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