Ninja Court Packing

[00:00:27] [Dan] So, Will, this is the last live show we're doing of season six, and I think our last one on the on the docket for a little while. And it is at perhaps, the most, August venue, we've ever done a live show. We are in Washington DC at the American Law Institute annual meeting. And for listeners on the show who who, are less familiar with the ALI, although you should be, it's the organization that, publishes the highly influential restatements, the model penal code, and other, projects like that. So, we are excited to be here, and we're excited to have a guest, cohost, Professor Pam Karlan, who is the Kenneth and Harrell Montgomery Professor of Public Interest Law at Stanford Law School, and also, as particularly relevant to us, the co director of the school's Supreme Court Litigation Clinic. And also as relevant to some of the things we're gonna talk about, she's one of the nation's leading experts on voting and the political process. And here at the ALI, she is co reporter on the forthcoming restatement on constitutional torts. So Pam, thank you for joining us.
[00:01:30] [Pam] Thanks so much for having me.
[00:01:32] [Will] I don't want to get Pam in trouble, but she taught me election law.
[00:01:35] [Pam] Well, I just think, you know, almost everything I taught you, it's like dead poet society. You read it, you should stand up and just rip it out of the book because it's not good law anymore.
[00:01:44] [Dan] And Will, you are now you are now an election law professor. Right? You're teaching that at Chicago?
[00:01:49] [Will] I did. And and this is in fact last time I taught it, we just ripped out the Shelby County section five section. I was like, this is this is dead law. We're in a court system. You don't even need to know about it. There was once something called section five of the Voting Rights Act.
[00:01:59] [Pam] Yeah. Get rid of section two while we're at it.
[00:02:01] [Dan] Yeah. Well So we have some ambitions to cover multiple things on this episode. The overall topic we were asked to talk about is the court and executive power, and we are gonna get there. But before that, I think we do need to catch up on some more cutting edge events that have been going on at the court, including some that I think are gonna be particularly interesting to Pam, and for which she can provide us some help. So Will, where do you wanna start?
[00:02:30] [Will] Okay. So our last episode, which people in the room probably have not listened to, but people listening on the podcast will recall, was about the Supreme Court's decision in Louisiana v. I think it's Callais, Louisiana v. Callais
[00:02:43] [Pam] Oui.
[00:02:46] [Will] Where the court eliminated forty years of precedent interpreting section two of the Voting Rights Act to that had required interpreted to require majority minority districts in a lot of circumstances, where it now doesn't. Since then, the Supreme Court has still been busy. There's been a lot of fallout. We have the midterms coming up. We've had several or at least one shadow slash emergency slash interim docket ruling from the court. So maybe we can start with there and what happened, and then talk about what all this means. Show you
[00:03:18] [Dan] that? Sure. So this is this is Allen v. Caster, I think is the caption.
[00:03:22] [Will] Yes. So it's three consolidated cases, Allen v. Caster, Allen v. Singleton, and Allen v. Milligan. Lucky for the court, the first one in docket number order is Allen v. Caster, so we can call it Allen v. Caster and pretend it's not the same case as a case called Allen v. Milligan that they decided a couple of years ago. But these are these are cases where the congressional redistricting in Alabama had been held unlawful under both the Voting Rights Act and straight up under the constitution. The court had found that in addition to the section two violation, the legislature had engaged in race discrimination in preferring a majority white district over a majority black district. They appealed to the Supreme Court, and the Supreme Court, in its concision, disposed of this in a one paragraph opinion that just says the motions to expedite are granted. The petition for a writ of certiorari before judgment is granted. The judgment in the cases are vacated and the case is remanded to the United States Court of Appeals Eleventh Circuit with instructions to remand the district court for further consideration in light of Louisiana v. Callais. And then the other judgments are redistricted remitted in light of Callais. The judgments will be issued forthwith pursuant to rule 45.3, all of which means the state of Alabama is now allowed to draw new congressional districts ASAP before the twenty twenty six midterms in reliance on Callais.
[00:04:39] [Dan] Yeah. And as you said, this is basically the same case as one that was up a few terms ago that came out
[00:04:45] [Will] the other way. Right? Yeah. So I'm confused about this, and I want to know if I'm confused about it or not. So maybe Pam can also help us. So right before Callais, the court had a case called Allen v. Milligan, where they were asked to do more or less the same thing to the Voting Rights Act, and they said no. They said maybe someday, but today is not that day. And then in Louisiana v. Callais, they said, okay, today is that day, but we're not overruling Allen v. Milligan. That was different for reasons I don't understand.
[00:05:12] [Pam] Well, it is it is confusing because this is Allen v. Caster is Allen v. Milligan. The third of the three petitions that's in there is Allen v. Milligan. And it this is a case where not only, as you say, did the court say it was a violation of the results test of section two, which is now gone, think it's fair to say after after Callais, but it also was racially, purposely racially discriminatory. And the election has already begun in Alabama. Ballots have gone out, and the court is, essentially giving a green light to Alabama to stop its election midway through the election, redraw some of the districts. If I understand what the governor wants to do in Alabama, it's conduct the election in some of the districts, not conduct the election in others of the districts, while the Alabama legislature redraws the districts to get rid of at least one and potentially two majority black districts.
[00:06:14] [Dan] So just just so I understand, this is formally not like reversal. Right? It's a it's a GVR. Is there any possibility the district court could go back and kind of reinstate its judgment for different reasons?
[00:06:26] [Pam] It doesn't even need different reasons to reinstate the judgment, and it can use the same reason. And there are, TROs, I think, pending right now in front of the district court in Alabama saying, look, they've they've GVR ed this in light of Callais, so the results test part may be not so not so vital anymore. But you also found that this was purposefully racially discriminatory, and Callais has nothing to do with the constitutional standard for racial vote dilution. So just put your injunction right back into effect and let this election continue because people have already voted in this election. I mean, tens of thousands of people have already voted, and I don't know if you wanna talk about the Purcell principle part of this, but the Supreme Court used to say that when you're this close to an election, a court shouldn't interfere with the election because it will lead to confusion and it will depress turnout. And I can't imagine anything that's gonna lead to more confusion and depress more turnout than we're gonna hold several different primaries on different dates with different districts. We're not gonna tell you what the districts are. And by the way, the vote you already cast doesn't count.
[00:07:32] [Will] I wanna so principle, but first, have one question. So is there some entanglement between the discriminatory intent finding and the VRA finding? Like, is it I presume before the state had to say, oh, we're preferring this district over that district because we love the culture of The Gulf or something.
[00:07:50] [Pam] Yeah. They they did do this thing about we love the culture of The Gulf and the French and Spanish settlers and their descendants and Yeah. And the and the court said, you know, there's something odd about saying we really wanna value the heritage of the French and Spanish descendants in the Gulf areas of Alabama, but we actually don't value the descendants who live in the Black Belt who happen to be black.
[00:08:16] [Will] Right. But now, Callais makes clear, you don't have to talk about the French. You can just say, we're Republicans, and we want Republicans to win elections. Right? I mean, that
[00:08:25] [Pam] Yes. But there is still a finding here that Alabama deliberately did not draw this district because it does not value the heritage of black people the same way it values the heritage of the people in Bay Saint Louis, I guess you would say.
[00:08:42] [Will] Okay. So but I think if they've this motion for a TRO to reinstate half of the old ruling will itself violate the Purcell principle. Right? The Purcell principle like, at the moment it's vacated, a court will be acting to restrict change to enjoin a state practice of an election. Isn't that what Purcell stops?
[00:09:00] [Pam] It But, of course, it the Supreme Court has already just violated Purcell, and so saying, well, if the Supreme Court violates Purcell, you can't do anything about it, really just shows the bankruptcy of what the Supreme Court did here because the Supreme Court should have stayed out of this election that was already ongoing. And you'll remember that when Allen v. Milligan went up to the Supreme Court for the first time, the Supreme Court refused to stop the election in 2022, even though there had been a finding of a violation of the Voting Rights Act because it was too close to the election, and that was months earlier than now the Supreme Court has stepped in to get rid of districts ostensibly on the idea along the idea that they violate some provision of federal law, though I'm not sure which one it is.
[00:09:49] [Dan] Is there any defensible argument that there's some asymmetry here that here the court isn't stepping in to change things, the court is just getting the courts out of the way and letting the legislature change things?
[00:10:00] [Pam] Well, but the election's already underway. I mean, there's an election, an ongoing election here, so the Supreme Court isn't stepping out of the way. The Supreme Court is stepping in to say, okay, normally under state law, you would have to continue this election through to November, but we're gonna give you a kind of do over.
[00:10:18] [Will] Although it's it's not the court that's canceling half the election. Right? It's the governor
[00:10:23] [Pam] Well, if the Supreme Court hadn't granted cert before judgment and vacated all of the remedial stuff that was in there, the governor wouldn't have the ability to do anything because there would be an injunction against the state of Alabama saying, you have to use these districts for this election.
[00:10:37] [Will] Right. I think maybe one of the underlying questions, and maybe there's no current answer to this, is what is the Purcell principle? So so it could be a kind of anti chaos principle, like the stuff about confusion you talked about, or it could be an anti judicial review principle. They're like, you have all the chaos you want as long as it's not coming from or as long as if it is coming from us, it's coming from us backing up rather than us going forward.
[00:10:59] [Pam] Well, I've always thought of the Purcell principle to the extent it's a principle at all as being there's something about an ongoing election that you shouldn't change the rules in the middle of an ongoing election because it leads to confusion. And that would be, you know, there's also a kind of series of due process cases coming out of the eleventh circuit that talk about the problem of changing an election midway through changing the rules about who can vote absentee or changing the rules about which ballots will get counted and the like, that's deeply problematic. Because you want the rules in place before the election starts because otherwise therein lies madness, and I think that underlying idea is what animates Purcell.
[00:11:45] [Will] Although, maybe it doesn't apply to the Supreme Court. I mean
[00:11:48] [Pam] Well, nothing applies to the Supreme Court. Right.
[00:11:51] [Will] I mean, there was a case, you probably remember this, from 2020, RNC v. DNC, I think, where
[00:11:57] [Pam] There are a lot of those.
[00:11:58] [Will] There are lot of cases on you. But it was one of these COVID cases where the district court sort of stepped in at the last minute to change various, you know, rules about absentee ballots sensibly in light of the COVID pandemic. And the court then stepped in at the last minute to stay it. And one of the allegations was, you know, court, you shouldn't be doing this last minute because you're changing the rules of the game. And the court said, you know, this court would prefer not to do so. But when a lower court intervenes and offers the election rules so close to the election date, our precedents indicate that this court, as appropriate, should correct the error. It's a this is a little different because it's not like the lower court here stepped in at the last minute.
[00:12:32] [Pam] No. The lower court here stepped in right after the Supreme Court decided, Allen v. Milligan and said the current plan violates the Voting Rights Act because there aren't two districts. The district court required the drawing of the two districts. Those districts had been in place for qualifying for people who were qualifying for primaries, for people who were, requesting ballots, by mail, which includes, overseas voters as well as, absentee voters in The United States. So this election was going forward in an orderly way and the Supreme Court has basically thrown hand grenade into the middle of an ongoing election.
[00:13:14] [Dan] So, Will, you tend to like to defend the justices, or at least the majority. Can you defend this? I mean, how is this consistent? We've got two justices in the, you know, ostensible majority here for the GVR who were in the majority for Allen v. Milligan, which, you know, told the state to create two majority minority districts. And now and we were also told that Callais was not overruling that case. Is can you can you thread the needle?
[00:13:45] [Will] So I think the part where Callais said it wasn't overruling Allen v. Milligan is hard to defend, except on the very narrow sub technical ground of like, well, in Allen v. Milligan, we didn't quite understand the arguments and so we didn't agree with them, but now we understand them better, so we agree with them. And so, technically, in Allen v. Milligan, we only overruled the arguments we didn't understand and now we I mean, and that of course is a thing that sometimes happens. You know, case one, the plaintiff raises a due process case, and the court says it's not a due process issue. You should have brought it as an equal protection issue. And in case two, you come back and bring it as an equal protection issue, and they say, okay, fine. And they might technically not overrule the previous case, but I don't know that's very satisfying. I think the best that can be said is that now that Callais has been decided to deny you know, to delay or deny the GVR is to is to for the justice to knowingly let a sort of election go forward under the wrong map, under a map they think was drawn under the wrong principles. Now, I'm not sure they really think it's wrong because again, there are multiple grounds in there they might not fully disagree with. But but if they do or if they sort of looked at the merits that, you know, before Allen v. Milligan was decided, they were saying don't change the rules at the last minute because we're not sure and when in doubt, on the side of not chaos. But once we know, then, you know, letting an election go forward on the wrong map is bad. I still think this would have been better governed by the prefer not to do so principle. But even if this is not technically a violation of Purcell, and even if this is defensible, it would have been better if the court just said, we'd prefer not to do this right now. We don't have to expedite it, and we'll deal with it in November.
[00:15:21] [Dan] So so as in not you're saying that they would have preferred to not GVR it? Or
[00:15:26] [Will] Just to say, like, we could intervene now. You know, I'm not sure it's unlawful exactly to intervene now, but they have choices about the timing. And I mean, you know, I'm not as upset about all of Callais as most people are, but given having decided it, I guess I would have liked to see the court bend over backwards to make the impact seem less partisan.
[00:15:49] [Pam] Well, they've bent over forwards to make the make the case look as part this issue look as partisan as possible. I mean, they, you know, they issued the mandate in Callais saying the plaintiffs are not gonna ask for I mean, the defendants there, the defendant interveners are not gonna ask for rehearing when the defendant interveners said we're considering whether to ask for rehearing. I mean, of course, they were not gonna grant rehearing. But the race to get new districts into place for the twenty twenty six election has to look to most people as if it is the Supreme Court blessing a kind of red in tooth and claw partisanship, which maybe partisanship isn't justiciable, but it shouldn't be celebrated in the way that the Court seems now to be celebrating the idea that you will just wipe out the other party completely in congressional redistricting.
[00:16:43] [Dan] Is this a case where the criticism of the Court for not giving us explanations really hits home, where it might have been nice to hear from those two justices who at least arguably have flipped their positions. Why?
[00:16:58] [Will] Yeah. Yeah.
[00:17:00] [Pam] Yeah. I mean, you know, the constitution says The United States is supposed to guarantee a republican form of government, but this is not what they meant.
[00:17:11] [Will] You know, I hope there is a better explanation. But Especially when at times when I hope there's a better explanation, it would help if somebody would provide one.
[00:17:22] [Dan] Yeah. But you're saying the Baude machine has been added and has not come up with come up with one yet. You've had a few days. All right. Well, we'll see if any listeners write in with better explanations. And so as you might predict, there was a three justice dissent by Justice Sotomayor. All right. So there's that checked off. We've got another election related interim docket matter, is Scott versus McDougall. And this is a case that arises from redistricting in a different state, in the state of Virginia, where voters passed an amendment that would have redistricted to gerrymander in favor of Democrats. And after that had been voted on, the Virginia Supreme Court, a narrowly divided Virginia Supreme Court, said that was an invalid constitutional amendment because of timing reasons, because it was proposed, it wasn't proposed. In Virginia, I think you have to you have to do the you have to do two rounds, right, of constitutional amendments to make something effective. You have to do it there has to be an intervening general election. And here, there was an intervening election day, but not an intervening full period of early voting. Is that is that the right way to explain it?
[00:18:40] [Will] Yeah. So the right. So you have to pass the amendment twice. I think the purpose of which being voters get a chance to react in horror to the possible amendment and to elect a new set of people, you get sort of two two rounds. I think the state constitutional phrase is after the next election. So after the next election has to be repassed. And so the question is, if early voting has already begun in the elections going on and then then the election closes, is that is that the next election or is the next election, you know, the next election? The election that hadn't started yet when they passed it. And the Virginia Supreme Court says, you know, it's not yet the next election. The election was ongoing and so it's not the next election. There are interesting textual arguments on the other side. So if you if you really thought that, like, the election was the entire period of early voting as a matter of state constitutional law, then there's another provision that says nobody can be made to do jury duty on election day. And if election day is really like a five week period, then then actually, it's gonna be a lot hard to have jury trials. On the other hand, if you're a purposivist, so, you know, the purpose of this provision is to slow down amendments and you'd say something this close to the wire is not the kind of thing the court should stretch to make it go through. But that's all a question of state constitutional law, or at least so we thought.
[00:19:53] [Dan] Yeah. And so we have an attempt by the, you know, attorney general of Virginia and some outside counsel to bring this to the US Supreme Court and make a federal issue out of it. Why?
[00:20:11] [Will] Why, or what's the quote? Yeah.
[00:20:12] [Dan] What's the what's the supposed what's the supposed federal
[00:20:16] [Will] So I think there are two, and I'm curious if anybody thinks these have legs. So one is a kind of this looks like state law, but secretly it's federal law argument, which is not an argument that always fails. Right? So there is a doctrine tracing back several decades to a case called Michigan v. Long that says, like, in the context of a state constitutional claim about state constitutional free speech or state constitutional search and seizure, if the Supreme Court kind of talks about federal claims and talks about state claims without making clear that they're really disentangled, that a clear statement that has its own state law doctrine, then we presume it's federal law and presume it's reviewable, which is a inversion of the usual principle that you presume there's no federal jurisdiction unless it's clearly approved, but it's been there for a long time. So they say, well, in the course of this ruling, the Virginia Supreme Court talked about the federal statute about Election Day, which is a federal issue. It's pending at the Supreme Court right now, and that's enough entanglement to make this kind of federal ish. That's argument. And then the other claim is that this violates the independent state legislature doctrine, the largely nonexistent doctrine that if a state supreme court totally changes the rules in a way that takes things away from the state legislature that's supposed to decide the rules, that could be
[00:21:25] [Dan] a constitutional violation. Even if they're purporting to do that under state state law, state statute or constitutional law. Right.
[00:21:31] [Will] In Moore v. Harper, the court said, we're mostly not interested in these questions in any ordinary case. But maybe if the Supreme Court does if the State Supreme Court does something outside the bounds of ordinary judicial review, you know, call us and we'll we'll think about whether it's a violation. Pam, do you think either these arguments have legs?
[00:21:47] [Pam] Not really. I mean, I think it's hard to make either of those arguments. I think the Virginia Supreme Court probably did not interpret what counts as the election properly, but they did that as a matter of state law. And as you kind of alluded to, there's a case pending in the Supreme Court right now about what the federal election day statute means, and it also raises these questions about are you really going to say that early voting can't be engaged in at all? The ostensible issue, as you know, in that case is whether ballots that come in after election day can be counted, but the same theory would also apply to people who send in ballots ahead of election day.
[00:22:31] [Will] Right. Now, it was even on I think the for people who think early voting is okay under federal law or even late counting voting, I think the idea would be, well, there's a period of early voting, but the election doesn't actually start until the ballots are kind of like till we get to the part where we tally them up and we have the day in which we count them. So you can kinda get your stuff in early if you want.
[00:22:52] [Pam] Right.
[00:22:52] [Dan] Right.
[00:22:52] [Will] But it's not, you know April 15 is tax day even if you file two months early. So that maybe would cut against the Virginia Supreme Court's interpretation.
[00:23:01] [Pam] Yeah. I mean, in the sense that but each court is entitled to decide for purposes of its own law what election day means. That is you could easily imagine a world in which federal Election Day allows for early voting and the like, but some state might well decide as a matter of state constitutional law. You can't have a statute that says the election occurs on anything other than the Election Day itself.
[00:23:26] [Will] Yeah. So the Supreme Court appears to agree. I mean, we don't know for sure, but we got a one line order. It didn't even make it to the opinions relating to orders page of the from their website, only the orders page
[00:23:37] [Pam] Sad.
[00:23:39] [Will] That just says, the application for stay presented to the chief justice and by him referred to the court as denied. No noted dissents. It could have been secret dissents, but nobody wants to complain about it. So if that's right, why did Virginia bother? Is it just like, you gotta try?
[00:23:53] [Dan] Yeah. I mean, then let's I think we should we should try to make sure. You know, this was really criticized on social media, this filing, with some people going so far as to say it was frivolous, you know, and saying, oh, you know, you Democrats tried to disbar people who advocated for overturning the election. How is this any better? I read the I read the filings. I didn't think it was frivolous. What did you think?
[00:24:16] [Will] Is there a technical term for, like, a snowball's chance in hell?
[00:24:21] [Pam] That's the technical term.
[00:24:24] [Will] I mean, which is a which is a long shot that you're entitled to take, but I don't yeah.
[00:24:29] [Dan] Yeah. But I mean, you know, any sensible Supreme Court advocate would have said, you know, 0%, right, or close to 0%. Yeah. So was this filed for political reasons, or was this did they actually did they think this is worth it to get that point 001% chance of a reversal?
[00:24:45] [Will] Wait, how did you go from zero to point zero zero one? Well, I mean, I assume well, there's there's political reasons and there's aversion, I think, that sometimes happens, of course, when you're a lawyer and the client's like, you know, I want to do everything we can. You know, and you're like, look, we have no chance. And like, well, what what chance? Zero. And like, well, zero point zero zero? And you say, well, 0.001. So you're telling me there is a chance. Right? So maybe you have to sort of exhaust your remedies. But it seems like it's partly political or it's partly to show that they're doing everything they can to fight this ruling that they think is wrong.
[00:25:23] [Dan] And and they're using this, you know, Virginia, the government is using this to criticize the court, right, and basically call it out as being partisan, which is maybe not fair when you when it seems like there was no dissent or at least no noted dissent in denying the relief. Right?
[00:25:41] [Will] Yeah. Well, so oh, right. So I've seen I've seen claims like, you know, this is the fact that the Supreme Court denied cert here or denied a stay here, this is proof that the court needs to be packed because they are now illegitimately complicit in the, you know, what's happening in Virginia, which I do think is probably wrong. But given what just said about I
[00:25:58] [Dan] thought you would.
[00:25:59] [Will] About Allen, like, you could like, sometimes people are accused of something that's, like, true, but they're accused of it in false ways. And there was not as much outrage about the Allen GVR. So this is kind of a case
[00:26:11] [Will] of I think there
[00:26:13] [Pam] is as much outrage about the Allen GVR if you look at sort of the discussions in the South, which is where it has its major major impact.
[00:26:22] [Will] Fair. So maybe maybe I just say the those discussions have not as successfully broken containment into the national dialogue as the Virginia one did. Maybe because the Virginia thing is easier to understand and everybody maybe because Virginia's here next to DC, and so it's easier for people to care about. But so it seems like it's I don't It seems like this allegation is gaining steam as part of a, like, package deal, a sense of like
[00:26:44] [Pam] Yeah. And I mean and I think the effect of Allen won't happen until the state of Alabama redraws the districts. And here the effect was it looked as if the Democrats were gonna pick up four seats and now they're not. In Allen, it's not going to be clear until they redraw those lines whether it's the Democrats are going to lose one seat or the Democrats are going to lose two seats or they don't get around to doing it all and the Democrats don't lose either seat.
[00:27:11] [Dan] Mhmm.
[00:27:12] [Will] It's also I mean, I guess it's a little odd about this one and that the, you know, this was an extreme gerrymander. And I would say, extreme gerrymander, obviously, as part of a tit for tat system in which there are extreme gerrymanders all over the place. But and so I understand sort of like going to the mats to defend an extreme gerrymander that was sort of, you know, previously unconstitutional under the Virginia constitution unless this passes. But as a as a sort of like individual poster child, it's sort of an odd an odd vehicle.
[00:27:41] [Pam] But but this entire cysts this entire season of mid decade redistricting is, you know, it it we have now switched from the voters pick the legislators to the legislators are picking the voters in a way that the Supreme Court essentially has now licensed in a series of cases, you know, Allen is one of them, but also Rucho and Alexander. I mean, the Supreme Court has really transformed this is like the anti reapportionment revolution in the same way that the reapportionment revolution of the nineteen sixties went went in the kind of other direction.
[00:28:21] [Will] I was wondering so I realize it's fanciful to talk about congressional legislation, partisan gerrymandering and things like that, a map at some point. Is it unimaginable that Congress would be willing to pass just like a simple ban on mid decade redistricting? Like, is there maybe starting in 2030 to say like, look, you know, we understand once it's allowed, everybody has to do it. But is there any is there any constituency for doing this regularly?
[00:28:47] [Pam] Maybe. It it's it's just hard it's hard to know. I mean, I think you have to have a kind of political upsurge that makes members of Congress think this would be popular with the electorate. And you could easily you could easily imagine that. I mean in eighteen seventies and eighteen eighties, I think there was a lot of redistricting after every congressional election, so this, you know, and we moved away from that for quite a quite a while.
[00:29:13] [Dan] I mean, it seems like if nothing changes though, we're gonna that's where we're gonna land very quickly. Right? Yeah. Yeah. Yeah. Right.
[00:29:18] [Will] And especially so that so you've seen fast redistricting in the South after Callais. I assume that after 2026, whatever happens, there'll be question about whether some of the blue states should redistrict too. Right? So some of the there are blue states that have majority minority districts that they might want to dismantle as part of a counter gerrymander even just for political reasons.
[00:29:39] [Pam] Yeah. Mean, and it can't be good for the country if at the end of this you have 54 Democratic representatives from California and you have, you know, whatever it is, 50 whatever they are at, I don't know, in Texas and they're all Republicans and, you know, I mean it just can't be good for the country to have that kind of kind of House of Representatives.
[00:29:59] [Dan] Frankly, seems like it's not good for those states. It seems like it would be in any given state's interest to at least have some representation on both sides of the political aisle to be able to push for that state's interests, you know, depending on who's in Right, our
[00:30:13] [Pam] but you're in a kind of prisoner's dilemma, right? Which is everybody would be better off having that kind of system, which is one of the reasons why I think that we may see pressure over the next twenty years to move towards a more proportional representation system of electing the House of Representatives precisely because you're absolutely right, Dan, that's what's in every state's interest is having, you know, if you have a multi member dis a multi member delegation having some members of each party.
[00:30:39] [Will] And for that to happen, that would have to be like a statute, right? The prisoner's dilemma stops that.
[00:30:44] [Pam] Yeah. Yeah. You'd have to have a statute.
[00:30:46] [Dan] And is it is it pretty clear that would be constitutional if Congress were to do that?
[00:30:49] [Pam] Yeah. Yeah. I think it's absolutely clear for congressional elections, time, place, and manner, the only reason we have single member districts right now is because of an eighteen forty two statute that's been repeatedly, repeatedly reenacted.
[00:31:03] [Will] Yeah. I've
[00:31:05] [Dan] seen some interesting schemes proposed on Twitter where, you know, the Virginia legislature would immediately pass, like, a new retirement age for Virginia Supreme Court, set it at 52, because I guess some of the Republican justices are 52, and then like immediately replace them, and then have them reverse the ruling. Don't know if it's Is
[00:31:25] [Will] there a court reform, Dan?
[00:31:26] [Pam] I mean that's kind of Viktor Orbán did that, I think, in Hungary, changed the retirement age to, you know, to get rid of a bunch of sitting judges.
[00:31:35] [Dan] In Moore v. Harper, right, didn't the court's composition change kind of in between two different rulings in North Carolina?
[00:31:40] [Will] Yes. Yeah. Although I think what I think that was just an election.
[00:31:44] [Dan] Yeah. Don't I don't think it was straight court backing.
[00:31:47] [Will] Right. Although they court backed Utah, right, like earlier this year? I missed that one. Yeah. They added two justices to the
[00:31:54] [Dan] I can't imagine that the Utah Supreme Court was super ideologically divided, but maybe maybe I'm wrong about that. Am I wrong about that?
[00:32:00] [Will] I think they were skeptical of our redistricting plan.
[00:32:03] [Pam] Yeah. They were very skeptical of redistricting I
[00:32:05] [Will] I mean, well, it's an interesting this is a little outside of our wheelhouse, but it's an interesting sort of if you're going to engage in that kind of extreme court packing, there's always question of how to pursue it. So one way to pursue it, which appears to be the strategy among the Democrats, is to talk for years about how much you wanna pack the court when you don't have the power to do so with the hope, I guess, that you eventually will, but and you license a lot of people to do various countermeasures while it's happening. The Utah solution, sort can tell is just to not do that. You're just like Just do it
[00:32:34] [Dan] and don't actually talk about it. Right.
[00:32:36] [Will] Does seem more effective. Ninja. Ninja court packing. All right.
[00:32:41] [Dan] So two things down. We are also going to talk a little bit about two related interim docket cases, Danco Laboratories versus Louisiana and GenBioPro versus Louisiana. And so these cases are continued litigation that has been, you know, going on for a while, there's been kind of rounds of this, involving attempts by conservative plaintiffs and here the plaintiff is actually the state of Louisiana to block FDA's authorization of the drug mifepristone for, and specifically here FDA said it does not need to be dispensed in person. That has permitted blue states to have some of their doctors mail this drug which can be used for chemically assisted abortions into states where abortion is illegal. And so Louisiana is coming in and trying to get FDA's approval of that, approval of the ending of the in person dispensing requirement, declared unlawful. So there's a few moving pieces here.
[00:33:51] [Will] I don't if you wanna walk us through that as well. Yeah. So the there was Louisiana brought suit in the district court in the Fifth Circuit, which issued some relief, and then went to the Fifth Circuit, which issued effectively nationwide injunction that's not a nationwide injunction because it's the APA. It's called a stay under the APA instead relief with basically no stay, just like starting now. And so then the defendants, the companies had to go to the Supreme Court to try to get this emergency relief stayed. There's a standing question. Does Louisiana have standing when the Alliance for Hippocratic Medicine was held not
[00:34:33] [Dan] to have standing? On the merits, Does this really work? And that was that was the one where there was like a group of doctors who claimed that they were being harmed by the availability of mifepristone.
[00:34:42] [Will] Yes.
[00:34:42] [Dan] Right. And the court said no standing. Right.
[00:34:44] [Will] Right. Now here, you know, here they have a state, and so the state has kind of different arguments for standing. One argument always is that the state has a bunch of people in it, so the state can almost always find some way in which it had to spend some money to deal with something related to what happened. And the states their real interest, they say is, you know, look, post Dobbs, we're trying to ban abortion. And here you are mailing abortion into our state, which we're trying to ban, which is at least I don't know if it's actually a recognizable injury, but you can see why they why they care about it. So we don't know the answers to any of the merits questions, but we now have a little bit of a fight at the Supreme Court about what to do. Right?
[00:35:17] [Dan] Yeah. And so we're going to actually end up with the rare unexplained interim docket order that actually favors liberal causes, at least, you know, has the liberal valence, right? So we have a one paragraph order granting a stay with just the stock language, nothing else. Right? And then we have solo dissents from Justice Thomas and Justice Alito.
[00:35:45] [Will] So
[00:35:48] [Dan] what do you think is going on here? So unexplained, right? We don't have any idea of why the court granted this stay. It could have been the equities, it could have been something about the merits, it could have been something about standing. What do you think is going
[00:35:59] [Will] on? I guess I think I mean, I think this is a case where probably a majority of the court thinks that, you know, the merits are at best non obvious. You know, they were skeptical of this claim to begin with. They thought about the merits before.
[00:36:12] [Dan] And and by the merits, mean the underlying legal issues about FDA authorization, and did the FDA consider the right evidence?
[00:36:18] [Will] Probably both. Probably because the last time they got the case, they kicked it for lack of standing, but I'm sure they thought about a bunch of the other issues as well. And so they have some sense of how many hoops you'd to jump through for a court to be able to do this. I think the federal courts have never really sort of rescinded an FDA approved drug in the end as a final remedy. So that would be a big thing for them to do. And they probably have some doubts about standing. They've gotten seem to have gotten some cold feet on the ready availability of state standing in the past couple of years. And so my guess is there's some accumulated doubt on the merits, plus maybe a real equity sense of this is the status quo. This has been the status. This was the status quo until, like, Louisiana got involved. And so let's just keep the status quo for a while until we're ready for it.
[00:37:05] [Dan] Does that seem right? Pam, did this one surprise you as a court watcher?
[00:37:08] [Pam] No. It didn't surprise me in part because the idea that you would ban the mailing of mifepristone mifepristone nationwide because there are a couple of states that are upset about it without even hearing from the FDA. And that's one of the things I thought was most interesting here is, you know, this is a challenge to an FDA regulation and the only parties that filed anything in the Supreme Court at the stay level were Louisiana on the one hand and the two drug companies on the other hand. And the FDA is staying suspiciously mum.
[00:37:42] [Will] Yeah. That's agree. That that's very like, the last time this happened, it was during the Biden administration. And so the Department of Justice was all over the case saying, you know, this is a huge intrusion on executive power. You know, stay out of this. Trust us. And that didn't happen. I didn't think it was possible that the SG's office, the Trump administration, would step in this time and say, oh, we're fine with this. We were thinking of rescinding this anyway. We don't mind. But they didn't do that either.
[00:38:07] [Dan] So what's going on? I don't quite understand the internal executive branch politics here. I mean, there some internal disagreement, you think, about what to do? I'm kind of surprised this this rule has survived this long under the Trump
[00:38:20] [Pam] administration. November.
[00:38:25] [Dan] I mean, what happens in November, Pam?
[00:38:27] [Pam] Well, assuming that we have elections in November. No, I mean, it's not good politically for the administration to ban essentially the major form of abortion nationwide, which is what agreeing to the Fifth Circuit's rule would do.
[00:38:49] [Will] Yeah. And the Trump administration has always been much more moderate on abortion issues than many of Trump supporters would like it to be. I think because President Trump understands politics. And one of his superpowers sometimes is doing things that are slightly more moderate than his supporters want them to be, but nobody complains about it because because he is we is. So, you know, I almost wondered if and I'm not sure which side would have to do this, if if something on the court might want to use this as a case to call for the views of the Solicitor General and just say, you know, tell us what you think should happen.
[00:39:22] [Pam] Yeah. I mean, and the other thing that's interesting is, you know, Justice Justice Alito, who has signed on to one unexplained shadow docket, interim docket, lightning docket, emergency docket ruling after the next, begins his dissent by saying, this is like outrageous, you've given no explanation for what you're doing here. And then just but I also thought the other interesting thing was, you know, Justice Thomas' dissent is he's riding this Comstock Act horse very hard and doesn't seem to be getting uptake from anybody else on it.
[00:39:56] [Dan] So this is this very old statue. Is this a nineteenth century statue? Yeah. You know, by its plain terms does actually seem to pose a bit of a problem here. Sure. What is this do you know what the history of the statute was? What it was originally aimed at? Obviously, mifepristone didn't exist when the comms
[00:40:15] [Pam] It got hacked was aimed at people having sex outside of marriage, and maybe even inside of marriage, but definitely outside of marriage. And the idea behind it was it banned any information about contraceptive devices, and then it also added abortifacients to that.
[00:40:35] [Will] And and I was it's been on the books for a long time. It didn't really matter in the these parts of the law didn't matter in the Roe v. Wade world. And all of a sudden in the Dobbs world, the statute matters matters a lot more. There is an OLC opinion from the Biden administration interpreting the statute quite narrowly. So the statute by its terms, I think, forbids using the mail to mail any abortifacients. There is a lot of sort of legislative history and pre Roe case law suggesting that should be interpreted implicitly to mean mailing illegal abortifacients. Like in a world where abortion was illegal, that went without saying. But that you can use you know, the point of it is you can't use the mail to do things that would otherwise be illegal or to facilitate a crime, but not it's not sort of an extra ban. Now, that would apply potentially to mailing for Central Louisiana where its use is frequently illegal. The Biden OLC opinion goes on to have a bunch of arguments that while you might think that you should presume it's a violation of the Comstock Act when you're sending it to a state where abortion is illegal, they don't think so. Because even in Louisiana, it's legal to use it's legal to have an abortion to save the life of the mother. It's legal to get the pills in Louisiana and then drive to Southern Illinois or whatever the nearest pro and take them there because we travel across state lines, and we should just presume that people are doing it lawfully. You could imagine that OLC opinion is gonna be rescinded by the Trump administration, but I'm not sure it will. But you could imagine that happening, and maybe that's part of what Justice Thomas is trying to put. Because that opinion doesn't bind the justices. So so Justice Thomas says I mean, it's quite striking. Justice Thomas says, we shouldn't grant the stay. I think not so much because he thinks they're standing. He's not taking a position on standing. He's taking a position on the merits, but he just thinks as a matter of the equities, the applicants have not satisfied their burden because their only injury is lost profits from their criminal from their criminal enterprise. Right? We should see this as a from the point of view of the Comstock Act, if you interpret it without the assistance of OLC, without the assistance of these, you know, glosses, just as a textualist, you'd say, well, this is a this is a nationwide drug conspiracy, and why would we, you know, intervene to protect their profits?
[00:42:47] [Dan] But so far, no uptake from other justices on that? Right.
[00:42:51] [Will] Well, Justice Alito so Justice Alito has a longer argument that's a little more I mean, as usual, Justice Thomas' version of the argument is like a very, in a sense, pure extreme textualist argument. And Justice Alito's is a little more realpolitik. Right? In Dobbs, we said we were returning this to The States, but Louisiana is being sort of like attacked by New York, and we shouldn't be complicit in this in some way.
[00:43:12] [Dan] I mean, he seems to be taking it almost kind of personally. Right? You're going against my opinion and you're subverting my decision.
[00:43:21] [Will] Yeah. I don't know if it's personally I mean, Justice Alito has always had this strain of thinking the people on the other side cheat and thinking that it's his job to help fight back.
[00:43:33] [Pam] I mean, weird thing is if you really think about it as return to the states, the equities I could see in some theoretical world saying there should be a injunction against importing it into Louisiana, but once you've said it's returned to the states, the state of New York says we have an interest in providing mifepristone by mail to people inside of New York who don't live close to an abortion clinic. Why doesn't that interest count at all for Justice Alito?
[00:44:04] [Will] Yeah. I mean, could imagine this the right remedy on this theory would be some kind of remand or some kind of half severability. You can dispense it by mail in some states and not other states. And I do think part of the problem is return abortion to the states was a very sort of like good and straightforward mantra. But it's for it's always kind of complicated what that actually means.
[00:44:26] [Pam] Well, yeah. I mean, remember Justice Kavanaugh's concurrence was don't worry about this, people can cross state lines if they want to have an abortion, and mifepristone is just instead of you crossing the lines, the drug crosses the lines.
[00:44:40] [Will] Yeah. I mean, in a world where the in a world where we had clear rules about what state had jurisdiction over what and where that began and end, it would maybe be easier to say, like, these are the rules and states that violate them. In today's world, these doctrines are very confusing, often controlled by conflict of laws that, you know, needs to be restated and clarified by our host, the American Law Institute. The extent to which those rules are constitutionally required, state wants to deviate from them, there's like many layers of sort of confusion about them. I assume the Supreme Court will actually have to answer some of these soon enough. There have been a series of cases about sort of New York versus Louisiana and the scope of the constitution's extradition clause. Because if it's a crime in Louisiana to mail the mifepristone to Louisiana, and a New York doctor does it, then can Louisiana order them to be extradited to Louisiana to stand charges in Louisiana to the Constitution? New York says no. So there's other stuff going on here. I'm not sure if this case is the right vehicle for those frustrations, but
[00:45:38] [Dan] And presumably, do you think you think we're going to end up with this on the merits docket before long? I think a lot
[00:45:43] [Will] of them merits docket, but I think it may take a while. So I think the Fifth Circuit has not yet actually ruled on the merits. I think we only had to stay a penny from
[00:45:49] [Dan] the Fifth Circuit. But but it strongly tipped its hand about the merits.
[00:45:52] [Will] Yeah. Although, once the Supreme Court has strongly tipped their hand about the merits, then at the Fifth Circuit, you might not be in a rush to decide it or who knows what. So I think this will come on the docket, but maybe not until after November.
[00:46:04] [Dan] Very, very small thing, but social media had a lot of fun with the fact that in Justice Alito's dissent, in the initial draft, there was a typo where he said instead of the case Alliance for Hippocratic Medicine, the in one place it said Alliance for Hippocratic Medicine, which some people thought was somewhat telling. But that has been fixed. That was fixed very, very quickly.
[00:46:23] [Will] Was it there were like so there were like 18 corrections in this opinion, in the most recent draft on the on the court's website. It's a six page opinion. Mean, I of them are minor, you know, n dashes and m dashes and docket numbers and formatting. And he originally had two footnotes, neither of which had a number. The rule is when you have one footnote and a squared opinion, you do an asterisk instead of a one. You have multiples, you do numbers. And he had like an asterisk and a dagger. I was
[00:46:49] [Pam] So that's Freudian.
[00:46:54] [Will] So clearly this was a rush, a rush job.
[00:46:58] [Dan] Okay. Well, so that's what's happened recently. We were also asked to talk a little bit about executive power and the court. And we want to leave a few minutes for questions, but I think we can offer some some very, very high level thoughts about that. So Pam, executive power in the court. Go.
[00:47:15] [Pam] Go. So there the parts of executive power that are part of a long standing agenda, think the court is deciding in the president's favor. So we're going to see, you know, we're going to see something that gets rid of what little is left of Humphrey's Executor and the like. The parts that seem different and new, I think the president's agenda is not as successful there. So an executive order to remake what counts as American citizenship in the birthright citizenship case, I think looking at that we're more likely, I think, there to see the court ruling against the president. You know, there's this kind of in between thing about the Federal Reserve and what exactly is the Federal Reserve, but you know Paul Clement gave them 47 different arguments as to why they could find that the president can't just outright fire a member of the Board of Governors there, and I think they'll take one of those off ramps, although which one exactly I don't know. You know, and I think one just observation which a lot of people have made, but is worth making is that the administration's success on the shadow docket on executive power and the like is in part a function of their being very cagey and savvy about which things to take up to the court. So on the things where they have agenda control, they take the ones that they think they're going to win, but there's some that they have to take up or that the other side is taking up. And there I think they're going to be a little bit less successful unless it's part of this long standing idea about, presidential capacity to fire or bring agencies more under heel.
[00:48:56] [Will] Yeah. Feel like last year at this time, sort of there was this question of like, is the court has the court lost control? Right? Are they sort of is the Trump administration in control, the court is sort of unable to restrain them? And there were a lot of emergency cases in which the administration was winning, sometimes even on tendentious grounds, and some noble exceptions, right, especially in immigration. But and it seems like now the certainly, the pace of those applications in the administration has slowed way down, maybe because they got the things they really cared about and don't want to take their chances on the things they haven't taken yet or something. But it seems like now the court's back in control. Is that?
[00:49:33] [Pam] Yeah. I mean I think I think that's right that the court is on these bigger picture issues is not as hospitable to the administration as it was on some of the others. I mean one of the other interesting things, and this is obviously of particular interest to lawyers, is the back and forth inside the administration about whether they were even going to appeal the executive orders on the law firms. And I think if that goes up to the Supreme Court, I don't see the Supreme Court being particularly sympathetic to the idea that the president can go after individual law firms in that way.
[00:50:08] [Will] Yeah. Those were just argued in the
[00:50:10] [Pam] DC Circuit last week. Yeah.
[00:50:12] [Will] Do you understand what was going on there?
[00:50:16] [Pam] Well, I think what I mean if I were guessing, but of course I have no insight into this administration at all, is that they told them these are losers, just leave them in the district court. You've gotten what you wanted, which is you've got a bunch of law firms to take a knee, you've got a commitment to spend what was it, a billion dollars I think ultimately on the President's preferred pro bono, you know, declare victory and go home, And then once a news story came out saying they weren't going to appeal, somebody in the White House said, you know, fake news, we're going to appeal, thank you for your attention, and they file and change course.
[00:51:00] [Dan] Yeah. So I mean, I think I largely agree with the framing that, you know, the administration is doing better in these cases where there are long standing conservative positions. I mean, are some things, though. I mean, what about the kind of impoundment spending cases where it seems like the Trump administration just seems to be taking the position that even if there's a bunch of money appropriated, we can just choose to withhold it? Those strike me as a little bit more deeply controversial, right? And the court seems to be letting him get away with that.
[00:51:30] [Will] Yeah. I mean those are so a lot of those are positions President Nixon took unsuccessfully,
[00:51:35] [Dan] and I
[00:51:35] [Will] don't know if that's the best precedent. But also we I mean, we haven't we saw an early rash of these, we saw one last fall, and we haven't seen them come back yet.
[00:51:45] [Pam] Yeah. I mean, they're they haven't been up there on the on the merits yet.
[00:51:48] [Will] And And the administration hasn't gone to the court about the White House Ballroom, which they have some, you know, permission to do some things but not other things, which appears to be the main focus of the president's domestic agenda right now. So, I mean, you gotta imagine their conversations about whether they should, you know, whether they should go up on that. So I think that's one where we don't know yet.
[00:52:08] [Dan] So what do you think the, you know, answer to this question is going to look like at the June? Do you think that following the thread, do you think that we're going to see significantly more pushback on the administration? You know, we've got the birthright citizenship, it seems like there's the smart money is that's going come out against the administration. Anything else?
[00:52:28] [Pam] I mean, that's going to come out, I think, against the administration. I think that the Federal Reserve case is going to come out against the administration. I think Humphrey's Executor is going to be, you know, we're going to see here's my prediction about that, we're going to see so many law review articles with the word slaughter used in them as some kind of punish joke or, you know, and Humphrey's executioner. That's my prediction, but you know, it's clear Humphrey's Executor is going down. So, you know, if you think about what are the four big cases this year on the merits for the Trump administration, it's tariffs, that's a loss already. It's birthright citizenship, that's going to be a loss. It's the Federal Reserve, that's going to be a loss, and it's Humphrey's Executor, which is going to be a win. And I think the what what's going to the way that's going to be played in public is the Supreme Court is finally stepping into the, you know, stepping into the arena and they are pushing back for the rule of law. And I would feel much better about that if they hadn't just completely abandoned the rule of law in democracy in the voting cases, which are not really cases about the administration's agenda, although obviously the administration came in on the side of Louisiana and Callais. But I think that's going to be underappreciated in the kind of sigh of relief that we're going to have that the Supreme Court actually told the administration no on some of its important kind of signature events. The last one of these, which I don't really have a way of predicting as much because it also raises a bunch of questions about appealability is the protected the temporary protected status cases, TPS cases, which were expedited to be argued on the last day of the arguments.
[00:54:25] [Will] Yeah. My guess is the administration will win those cases. Although the fact that they didn't just win them on the shadow docket is what could the fact they have to go argue them is what makes me unsure. But Yeah. I don't know.
[00:54:37] [Dan] Yeah. And I will say that I think the, you know, conservative wins in those voting cases is going to have longer and bigger effects than whatever, you know, specific thing Trump is trying to do that he's being told he can't do.
[00:54:49] [Pam] Yeah. Yeah. That's why I'm sad.
[00:54:55] [Dan] Well, I don't know if you were hoping for us to cheer you up, but I don't think we can. Honestly,
[00:54:59] [Pam] Dan, seeing you and Will cheers me up because you're just so smart and interesting and I learn something every time I talk with you. So that cheers me up a little, but not a not a lot.
[00:55:10] [Dan] Usually usually when I get Will on the show, I mean, he's here to kind of put the what the majority is doing in a different light, kind of, you know, be very charitable. I'm I'm not getting as much of that from you this episode. I used it all up. Okay. Alright. Any other did did you have big picture thoughts about executive power?
[00:55:31] [Will] I think I share a lot of a lot of Pam's predictions, except maybe I'm not sure it's true that I'm not sure it's true that the narrative at the June will be too complementary to the court. I suspect people will I suspect people will find a way back to the narrative of the court is still doing lots of things to make people pretty upset. But
[00:55:49] [Dan] Yeah. I mean, I think defenders of the court will try to shape that narrative. And whether it's successful or not, we will see. Yeah. And who knows what else will happen between now and then? And there could be all sorts of other things that happen on the emergency interim shadow docket that affect people's perceptions.
[00:56:06] [Will] Yeah. Should we get some questions from the audience?
[00:56:10] [Dan] So we would love to take your questions, and we will potentially feature them on the episode.
[00:56:16] [Will] So There are two microphones out there for anybody who wants to get behind one and ask us about anything. I don't know
[00:56:23] [Dan] if the mic is picking that up.
[00:56:26] [Audience Member 1] Well, in the New York Times about about Callais. And Travis Crum, who I think is one of your faculty colleagues Yeah. Was quoted as saying that he, reading between the lines among the various opinions, thought that the court came close to ruling that the section of the majority minority remedy was a violation of the constitution, and then stepped back and instead interpreted the provision to say that the federal, statute was, did not allow that remedy. And that it could have been far worse because if it was decided on equal protection grounds, it would have consequences for state voting rights at right acts cases. And so my question is, do you agree with his reading of what the court practically did? And do you agree with his view that if they had done it on constitutional grounds, it would have been worse?
[00:57:25] [Dan] So I'm a huge fan of Travis Crum, my colleague, and he knows a lot more about these topics than I do. I mean, does seem right, that it's at least, you know, partially a statutory ruling or a statutory ruling that's drawing unconstitutional principles. Maybe that would have been simpler for them to just say the entire statute is unconstitutional, which they didn't do.
[00:57:45] [Will] I don't actually understand this theory. So so it's so as I understand the setup in Callais is a constitutional challenge to the districts, and then the justification of the districts is, well, we had to comply with the Voting Rights Act. And the court says, well, you didn't actually have to because the Voting Rights Act doesn't require this. So it at least certainly still sets up the state Voting Rights Act problem. Okay. Well, what if a state statute required us to do this? And it's hard to see how the court is gonna say that's okay because it had several times in this opinion says, well, we're interpreting the Voting Rights Act narrowly and, you know, the Voting Rights Act were construed more broadly. We're not sure it would require this. So it seems like if I were the if I were a state that had a state Voting Rights Act, I mean, I guess I would still be entitled to use it for now, but it doesn't seem like it would be.
[00:58:27] [Pam] I mean, I don't know all of the state voting rights acts, but for example, the California state voting rights act is really about at large elections. And there, a state can simply decide that's not a legitimate state policy. We we don't have a we don't like that policy. And I think that would continue to make the statute constitutional.
[00:58:50] [Will] Yeah. That seems fine. I think in I think in New York, the statute is sometimes used to require or encourage majority minority districts in a way analogous to and beyond the federal one. And I guess if I guess that's probably going to get in trouble pretty soon.
[00:59:04] [Dan] Yeah. That would just be another case.
[00:59:06] [Will] Even the state mean, even even the California one, if you accept the theory that the court has not yet accepted in, like, these magnet school cases that doing something facially neutral for pro diversity reasons is suspect because race discrimination is symmetric, and so you shouldn't care about race. You should be color blind. Then that could potentially have very radical effects even for all states of voting rights act. I'm not sure the court's going do that, but
[00:59:29] [Pam] Yeah. I mean, I think it'd be really hard for the court to say that in a multiracial, multiethnic state it's not even legitimate to want to have voters of every race and every ethnicity able to elect the candidates they prefer. I mean, that that's a pretty strong statement.
[00:59:50] [Will] Yeah. I mean, the way they would say it is just you're supposed to be color blind, you're supposed to not care what race people are, you're just supposed to not care what race voters are and what candidates are.
[00:59:57] [Pam] And part of it is the Supreme Court doesn't seem to recognize voting is different than a lot of these other things. There's no individual right to elect a legislator to begin with, right? I mean, in the SFFA case, they could say the alternative to race consciousness is, you know, looking at people's test scores or looking at, you know, whether people's parents went here or looking at what their GPA in high school was, or whatever. What's when you say the alternative is race blind disregarding, what that means is the only group, the only socioeconomic group that has to have its interests ignored in the process are members of racial or ethnic minorities, and that seems that just seems different to me when you're already talking about groups of people every time. It's all about groups in voting.
[01:00:45] [Will] It's supposed to be partisan gerrymandering all the time.
[01:00:48] [Pam] Yeah. Now you see why I'm sad, Will.
[01:00:54] [Audience Member 2] Until professor Carlin mentioned it, I'd forgotten all about the single member district statute. And my question here is whether congress could address the gerrymandering issues that the recent supreme court decision has brought home in a way that would mitigate party gerrymandering by defining districts either at large or even, God forbid, defining what a district must or must not look like, keeping Powell v. McCormick in assuming that case stays in effect in terms of who can be in congress. But is there a way that that that 2 U.S.C. statute could be fixed or I don't forget that word, amended to mitigate gerrymandering, and if so, how would you do it?
[01:01:54] [Will] So Pam, I think this one's for you.
[01:01:56] [Pam] I mean, answer to that is yes. Congress, you know, if they can require single member districts in the first place, they can also require, you know, any one of a variety of other amendments to that. They could go with independent redistricting commissions for Congress, they could go with, you know, draw a 100 plans and pick one at random. They could go with proportional representation. I don't think they'd wanna go back to just sheer at large elections because the idea of electing, you know, 54 members of congress from a state like California at large the last time a state elected at large was Alabama lost a seat in 1960 and they couldn't agree on how to redraw their districts, so they held districted primaries and then said the I think it was the five people who won the most votes in the general would be declared elected even though there were like six people running as Democrats and presumably six people running as Republicans, but you don't you don't really want something like that. But yeah, Congress Congress has plenary control over this, and you know, the when the Supreme Court first started talking about this justiciability issue, Justice Scalia wrote an opinion for a plurality that said, this is for Congress to fix. If you don't like political gerrymandering, let Congress fix it for congressional elections.
[01:03:10] [Audience Member 2] Yeah. Because I was thinking more along the lines of the district shall be designed or drawn in a way that keeps local government entities intact first, then counties intact second, and work go from in and keep as much inside a geographic area without even mentioning race
[01:03:30] [Pam] you could do that. The complexity there is one person one vote, which requires in a lot of these places breaking up sit you know, any city that's got more than 500,000 people in it, you're gonna have to break up the city.
[01:03:43] [Will] Right. You could also do this like maximum maximum compactness complying with one person with vote.
[01:03:48] [Audience Member 2] Yeah. And I don't wanna get into an argument here, but Austin went from one and three quarters house districts currently to five. When I lived in Austin before I moved back to Montana, we only have we have two now, and we have a nonpartisan constitutionally mandated draw the district body that takes care of partisan gerrymandering based on the constitutional criteria we have. But in Austin, we had at least four and probably five house districts that carved up the city, and then that got fixed, somewhere, in there, I think after the '16 census. And so, it just seems to me that there may be something there that could define how districts must be drawn that doesn't get near race as a criterion. And that should seem to me satisfy what most members of the Supreme Court seem to have in mind. Just asking.
[01:04:49] [Will] Yeah. Yeah. Alright. I think
[01:04:51] [Dan] I see a friend of the show, Professor Moran Levy over at the at the mic.
[01:04:57] [Moran Levy] Well, just wanted to add to what Professor Karlan said, it's you all are cheering all of us up with this lively conversation, so thank you all. So since we're talking about the relationship between the executive and the courts, I was wondering if you could comment on the president's recent, I don't know what we call it on truth social tweets or what have you where he was disparaging various justices and seemed to be suggesting already he's gonna be losing birthright citizenship, was suggesting that his appointees have not been sufficiently loyal to him. Obviously, this is coming on the heels of the chief justice at the third circuit judicial conference trying to make the case that the justices are not in fact political actors. In any other administration, it would seem like this should be front page news. But I don't know, is this just noise at this point that we have this kind of saber rattling or I'm not sure what you would call it, but wondering what you all think.
[01:05:47] [Dan] Yeah. I mean, one question is, is it helpful to him to do that? Is it helpful to him in terms of getting his base riled up in a way that cancels out the, you know, it seems the nontrivial chance that it's going to annoy the justices enough that it might cause some of them to vote differently in some cases down the line? I mean, what do you what do you think? Am I being too optimistic to think that the just Republican justices will be annoyed by this?
[01:06:11] [Will] I'm sure they're annoyed and embarrassed. I'm not sure that would ever actually change their votes, something that mattered, but I'm sure they're annoyed and embarrassed. The other question might be, is this also sort of saber rattling for any possible future vacancies? You know, as DC is full of speculation about whether justice Alito or anybody else might step down after the last opinions are issued this term. And now maybe this kind of saber rattling is or isn't helpful in, you know, implying who the next nominee would be.
[01:06:39] [Pam] I wonder if it doesn't have a really bad effect on some of the people who really would like the next vacancy, which is they now feel even more pressure to show their loyalty in the cases that are in their Court of Appeals to President Trump because he's now told you, I want to see big time loyalty. I wanna see big time loyalty, and you're gonna start seeing some crazy opinions from some people who think they might be moving on up.
[01:07:10] [Dan] I think we have time for one more quick one.
[01:07:13] [Steve Mayer] Thank you. Steve Mayer, San Francisco. Could I haven't read the Virginia Supreme Court's opinion, but could the procedural issue have been solved by adding the words notwithstanding any other provision of this constitution to the contrary in front of what they did?
[01:07:26] [Will] I think the answer is no because the amendment doesn't become provision of the constitution unless it's enacted. And the whole fight is whether it gets enacted first. And so you can't you can't sort of wish yourself just like you can't wish yourself more wishes exactly. That's the wrong analogy. Before you have the genie, you can't wish for the genie. You need the genie first, and then you can wish for as many wishes as you want.
[01:07:50] [Dan] Alright. Well, I think we are about out of time. So thank you all for coming. Thanks to the American Law Institute for hosting us. Thanks to Pam Karlan for joining us as a guest host. If you are not familiar with the show, please, download it, on the podcast app of your choice. Rate and review. We are available at dividedargument.com. We're on the Apple Podcast app. We're on Spotify. And if there's for our listeners at home, if there's a long delay between this and our next episode, it will be because we've been detained for our many violations of the Model Penal Code. The case is submitted.