Will the Voting Rights Act Survive SCOTUS?

Summary

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Strict Scrutiny | "Will the Voting Rights Act Survive SCOTUS?"

Date: October 20, 2025 | Hosts: Leah Litman, Kate Shaw, Melissa Murray
Special Guest: Sam Spital (NAACP Legal Defense Fund)

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Episode Overview

This episode dissects the future of the Voting Rights Act (VRA) as the Supreme Court hears oral arguments in Louisiana v. Calais, a pivotal redistricting case. The hosts are joined by civil rights litigator Sam Spital to unpack why Section 2 of the VRA now hangs by a thread, following years of judicial rollback. The episode covers the mood and substance of the argument, exposes the Justices' shifting doctrines, and connects the legal questions to broader political tensions over race and democracy. Plus, the hosts discuss new developments in the executive branch and feature an interview with Joyce Vance about her new book, "Giving Up is Unforgivable: A Manual for Keeping Democracy."

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Key Discussion Points & Insights

1. Setting the Stage: Why Louisiana v. Calais Matters

[02:23-03:39]

• Louisiana v. Calais centers on whether Louisiana must draw a second majority-Black congressional district.
• The case could gut what's left of the VRA after prior Supreme Court decisions—particularly Section 4 (struck down in Shelby County v. Holder, 2013) and the preclearance regime (Section 5).
• Broader context: Heightened national discussion on race, affirmative action, political gerrymandering, and efforts to dilute minority electoral power.
• Notable juxtaposition: On the same day as argument, federal policies considered prioritizing refugees who are white, highlighting disconnects in U.S. racial politics.

2. The Legal Framework: Section 2 and the Jingles Test

[09:04 - 12:19]

• Sam Spital explains: Section 2 of the VRA targets election practices that dilute the voting strength of minorities, traditionally enforced through the "Jingles test" (Thornburg v. Gingles, 1986).
  • Jingles: Plaintiffs show a minority group is large/compact enough for a majority district, is politically cohesive, and White majority votes as a bloc to defeat their candidate.
  • Historic bipartisan support—e.g., amendments signed by President Reagan in 1982.
• Amicus Brief by Solicitor General: Proposes changing the test to include partisanship and incumbency, making it nearly impossible for plaintiffs to prove vote dilution in most cases (not a traditional redistricting criterion).
  • “If one allows partisanship or incumbency protection…it’s going to be very difficult for plaintiffs…” (Sam Spital, [12:52])
• Problem: Linking race and partisanship enables states to defend racial gerrymanders as partisan, potentially neutering Section 2.

3. High Court Dynamics: Tone and Substance of Oral Argument

[04:03 - 06:28, 23:49 - 24:20]

• Republican appointees on the Court appeared "muted"—as though the outcome was predetermined: "They weren't even especially interested in having any kind of meaningful back and forth…" (Melissa Murray, [07:14]).
• At times, some justices "enjoyed themselves," signaling comfort in further weakening the VRA (Leah Litman, [08:23]).
• Noteworthy moment: Justice Thomas, on a hot mic at argument's end: “See, that wasn’t so bad.” (Played [63:19])—to which the hosts respond with exasperation over the Justices’ cavalier attitude.

4. Stare Decisis is for Suckers: Revisiting Allen v. Milligan

[29:29 - 36:42]

• Allen v. Milligan (2023) was a nearly identical Alabama VRA case upholding Section 2. Yet, justices (including Roberts) now act as if it's not binding:
  • "That case, of course, took the existing precedent as a given..." (Roberts, [32:08])
  • Kagan’s pointed questioning: “...It seems to me that you’ve repeated each and every one of those arguments that we rejected.” ([33:03])
• The Court tries to “magically rethink the past,” denying that the issues have already been squarely addressed in Milligan despite textual evidence.
  • “Ladies and gentlemen, the originalists. This is the new the Aristocrats punchline. These guys are so good at history…” (Leah Litman, [35:16])

5. Partisanship and the Disappearing Racial Remedy

[37:12-42:03]

• Court's blessing of partisan gerrymandering (Rucho v. Common Cause, 2019) now being leveraged to undermine racial gerrymandering claims.
  • “If you’re gerrymandering for partisan advantage, you might…box out some racial minorities…” (Melissa Murray, [38:15])
  • Sam Alito suggests “partisanship should be a factor in Jingles”—a move that would “erase the Voting Rights Act entirely.” (Murray, [39:27])
• Irony: Rucho purported to treat partisan gerrymandering as “destructive to democracy,” yet now is cited as a constitutional good (Leah Litman, [39:27]).

6. Expiration Date for Civil Rights? The Shot Clock Argument

[43:02-45:47]

• Justice Kavanaugh repeatedly argues for a “shot clock” on civil rights remedies: “race-based remedies are permissible for a period of time…they should not be indefinite…” ([43:07])
• Host critique: “The idea that strict scrutiny requires a time limit is made-up magical thinking.” (Leah Litman, [43:46])
• Justices Jackson/Kagan note that the Jingles test already demands proof of present conditions: “Jingles is an exacting test…It is data obsessive…Current conditions show vote dilution…” ([45:46])

7. Is Section 2 (or Any Racial Remedy) Now Unconstitutional?

[50:12-56:28]

• Roberts, in Shelby County (2013), said Section 2 remained a valid tool. Now, Justices question its constitutionality:
  • SFFA (Students for Fair Admissions, 2023), which struck down affirmative action, is invoked as a potential superseding event limiting VRA remedies.
  • “It was wild to me how a very limited case about college admissions now becomes a question of whether or not a key provision of a super statute...is still constitutional.” (Melissa Murray, [51:19])
• Gorsuch/Thomas embrace the idea that any remedial use of race is unconstitutional.
  • Kagan demolishes the “stereotyping” claim: “That’s not stereotyping either. That’s just what the data shows...” ([56:28])

8. Real-World Consequences and Future Forecast

[58:31-61:52]

• Nate Cohn (NYT) estimates Dems may need to win the popular vote by 5-6 points to control the House if Section 2 falls.
• Federal government and state attorneys minimize the impact:
  • “According to the federal government, 15 fewer black representatives in Congress is no big deal.” (Kate Shaw, [59:27])
• Janee Nelson drives home what’s at stake: “We only have the diversity that we see across the South…because of litigation that forced the creation of opportunity districts under the Voting Rights Act…” ([60:01])
• Hosts’ consensus: "They are going to make it practically impossible to enforce Section 2...Prepare for it. Don’t get wrapped up in one minimal victory...like Lucy and the fucking football." (Melissa Murray, [61:52])

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Notable Quotes & Memorable Moments

• Melissa Murray [07:54]: “Get in, loser. We're dismantling what remains of the Voting Rights Act.”
• Leah Litman [61:52]: “All I want to say is, back in 2023, when Allen vs. Milligan came out, didn't I say that was just an idle...they would totally trash the Voting Rights Act...you could see it. They show us continually who they are. Like, just, like, prepare for it.”
• Justice Kagan [33:03]: “...It seems to me that you’ve repeated each and every one of those arguments that we rejected [in Milligan]...”
• Justice Thomas hot mic [63:19]: “See, that wasn’t so bad.”
• Leah Litman [43:46]: “The idea that strict scrutiny requires a time limit is made-up magical thinking.”
• Janee Nelson [60:01]: “We only have the diversity that we see across the South...because of litigation that forced the creation of opportunity districts under the Voting Rights Act…”

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Timestamps for Key Segments

• 02:23 – 03:39: Introduction to Louisiana v. Calais and the Voting Rights Act
• 09:04 – 12:19: Sam Spital explains the Jingles test
• 29:29 – 36:42: Discussion of Allen v. Milligan and stare decisis “for suckers”
• 37:12 – 42:03: From partisan to racial gerrymandering—leveraging Rucho
• 43:02 – 45:47: The “shot clock” and time limits for civil rights
• 50:12 – 56:28: Is Section 2 unconstitutional? SFFA and race as a remedy
• 58:31 – 61:52: Real-world stakes, predictions, and host reactions
• 63:19: Hot mic moment—Justice Thomas’s “See, that wasn’t so bad”

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Additional Segments

Interview: Joyce Vance on “Giving Up is Unforgivable”

[82:23-101:29]

• Joyce Vance (former U.S. Attorney, MSNBC analyst) discusses resilience for democracy, the myth of broken institutions, the new “lost cause” of January 6th, and “rules for the cavalry” (be in community, use your talents, draw your ethical red line).
  • “This is a tough moment...Being with other people who are like-minded...is the mental health care that we all need right now.” (Joyce Vance, [94:58])

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Tone and Takeaways

The hosts’ tone is irreverent, sharp, and sometimes darkly humorous, as they grapple with the mounting legal and political threats to American democracy. Across the episode, they needle the Court’s disingenuous legalism, the “wink and nod” games over precedent, and the slow-motion dismantling of the post-1965 multiracial democratic order. The message is clear: the stakes are dire, the Court’s conservative bloc is not acting in good faith, and every listener should be alert—because collective action and vigilance are needed to defend the possibility of representative democracy.

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In Closing

Bottom line prediction: The Supreme Court is poised to gut Section 2 of the Voting Rights Act—perhaps not formally, but functionally. The hosts urge listeners to “believe them when they show you who they are” ([62:56]).

Call to action (via Joyce Vance): Don’t give up—find your role, sustain your community, and keep fighting for the institutions and liberties at risk.

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(For full analysis, legal breakdowns, and further reading suggestions, listen to the episode.)

Transcript

[Melissa Murray]

Strict scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting some precedents, shattering some norms and dropping a few billion. The same people and groups that Back Project 2025 are part of a larger shadow network that is relentlessly pushing to impose a Christian nationalist agenda on our lives and our laws. Church state separation is the bulwark blocking their agenda. One of the last bastions of church state separation is our public school system. So they are pushing vouchers everywhere. They are arguing for religious public schools. Yes, you heard that right. Religious public schools. And they're doing it at the Supreme Court, as we have covered on this podcast. If you're listening to us, you already see the writing on the wall and you know that we can and we must fight back. Join Americans United for Separation of Church and State and their growing movement because church state separation protects us all. You can learn more and get [e-mail].

[Leah Litman]

Crooked Introducing the Weeknight on MSNBC, join hosts Alicia Menendez, Michael Steele and Simone Sanders Townsend for a spirited conversation challenging.

[Melissa Murray]

Each other and our leaders about the biggest issues of the day. It's about knowing what you are for.

[Justice Kagan]

Who you are for.

[Sam Spital]

That's what politics is about, is engagement.

[Leah Litman]

We are going to dive deeper into the legal side of today's breaking news.

[Melissa Murray]

The weeknight, Monday through Friday at 7pm Eastern on MSNBC.

[Joyce Vance]

Mr. Chief justice, please report.

[Leah Litman]

It's an old joke, but when a.

[Melissa Murray]

Man argues against two beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex.

[Justice Kagan]

All I ask of our brethren is.

[Melissa Murray]

That they take their feet off our necks.

[Kate Shaw]

Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw.

[Melissa Murray]

I'm Melissa Murray.

[Leah Litman]

And I'm Leah Littman. We are going to start today's episode with argument recaps that includes the huge Voting Rights act case the court heard last week, Louisiana versus Calais. To discuss the case, we'll be joined by Sam Spital, associate director counsel of the NAACP Legal Defense Fund. We'll then discuss some developments in the executive branch. And at the end of today's show, we'll bring you a conversation with the great Joyce Vance about her new book, giving Up Is a Manual for Keeping a Democracy. Kind of sounds like a message we all need to hear right now, some more than others.

[Melissa Murray]

No comment. But first let's turn to argument recap. Speaking of keeping a democracy, this is a big one. This is a case, Louisiana vs Calais, about the future of the Voting Rights act, one of the last shards holding together this minimally functional multiracial democracy, although perhaps not for much longer if this court has anything to say about it. I should also note that this case was heard on the same day that the New York Times reported that the United States federal government is considering overhauling our refugee admissions policy to prioritize admitting white people who believe that they are being persecuted in other countries.

[Leah Litman]

But at least some justices of the.

[Melissa Murray]

Supreme Court appear poised to say that any consideration of race is uncomfortable constitutional, especially when drawing legislative districts, if the purpose is to ensure that minorities, racial minorities that is, are not shut out of the political process. So just wanted to note the coming together of Article 2 and Article 3 here.

[Leah Litman]

Yeah, colorblind constitutionalism in theory and practice.

[Kate Shaw]

For the not me or me not the. Yeah, that was a hard confluence last week.

[Melissa Murray]

Well, I mean, and it was also came on the heels of the politico Republican racist text exchange and then the whole thing in Congressman Taylor's office about the Nazi swastika flag. I mean, it's just, just a lot of really interesting race laden events happening as the Supreme Court decided.

[Leah Litman]

All of which suggests we are living in a post racial democracy where race is irrelevant and shouldn't be considered at all. Right.

[Kate Shaw]

Which is why it's not a big deal when young staffers, and some of them not so young, make violent racist jokes on text message chains because we are post racial. And so it's no problem anyway. So if you're wondering how to make all of this make sense, so are we. And we will do our best to muddle through at least the Supreme Court case part of it. So Louisiana vs. Calais was argued Wednesday for the second time after the court put it back on the calendar for re argument rather than deciding it last term. It was argued by friend of the show, an LDF president and director counsel Janae Nelson. She argued against the Solicitor General of Louisiana, a Missouri Attorn attorney representing a group of Louisiana voters and a lawyer for the federal government. So yes, it was one on three. And the fact that Janae argued the case herself is a sign of exactly how big a deal this case is. So we're going to talk through some key themes in the case. And since we are assuming that at least some of you did not have the experience of spending two and a half hours, like truly appalling hours listening to the argument. We will play you some of the highlights SL lowlights from the argument.

[Leah Litman]

I am just going to interject here with what will surely be one of many we need to talk about Justice Thomas segments in this episode. Listeners, the argument actually ended with Justice Thomas saying on a hot mic, see, that wasn't so bad. And somebody likely John Roberts, though it's hard to be sure, audibly shushing him. But listeners, as ever, don't listen to Justice Thomas because, yes, it was so bad. We will play that clip for you at the end of our discussion of the case, just so that it is it will hit you the same way it hit us as we were listening live. But we'll start instead with a comment from Justice Sotomayor that got right to the heart of the case.

[Justice Kagan]

The bottom line is just get rid of Section two because the test you're providing doesn't do anything for the effects test that Congress identified.

[Melissa Murray]

So that clearly is what's at stake in this case. Louisiana and the federal government would like to functionally, if not formally get rid of of section 2 of the Voting Rights act, which I will remind you, is all that is left of the hobbled Voting Rights act after the court gutted section four and effectively section five, the preclearance regime in Shelby county versus Holder back in 2013. All of this is why it is just so strange that for a significant portion of this two and a half hours of oral argument, the Republican appointees were actually fairly muted. It almost felt like they were so sure of what they wanted to do here. That is, they wanted to invalidate Louisiana's congressional map just because it has two majority minority districts rather than just one. And even if they aren't entirely sure how they're going to write that opinion, they're pretty sure what they're going to do here, which is to lay waste to the Voting Rights Act. And so it seemed like they weren't even especially interested in having any kind of meaningful back and forth about the merits of doing so, because they were all pretty secure about what the plan was and where they were going. And it was just basically time to buckle in and take a ride. Take a ride back to Reconstruction, I guess.

[Leah Litman]

Get in, loser. We're dismantling what remains of the Voting Rights Act.

[Kate Shaw]

I think redemption more. I think Reconstruction. I think they're troubled by too much black representation in state houses.

[Melissa Murray]

Well, I mean, yes, you're right, I'm being historically inaccurate. Maybe I should be a member of the Supreme Court.

[Leah Litman]

If those are your bonafides Things are looking great.

[Melissa Murray]

Well, I mean, there's this. This thorny problem of me knowing how to read. I gotta get rid of that first.

[Kate Shaw]

Yeah.

[Leah Litman]

So I agree with you. Like the beginning, it really sounded like these guys were just bored. They were over it. But as the argument went on, another shade became clear, and it sounded like some of them were enjoying themselves, like really yucking it up and having a good time. Putting the nail in the coffin of what remains of the vra. To provide some context for what is going on in this case, which runs the risk of sounding technical and being laundered in legalese, we're delighted to be joined by Sam Spittal, associate director, Counsel of the NAACP Legal Defense Fund. Welcome to the show, Sam.

[Sam Spital]

Thank you. Thank you very much for having me. It's great to be here.

[Kate Shaw]

Okay, Sam, so we want to start with some basics. The case is partially about the future of section 2 of the Voting Rights act and the continued force of the court's 1986 decision in Thornburg vs. Jingles. So can you tell us what is jingles and what did that decision say?

[Sam Spital]

Yeah, absolutely. So if I can start by taking just one step back before we talk about jingles, which is to go back to the Voting Rights act of 1965, which is widely understood to be the most successful piece of civil rights legislation in our nation's history. And what happened quite successfully with the Voting Rights act of 1965 is that barriers to registration, barriers to actual voting for black voters and other voters of color throughout this country were significantly reduced. And that meant that there was this massive rise in registration rates and actual ability to vote for black people in jurisdictions that previously they had been not able to vote in. And so what this led to in many places of the country was a new effort to ensure that now newly enfranchised black people could not actually exercise political power. And so one of the classic ways to do that is through gerrymandering through grind districts in ways that ensure that the votes of a group of people, in this case, often black people, would be minimized or canceled out. And so that's really what then Congress addressed in 1982 with amendments that strengthened Section 2 of the Voting Rights Act. And that was what the Supreme Court was talking about in jingles.

[Leah Litman]

And can you remind us in 1982, what communist who is a super hippie, liberal and squishy. Very squishy, and wobbly and squishy, was president and would sign this legislation into law? This amendment?

[Melissa Murray]

It was Zoran Ramdani. No it wasn't it.

[Leah Litman]

Right.

[Sam Spital]

This was President Ronald Reagan, which goes to an important point, that for so much of our recent history, the Voting Rights act was a very bipartisan, supported endeavor, including novel 2006. Absolutely. So it's.

[Kate Shaw]

Of course, Justice Scalia thought that was highly suspicious how bipartisan the support for it was. But sorry, I digress.

[Sam Spital]

Yes, yes, yes. So we're moving to the more recent history of back to where we were in 1982 and then 1986 in the Thorenberg vs Jenkins case that you mentioned, Kate. That was the Supreme Court's first opportunity to interpret this strength in Section 2 of the Voting Rights Act. And they essentially created a test that would measure circumstances where what I said before was happening, where a jurisdiction was canceling out, minimizing opportunities for black voters or other voters of color to participate equally in the political process and to have a fair chance to elect candidates of choice. And that's what jingles is about. It's about creating a test to identify when that is happening.

[Melissa Murray]

Can I ask a question? Just a housekeeping question? Throughout the oral argument, I was very surprised to hear friend of the pod, Samuel Alito, pronounce jingles gingles with a hard G. Do we know what the correct pronunciation is? Is it soft G jingles or hard G gingles?

[Sam Spital]

I always grew up thinking it was soft G jingles. But, you know, ever since, some of the justices have been sort of saying it both ways. I. I don't know.

[Kate Shaw]

We're taking good in the word for it.

[Melissa Murray]

Exactly.

[Leah Litman]

I'm going with good, Sam.

[Kate Shaw]

Jingles it is.

[Justice Kagan]

Yeah.

[Leah Litman]

There are a bunch of different theories floating around in this case, aside from trying to recast jingles as gingals. But one is the Solicitor General's proposals to change jingles requirement that currently, in order to establish a violation of the Voting Rights Act, a minority group must show that it would be possible to draw an additional reasonably configured district where minority voters have political opportunities. So could you explain, Sam, what the Solicitor General's proposal is and what it would do to jingles and the Voting Rights Act?

[Sam Spital]

So the Solicitor General filed an amicus brief at the supplemental briefing stage of this case. So after the case had already been argued the first time, the court asked for additional briefing about an additional question over the summer, and that actually, the question the court asked wasn't actually about shingles, but nonetheless, the Solicitor General files an amicus brief. And I'll just note for sort of good order that normally parties are not supposed to inject new issues into through an Amicus brief that's not. You might expand on an existing issue in the case, but not sort of bring up a new issue. But the Solicitor General filed a brief that argued for a number of changes to the jingles test. And there are a number of different sort of things that the Solicitor General is focused on, but the ones that I think are the most important and the ones that the Solicitor General acknowledged during the argument or the Deputy Solicitor General acknowledged during the argument would actually require changing the jingles test have to do with the issue that you just talked about. So there are several preconditions that voters have to establish in order to show a violation of section two under jingles. The first one is that they have to show that there could be a district drawn that would be reasonably configured, meaning that it sort of complies with the state's traditional redistricting criteria. And also that would be majority black, if it's on behalf of black voters or majority on behalf of another group of voters of color. In other contexts, what the Solicitor General has said that would really be quite radical is that at this first stage of the process, some of what should be considered traditional redistricting criteria are things like partisanship and incumbency protection, which have never previously been understood to be traditional redistricting criteria. Traditional restricting criteria are supposed to be things like, is the district geographically compact? Does it respect county lines? Does it respect political subdivisions? Those sorts of things, not things like partisanship and incumbency protection. And you can, I think, pretty quickly see why, which is that if one allows sort of partisanship or incumbency protection to become the focus of a map at that first stage, it's going to be very difficult for plaintiffs to present a map that has the exact same partisan breakdown or doesn't have any sort of impact on the partisan lean, because race and partisanship, while certainly not identical, there is often a correlation. And so this would really limit the ability of plaintiffs to present maps that satisfied jingles and would freeze in place prior discrimination, because it would be almost impossible in most places to present a map that sort of even got you through the threshold.

[Leah Litman]

So maybe we can just spell that out for a second, just in the context of this case. So Louisiana has six congressional districts. The original map drew one district where black voters would have the opportunity to elect the candidate of their choice. And the challenge here is whether Louisiana has to draw a second district where black voters would have the opportunity. And if the Solicitor General has their way, then the plaintiffs would have to show you can have a Second majority black district, and yet five of the six districts would still elect Republicans. This is, as you say, an impossibility, a null set. It does not exist. Anyway, sorry, just wanted to interject that.

[Sam Spital]

Yeah, absolutely. And I mean, if I could just say one more thing. If it were accepted, it would actually make a Section 2 claim, which is supposed to ultimately be about discriminatory result and discriminatory effect. Even though the test is a complicated test, it's a very rigorous test and it does have some aspects of discriminatory intent sort of baked in. But it would make this test, which overall is designed to be easier than proving discriminatory intent, because we know how difficult it is to prove discriminatory intent, especially in a multi member legislative body situation, it would actually make it harder to succeed on a Section 2 case. And the reason for that is that you could have a situation where a legislature, there was overwhelming evidence that there was an actual intent to discriminate against black voters. But still, there could be no illustrative map that would be consistent with the prior partisan makeup of the map. So it would make it impossible to prove a Section 2 case, even in cases of intentional discrimination. And that obviously is not what Congress intended in Section two.

[Kate Shaw]

Yeah. And just to sort of pick up on that last thing you said, obviously not what Congress intended when it amended Section 2, because the Supreme Court had actually said, you need to show intent to establish a violation of Section 2, and Congress explicitly overrode that when it amended the Voting Rights act to say, no, you don't have to show intent. This is an effects test. And as you say, this is an incredibly complicated body of law and intent is not irrelevant. But to say this has to be an intent test flies in the face of what Congress did when it amended the Voting Rights Act. And just to maybe say one other thing about this kind of partisanship issue, we're going to come back to it and play some clips from the oral argument. But I mean, for a court that is as fixated on history and tradition to consider with a straight face saying six years into our blessing the use of partisanship in redistricting, it is part of the traditional redistricting criteria that that partisan advantage has to be maintained, or we kind of consider kind of partisan advantage as one of the traditional redistricting criteria is, I think, madness. And just on the Solicitor General's argument, again and again, the lawyer for the SG kept referencing the fact that white Democrats in West Virginia have, you know, basically zero congressional representation, even though there are a lot of them. So basically, why should black voters in Louisiana make out so much better? Makes very, very clear. They basically think that partisanship as a justification will swallow everything else and thus essentially drain the force of Section two.

[Leah Litman]

Well, obviously the purpose of the Reconstruction Amendments was to include white Democrats from West Virginia in the polity, so that makes total sense. Kate.

[Melissa Murray]

Perfect.

[Justice Kagan]

Yep.

[Leah Litman]

Glad we covered that.

[Sam Spital]

I mean, one of the things that I think was so troubling about that part of the argument is that it represents this effort to sort of suggest that the Voting Rights act is really about partisanship, which could not be further from the truth. If you look at the history of the Voting Rights act and litigation enforcing it, there have been times where Democrats have controlled legislative bodies and drawn maps that discriminated against black voters. There have been times that Republicans have controlled legislative bodies and discriminated against black voters. And the reason why race is so different than partisanship and why the West Virginia example, from my perspective, is so unhelpful, is that to what you were saying, Lee, about the Reconstruction Amendments. The Reconstruction Amendments are not troubled by the partisan situation in West Virginia. They are troubled when black voters consistently are locked out of power. And in a place like Louisiana, where to this day, since Reconstruction, there has not been a single black candidate who has won statewide, essentially all of the representation that black voters and black candidates have achieved in recent years is because of districts that were created under the Voting Rights Act. That is a very different circumstance, and that is what Congress is rightly concerned about with the Voting Rights Act.

[Melissa Murray]

It's also worth mentioning that the population of Louisiana is a third black. So it's not as though African Americans don't have a sizable portion of the electorate where they could, if they could get reasonable districts drawn or get support from other constituents, could get their way. Like it's actually purposely drawn in ways to minimize and dilute their power.

[Sam Spital]

Absolutely. And one of the other things that I think is so frustrating about watching how this plays out in some of the rhetoric is the sort of suggestion that somehow it's the Voting Rights act that is injecting race into what is otherwise a race neutral process. And that could not be further from the truth. In the initial process where there was redistricting, as there always is, after the decennial census, Louisiana drew a map that they knew that was intended to ensure that white voters will be locked into power in five of the six congressional districts, meaning that white voters, who represent only about 58% of the population in Louisiana, will control about 83% of the districts that wasn't an accident. So it's not the Voting Rights act that is injecting race into the process. The Voting Rights act is remedying a situation where there's already racial discrimination in the process.

[Melissa Murray]

Right. So can we go back to the soft G jingles test? Under the test, to establish a violation of the Voting Rights act and to make out a VRA claim, plaintiffs can offer up what are known as illustrative maps. So these are alternative maps that contain reasonably configured districts that also provide minority voters with additional political opportunities. At oral argument, it seemed like some members of the Court wanted to impose a similar set of requirements on remedial maps. So can you explain for our listeners the difference between an illustrative map and a remedial map and why the same requirements, requirements ought not apply to both?

[Sam Spital]

Yeah, absolutely. And I really appreciate that question, Melissa, because I think it gets to one of the things that was also, there's such a disconnect in some of the questions and some of the arguments that you saw. So one of the other aspects we've talked about how these illustrative districts that plaintiffs have to draw have to be reasonably configured. They have to respect traditional district criteria. They also have to be majority minority. And that's not because of something the statute says, and it's not because it's something that civil rights plaintiffs wanted. It's because of a Supreme Court decision called Bartlett v. Strickland, written by Justice Kennedy, a plurality opinion, and this was the controlling opinion, joined by Chief Justice Roberts and Justice Alito. And the court in that case held that these illustrative districts have to be majority minority. And the theory essentially was that in order to show vote dilution, members of a protected group need to show that they could be a majority in an illustrative district in a differently configured district. So part of the conversation that we heard in court yesterday was that, oh, civil rights plaintiffs are always looking for. They're fixated on race. They're always looking for these majority minority districts. We are not fixated on race. We have to create these illustrative districts because the Supreme Court said you have to do this. But then at the remedial phase to your question, Melissa, the legislature or the local body in a local case, they do not have to draw majority minority districts to remedy the violation. All they have to do is come up with a district that will stop the vote dilution. And that district does not necessarily have to be majority minority or majority black. It does not have to ensure that it will be a safe district. For black candidates or black voters. Competitive districts can remedy the violation. Districts that do not even look at the race of voters in their creation can remedy the violations. All that needs to happen at the remedial phase is that there needs to be some sort of remedy so that black voters or voters of color, whoever served the plaintiff in the case is, are not consistently locked out of any opportunity to participate in the political process and to elect candidates of choice.

[Leah Litman]

Pointing out that the court required this of you definitely makes me think of the affirmative action cases, among others, where the court told schools, you have to justify these programs in the name of diversity. And why can't you tell us how to measure diversity? Why can't you tell us what a critical mass is? And it's like, well, you're the ones that force them into this box, and now you're calling it a problem. Anyways. Sam, I know we are running short on your time, but we wanted to ask what would the likely consequences be of significantly weakening the Voting Rights Act?

[Sam Spital]

I mean, the consequences depending on sort of which direction the court might go. But if the court Significantly weakens section 2, the consequences would be dire. It's important to remember that there's this previous case, Shelby county vs. Holder, where the court essentially invalidated Section 5 of the Voting Rights act, which was the other key provision of the Voting Rights Act. When it did so, one of the things that the Court said this is the opinion by Chief Justice Roberts. At that point, the conservative majority of the Court said, nothing in our opinion is affecting in any way the permanent ban on voting discrimination in section 2 of the Voting Rights act. Essentially. Look, we understand there are concerns about Section 5, but we think that there are problems with Section 5. We disagree with, but that's the conclusion the Court reached. But part of why they said we can trust that there's still going to be a vehicle for remedying discrimination is that you still have Section two. If now the court significantly weakened and some of the proposals, as we were talking about from the Solicitor General, would more than significantly weaken, they would essentially end Section 2 of the Voting Rights Act. That would mean that in places like Louisiana and many parts of this country still where the only progress that black voters and black candidates have been able to make is because of the Voting Rights act, those districts would all be up for grabs. And we even see that the Solicitor General for Louisiana said, I don't know what would happen if there were no section 2 here. Maybe the state would go for a 6, 0 map where there were no opportunities for black voters to have any to be able to elect any candidates of choice in Congress which would be sent us back to pre1980s sort of period. So the risk to our multiracial democracy would be very, very stark if the Court were really to Significantly erode section 2 of the Voting Rights Act.

[Kate Shaw]

I wish we had a happier note to end this conversation on, but I mean the stakes are dire, so I think that's probably a good place to leave it. So Sam, we know that your time is limited. We'll let you go. But thank you so much for joining us to talk this through.

[Sam Spital]

Thank you.

[Melissa Murray]

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[Sam Spital]

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[Kate Shaw]

That was super helpful. We wanted to spend some additional time on a few themes we saw emerge during the argument.

[Melissa Murray]

Theme 1 what's the significance of the court's 2023 decision in Allen vs. Milligan, a virtually identical case? Or we could also call this theme why is Stare decisis for suckers? So as a reminder, listeners, two years ago, in a case just like this one, the Court affirmed a lower court's finding that an Alabama MAP violated Section 2 of the Voting Rights act when Alabama created one rather than two majority minority districts, again, districts where black voters would have more political opportunities.

[Kate Shaw]

Sounds so familiar, what you're describing.

[Leah Litman]

I know, it's so weird.

[Melissa Murray]

Anyway, before finding the map invalid, the Court did allow Alabama to use the illegal map in a congressional cycle where that might have had something to do with the Republicans gaining control of the House. But just one congressional cycle. Just the tip, as it were.

[Leah Litman]

I know they did that on the shadow docket, the just the tip docket.

[Melissa Murray]

They sure did. That's. That's when we should have known. Just the tip. Anyway. In any event, when the Court finally resolved the case on its merits docket, it applied the jingles test and applied affirmed the lower court's determination that the map was unlawful. It also stated pretty unequivocally that in order to establish a Section 2 violation, you had to show effects, not intent, which is something we've been talking about. The Court then confirmed that Section 2 applies to redistricting challenges and that it is not unconstitutional. So effects, not intent. Section two applies to redistricting. Section two is not unconstitutional. It would seem that Allen versus Milligan kind of ticked a lot of boxes that have been raised in versus Milligan.

[Leah Litman]

Don't know her. Don't know her.

[Kate Shaw]

I mean, you know, before we get there, because our, the way this is supposed to work is that in our legal system, we typically reason from precedent. So the precedent that's most on point here, very recent. Allen vs. Milligan, the case that Melissa was just talking about, is where Janee Nelson started her argument. Allen vs. Milligan was decided 28 months ago on all fours with this case. And in a normal system of precedent, Allen would control this case full stop. And yet here is Chief Justice Roberts, noted institutionalist, say it the right way.

[Melissa Murray]

Okay.

[Kate Shaw]

Distancing himself from Milligan, which to be clear, he wrote right off the bat.

[Melissa Murray]

Council, you began with Allen against Milligan. That case, of course, took the existing.

[Sam Spital]

Precedent as a given and considered Alabama's.

[Melissa Murray]

Application of its approach to the evidence and all that under that precedent.

[Kate Shaw]

Yeah. And as Janee responded kind of incredulously, yes, it did take precedent as given because that's typically what we do.

[Leah Litman]

No, that's actually literally how precedent and stare decisis work. You take the precedent as a given. And of course, the Democratic appointees on the were keen on this. So Justice Sotomayor asked Janay what I took to be kind of a mocking question along the lines of, well, assuming that Milligan and all of our cases and precedents support you, the others are now saying we should still declare this law unconstitutional. Want to address that. And then here is Justice Kagan in the Sari Adam portion of the questioning, just dog walking the Louisiana Solicitor General on this point.

[Justice Kagan]

General, a couple of years ago, when we decided Milligan, the party there, the state there, made several arguments that we specifically rejected. And in the answers that you just gave to me, it seems to me that you've repeated each and every one of those arguments that we rejected. So I'll just run through a few of them. What they said was that the 15th amendment permits Congress to legislate against only purposeful discrimination by the states. We rejected that. We said, no, Section two, which is an effects based test of vote dilution, is permitted under the 15th amendment there in Milligan, the state said that the 15th amendment doesn't authorize race based redistricting as a remedy for vote dilution. Section two violations. We said, no, that wasn't correct either.

[Melissa Murray]

There was another related theme that surfaced at this argument, and it's one that's, I think, often in play at the Court, certainly in recent years. And that theme is the desire to magically rethink the past, even when we have actual record evidence of what the actual past was. So here the Louisiana SG and the Republican appointees really insisted that Milligan was an entirely different challenge. It was not on all fours with this particular case and therefore it could easily be distinguished from this challenge and therefore was not a binding precedent. All to say actual magical thinking like Joan Didion a year magical thinking this through. And the fact that they do this makes it so much easier to understand why they are so utterly inconsistent and itinerant about this history and tradition method. It's like they don't realize that all of us have Google and encyclopedias and can go and look this stuff up at any point and see that Milligan is actually the same effing case.

[Leah Litman]

Ladies and gentlemen, the originalists. This is the new the Aristocrats punchline. These guys are so good at history, but because reading is fundamental, I went back to peek at the briefs in Milligan and it is just utterly fucking insane that they're going to say none of these arguments were on the table in that case. So here is a statement from Alabama's application in Milligan. Quote, this court's precedents and the Constitution make clear that a Section 2 plaintiff alleging vote dilution must first prioritize traditional redistricting criteria that is part of Calais. Like, do you have to show that creating a second majority minority district is advances the state's supposed aims like incumbency or partisan advantage? They also made the argument that compliance with the Voting Rights act doesn't allow states to take into account race. Quote, the three judge court's view of the Voting Rights act makes VRA compliance irreconcilable with the U.S. constitution. End quote. They asked the court to narrow the Voting Rights act because they argued that jingles as the lower courts were applying it was unconstitutional.

[Melissa Murray]

Like asked and answered. Right, Right.

[Kate Shaw]

But the Republican appointees really do seem determined to essentially retcon Allen vs. Milligan.

[Melissa Murray]

I look that up too.

[Kate Shaw]

In which am I using it properly? Melissa, you are. I made a note in the show note. And I was like, I think I'm using that right. And I think I was so in any event, that's what they're trying to do. Make this into a case in which no one raised and the court did not address any constitutional arguments at all.

[Leah Litman]

There were also really gross overtures from the Republican appointees in the argument to the lawyers who were challenging the Voting Rights act along the lines of, well, tell us why we wouldn't be overruling Milligan. Like, please tell me why we're so principled and how we're doing amazing sweeties. And they would say things like, do we really have to modify Milligan versus Clarify it? Katherine Hahn, winking face Just yes.

[Kate Shaw]

That was sort of later in the argument as they started to kind of like enjoy themselves. Yeah, that's right.

[Melissa Murray]

All right, another theme. I can't even decide if this is theme two or if the magical thinking was was theme one and a half. Maybe this is two. I don't know. But there are a lot of themes here. In any event, this theme is how the Court's embrace of partisan gerrymandering means that legislatures can not only get away with partisan gerrymandering, they can also get away with racial gerrymandering. As long as two for one. Yeah, yeah. It's a twofer for sure. So listeners, here's what I mean. When the Court decided Russo versus Common Cause back in 2019, it said that federal courts lacked jurisdiction to hear partisan gerrymandering challenges. And part of the reason was because the Court couldn't figure out a workable standard for determining how much partisanship was too much in adjudicating a gerrymander. And indeed, the Court seemed to be of the view in Russia and elsewhere that partisanship is just endemic in the political process and as such it can't really be police properly by the federal courts. Fine. When Russia was announced, we noted that although racial gerrymandering challenges remain justiciable, they were likely to be reframed as non justiciable partisan gerrymandering challenges because historically race and partisan membership are very closely aligned. Most black voters are Democrats, so especially in the south, if you're gerrymandering for partisan advantage, you might actually be boxing out some racial minorities who are of of the other party. So you can draw a district that boxes out black voters. And when it's challenged, all you have to say is, I wasn't trying to racially discriminate. I was simply trying to maximize partisan advantage. Well, friend of the pod, Samuel Alito touched on all of this when he suggested that it might be a good time to include partisanship among the gingles factors for determining whether an electoral system illegally dilutes the power of minorities. And by itself, that is not necessarily objectionable until you realize that doing so would erase the Voting Rights act entirely by bootstrapping the permissibility of partisan gerrymandering into a regime that effectively blesses racial gerrymandering by redefining racially polarized voting as partisan or politically polarized voting Note what.

[Leah Litman]

A marked shift this is from Rucho, a case decided six years ago which at least pretended to treat partisan gerrymandering as disdainful and destructive to democracy. So there the court wrote, quote, excessive partisanship and districting leads to results that reasonably seem unjust. End quote. Now, however, six years later, partisan gerrymandering appears to be Republicans, God given. Right. So much so that partisan gerrymanders allow Republicans to violate the Voting Rights act by drawing districts that result in unrepresentative legislatures and underrepresenting voters of color and.

[Melissa Murray]

Other voters, not just voters of color.

[Leah Litman]

All Ruscho purported to say is that the Constitution doesn't allow federal courts to remedy partisan gerrymanders. Not that partisan gerrymanders were consistent with the Constitution or something political parties were entitled to do, but apparently the Civil War amendments, like, really actually wanted to give Donald Trump and the Republican Party, the guys trying to roll back the civil rights movement and resegregate the country, the ability to perpetually control Congress. Yeah, that was their aim.

[Kate Shaw]

Yeah. So I think, you know, just like its attempt to recast Milligan, the court is here really trying to recast Rucho as not a case about the limits of federal courts authority. Right. So as Leah was just saying, Rucho is ostensibly a political question doctrine case, but instead they are treating it as a celebration of partisan gerrymandering. Kavanaugh also, at points, seemed to be trying to turn Rucho into some kind of change circumstance or intervening development that maybe rendered irrelevant all previous Voting Rights act cases superseding intervening cause. Right. Which, you know, they're that. But they have, in the starry, decisive analysis. Right. Like as you, Melissa, have written about, they are. They have long been fond of suggesting, like, if they can identify things that they can call, you know, change circumstances, they might be able to get out from under the weight of inconvenient precedent. So if there's precedent that is squarely on the side of the constitutionality of the Voting Rights act, but this convenient intervening precedent can be recast as blessing on the merits, partisan gerrymandering, maybe that weakens the force of these other inconvenient precedents. So maybe before Rucho, no legislature could admit to engaging in partisan gerrymandering, which means that it's all a totally new world and a different set of questions. Now, when a state can say permissibly that it's engaging in political gerrymandering, not racial gerrymandering, it's gonna make a great listicle. Yes. All right. I guess, unfortunately, we're kind of in one of our own listicles because we're getting to them.

[Melissa Murray]

3 which is I learned it from watching you, Brett.

[Kate Shaw]

I think our listicles are better.

[Leah Litman]

And this is there at least complete sentences.

[Kate Shaw]

Complete sentences. There's and there's like citations in there. They we put some thought into it. I, I, I put our listicles against his any day. And this one is a return to one of Leah's term themes from our term preview, which is the kind of when is time's up for Section 2 of the Voting Rights Act? And what I mean by that is the Republican appointees on the court, or at least some of them really seem to think that the 14th and the 15th Amendments have an expiration date and that that expiration date is right now. Or maybe they think that the amendments are okay, but legislation to implement them has an expiration date and that expiration date is right now. Or maybe the 14th endures in their particular reading of it and it has overtaken the 15th which has expired. I think there's lots of different possibilities, but whatever it is, Kavanaugh, time's up. Time is up.

[Melissa Murray]

There's a shot clock.

[Kate Shaw]

Let's play Kavanaugh.

[Sam Spital]

Leaning into this, as you know, is.

[Melissa Murray]

That this court's cases in a variety.

[Sam Spital]

Of contexts have said that race based remedies are permissible for a period of time, sometimes for a long period of.

[Melissa Murray]

Time, decades in some cases, but that.

[Sam Spital]

They should not be indefinite and should have an endpoint. I'm asking what you think the time.

[Melissa Murray]

Limit on that should be or there.

[Sam Spital]

Really shouldn't be a time limit. I think you might be saying there.

[Melissa Murray]

Shouldn'T be a time limit unless Congress chooses one. But part of scrutiny, again, is the temporary temporal limit.

[Sam Spital]

That's been part of strict scrutiny for a long time.

[Leah Litman]

I would just like to note that the idea that strict scrutiny requires a time limit is made up magical thinking.

[Melissa Murray]

And yet Coach K is clearly very committed to this notion that civil rights are on a shot clock. He has been trying for years to convince us that this is actually part of the court's equal protection jurisprudence. He wrote about it in, in his concurrence in Milligan. He wrote about it in his concurrence in sffa and he brought it up again in this oral argument.

[Leah Litman]

So he's really trying to make fetch and time limits happen.

[Melissa Murray]

Yes, it's. Yeah, well, except we don't have anyone. There's no Regina George here to tell him it's never going to happen.

[Leah Litman]

I'll play Regina any Day.

[Kate Shaw]

Yeah.

[Melissa Murray]

I wish you had a vote in this. This is like literally a court of. Gretchen Wieners.

[Leah Litman]

Yes. So in response to this obsession with time limits, Janae Nelson tried to push back, acknowledging it's true that Section 5 of the Voting Rights act had time limits, but Section 2 never did, and the 15th Amendment certainly does not. She drew a distinction between the statute which prohibits certain conduct, and the remedies for violations of the statute. As Nelson put it, statutes don't dissolve just because race may be involved in particular remedies, but there are frequently time limits placed on particular remedies.

[Melissa Murray]

And both Justices Jackson and Kagan jumped in at various points to push back on this, and what I thought was a very clever way that echoed Nelson's own intervention. So basically, they seem to be saying that the jingles test, which, again, the Court has used for decades to implement Section 2, is already very hard to satisfy and requires consulting current conditions. And they seem to be saying this, I think, to mollify Brett Kavanaugh, like, just like, you know, like, this is what you want. It's working just as you want.

[Leah Litman]

So let's roll the tape.

[Melissa Murray]

It's a pretty significant showing to.

[Justice Kagan]

To establish that unequal opportunity of electoral.

[Melissa Murray]

Processes is happening in a situation that's correct.

[Kate Shaw]

Jingles is an exacting test.

[Melissa Murray]

It is data obsessive. It brings in experts and many other forms of evidence to establish a racial violation.

[Kate Shaw]

There are many cases where the plaintiffs fail in bringing the Jingles 1, precondition, or Jingles 2, or Jingles 3, before they even get to the totality.

[Melissa Murray]

Talking about a time limit, general.

[Justice Kagan]

I mean, what jingles does, and, you know, the idea that this is like 50 years later. This is not a kind of Shelby county thing where one could say that Congress had acted, and 50 years later, you know, the conditions on the ground might have changed, and there would be no way to respond to that change. Because what jingles does and what these Section 2 suits do is they ask about current conditions, and they ask whether those current conditions show vote dilution, which is violative of Section two. So they say, is there racial segregation? Racial residential segregation? Now? Is there racially polarized voting now?

[Leah Litman]

I just want to note that the escalating rage in Justice Kagan's voice is my personality. I felt very seen and heard from this. But I think, you know, the point or problem is it's true that, of course jingles takes into account current conditions. It's also true that these remedies are only ordered when there is a violation. A finding of unlawful discrimination of the Voting Rights Act. But these guys don't think that's real discrimination because the TLDR of so many of the Court's cases is that that suggesting white people are engaged in discrimination is really awful. It probably itself is a form of discrimination and it simultaneously maintains there is no racial discrimination against racial minorities. Unless you say you're racially discriminating and wear your white hood while you say it.

[Kate Shaw]

Right, right. Because engaging, I think, in the way that both Nelson in response and Justices Jackson and Kagan in those clips that you played credits as a good faith argument this well, there need to be some kind of limits. And it's it sort of says, okay, so say that's true. The limits are already in the statute. These, you know, maps get redrawn every decade anyway. So none of this stuff remains like in effect in perpetuity. Jingles is hard to satisfy. Section 2 successful claims are actually declining over time. So like all the stuff you're worried about, you don't need to worry about. Like that's a response to a good faith objection. But if you think the whole endeavor is unlawful and unconstitutional, these responses might not actually get very far.

[Melissa Murray]

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[Melissa Murray]

All right, there's yet another theme, and this one I think hearkens back to Justice Sotomayor's opening question. Separate and apart from whether there is an expiration date on the Voting Rights Rights act or the Constitution writ large, the bottom line question here is Section two unconstitutional? And I just want to say by way of a preface, when John Roberts wrote his majority opinion in 2013, Shelby county versus Holder, and he totally dismantled the pre clearance regime, he assured us that Section 2 still endured and was still a way for minority voters to ensure that their rights could be vindicated under the Voting Rights Act. Well, well, here we are true in 2013. Well, I mean, and this is the question, this goes back to the point Kate was making. Has there been a superseding intervening event that would make Section 2?

[Leah Litman]

That superseding intervening event is the confirmation of a 6 Republican appointee. Turns out, change circumstance, fuck previous president.

[Melissa Murray]

All true, but he didn't mean that. His real question was did my opinion in Students for Fair Admissions versus Harvard in is that the intervening superseding event that now makes sexuality?

[Kate Shaw]

Put it in the blender. You got some sffa, you got some Rucho and bam.

[Melissa Murray]

So I mean, this was actually wild to me how a very limited case about college admissions now becomes a question of whether or not a key provision of a super statute that literally brought minorities into the body politic is still got constitutional. So in the seriatom questioning, Justice Sotomayor asked Janae Nelson, why would the VRA be unconstitutional in light of decisions like Students for Fair Admissions? And she responded by distinguishing the legal violation here, saying that the legislature drew districts that reduced minority voters power and the remedy rectifying legislative maps that result in white voters being overrepresented. And she then argued that SFFA actually allows race to be used when there is a legal finding of discrimination. Like when you have a bad map and you then draw a new map that is not bad.

[Kate Shaw]

Right, right.

[Leah Litman]

But this also gets back to this idea of like, what do they think is discrimination? And in Janay's answer here, she also invoked the idea that Congress deserves some deference in supplying remedies for constitutional violations that might be difficult to prove, like intentional racial discrimination. Justice Kavanaugh responded that deference isn't appropriate when dealing with the Equal protection clause, which would be news to the section five. Right. Like, did you realize there's a section five to the 14th amendment which gives the Congress the power to enforce the amendments? Like same thing in the 15th Amendment, there's a Section 2. Did he not read to the end.

[Melissa Murray]

Also, weren't you there for Trump, Trump versus Anderson, when we couldn't even do anything about Section 3 of the 14th Amendment before Congress stepped in.

[Kate Shaw]

So he's read Section 3, but I just don't know.

[Sam Spital]

He's gone all the way.

[Melissa Murray]

He just stopped right there.

[Kate Shaw]

I think that's.

[Melissa Murray]

Yeah, yeah, he got the three confused with the five. He's like, this is it.

[Kate Shaw]

Yeah, that's it. So I mean all this to say, like it is very clear what these guys think discrimination is and isn't. And at one point Louisiana Solicitor General, who was, you know, marching to the same tune, referred to, quote this court's dedication to fixing, fixing race based discrimination.

[Leah Litman]

My eyes rolled out of the back of my head. L O L Except for I thought.

[Kate Shaw]

He actually might have been making an inadvertently profound point if he meant fixing in the sense of setting it in stone, not like. Or stopping it. Like maybe he had a point. Yeah, so, yeah, fixture. Yeah, no, exactly. So that this court wants that. I don't think that's necessarily wrong. And, and you know, I think that might be especially true because in the same argument, the Louisiana Solicitor General admitted that Louisiana would never have drawn a second black district if it was not forced to.

[Melissa Murray]

Shocking. I know, I know. Anyway, so the real racial discrimination here isn't drawing maps in ways that would exclude black voters from being represented. The real racial discrimination is trying to do something about the exclusion or diminution of black voters power. So trying to prohibit maps that just so happen to result in white voters being overrepresented and black voters being underrepresented. That's the real racial problem here. Yeah.

[Kate Shaw]

And in case you thought it was just the advocates revealing what they think real discrimination is, you know, drawing districts that ensure some modicum of black electoral power. It wasn't just the advocates. So here is one. Neil M. Gorsuch have more breathing room.

[Melissa Murray]

So do they have the breathing room to intentionally discriminate on the basis of race? They don't have breathing room to intentionally discriminate on the basis of race.

[Kate Shaw]

They have breathing room to use race to remedy their own discrimination.

[Melissa Murray]

And so there's one possible position here, and it's clear that both Justice Gorsuch and Justice Thomas are here. And that position is that any section 2 remedies that touch on race at all are presumptively unconstitutional. Or maybe it's just that Section 2 is unconstitutional, full stop. That's a possibility. Another possibility that would get too much the same place is the conclusion that complying with the VRA is no longer a compelling governmental interest. So here's the attorney for the appellees discussing that point.

[Sam Spital]

Section 2 effects findings alone can no longer justify the widespread stereotyping of American voters based on race in violation of the 14th and 15th Amendments.

[Leah Litman]

In plain English, they are saying, no problem, nothing to see. When white legislatures draw districts where white voters are overrepresented, there's nothing for Congress to remedy in those cases.

[Kate Shaw]

And because that Missouri lawyer made a reference to stereotyping, this is something that the challengers repeatedly invoked. And there was a very satisfying moment, I thought, when Justice Kagan made really short work of this allegation of stereotyping. So let's play that here.

[Justice Kagan]

Mr. Grime, you and the Solicitor General spoke about stereotyping and how there's no place for stereotyping, but I'm wondering what stereotyping has to do with any of this. The requirements of a section 2 vote dilution claim are essentially that there is residential segregation by race. That's not stereotyping. That's just where people live. And that there is racial black voting, essentially, that whites won't vote for a black candidate. That's not stereotyping either. That's just what the data shows about race, racially black voting.

[Melissa Murray]

All right, is this the last theme? There's so many themes.

[Kate Shaw]

For now, this is the last. Okay. And that is that this Court, or at least some Justices, seemed during this argument significantly more extreme than the Trump Justice Department, which is really saying something. And I'll just make one point on that theme, which is that Moopan, who's one of the Deputy Solicitor Generals, essentially was kind of disclaiming, asking the court to announce a test that only intentional discrimination can be remedied. And the other two lawyers were like, a little bit dodgy about exactly where they stood on that. But I think basically did seem to concede that they really are asking for it, an intent only test. And Moopan was like, no, we're actually not saying that. You know, whether you take that at face value or not, I don't know. But he at least did say it.

[Leah Litman]

Well, he wanted the court to effectively adopt an intentional discrimination standard while saying they weren't. And kind of along these lines, you know, he basically said to Justice Alito, like, loved your work in Bernovich versus dnc, my guy, like, let's do that, but for vote dilution claims. And just to refresh your recollection, Bernovich versus DNC was the Alito opinion from a few years ago that made it far Far, far more difficult to establish a Section 2 violation for vote denial claims. And here they're basically saying, just do that for vote dilution claims. And we'd be good with that, too.

[Melissa Murray]

And finally, if you want to know what the upshot of all of this is going to be, there are some really sobering real world consequences to the likelihood of both Louisiana and the federal government prevailing in this case. So Nate Cohn ran an analysis or projection that suggested that if Section 2 of the Voting Rights act fell, then Democrats might need to win the national popular vote by 5 to 6 points in order to take control of the House of Representatives. And everyone seems to realize that the consequences of a decision here are likely to be very, very stark, although the federal government tried to wave it away. And let's play that clip. If you look at the districts, there are only 15 majority black districts.

[Sam Spital]

So even if we're not even urging.

[Melissa Murray]

Section 2 to be eliminated, but even if you eliminated Section 2 entirely, fully 75% of the black congressmen in this.

[Joyce Vance]

Country are in districts that are not protected by Section two.

[Kate Shaw]

I mean, just to underscore what we just heard, according to the federal government, 15 fewer black representatives in Congress is no big deal.

[Melissa Murray]

I actually think he meant to say it's a good start.

[Leah Litman]

Well, I was gonna ask, is that 3/5 of the current. No. Does that not go in the episode? I'm not sure.

[Kate Shaw]

I'm not sure. But here is an actual truth teller, Janee Nelson, telling us what is really at stake in Louisiana, but in many other states, if we take Louisiana as.

[Melissa Murray]

One example, every congressional member who is.

[Kate Shaw]

Black was elected from a VRA Opportunity District.

[Melissa Murray]

We only have the diversity that we see across the South. For example, because of litigation that forced.

[Kate Shaw]

The creation of opportunity districts under the Voting Rights act, every justice in Louisiana.

[Melissa Murray]

Has been elected through a VRA Opportunity.

[Kate Shaw]

District, and nearly all legislators representatives have been elected on those same districts. So Louisiana alone is an example of how important it is to have Section.

[Melissa Murray]

2 continue to be enforced to create these opportunities. Because the South.

[Kate Shaw]

Because the South. All right, all right. So there we could go on, but I think we hit some lowlights. I mean, in terms of bottom line kind of takeaways or predictions, it will be bad. I feel pretty confident saying that, I think, to that last set of observations about the federal government's argument. They could do some version of what the federal government is asking and, you know, not say they are touching Section two on its own, just, you know, making it much more difficult to apply it in any Instance, it doesn't have a threshold finding of intentional discrimination. In a very similar way to sort of. Melissa was talking earlier about the way Shelby county, you know, actually says they're just invalidating the coverage formula, but obviously it eliminates Section five. Maybe something that is superficially not the most radical or extreme version of the court, strikes down the last remaining pillar of the Voting Rights act, but in kind of actuality does that.

[Leah Litman]

Yeah, I agree. They are going to make it practically impossible to enforce Section 2 of the Voting Rights act and to remedy cases of vote dilution. I don't know how they're going to do it. I'm not sure they even know how they're going to do it, but they're going to do it.

[Melissa Murray]

Cosign all of this. All I want to say is, back in 2023, when Allen vs. Milligan came out, didn't I say that that was just an idle. Like, they would be back and they would totally trash the Voting Rights Act. And so many people got mad at me. Like, friends in the civil rights community were like, you know, why are you harshing on this victory? Like, LDF won this victory. And I know, but I was just like, you could see it. You could see it in the Thomas separate opinion. You could see it in the Kavanaugh separate opinion, like, it was coming. And so, again, this is not like a fight with my husband where I take real pleasure in being right. I take no pleasure in being right here. But, like, they show us continually who they are. Like, just, like, prepare for it. Don't get wrapped up in, like, one minimal victory that the. They literally yank away from you. Like, literally, like Lucy and the fucking football.

[Kate Shaw]

Yeah. I can confirm that the day Allen vs. Milligan dropped, you were already like, don't trust this for one second. And nope. Yeah, seems like you're right.

[Leah Litman]

Yeah. So now that you have a sense for how this argument went, and speaking of when they show you who they are, believe them. We wanted to, as promised, play the hot mic moment that was captured at the end of the oral argument in Louisiana versus Calais. So, again, listen for what Justice Thomas is saying.

[Melissa Murray]

See that one so bad.

[Leah Litman]

This was just grotesque. Like, I don't know exactly what he meant by it. Was it, we're having a good time. We're not gonna get dragged through the mud for dealing with this. I don't know. But when we heard this live, we knew. Like, we knew they would try to sanitize the record and remove this from the audio. They would post on the website and sure enough, they did. So we grabbed it from the live stream before it would be erased. Because these guys truly love to rewrite history into fiction, even in real time. Like, they need to know how much they fucking enjoy and joke about ending the Voting Rights Act Act.

[Melissa Murray]

Okay, there were other arguments. I know, hard to believe, but there were.

[Kate Shaw]

We will cover them relatively briefly, but we do want to spend a little bit of time on them. And the next one we're going to talk about is BO versus United States, which is a complicated federal courts and habeas case, which is, of course, Leah Litman's bat signal. So, Leah, take it away.

[Leah Litman]

So in the interest of time and again, the fact that I'm giving up airtime on these issues should underscore how significant Louisiana vs Calais is. But we're not going to talk a lot about this one. It does present two questions about whether some statutory limitations that apply to habeas petitions brought by people who are convicted in state court also apply to habeas petitions brought by people who are convicted in federal court. The two limits are, one, whether claims that are presented in previous habeas petitions must be dismissed when they appear in second or successive habeas petitions. And the second is whether you can file a cert petition or request panel rehearing after a court of appeals has granted or denied permission to file a second or successive habeas petition.

[Melissa Murray]

There are two notable moments in the argument, and they came when both Justices Gorsuch and Alito really knocked the defendant petitioner's argument on the ground that every court of appeals had previously rejected it. Which I just have to say was really rich coming from two guys who routinely accept arguments that have been rejected by every single court of appeals before they happily embrace it. So then that includes arguments about disadvantaging habeas petitioners and preventing them from introducing evidence of their innocence. And if you're wondering what I'm referring to, it is Shin versus Martinez Ramirez. So anyway, just, just mind blowing how they just did this with a straight face.

[Leah Litman]

Now they're humble, restrained.

[Kate Shaw]

One other moment in the argument we wanted to actually play was Justice Alito offering a hot take on textualism on the relitigation bar.

[Melissa Murray]

What's your response to the argument? That Congressman may not have been particularly attentive to terminology, but that the thrust of what it was trying to do was to apply the same rules to federal and state prisoners.

[Leah Litman]

Apparently we're no longer doing textualism, just thrusting just the tip. That's now Melissa's bat signal.

[Kate Shaw]

Just thrusting. Oh, my God.

[Melissa Murray]

That's literally what he says.

[Kate Shaw]

If he said the thrust.

[Leah Litman]

If he says we're not doing text realism, attentive to terminology.

[Melissa Murray]

Just the thrust.

[Leah Litman]

No terminology, just the thrust.

[Melissa Murray]

Just the thrusts.

[Leah Litman]

He said it.

[Kate Shaw]

And we take our joy where we can find it, don't we?

[Melissa Murray]

All right. I think he does. He puts these little Easter eggs in for us anyway. Okay, so there was another oral argument. This was in Ellenberg versus United States States, where the court has to decide whether restitution awards under the Mandatory Victims Restitution act might be criminal punishment or civil punishment. And it's actually a very narrow question about whether restitution is penal in nature, which might mean that if it is penal in nature, it can't be applied retroactively under the ex post facto clause. We might. We say might. And this also explains why it's a very narrow question, because there are other factors that courts have to consider when determining whether ex post facto clause prohibits the government from retroactively applying a particular provision. And those other factors will still have to be weighed before a court decides whether restitution under this statute can be applied retroactively.

[Leah Litman]

It did seem like the court is going to say, as both the federal government and petitioner are arguing in this case, that restitution is penal in nature.

[Kate Shaw]

And as Leah just said, because both the federal government and the petitioner are arguing that this kind of restitution is criminal, the court appointed an amicus, John Bash, to take the other position. And I misspoke last week when I said Bash was invited to argue in Barrett vs United States. That was actually Luke McLeod. And there was another attorney, Kazden Mitchell, who was invited to argue part of Beau versus United States, the habeas case that we were just talking about. For folks who aren't familiar with the phenomenon, the court occasionally invites a party to argue on one side of a case or one issue in a case, usually because the federal government has changed positions and there would otherwise be no one arguing in support of the judgment below. But it is really striking to see this happen three times in one sitting. And it is also really striking how strong a type the justices have when it comes to issuing these invitations. So we mentioned last week that there were only eight women arguing in the October sitting. One of those is Kazden Mitchell. But the justices could help bump that number up up with more such invitations, but they pretty clearly have very limited interest in doing that.

[Melissa Murray]

We should note that Kate knows a lot about these invitations because she wrote a piece called Friends of the Court Evaluating the Supreme Court's Amicus Invitations that was published in the 2016 volume of the Cornell Law Review. And she catalogs all of those invitations and basically goes through and does a demographic survey of everyone who is invited to argue by the justices. And it turns out the justices really do have a type. And it's primarily their former clerks and other dudes. So you know what they say, just the type. I'll be here all week.

[Kate Shaw]

I should say that piece like a decade ago. And I had some ridiculous notion that like having, you know, directed some attention at how absurdly undiverse the pool of amicus invitees was. They might feel some sense of shame and, and make some minor adjustments, like.

[Melissa Murray]

Make a remedial map. After being shown the illustrative map that was clearly discriminatory on the basis of gender, they might make a remedial map.

[Kate Shaw]

When you put it that way, they were never going to do that. And in fact, they haven't. It seems like they've just doubled down. The last 10 years have not been any better than the ones I was cataloging.

[Leah Litman]

So.

[Kate Shaw]

And the last case in this sitting that we'll talk about was case versus Montana. At issue in this case case is what standard applies to police officers decision to enter a home because they think someone inside is in need emergency assistance.

[Leah Litman]

The fourth amendment generally prevents officers from entering a home without a warrant. And getting a warrant requires convincing a judge that there's probable cause to believe someone committed a crime. But there are exceptions to the warrant requirement. Among other things, the court has allowed warrantless entries, quote, when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury, end quote. But it has rejected like a general kind of caretaking or emergency exception to the warrant requiring requirement.

[Melissa Murray]

So the question in case is in order to enter a home to provide emergency aid, what kind of showing do officers have to make? Seems clear that the court isn't going to require probable cause, the criminal standard, to believe that there is some kind of an emergency, as the petitioner was arguing here. And I'm not sure that anyone, the court would actually vote for that standard. It seems like they want something less, something that doesn't disincentivize officers from going in to render aid in exigent circumstances. And that was made clear through multiple questions. So I think the only question here is whether the court provides a standard and sends it back to the state courts to apply or simply applies the new standard that they come up with here and just goes forward.

[Leah Litman]

One final possible piece of SCOTUS news. Donald Trump has said he thinks he is going to attend the oral arguments in the, the tariffs case.

[Joyce Vance]

If we are not allowed to use.

[Justice Kagan]

What other people use against us, there's no defense.

[Melissa Murray]

It'll be a disaster for America. That's why I think I'm going to.

[Justice Kagan]

Go to the Supreme Court to watch it.

[Sam Spital]

I've not done that.

[Melissa Murray]

And I had some pretty big cases. This is, I think it's, I think it's one of the most important cases ever brought.

[Leah Litman]

Maybe he'll do this to like, send the justices some hand signals or.

[Melissa Murray]

Has anyone ever gone up to the bench and thank them afterwards after oral argument? That would be amazing.

[Leah Litman]

Thank you. I won't forget this.

[Kate Shaw]

Yeah, first time for everything. I mean, obviously it'll be kind of a spectacle if he is there. The argument will be in part about his wholly unsupported claims that emergency conditions require these insane tariffs. And if he's sitting right there, it might, you know, cast a shadow over the proceedings, which maybe is his point. But I mean, I am genuinely curious. I have not been to arguments for a while. I don't think any of us have. And, and I probably can't make the time to go even if I could get a seat, but I'm sort of tempted to try. And I was reminded when I saw this, you know, him floating the possibility of the fact that Trump and Melania were both in the courtroom for Gorsuch's investiture, which I was in the press section for. And they're both really tall and the courtroom seating is, as you guys both know, like, really small and cramped. And they seemed very uncomfortable. It's like, you know, wooden benches, there's no padding. Like, the angle's not great. And that was like, I don't know, 10, 15 minutes. So find it kind of hard to see him suffering through hours of the tariff case. I feel like those will be very long arguments, but I guess we'll see.

[Melissa Murray]

And whether or not we actually venture down to D.C. to see the arguments in the tariff case, we are definitely going to be in D.C. that week to unpack them before a live audience at CricketCon two days later on Friday, November 7. And yes, listeners, you already know this, but I'm going to say it anyway. Cricket Con is the event that keeps on giving. It is our day long November 7th Qriketcon event that now features three stages, which means even more guests. And latest additions to our lineup include Jen Psaki, Jessica Valenti, Melissa Morales, Simone Sanders Townsend, Tim Miller, Waleed Shahid, Adam Mockler and Kai Polanco. They will join Senator Ruben Gallego, Representative Sarah McBride, Governor Andy Beshear and many more. And just a reminder, we will be closing out Crooked Con. All those people were just a warmup and act for strict scrutiny. You heard it here folks. We are going to have a live strict scrutiny show. Crooked Con ticket holders can attend our show as well as live tapings of hysteria and crooked subscriber exclusive show terminally online. It's not just what we call Kate in our spare time. So grab tickets and get more updates on the programming. Just head on over to crookedcon.com and.

[Leah Litman]

Other developments in Article 2. So so another week, another round of presidential threats of yet more illegal and unconstitutional targeting of political opponents and critics, this time from the Oval Office where he talked about a recent public event by Jack Smith. That event, the one involving Jack Smith, was in London and it was a conversation between Smith and Andrew Weissman. The event was hosted by friend of the pod, Aaron Delaney at the University College London's Global center for Democratic Constitutionalists.

[Kate Shaw]

Some I listen to part of it. It was a very good conversation. It was also a conversation that apparently was very triggering to President Trump, who at the Oval Office presser suggested that he might go after Smith. He then mentioned Andrew Weisman and Lisa Monaco, Biden's former deputy attorney general. And he did all this in the Oval Office. And it's like if the insane like gold flourishes everywhere wasn't enough, we have to watch him now explicitly promise multiple constitutional violations on camera with his attorney general and deputy attorney general and FBI director looking on. And I mean I find from week to week I don't know about you too sort of hard to predict what will break me. And this really kind of broke me this week, in addition to the persecuted white refugees and Voting Rights act argument kind of collision, this was really pretty tough.

[Melissa Murray]

Nothing breaks me. Okay, what else happened.

[Leah Litman]

So briefly on district court watch Last week, a California district court preliminarily enjoined the executive branch from engaging in mass layoffs, which they're describing as reductions in force during the government shutdown. The opinion describes the absolute chaos and age agencies as furloughed. Employees can't even check their emails to find out if they are receiving reduction in force notices. Pregnant or seriously ill employees don't know how to find out the status of their health insurance and more. As the judge noted, in addition to the chaos, quote, it is also far from normal for an administration to fire line level civilian employees during a government shutdown as a way to punish the opposing political party. But this is precisely what President Trump has announced he is doing.

[Melissa Murray]

And at the hearing, the DOJ conspicuously declined to defend the government's reduction in force orders on the merits. Instead just made some procedural arguments about how the plaintiffs, government workers and their union should bring their challenge administratively. So I thought that was interesting.

[Kate Shaw]

All right. One other District Court development we wanted to mention, and this is in a case we have mentioned before, brought by journalists and civil rights groups in Chicago, challenging some of ICE's egregious tactics in the streets of that city, which have continued and only ratcheted up in the last week. So in that case, the district judge has now ordered ICE agents to wear body cameras. She had previously ordered them to wear badges with names or numbers. And she seems really concerned about possible defiance of her order. This is all kind of breaking in real time without any written order at the time of our recording. But I think there will be further developments in this case, which we will keep an eye on.

[Leah Litman]

And speaking of things developing quickly, the U.S. court of Appeals for the 7th Circuit decided to leave in place the District Court order blocking the deployment of the National Guard in Chicago, which means we may be off to the shadow docket quite soon.

[Melissa Murray]

All right, moving away from Article 2. Brace yourselves, ladies. We have some news from Danton. Ton Tallow. Article one. Yes, what's that? Is it Congress calling? I barely know you. Where have you been? Well, you got off the couch. We almost never mention Congress these days because really, what is there to say? But this week, it seems like Congress, like Van Winkle, woke up and has done something. Something worth talking about. Or not. Or not done something, as the case may be. And this is what I mean. Speaker Mike Johnson is now on his third week of refusing to seat Arizona Congresswoman elect Adelita Grialva. She was elected to Congress in a special election back in September. Yes, September, many months ago. Like, that's literally enough of time for the Supreme Court to overrule a former precedent. Like just a month. That's all it would take. Despite the fact that Grahalva won by an enormous margin and is already in D.C. ready to get to work for the people of her district who elected her in a free and fair election, Speaker Johnson has still not sworn her into Congress. Crehalva and many Democrats think that he is delaying because she has pledged to sign a petition that would force a vote to release a tranche of Jeffrey Epstein documents she would be the 218th Signature, which in the House is a magic number for getting things done. And and that seems to be all he needs to keep her out of her seat. But do not worry, the Democrats are on the case and are keeping the pressure on. More to come, I am sure.

[Kate Shaw]

All right, so that is all the news we have time for today. But next up is a conversation that Leah had with Joyce fans about her new book, Giving up is Unforgivable. And after that, our Favorite Things.

[Melissa Murray]

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[Joyce Vance]

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[Melissa Murray]

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[Joyce Vance]

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[Leah Litman]

Okay, not gonna lie, optimism is in short supply right now and the landscape can feel pretty bleak. Basically, anytime I talk to anyone, something like I need to tune out or it's overwhelming comes up. So in order to give us the shot of hopium and resilience and fight we need, I am delighted to be joined by Joyce Vance, who's here to talk about her fantastic new book, Giving Up Is a Manual for Keeping Democracy, which is out tomorrow. Joyce needs no introduction, but here's a quick one. She's a former US Attorney for the Northern District of Alabama, a professor of practice at the University of Alabama Law School, MSNBC legal analyst, co host of Sisters in Law podcast, author of the Civil Discourse substack, and today, Strict Scrutiny. Guest welcome to the show, Joyce.

[Joyce Vance]

Thank you so much for having me and for that very, very enthusiastic introduction.

[Leah Litman]

So I want to drive home the need for the book and its timeliness in part by asking you about one of the latest attacks on our system and the rule of law. And that's, of course, the indictment of John Bolton. So could you just quickly share, like, what the indictment is for and why it's so concerning? Yeah.

[Joyce Vance]

So, you know, it's interesting I may have an aberrant view on the indictment of John Bolton because I view it very differently than I view the indictments that were brought against Jim Comey and Letitia James in the Eastern District of Virginia. This new indictment, John Bolton, is out of the District of Maryland. The acting U.S. attorney in that district is a career prosecutor, and she did not go into the grand jury on her own, as did Trump's appointee in the Eastern District. To get this indictment. Instead, two senior career prosecutors in her office office, joined by lawyers from DOJ's National Security Division, went in and indicted John Bolton. This indictment looks a lot more like the traditional indictment. I'm used to seeing in a good case, 20 pages of factual predicate. And if DOJ has the evidence they say they have, then they have a strong case. Not an airtight case, not a case that Bolton can't defend against. But this is not a case where you can look at the indictment and say on its Face this indictment was not warranted. You can say that with Comey and with James. And so here's the problem that I think you're driving at. Donald Trump has so compromised public confidence in the integrity of the criminal justice system that people now think, you know, whenever. Whenever the defendant in a case is somebody that he's targeted, and he has targeted John Bolton outrageously, then people will. Will be uncomfortable. Well, is what's in the complaint is.

[Leah Litman]

Is.

[Joyce Vance]

Are all of the allegations in the indictment true? Right. Can we trust the Justice Department? To me, that's. That's really one of Donald Trump's greatest sins.

[Leah Litman]

Yeah. And I should say, if you want to hear more about this, you should read Joyce's substack Civil Discourse, which had a great post about this. But, yes, part of what concerns me is I don't know why this case was brought against John Bolton. And I can look at other cases, including that involving David Petraeus, where looked like, you know, someone who did something similar to John Bolton got much more lenient treatment anyways.

[Melissa Murray]

Well, can we.

[Joyce Vance]

Can we just belabor the Petraeus point for a second? Because I think it's fascinating. That case was brought during the Obama administration by one of my friends who was one of The North Carolina U.S. attorneys, Ann Tompkins, who handled that case very deftly. Petraeus's conduct was very similar. Right. It involved using a shared email account and. And not a family member like Bolton, but a woman he was having an affair with, who was his biographer to share classified information. Petraeus was permitted to plead to a misdemeanor. And that, I think, is the comparison. And something DOJ strives for is uniformity, treat similar cases alike. So what I'll be listening for is whether or not these prosecutors can distinguish this situation from Petraeus and explain why Bolton's conduct is more serious.

[Leah Litman]

Absolutely. So the point you made about Donald Trump kind of defiling our institutions, including the Department of Justice, goes directly to your book, because there is a chapter that is entitled the Myth of Broken Institutions, and it begins this way. In the popular imagination, Donald Trump is invincible. But that's a myth, not a reality. And it goes on to explain how many of our institutions have held. So I agree, in many respects, this was especially true during Trump 1.0. I guess I would be curious to hear, like, how many institutions do you think have held up in Trump 2.0? And how do we communicate to people the imperative of reforming our institutions that might stand in the way of getting us out of this mess while also not causing People to lose faith. Faith and check out from the system.

[Joyce Vance]

Yeah. So that question, you've actually just defined the syllabus for my semester long democratic institutions class. I think that this is a really important question. And can I just start by saying it's not a question just for lawyers or politicians. This is the foundational question as Americans, that we are both capable. You know, you don't have to have gone to law school to understand or be an expert in the institutions. So I think that this is important, sort of like a shared civics education endeavor that we all take part in what we see. Because, you know, we live in a world where the media has to sell whatever it is they're selling advertising to support their outlets. So we don't hear the good stories as often as we see the cracks. Right. The chinks in the armor of democracy are what we see. And so the institutions, when you think about it writ large, you know, you can talk about big letter institutions, the executive branch. The executive branch, agencies, Congress, the courts. And so we see where there are problems more readily than we see where there is strength. And because those institutions are made up of people, and that's sort of an ever changing cast of characters, there's always the opportunity to bolster the institutions. So the institution that's nearest and dearest to my heart is the Justice Department. We see so much strength there, right? We see prosecutors who have resigned and walked away rather than doing what they believe is the wrong thing. What we don't see is the thousands of prosecutors across the country who every day keep their heads down, do their jobs, take seriously their obligation to keep their communities safe, and who, even as we're speaking, I think are very deliberately confronted, what they will do if they are told by political forces to make a decision they disagree with. Look, in my old office we really hated Washington. I'm just going to be frank. We resented anytime folks in D.C. tried to intrude in our decision making process. At one point I had a prosecutor in a very sensitive public corruption case. The Attorney General had asked for a briefing and he said, I'm not going to share my evidence, it might get compromised. And I was like, oh friend, we're going to share our evidence with the Attorney General of the United States. But the point that I'm making is for prosecutors, this is not a political matter. The idea, no matter who the President is, that he or she would tell you how to handle one of your cases is so foreign to prosecutor DNA. This is a strong institution. It is being tested. Some of the folks at the top are not doing their jobs, but I think we'll see this institution re emerge.

[Leah Litman]

I wanted to put a quick plug in for the book in light of something you said, which is about shared civics education. So I just got back from a trip to LA and a woman who was a doctor was telling me she has a reading group of her friends and they are reading the Federalist Papers. Now, this book does a superb job of weaving in some Federalist Papers, some history, but situating it alongside what is happening in our current day. So if you have a reading group like that, this is literally the book for you. And there is in another chapter you wrote something that really resonated with me and that is, quote, I hope this book has made the case that it's true the next election is always the most important one of our lives, end quote. This was a great perspective because to me, it responds to critiques of. It can't be that like, every four years, right, you are beating the drums and telling me I need to, to like, put all I can, you know, on the field. And so I guess, like, was that kind of what you were responding to as you were situating, you know, the energy we all need to have for our democracy?

[Joyce Vance]

Yeah, very, very much so. Like every other voter in America, I sort of roll my eyes and take another swig of my drink, whatever it might be at the moment, every time a politician tells me the next election is the most important election of our lives.

[Kate Shaw]

Lives.

[Joyce Vance]

But we now live in an era where that is profoundly true. Right? The midterm elections will determine whether or not we have the ability to re establish guardrails that will protect democracy. If Democrats, and not even just Democrats, but pro democracy candidates at every level of government, federal, state and local, win in this next election, that's a game changer. 2028, the presidential election, it will be a game changer. But also Congress, the Senate, who your governor, we're seeing that now, right? We're seeing real federalism in play with governors and mayors standing up for democracy too. So, yeah, sadly, the next election is always gonna be the most important one.

[Leah Litman]

Speaking of, you know, like, weaving history into current day, the book makes an elegant argument that we are right now facing a new lost cause. And that new lost cause is January 6th. So can you elaborate on this argument and how January 6th has become a new lost cause and what that says about our politics?

[Joyce Vance]

So I am not a native Southerner, born and raised in Los Angeles, but I have lived in the south for long Enough to acquire the accent and also to absorb the cultural. Some aspects of the cultural understanding of the Confederacy, where it's romanticized and viewed as a sentimental, patriotic lost cause, which is not my view as someone who has a very different view of slavery. But in any event, that persistent myth, in many ways was permitted to linger because what didn't happen at the end of the Civil War was accountability, really. Confederate leaders got off relatively light. There was very little in the way of prosecution or jail time. And in the culture, they were resurrected in many ways as heroes. So fast forward to the modern day, I see a repetition of that with January 6th, where instead of being viewed as insurrection for many people and for the President. Right. Who has abundantly pushed this narrative by pardoning people who were convicted for their conduct on January 6, referring to them as prisoners. Exactly right. As patriots, you know, the patriots choir that they convened while they were still in custody. And this whole notion that these people who engaged in violence at the Capitol are sort of heroes, I think that that's become a second lost cause, a way of focusing Americans away from true patriotism and the constitutional basis for the Republic onto something much darker.

[Leah Litman]

Part of what is astonishing to me is that the lost cause and redemption took a while for the south to restore itself to a position of power and credibility, whereas January 6th has undergone that transformation in four years, which is, again, astonishing. So part of the book is to underscore that we are the cavalry, and it offers some rules for the cavalry. So I wanted to ask you about some of my favorite rules, and I was hoping you could elaborate on them.

[Joyce Vance]

So this is my favorite part.

[Leah Litman]

Oh, I love it. This is. Again, we needed this book on this week in particular, after listening to the Supreme Court's Voting Rights act argument and knowing the court is likely poised to strike a big blow against our democracy, we need to be reminded that it's on us. And even if we have to dig in more, that's what you gotta do. Okay, so. So one of my favorite was be in community. So could you elaborate on that one a little?

[Joyce Vance]

So, you know, one of the great things about being the U.S. attorney in Birmingham is that you get to spend a lot of time with a lot of different people. And my personal favorite place to go, good Jewish girl that I am, is 16th Street Baptist Church in downtown Birmingham, the site of the bombing that killed four young girls during the civil rights era. But my favorite thing about being at 16th Street Baptist Church is the fact that I adore the pastor. We went through leadership Birmingham together. The music is unbelievably moving. The call and response during church services is great. You have this feeling of warmth and support and of being nurtured and recharging your batteries and that you can take on the world and sort of right any wrong. I think that's the feeling that we all need right now. This is, this is a tough moment. I've talked to a lot of people who have said my temper is frayed, I'm impatient. You know, I had a conversation with a friend who told me a story about being mean to a waitress in a restaurant, which is just not in her DNA. And she was horrified by herself and ended up apologizing. I think that we're all living through that moment and being with other people who are looking like minded. Not only do we find support for the actions that we personally want to take to preserve democracy, I think it's just the mental health care that we all need right now.

[Leah Litman]

I feel that in my bones I have been explaining to people whenever the question is, how are you? It is more zapped than I ever have been. And I know it is because of what is happening around us. But I think that ties into another one of the rules that I also really, really appreciated, which is understand that protecting democracy comes in a lot of flavors. And part of what I loved about this is we all find different things taxing and we're all good at different things. And there are so many ways you can contribute to restoring and shoring up our democracy that this was really a call to figure out, like, what you can do and how you can find that fight sustainable. So wanted to ask you about that one too.

[Joyce Vance]

Yeah. So you know, what motivated me to write this? It's something I think about a lot. Right. I mean, I'm a former dancer. I think dance can be a powerful form of protest. One of my students, my democratic institution students, wrote a paper about art and democracy. And working with her on the research, I just kept thinking, this is so powerful. And, you know, I have kids who would never in a million years go out and protest and hold a song, but they would write a short story or they would engage in some form of creative artwork, collage, or sort of a group traditional piece. And I think it's really important for us to say to everyone in our communities, there is a space for you to protect democracy, and it has to be authentic for you and who you are and what you, you care about. So, you know, some people may care about public health and want to work in that area. I Think that's fabulous, and we desperately need that. Some people like us are nerdy, traditional legal academics. And, you know, we find this stuff compelling and fascinating, and that's our work. But some people are much more activated by the arts or by religion or by some form of science. I just think it's wonderful to live in a country where we have so much diversity.

[Leah Litman]

Yeah. And just on that art and culture point, I mean, art and culture are oftentimes ahead of law, and they can be really powerful ways of shaping culture in ways that actually lay the groundwork for legal change. I mean, going back to the Lost Cause movement, part of what made the Lost Cause Movement successful is the way they depicted the Confederacy in books, in paintings and whatnot. And so. So using art and culture to fight for our democracy. That is. Right. A very real tool. So one last rule that I'll ask you about, and that is, decide who you are and stick to it. So what's behind this rule?

[Joyce Vance]

Yeah. So look, I think the problem comes in compromise with the bully. Right. I think you've got to just make a decision early on about what you will and what you won't tolerate. And this is sort of where we started. Right. So many people are overwhelmed by this. They just want to unplug. They don't want to deal. They hate it. They want it to go away. And look, I don't criticize. I think we're all different. We all have different capabilities and situations, and you've got to be who you are. What I fear, though, are people who are, for instance, in government or at the Justice Department. He thinks, think, okay, I can put up with this one degradation to stay in place and keep doing my job. And that, by the way, may be sort of a legitimate decision. Right. I think that there are people that are struggling with that. Maybe I do have to go along a little bit so that I can act as an important barrier when important developments happen. But there are some things that you can't and won't tolerate. And I think where we saw that, frankly, was in. In the U.S. attorney's office in the Southern District of New York when it became apparent that leadership at the Justice Department sponsored from the White House, were going to dismiss the pending prosecution of Mayor Eric Adams on public corruption charges. A strong case. And it was very clear to them that this was politically motivated. And look, you don't dismiss cases against criminal defendants so that they can do the president, a political favorite. We saw resignations out of that office rather than having those people participate in dismissals. That is knowing who you are, drawing your line in the sand and at great personal cost. Right. Leaving a job that, that you love for an unknown future where you may well be targeted because we all understand how MAGA works. But better that you do that than die a death by a thousand cuts. So I think we just all have to define that line for ourselves. Ourselves.

[Leah Litman]

Well, I think that is a great place to end. And I just want to emphasize again, if you found your local no Kings protest invigorating and you're wondering how to carry that energy forward, then this is the book for you. Again, this is Giving up is Unforgivable, A Manual for Keeping Democracy. It's not sugarcoating the story, but it will make you feel like we can win this fight. So thank you so much for joining, Joyce.

[Joyce Vance]

Thank you for having me.

[Kate Shaw]

Me.

[Leah Litman]

That was a nice jolt of fired up energy. And on the heels of the no Kings protest, no last. So we also have some of our favorite things to share. So last week I was traveling, which means I was able to do a lot of reading. I read Jasmine Guillory's new book, Flirting Lessons. Loved it. I also read the Bow Street Runners series from Lisa Claypas and loved that as well. I was traveling to la, which I loved. I just love it there so much. And when I was there for an event at the Hammering Museum, I got to meet a lot of wonderful west coast stricties. I am not nearly as good as Melissa about remembering to write people's names down, but I wanted to say hello to Chris, Eric, Sky, Alexa, Ruth, and I'm sorry to those of you whose names I didn't write down, and to Jerusha, who I met at the Los Angeles Airport Hotel as well.

[Kate Shaw]

All right, I've got a couple of recommendations. One, a must read by Dave Posen and Jed Britain Purdy in the Boston Review. It's titled what Are We Living Through? And it just sort of asks, are we in an authoritarian crisis? Are we in a period that is just really about exacerbating existing pathologies? Or is this just transformational constitutional politics a la FDR in the 30s? And I'm pretty sure the third is wrong. But 1 and 2 are sort of like interesting differences, different ways to understand the current moment, which I think, you know, matters a lot in terms of trying to chart a path out of it. And the other thing I wanted to mention was Adam Lovetak's piece in the New York Times about a new essay by Virginia law professor Caleb Nelson. You know, and the Nelson piece itself very much also worth reading. It relies heavily on Leah's colleague Julian Mortensen. And it just basically concludes that the Court is wrong to think that the vesting clause or anything else in Article 2 gives the President President unlimited removal authority. As the Court will decide like whether it does in the case involving the FTC and kind of in the case involving the Federal Reserve that are both on the docket. And Caleb Nelson is a very prominent originalist. And so, you know, maybe it matters. This is somebody the justices cite a lot and very much an ideological fellow traveler and basically says the path that you guys are on when it comes to presidential power is, is unmoored from constitutional text or history in a way many, many others have said for quite some time. But maybe it matters that he is now saying it. So definitely do recommend that. And actually there's like the last sentence or two of Nelson's piece, I think, you know, basically says even if it's not that clear what the history shows, the Court should not pretend that its hands are tied like it actually is. Okay for them to acknowledge they are taking into account the consequences of their decisions and the fact that they might be unleashing the full exertion of a tyrannical disposition by empowering a President with kind of no constraints is something that they should be forced to contemplate. So recommend that.

[Melissa Murray]

Okay, nothing so highbrow from me. I want to recommend Rainbow Rowell's new book Slow Dance. It is a departure from her usual YA fair. She usually is a young adult writer. Eleanor and park, etc. But. But this book, Slow Dance is for adults and it's about a rekindled high school romance and it's very sweet and I like it a lot. I also, because I love a good title, was riveted when it came across my feed Trace Maddox's the Lawyer, the Witch and the Witness Proving Witchcraft in English Courts in the Yale Journal of Law and Humanities. Obviously very esoteric. Not for everyone. But I found it to be a very interesting read about the rules of evidence in witchcraft trials in merry old England. So never say I'm not a Renaissance woman. I really am. And then finally I finally saw one battle after another and oh my God.

[Leah Litman]

Like I thought I told you, right?

[Melissa Murray]

It was so good. Oh my gosh, it was absolutely like. I was like first of all, it's a three hour movie and you know that my favorite Broadway plays are the ones that are an hour and a half have and have no intermission because if I get up to go to the bathroom. I'm just going to go home. Right. I literally had to the bathroom in the middle of this and I almost gave myself a kidney infection just because I would not get up to go. Like, it was that good. I thought it was absolutely incredible. My boy, Tony Goldwyn. Like, I can't believe we haven't even mentioned the Christmas adventurers in this.

[Leah Litman]

I did.

[Melissa Murray]

No, no, I know, I know. Last time. But this time, because this case, L.A. versus Kelly was like, pete Christmas Adventurers. Yes, Pete Christmas Adventurers. That's all I'm gonna say. So, yeah, find your joy where you can.

[Leah Litman]

Indeed.

[Kate Shaw]

Amen.

[Leah Litman]

All right.

[Melissa Murray]

If history is written by the victors, then traditional news media isn't doing much better. We see the headlines, we hear from the nation's most powerful leaders, and we watch pioneer pundits analyze it all in studios far removed from the everyday people caught in the crosshairs. Not anymore. Alex Wagner wants to step away from the traditional media bubble and towards the folks who are most affected by our unprecedented times. In her new show, Runaway country with Alex Wagner, she'll bring you stories from the front lines and the voices of those who are all too often left out of the conversation. You can listen to the trailer now and make sure to tune in for the premiere of Runaway country with Alex Wagner on October 23rd. New episodes will drop every Thursday. Make sure you subscribe wherever you get your podcasts and watch on YouTube.

[Kate Shaw]

Strix Scrutiny is a crooked media production hosted and executive produced by Leah Lippman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Jordan Thomas is our intern. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Katie Long and Adrienne Hill. Matt de Groot is our head of production. And thanks to our digital team, Ben Hethcote, Joe Matoski and Johanna Case, our production staff is proudly unionized with the Writers Guild of America East. Subscribe to strict scrutiny on YouTube to catch full episodes. Find [e-mail] strictscrutinypodcast if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And and if you want to help other people find the show, please rate and review us. It really helps.

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