under Milligan, Alabama was forced by the court to add a second black opportunity district to its maps. And so for the first time ever after the last election, Alabama had two black Democratic members of Congress, two really exceptional people. And then that litigation was ongoing. After Calais, the legislature rushed to make new maps. Doug, why don't you take it from there and tell us what the state of play was until this morning when the three judge panel made this most recent decision in Milligan.

[C]

The Milligan case is really complicated. It is not as straightforward as some of the other gerrymandering things going on in the country or particularly in the south, in part because the Milligan case, they made a determination that the state maps were illegally gerrymandered, not only based on the Voting Rights act, but also on a 14th amendment grounds and a denial of the rights of a minority population. So there were two issues in collection was only decided about the voting rights in section two. Our case, the Milligan case, is on appeal. But remember, Joyce, that in the Calais opinion, Justice Alito specifically distinguished the Alabama case and literally said at the end of the opinion that he took the dissent to task because he said the dissent said we've overruled the Milligan case on the Supreme Court. It was the Allen case, but said we've overruled that case, but we have not. But what they did do was to dissolve the injunction that prohibited the state from using their gerrymandered maps and sent it back to the three judge panel. And that's where we've been having some hearings. And literally just this morning the three judge panel ruled that the state would be enjoying from using their old maps. But it's still very complicated. We know it's going to go to the supreme Court. We don't know whether or not they're going to require an opinion. The bottom line for Alabama is that number one, you had some kind of bad lawyering from the state that's frankly inured to the benefit of the plaintiffs. I mean, really kind of bad lawyering. There's just no doubt about that. And the second thing, that right now, the legislature in their bill, they rush this thing through so quickly. I mean, literally the governor called a special session within 48 hours after the Kalay decision came down and they rushed through this bill and it has created a mess. And I think that in part I haven't seen the opinion from the three judge panel, but I think that in part contributed to the fact that, look, they're going to keep the status quo because remember that decision, that Clay decision came down just days before our primary election and so it affects four out of our seven congressional districts. So we'll see where this goes. But as of right now, we're going to be using the old maps, not the gerrymandered maps that the state of Alabama so rushed and so very proud of about trying to get rid of at least one of the minority districts for the state of Alabama.

[A]

Yeah, I mean, this opinion that just came down, Preet, I'm not sure if you've had a chance to see it either. It's 102 pages. I've only had a chance to read the beginning.

[B]

I don't read that fast.

[A]

Joyce, as you know, the paragraph that jumps out and I think this is only on page three, which tells you how far I've been able to get. This is the three judge panel. They say we do not lightly intrude in state affairs. But our previous review of the undisputed evidence left us in no doubt that Alabama's legislatively enacted plan intentionally. Intentionally is the key word here. Discriminated based on race in violation of the constitution. Our reexamination in light of Calais yields the same conclusion. And so they enjoin Alabama from using the discriminatory maps. I mean, that would seem like a normal conclusion in any world, but I guess it goes to the Supreme. It'll go straight there. What do you think will happen, Preet?

[B]

Nothing good. Which is, I think the spirit in which you asked the question one might say was almost for you, Joyce, a rhetorical question.

[A]

I mean, I have a little bit of hope and I'd love to hear what Doug has to say on this.

[B]

Where does that hope come from?

[A]

Because Justice Sotomayor, and this is in the dissent, admittedly, but in the dissent, she really invites Alabama to do this, and she invites them to do it because what separates this case from Kalay is, is the evidence of intentional discrimination. You know, it's worth saying that two of the judges on this panel, by the way, are Trump appointees. And so I wonder if the majority that decided Milligan in the first place and said that Alabama could not get away with intentional discrimination, the majority that included Roberts and Kavanaugh. I wonder if it might not hold here, maybe if not for principled reasons, but just because the court has really been taking a beating post Calais, and perhaps this is their one off opportunity to show something that resembles good faith. Do you think I'm too optimistic, Doug?

[C]

No, not at all. I have the same opinion. In fact, I may be a little bit more optimistic than a little. I just think that a combination of things with Justice Alito specifically talking about the Alabama case in the Calais decision and distinguishing it and talking about that it has not been overruled in that case is on appeal. And that one paragraph you read, I think is really strong because that's the thing that jumped out with me when the Calais decision came down, that the 14th Amendment grounds still exist. And the court very specifically in that paragraph that you read, said, look, the evidence is still there and it's even, probably even more so at this point. So I just got to believe that a decision that was made just about three years ago that included. Included the chief justice and included Justice Kavanaugh, that they're not going to lightly overturn that and say, oh, well, this is a new day. And even though the court said this ground is still valid, still strong, which is what we ruled on the last time, I got a hard time believing that given just what I call just the shake and bake, all this crazy stuff that's going on with our Alabama legislature, that they would overrule that. Now, having said that, not having seen the whole opinion, my concern is that a Lot of the chaos that the evidence was about the other day at this hearing was because the state in their legislation prohibited the canvassing of votes from our primary just last week. And if the three judge panel is saying, well, it's just a lot of chaos, but we, we can't enjoin that we've got to go forward and have this August primary just using the other maps, I worry about that a little. But at the end of the day, I think I'm a little bit hopeful and I think, Joyce, you nailed it at the end, that all of a sudden this court has lost so much credibility, it has lost so much institutional credibility and is seen as an arm of a political party that they may pull back at least right now and let the dust settle a little bit more and say we're not going to hurt anything by letting Alabama continue to use the maps that they've had. They've got plenty of time before 20 if they want to do it. So that's why I'm still hopeful. But I agree with you guys. Nothing will surprise me out of this court anymore.

[B]

Why is it that you folks and some others believe that the court itself thinks that it's lost credibility and among whom, and do they care about those people and do they care generally about what anybody thinks of them?

[A]

I think John Roberts cares about the legacy of the court that bears his name, although he's done some things that I think history will judge very harshly. The criminal immunity case, for one among them. I think that right now on this particular issue, it may be that intentional discrimination, the Supreme Court saying intentional discrimination may be a bridge too far for John Roberts, which would mean it would come down to Kavanaugh.

[C]

I agree with that. And I also tend to believe that even Justice Kavanaugh, I think he is concerned about the court and the institution. Whether or not he lets his partisan leanings overrule that, I don't know. But I just think that there's a piece of that, and quite frankly, I'm not sure that that's not the case with Amy Coney Barrett, with some of the things I've seen. On the other hand, Preet, one could look at what's happened at this court over the last year or so and think there are six members of that Supreme Court who don't really give a damn anymore. And let's let the politics outweigh everything. It's certainly not an illegitimate view because of the way things have gone.

[B]

Can I ask a slightly different basic question to the two of you venerable experts? Among the Supreme Court conservatives among the six, how many of them do you think, whether they decide one way or the other on a particular case in Alabama or Louisiana or anywhere else, believe deeply and honestly and genuinely in the purpose of the Voting Rights Act?

[A]

Well, I mean, the Chief justice made that clear when he was wrote the opinion in Shelton county versus. Thanks for listening. To hear the full episode, become a member by heading to cafe.cominsider or staytuned.substack.com

[B]

and thank you for supporting our work.