Divided Argument

Very Breyeresque

Episode Summary

Dan and Will return after their vacations to catch up on what they've missed. After checking in briefly on Justice Breyer, they try to talk about two of the Court's biggest cases from the end of the Term. They only manage to get through one of them: Brnovich v. DNC.

Episode Notes

Dan and Will return after their vacations to catch up on what they've missed. After checking in briefly on Justice Breyer, they try to talk about two of the Court's biggest cases from the end of the Term. They only manage to get through one of them: Brnovich v. DNC.

Episode Transcription

Will: (00:02)

(Music playing) The judicial power of the United States shall be vested in one Supreme court.[inaudible 00:00:09].


Will: (00:16)

Welcome to Divided Argument. An unscheduled, unpredictable Supreme court podcast. I'm Will Baude.


Dan: (00:25)

I'm Dan Epps.


Dan: (00:26)

We really put the unscheduled unpredictable part to the test recently, much to our listeners chagrin. We haven't done an episode in several weeks, which probably wasn't great, given that those were an eventful period. For the court, we snooze through the courts final decision days, but I was on vacation, you were on vacation. This is not our job. This is something we do for fun, so sorry.


Will: (00:57)

I'm not sorry.


Dan: (00:58)

You're not sorry. But what's happened?


Dan: (01:00)

We had our first in-person divided argument meeting-


Will: (01:05)

At the airport.


Dan: (01:06)

... at the midway airport, lasted about five minutes. That was unscheduled and also unpredicted, but you were about to get on a plane, and I was waiting for my delayed flight, so we didn't have time to record an episode in Midway. That would have been a good one. What else? We've gotten a lot of people asking for more tales from your youth Will, when you were involved with lawbreakers, but not willing to participate in them, but possibly aiding in their escape.


Will: (01:35)

I think the bigger scandal that I admitted having read Ayn Rand.


Dan: (01:37)

I don't think you admitted having a red Ayn Rand. You admitted being a Randian.


Will: (01:44)

Let's move on Dan.


Dan: (01:45)

Okay, we'll come back to that later. Any other idle chit chat we have to circle back to? Or do we have an actual news we want to talk about?


Will: (01:56)

I think the biggest news is that Justice Breyer has announced nothing.


Dan: (02:02)

Is that right? He said, we're recording this on Thursday, July 15th. We have a report from CNN where he says he hasn't decided when to retire. Which I take as him saying, he's decided not to retire now. Isn't that what he's saying?


Will: (02:23)

Technically that's not implied. When asked directly over coffee in rural New Hampshire, whether he had decided when to step down, Breyer said simply "No." If he had decided no sooner than 2022, he might've said that.


Dan: (02:36)

Presumably if one has not decided when to retire, one is not going to retire tomorrow, probably in the next week.


Will: (02:43)

Maybe he wakes up every morning to see how he feel.


Dan: (02:46)

But he says two factors will be overriding in his decision, primarily, of course, health. By the way, just at the outset, I don't think it's not great that the most important decision for a Supreme court Justice is when to retire, is how they feel about it personally. But put that aside for a second. He says second the court, but then we don't have elaboration on what exactly that means. But then he apparently talked a little bit about how he's enjoying being the senior Justice, senior liberal Justice, I guess that means he gets to assign six to three dissents. He didn't sound like a guy who's gearing up to retire, didn't he?


Will: (03:23)

I think the story makes the point, which I think people miss also that at the Justice's conference they speak in seniority order, so for every case, they talk about the chief leads off discussion and then Justice Thomas I guess goes second, and now Justice Breyer goes third. He's the first liberal member of the court, and the first member of the court who doesn't have the idiosyncrasies of Justice Thomas or the responsibilities of the chief to weigh in. That's an interesting opportunity to shape the conversation. I think Justice Stephens had that pole position for a very long time and used it very effectively. That may be an interesting part of the job for him. Maybe an important part of the job.


Dan: (04:02)

I understand why he might enjoy that. It's probably more fun than being the most junior Justice. He was the most junior Justice for, I think, longer than any other. Maybe for the second longest period in American history, because there was the second, he was on the court for the second longest period in which the courts membership did not change.


Will: (04:19)

What was the first longest period? Do you remember?


Dan: (04:21)

I don't remember when it was, but there was a longer period. That means he was the junior Justice who was answering the door, because no one other than the Justices is allowed in the conference room, from '94 to 2005 when Justice Alito joined the court who was more junior.


Will: (04:37)

He is.


Dan: (04:38)

Replacing the chief Justice didn't help because you're still the most junior. The chief Justice is always first among equals. I can see why that might be fun for him, but obviously-


Will: (04:51)

Think strategically. Think like the first person when the Justice's are talking this out, if you think these conferences matter at all, which I do, but the first person to shape the message of the liberal half to the court is Justice Breyer. If he were to retire, I think it would be Justice Sotomayor, and they might shape that message differently than in ways that might have an effect in how Justice Kavanaugh or Justice Barrett think about the case.


Dan: (05:16)

They could. I think if you're someone who comes out this caring about the court going in a more liberal direction, you would rather, first of all, you might prefer that trade just on its own. You might think that Justice Sotomayor is a more effective liberal. That's one thing you could think, but you could also think, even if Justice Breyer's this great effective advocate, which I'm a little bit dubious of, it's still, you're now running the risk that he's going to stay on, till a period where there's Republican control of the Senate. Mcconnell will deny president Biden the chance to appoint anyone.


Dan: (05:52)

You'll have a long period with a vacancy potentially, and then maybe you end up with a seven to two Republican appointed majority. I think a lot of Democrats and liberals really hoped that he was going to take one for the team, so to speak and step down while there was this relatively rare opportunity for democratic president to appoint his replacement with the democratic controlled Senate, albeit narrowly, and he doesn't even care about that.


Will: (06:18)

He doesn't say that.


Will: (06:20)

That opportunity is no different a year from now.


Dan: (06:23)

We don't know because the Senate is so closely divided-


Will: (06:27)

But the senate can't change until Fall 2022.


Dan: (06:30)

Really senators can't die or resign unexpectedly for health reasons?


Will: (06:34)

I guess. Fair enough.


Dan: (06:36)

That happens all the time. There's 100 senators and there's 50 Democrats and senators, that's literally the definition of the word Senator-


Will: (06:44)

Good point.


Dan: (06:44)

...comes from old man. That does happen. Maybe he thinks, "Look, we're good for another year. I'll see how this year goes."


Will: (06:52)

When he said, primarily of course health, he didn't say whose health, so maybe he's used to work in the Senate. Maybe he's keeping tabs on how everybody's doing.


Dan: (07:00)

Maybe. You're really carrying water for good old Justice Breyer here today, but just brings to mind something that I just harp on all the time and will continue to, which is just that, these Justices, they should not have the ability just to decide when they leave the court, they should not have the ability to strategically retire or not strategically retire. It leads to a court that does not have... Where the membership is only bears this indirect relationship to the result of elections, has this big slice of randomness, leads to us all ghoulishly awaiting or Justices dying depending on who's the president and which Justices they are. This is not a good system.


Will: (07:44)

We should do an episode about that in a couple months.


Dan: (07:46)

Yeah. I'm looking forward to that. In the meantime, I have an interview I did with Politico a number of months back where I harped on that a bunch that I retweeted recently, and I can send the link along to anybody who's interested, where I talked about that. I also did a podcast with a 5-38, a few months ago. 5-38 politics podcast, where I talk about all this stuff too, so I've talked about it a bunch. I'll continue with just repeating myself over and over, and we'll say more about it in the future.


Will: (08:14)

I'm sure Justice Breyer is listening.


Dan: (08:17)

Justice Breyer.


Dan: (08:18)

Look, give him some credit. Is he a lion on the courts or someone who's really like a Brennan like or Scalia like figure, somebody who is really setting a new agenda shaping the law? No. But is he someone who's been a reliable, solid, effective vote and opinion writer for liberal causes? Also no, but is he at least a really good questioner, oral argument questioner? Not really.


Dan: (08:45)

Sorry, this is not going anywhere, good. So let's move on.


Will: (08:48)

I think he's one of the most honest and candid and transparent members of the court, and I think that's a really-


Dan: (08:52)

You think he is the most?


Will: (08:53)

One of the most.


Dan: (08:54)

One the most. If I push you, you're going to say, they're all equally tied for being the most honest and transparent, right?


Will: (09:02)

No, at oral argument he asks questions that are clearly just like an accurate description of the way he is thinking about the case. There are other people who come in, Justice Kagan, Justice Alito come with questions that are really designed to help skewer the side they disagree with to help score points. Justice Breyer just, he says, "This is how I'm thinking about the case. What do you think about that? How should I think-"


Dan: (09:20)

I think that's right. I think that sometimes he reveals that his thinking about the case is very, I don't know, muddled or complicated, and he asks all these weird hypotheticals. I think he is-


Will: (09:31)

But a lot of the Justices have muddled thinking and they're just afraid to open their mouth and let us see that.


Dan: (09:35)

But fair or unfair, he is probably the most mocked Justice among Supreme court clerks.


Will: (09:40)

Among Supreme court clerks?


Dan: (09:42)

Yeah, and it's not close.


Will: (09:46)

Probably right.


Dan: (09:47)

In large part because of his questions and argument, I think.


Will: (09:50)

Because of his sense of humor. I think he enjoys being mocked.


Dan: (09:54)

He's a self-parody. The clerks take Justices out for lunch when they're clerking, if they are willing to, and most of them do. When I was clerking, we took him out for lunch and had a very nice lunch with them. But we went to a French restaurant and he ordered in fluent French, which is the parody of Justice Breyer, that actually is the real Justice Breyer.


Will: (10:13)

When I talked to them, he just had an agenda of cases where he had a point of view that he wanted to convince us of, and he just worked through his list the whole lunch. It was amazing.


Dan: (10:20)

He convinced you on all of them?


Will: (10:23)

It's confidential Dan. [inaudible 00:10:25]


Dan: (10:25)

No, you personally, did he move the needle on you at all? I'm just going to guess no. If you refuse to say I'm going to take that as a yes.


Will: (10:33)

Yes, he moved the needle.


Dan: (10:36)

I didn't think you're going to say that. Obviously he's not my favorite person at the moment, but he's fine. He never was really my favorite person, but it is what it is. Anything more to say about that?


Will: (10:49)

No. Speaking of things that aren't our favorites, should we talk about some cases?


Dan: (10:52)

Yeah. There's some cases to talk about. There's obviously been a lot that's happened at the court since we last recorded a number of opinions, because we're not doing instantaneous coverage. We're not going to talk about everything that happened, but we do want to give our takes on the big highlights, and then maybe in the coming weeks, months, we'll talk about some more big picture stuff that is not immediately relevant to what's just happened. We do at least owe you a discussion I think of the biggest cases, so I think today we should talk about Brnovich. Is that how we say that one?


Will: (11:25)

I say it Brnovich, but I have no idea. It seems to be missing some vowels


Dan: (11:29)

There's definitely, there's a missing vowel, but that's important an voting rights case, and then also Americans for Prosperity Foundation versus Bonta. These are the two last day cases. These are the two cases that the Justices took the longest to write and decide. That usually means they're the most controversial, maybe the most high profile, or at least highest stakes cases. Sometimes it doesn't work out that way. Sometimes they're just random cases that for whatever reason, divide the court and they spend a long time going back and forth, and majority is in dissents. But usually this is a good barometer for whether the cases that people are most likely going to be talking about five years, 10 years from now.


Will: (12:11)

Yeah. These are the ones where it took the longest for the dissent and majority to iron it out, which sometimes it has to do with who's writing them, sometimes when they started. Both 6-3, both about, I guess, directly in one case indirectly in the other case about democracy and election law, and what kind of a system we have.


Dan: (12:31)

Both decided on, based on party lines in terms of party of appointment. They both divide the court ideologically in the predictable way. Obviously not every case did that. A lot of cases, even some important cases, this term did not do that, but this is one where all of the Justices vote in the way that you'd predict based on their teams, for better, for worse.


Will: (12:57)



Dan: (12:57)

We've got one constitutional case. Let's talk about Brnovich, which is the statutory case first. This is a case about the Voting Rights Act.


Will: (13:13)

Section two of the Voting Rights Act.


Dan: (13:14)

Section two of the Voting Rights Act, which is an immensely important statute, which I would say an out-sized role in American history.


Will: (13:23)

The voting rights act is an incredibly important statute. Section two of the Voting Rights Act was not the most important part of the Voting Rights Act for a while.


Dan: (13:33)

Because it was not enacted or at least was modified in 1982, correct?


Will: (13:36)

Yeah. The Voting Rights Act has a bunch of sections as evidenced by the fact that we talk about two and five, but two and five are the important ones. Two, says you can't deny people the right to vote, and then five, which was voted, it was an issue in the courts decision in Shelby county, put a subset of states under observation by the attorney-


Dan: (13:56)

States and other political subdivisions of states.


Will: (14:00)

Yes. Eventually yes. States and political subdivisions said they can't do anything new until somebody looks it over to make sure they're not in some way making things worse first-


Dan: (14:09)

Pre-clearance, and there were some, there was this pre-clearance formula that said these are the states and political subdivisions that are subject to pre-clearance, but it wasn't applied to every political subdivision across the whole country. Some places had to go to DOJ and say, “Look, we're thinking about getting rid of in person, of early voting," or whatever. Whatever they want to do, and then get that approved. Otherwise they were stuck with existing rules.


Will: (14:36)

But then 40 years ago, section two became important. In 1980, the Supreme court had a case called Mobile versus Bolton where they decided that section two of the voting rights act was meaningless, or it didn't really add anything that wasn't already there in the 15th amendment. It was just restating the 15th amendment constitutional standard. Then Congress amended and reenacted the voting rights act to disagree with that, to say no, while under the constitution, you have to have what's called discriminatory intent, under the voting rights act, you don't.


Will: (15:05)

What exactly you have to have is part of what it argues about, but to make clear that there's some test that goes beyond intent, and it's been at a center of every redistricting cycle, section two is part of a governance and part of what requires states or limit states' abilities. District in ways that would deny minority groups, electoral participation, and without requiring proof of racist intent. Now it's back.


Dan: (15:35)

One thing that's interesting is, if you look at the history of these, of the Voting Rights Act and its iterations, you'll see how the country has changed, and maybe not changed. The Voting Rights Act, the original one is passed by slim margins. There's a Senate. Filibuster defeated, and it only passes after very, very significant sacrifices by people involved in the civil rights movement. It's considered the greatest accomplishments of president Lyndon Johnson's presidency, and of his political career. Since then, there was a long period of time where it was treated, the VRA was treated as very less controversial.


Dan: (16:19)

The whole thing was reenacted at some points, and by overwhelming margins. I was looking at the 1982 revision. It looks like the final vote in the Senate was extremely lopsided in terms of passage, but that's not, I think that politically, that's not where we are today. I think that you would not see any legislative effort to broaden the voting rights act or even just to clarify it, or even maybe just reenact it, passed by overwhelming margins. I don't know.


Will: (16:53)

Congress has been thinking about whether to reenact section five since the Supreme court's decision in Shelby county. Obviously that's not gone anywhere, but if, and when they-


Dan: (17:02)

To modify the pre-clearance formula.


Will: (17:04)

Right. Those they need to, in order to get the court to hold it. I bet you that if they ever, this is one of those funny things. It may well be that they could never do it, but if they do it, I bet it'll be by a lopsided vote. Once the log jam is broken, nobody's going to want to vote against the Voting Rights Act.


Dan: (17:18)



Will: (17:19)

Maybe it'll put some compromise where it ends up being watered down in some weird way, maybe that's what happened to section two, actually, that's part of what we have to talk about when we talk about this case.


Dan: (17:28)

As a logistician, you certainly understand that if the premise of a conditional is false, it's a true statement to say that anything can follow from that premise. You can say if P is false, if P then Q is true for any value of Q. Sure, I'll concede that if we break the log jam, it'll be lopsided, but we're not going to break the log jam anytime soon. These set of questions, the distribution of power over democracy itself, voting, gerrymandering, drawing districts, all this stuff is like, this is where the action is I think politically today.


Will: (18:07)

I think there's a one in four chance we reauthorize, pre-clear the preclearance regime in the next 10 years. So probably not, but-


Dan: (18:15)

Does that bake in the odds of the filibuster getting reformed, or you think there's a one in four chance, even with the filibuster in the Senate?


Will: (18:22)

That bakes in. Filibuster reform, Puerto Rico statehood, turning 351 DC neighborhoods into States.


Dan: (18:30)

That's a-


Will: (18:30)

All the Republicans getting some weird new COVID variant, all the different things that could happen.


Dan: (18:35)

We'll see. Then I guess probably would make sense just to talk a little bit more about Shelby county for a second, because I think it's pretty hard to understand what's going on in this case, and certainly pretty hard to understand the dissent in this case, without talking a bit more about Shelby county, which is-


Will: (18:54)

I think this is smoking mirrors, but I think you're right.


Dan: (18:57)

Not necessarily. This obviously is not the same legal question, but Shelby county is a decision. In my view, it’s probably the worst decision by the court in the last, a couple of decades, where the court recognizes this somewhat dubious equal sovereignty principle to say that basically it's unfair to states to have this pre-clearance formula that's not closely tied with two things that are really happening. The court, if anybody, Chief Justice Roberts, we've already talked about this a little bit, has some statements about how things have dramatically changed, and has this flavor of saying the problems that motivated the VRA are maybe no longer present. You've said both on this podcast, and I think elsewhere that you think it was a case that's wrongly decided though, I'm sure. You don't excoriate it as much as I do.


Will: (19:51)

Right. I think it was actually asking the right questions I just think on balance, it probably came to the wrong answer. But in any case, it's certainly is a big deal legally and a big deal politically.


Dan: (20:01)

It has mattered a lot because a lot of the jurisdictions that were under pre-clearance, once it was gone, they went and changed their laws. Including I think Arizona, which is at issue here. This is a case, a statutory challenge to, Voting Rights Act challenge to changes to election law that Arizona put through.


Will: (20:23)



Dan: (20:24)

Either Arizona was covered or parts of Arizona were covered by pre-clearance, obviously that doesn't apply anymore. Arizona was able to make some changes to its election laws. Just at the outset I'm told by people who know more about election law than I do, which includes a lot of people, but includes some people who know a lot more, know a lot about election law, that the view was that this was actually not a very strong case for a section two challenge. It was unfortunate from the view of voting rights advocates, that this is a case where the Supreme Court weighed in on the meaning of section two. That the specific restrictions that Arizona put in place, are in the grand scheme of things not as significant as some other ones that could and were being challenged elsewhere.


Will: (21:21)

Right. I think this is an interesting, it's not the most important thing of the opinion, which we should move on too soon, but this is about two features of Arizona law. One, the precinct rule that if you vote in the wrong precinct they throw your ballot out, rather than counting it. That is you're entitled to vote, you're voting for some president where really it's the same candidate regardless of which precinct you're in, but you go to the wrong precinct. In Arizona, if you do that, they don't count your vote. The ballot collection rule, which limits who can take absentee ballots back in, and poses a real burden on people who don't have easy access to the mail, such as certain native American tribal members.


Dan: (21:59)

Of whom there are more in Arizona than in many states.


Will: (22:03)

Huge. These claims are brought and the district court rules against them. The district court upholds the law, on panel the ninth circuit upholds the law, and then the en banc ninth circuit disagrees with both lower courts to invalidate the law. But at that stage, they're-


Dan: (22:19)

In the en banc ninth circuit is not really the on bonk ninth circuit, because the ninth circuit has this weird procedure where you get a randomly a nine Justice randomly assigned subdivision of the much larger ninth circuit. So there's a certain amount of randomness there.


Will: (22:33)

I think it's 10 randomly assigned judges plus the chief, I think.


Dan: (22:37)

Is it 10? Is it 11?


Will: (22:39)

I guess 11 [crosstalk 00:22:41], I've lost track.


Dan: (22:41)

I don't remember. But the chief judge is always there.


Will: (22:42)

Then this goes to the US Supreme court where the SG's office, with the Trump administration, of course thinks these laws should be upheld, and the Voting Rights Act should be construed narrowly. Then even when the Biden administration takes over, they write a letter saying "We don't really agree with all the stuff in that brief, but we also think the law should be upheld." They don't really say why, but if your goal in bringing this test case was to win a lawsuit, this seems like it was poorly conceived. If your goal in bringing this test case was to get a bell ringing dissent, to convince everybody that the Republican Supreme court was trying to destroy democracy and we needed to get to the barricades, this was a brilliant suit. I don't know which was the goal, but I think-


Dan: (23:27)

I find it unlikely that the latter was the goal. That's like playing- The goal of who? [Crsstalk 00:23:34].


Dan: (23:34)

The goal of the DNC, not of the SGEs office and the [inaudible 00:23:40]?


Will: (23:41)

The plaintiffs who presumably think strategically. I don't know what the point of a DNC is if they don't think strategically about what helps the-


Dan: (23:46)

They may think strategically, that doesn't mean they think correctly strategically.


Will: (23:50)



Dan: (23:52)

I assume that if you're thinking strategically as the GNC, you'd rather, the value, whatever the value is of a dissent, even if it's a well-written dissent is lower than the value of having a section two that hasn't been pruned by the Supreme court. I don't know.


Will: (24:09)

I'm not sure. They had to decide to seek en banc review for instance. Once they lost, once they had bad factual findings to the district judge and had lost in front of the panel, they could have said, "Well, we'll let this one go and try to bring another case with a better judge," or something.


Dan: (24:21)

This is a persistent thing that happens across appellate Supreme Court litigation, which is that parties often seek further review and thus end up making bad law in cases where better strategic thinkers are like, "Oh please, not that case. Please wait for a different case."


Will: (24:36)

I'm not sure. Although I'm not sure, obviously individual litigants do that a lot, because they have personal interests that are very different from other people's. I don't know how often the ACLU does that, how often they seek cert in a case where actually it's a bad idea, and I've thought of the DNC as more in that institutional litigator. But anyway, what matters is they got themselves an interpretation of the voting rights act, and judging by all the commentary I've heard about it in the past couple of weeks, it sounds like it's the end of the world as we know it.


Dan: (25:09)

I've been keeping up with the commentary, but believe it or not actually, did not read the opinion until today. I wanted to be fresh. I've been on vacation, didn't want to ruin my vacation by worrying about all this stuff. I'm coming at this with fresh eyes, but also colored by the Twitter commentary and so forth, and that's been interesting. I assume you read it, you read it, downloaded it directly into your brain seconds after it was released.


Will: (25:37)

I read it when it came out before there was any commentary, and then spent a lot of time scratching my head. So I'm curious to see-


Dan: (25:42)

Did you get a pre-print? Do you have access to the secret Supreme court website where you get the opinions earlier or something?


Will: (25:49)

Every so often I have, when I run into somebody, I offer to help them draft the opinions, if they need an extra hand, but nobody ever takes me up on it.


Dan: (25:59)

However rarely they take you up on it, they offer me those opportunities even more rarely.


Will: (26:06)

This episode Justice Breyer is certainly not going to call you.


Dan: (26:09)

We'll maybe skillfully edit that, or I'll probably not though.


Will: (26:12)

The big dispute here is basically this, is the voting rights act a general disparate impact statute. One way to view the voting rights act is, anytime there's a law that has a disparate impact on the basis of race in voting, it's a problem, unless there's a really good justification for it. That’s basically how disparate impact law works in some other areas of civil rights law. It's a little more complicated, but that's the basic picture, and that's what Justice Kagan thinks that should be. The majorities answer is definitely not.


Dan: (26:47)

Maybe we should, as the court often tells us we should, start with the text.


Will: (26:51)

Great. I love this part of the opinion.


Dan: (26:54)

Page 13, majority gives us a nice block quote, section two, and there's two subsections. One says, no voting qualification or prerequisite to voting or standard practice or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgment of the right of any citizen in the United States to vote on account of race or color. Then some other language is not relevant.


Will: (27:21)

That by itself, that sounds like just the disparate impact provision that says nothing can do anything that results, not motivated by, but nothing that results in.


Dan: (27:30)

Yeah, although I think you could read that actually both ways because of the on account of,


Will: (27:34)

That's true.


Dan: (27:35)

I think I could see the argument that on account of, is because of. I can see the argument.


Will: (27:41)

I think that's actually right, I think the conventional doctrine is that on account of race or color, which is what the 15th amendment itself says, it's just about discriminatory intent. Even that alone, maybe it could be ambiguous.


Dan: (27:54)

It's arguable both ways. I'm not saying I endorse it, or not.


Will: (27:57)

Then we get 2B.


Dan: (27:59)

Yeah, which gives us the clarification, shows us what it means to violate subsection a. I read the last one, why don't you give us this one?


Will: (28:06)

A so-called clarification. A violation of subsection A is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the state or political division, are not equally open to participation by members of a class of citizens protected by subsection A, in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office is one circumstance that may be considered, provided that nothing in this section establishes a right to have members of a protected class elected a number as equal to their portion in the population.


Will: (28:46)

Those last two clauses were pretty clearly written to deal with districting questions. There was a worry that a results-based test and districting was basically going to be a portion of presentation requirement. If you have a minority that's 10% of the state, then they get 10% of the seats, and people in the Senate, including Bob Dole were very concerned about that, so they put in that stuff at the end to make clear, it's not a personal representation requirement, although in districting courts scratched their heads about how to interpret it.


Dan: (29:15)

But that's not our problem here.


Will: (29:17)

Right, because the action is, I think in this first sentence, that in considering a violation, you should look at the totality of the circumstances. The question is whether or not the political processes are equally open to participation's by members, and whether its members have less opportunity than other members to participate in a political process.


Dan: (29:36)

This makes it clear that this is not a purely intent-based test. I feel like reading this now on whatever argument you might've had about the first part, this is clearly looking at results in some way, and the question is, what exactly does that inquiry look like I think?


Will: (29:50)

Although results in what, would still be unclear. You might be able to read this just to say, “Look, it applies to stuff like voter registration, literacy tasks, grandfather clauses, all the shenanigans that we used to use to, or Southern states used to use to stop Black people from registering." But you could read this to say, “Look, once it's equally open, once you have the opportunity to vote, that's all we care about." I'm not sure.


Dan: (30:15)

This is not exactly about this case, but one thing that's always struck me as a little bit tricky about these kinds of election cases in general, is the court treats it as much less problematic when politicians are changing the rules in order to benefit a political party and hurt another political party. Even though we know that there's a huge correlation between political party and race. But if often the defense is like, "We weren't trying to disenfranchise black voters, we were just trying to make it easier for Republican voters, Republicans to win elections." That’s different. That's really a side note, but we can circle back to that.


Will: (31:00)

It's a side note, but it is important in thinking about how a true disparate impact standard would work. If we did have a disparate impact standard, which the court rejects, then one of these we have to confront is suppose you say, this is a disparate impact on minorities and that the legislator says it's true, but it was necessary because it was the only way we could come up with to screw the Democrats and keep them out of power. In title seven, I think that thing would be a totally legit race, neutral justification for a hiring practice. If you said I just only like to hire Trump supporters, and as it happens, Trump's supporters are more likely to be white, you have some business reasons for hiring Trump supporters, that kind of thing might hold up, but in elections it seems shadier.


Dan: (31:43)

Is that true that, that would hold up? That if you were using a, there's a disparate impact regime and you're using a characteristic that is highly correlated with race, I don't think that holds up. Isn't it the whole point of disparate impact?


Will: (31:54)

You need a business justification for it. It's what your business was. If it was, I don't know, some business that Trump supporters are better at, I'm not going to start trying-


Dan: (32:02)

Making MAGA hats.


Will: (32:04)

Or modeling them. Selling mega hats, maybe.


Dan: (32:08)

Then we have to figure out the court. New court says we have to figure out whether the, what this means, and then the court says a couple of things that are arguably a little contradictory, where they say this is opinion by Justice Alito that say, we're not going to give you the definitive interpretation of this statute here. That's not what this case is going to do. But then they give us some circumstances, some factors that they think go into the inquiry that are pretty critical.


Will: (32:40)

It's very Breyeresque. They're trying to advance the ball, but they're not trying to get it to the end zone I guess.


Dan: (32:47)

Or they are, but they don't want to say that they're doing that. Not totally clear, because it seems like at least these factors really are going to influence how future courts, lower courts resolve these cases, but maybe it's not a totally determinant test. Is that the idea?


Will: (33:03)

First before we get to the factors, so they do just how to parse all that language. The end of page 15, Justice Alito says, putting all the terms together. The core of section two B is the requirement that voting be equally open. The reference to equal opportunity may stretch that concept to some degree, to include consideration of a person's ability to use the means that are open, but equal openness remains the touchstone. There are just as like an analytical matter, the same. Ultimately the question we're asking here is, is the district to everybody voting, how easy is it to vote? That's a holistic question rather than does each rule have a disparate impact question.


Will: (33:37)

Then I think this is the part that people have been mocking the most. Then they get to, the statute says the totality of the circumstances, which is boy, that's quite a thing to put in the statute because it seems to invite a huge amount of discretion. That's other courts as well. Any circumstance that has a logical bearing on whether voting is equally open and affords equal opportunity may be considered. We will not attempt to compile an exhaustive list, but here are some important ones. That's the part, I think they're saying these are some of the circumstances, but they're totally open to people adding other circumstances.


Dan: (34:10)

What have we got? First, the size of the burden imposed by challenge voting rule. This is we're told is highly relevant, and mere inconvenience, cannot be enough.


Will: (34:21)

Mere inconvenience cannot be enough that amounts to a violation of section two. Again, this has to be right, and this has to be common ground. If the state has a rule that I don't know, to vote, you have to go cast a vote. We could in theory have a rule where we come to your door and knock on your door until you tell us who you want to vote for, to ensure that nobody, that disparate turnout rates aren't a problem. We could take various measures to ensure 100% turnout. We don't have to do that.


Dan: (34:52)

But I think that there may be some disagreement in what constitutes mere inconvenience. For example, this, something that gets talked about in debates or for voter ID, in cases challenging voter ID, the party line of the people supporting voter ID is like, what's the big deal? You have to have IDs to do all this stuff. But of course, everybody knows that the population that is less likely to have valid current driver's licenses, poor voters, black voters, and so forth, so there is unquestionably a disparate impact there.


Will: (35:27)

I agree.


Dan: (35:27)

That's not exactly this case, although there are some provisions that you could argue are like that and we'll get to that in a bit.


Will: (35:34)

I think this has already started to get hard, but that's what's weird, is I think in a way a lot of people might agree that mere inconvenience might not be the problem. The problem is that there are people for whom a voter ID law is more than a mere inconvenience, because given work schedules and economic realities, and closures of DMV offices in various areas, that it's more than a mere inconvenience. I think is where people would really disagree.


Dan: (35:59)

Yeah. The second factor is one that I think is pretty controversial. The degree to which a voting rule departs from what was standard practice when section two was amended in 1982.


Will: (36:11)

Relevant consideration.


Dan: (36:12)

Relevant. They're not saying this is a total safe harbor, but basically if this was something that the way it worked in '82, year I was born by the way, that's relevant. Maybe that's going to be more likely to hold up.


Will: (36:30)

I think those two points go together in an intuitive way. The majority thinks, and again, this is controversial, that look absentee voting and voting by mail, all that stuff was not commonplace in 1982, so when they think about equally open, the fact that you have to go to the polling place, maybe on a work day, isn't enough. That they put that more in the inconvenience category than the major burden category, because that was a commonplace, an ordinary burden of voting in 1982. It's less common now. Many states make it easier to vote in that.


Dan: (37:01)

I found this part a little bit confusing, because if we're trying to evaluate whether a particular provision makes the system equally open, we need to look like the whole system as it exists today. According to even this analysis by its own lights, and the fact that the particular restriction is less restrictive than the way the system worked in 1982, strikes me as nor here nor there, because maybe under the circumstances, the '82 system was equally open and the current system is not because of the specific ways in which the state has and hasn't allowed people to vote. Right?


Will: (37:41)

Maybe. I'm not sure whether that's thinking about change circumstances or what. I think that's in principle right. It could be for instance, maybe in 1982 workers were more understanding. People were in less tenuous economic circumstances, so most people could get to the polling place to vote on election day, even though it was a weekday. Maybe that's not true anymore because too many people work for unforgiving shifts. It's harder to move around, and it's just harder.


Dan: (38:08)

I guess I'm saying something slightly different, which is, it could be that, that hasn't changed, but that there are now other ways to vote, there are ways to vote early in Arizona, but then they are restricting other options. It could be that now the way in which the opportunity to vote is distributed amongst society is unequal, to a degree that it wasn't in 1982, where everybody had to vote in person.


Will: (38:31)

I'm with you. There's something about this that's intuitive. It's something else about it that's like it can't be right. Now we could do voting on the internet, where we would just, you just go on your phone and vote. In a way, that will be much more equally open because we would get rid of all the issues about travel time, and there are inequalities in the internet distribution too, but those might be easier to tackle them anyways than the problems of polling place locations and so on. You might say today, maybe it's unconstitutional not having it illegal, not have internet voting.


Will: (39:03)

The courts are rejecting that. They're saying, "No, you don't have to do totally new stuff. The baseline is more like the 1982 system.' I see why they're doing that because it seems quite revolutionary if suddenly the statute is going to require us to dramatically overhaul our system of voting, but at the same time, if there is a disparity now that we could cure, why wouldn't that be relevant?


Dan: (39:26)

Working this through. You could say, so imagine voting law that says we're only going to have ballot pickup boxes in rural counties, and none in urban counties, which happened to be in whatever state we're in, which happened to be where all the black voters are. Then the Alito analysis would say, “Well, there wasn't any early voting at all in in 1982".


Will: (39:48)

Although all these things that's relevant, so I'm not sure whether ... In the hypo though, does the mail still work? Because I think Alito might say, as a whole rule, look if mail boxes are very prevalent in urban counties, so you don't really need ballot pickup boxes because you have mailboxes. B ut in rural counties where mail delivery is more problematic, you need to supplement them with ballot pickup boxes to make up for some mail delivery problem, than that-


Dan: (40:15)

I think that's where some of the action would be. Maybe that's we're back to the mere inconvenience versus real burden question.


Will: (40:21)

I would say what's frustrating with his opinion is that it’s just hard to know what to make of any of these claims, because his claims are so weak ultimately. His claims are, these are relevant. I don't know. I'm not sure they should be so dispositive, I'm not sure how much weight they should have, but it's hard to say that in a statute that-


Dan: (40:37)

But that's not how lower courts are going to read this. They're going to say the controlling case is Brnovich and there's the factors one, two, three, four, five, we're going to tick three of those. Three of them were satisfied, two of them are not. That's the case.


Dan: (40:48)

[inaudible 00:40:48].


Will: (40:49)

I agree. That's part of what's frustrating is it's ultimately making very weak claims, but the relevance of these, but I assume that they will be given more relevance than that when the majority says.


Dan: (40:58)

It's just the way these things work.


Will: (41:01)

That does give a lot of license to lower courts to say, “Well, sure, those things are relevant, and also here are 17 things I thought of that are relevant, and I doubt this is going to be the last section two case we have."


Dan: (41:11)

What else? We've got a factor three, the size of any disparities in a rules impact on members of different racial or ethnic groups, is also an important factor to consider. Small disparities are less likely than large ones indicate a system is not equally open. I think that just stated at that level of generality is probably hard to argue with. I think, again, the action is going to be in how we apply that, how we view that in any particular case, so maybe we should wait on that.


Will: (41:39)

I agree with you. It sounds so hard to disagree with, but why wouldn't a small but still significant disparity suggest that there is a small but significant lack of equality?


Dan: (41:52)

He didn't say small is impossible, he just says small or less likely than large ones.


Will: (41:57)

Why isn't statistical significance relevant, and other than that, why wouldn't size be irrelevant?


Dan: (42:04)

I guess the assumption that's here is that like equally open is like approximately equally open, and maybe that's wrong because equally really means equally. That's the argument in the other direction. Equal means equal. It means the same.


Will: (42:20)

Certainly under the 15th amendment with, if we deny one person the right to vote on account of race, that's illegal under the 15th amendment. Even though it's just one person. Now, when you're switching to disparate impact, I see why you can't just look at one person, but and not because I read it, but to the extent it's doing the work[crosstalk 00:42:40]


Dan: (42:40)

That's fair. That's Fair. Next courts must consider the opportunities provided by state's entire system of voting when assessing the burden imposed by challenge provision. You don't look at specific provisions in isolation, you take a step back and say, how hard is it to vote basically? That's what the whole tone of this opinion. One of the first sentences of the opinion is. Arizona makes it really easy to vote.


Will: (43:03)

This one does a lot of work when combined with the 1982 rule. Because this lets you say, “Look, if it's much easier to vote now than it was in 1982, what are you complaining about?" Even if you might say, “Look, it's somewhat easier for people of one race to vote and a lot easier for people in another race to vote, so that seems unequal."


Dan: (43:27)

Yeah. Now, I'm not sure that this again on its own, is wrong, because we look at, statute tells us, "Look, based on the totality of the circumstances, whether it has shown that the political processes leading to nomination and election in the state or political subdivision are not equally open." The totality of the circumstances and this question about whether the political processes are equally open, does seem like it's a all things considered view.


Will: (43:56)

That's hard to say how you get away from that.


Dan: (43:59)

I should have raised this earlier, but one question is, if you read the statute, is there some other way to establish a violation of section A that isn't section B? Because is it a violation of subsection is established if and only if?


Will: (44:11)

Everybody reads B as if it's an if and only if provision. I have not nailed down why, but everybody seems to assume it's an if and only if provision. Even if it's not-


Dan: (44:20)

This is one of the benefits of coming to this without really knowing the area of laws, I can just ask these stupid questions and people maybe they're right. Maybe I'm onto something, or maybe I have no idea what I'm talking about. You decide. Not you, the listener.


Will: (44:33)

Finally, the strength of the state interests served by challenge voting rule is an important factor that must be taken into account. Every voting rule imposes a burden of some sort, and therefore in determining, based on the totality of circumstances whether a rule goes too far, it is important to consider the reasons for the rule.


Dan: (44:50)

I think this one actually might be the one I'm going to have even perhaps the most problems with, at least in terms of how it's applied.


Will: (44:57)

Fair enough, although I'll just say, so this one is the one factor where I don't see how you can get it from the statute, and the dissent believes in this factor. The dissent disparate impact analysis also asks you if you have a disparate impact, is there an important reason for it? This is the thing I find the most baffling with this case, is it seems like the thing that's the most wrong, and as a textual matter is the one thing that's actually common ground. Now, the dissent would say it has to be really important, not just an important factor, but a really important factor, and the dissent require some tailoring, but everybody seems to agree that imposing a disparate impact for no good reason is more illegal than imposing a disparate impact for a really good reason.


Dan: (45:35)

That's a totality of the circumstances, right? You can consider-


Will: (45:38)

A totality of circumstances of whether it's equally open, not why it's equally open.


Dan: (45:41)

No, I can see that.


Will: (45:43)

That's why Justice Alito has to swap in. It's based on the totality of circumstances, 'whether a rule goes too far.' The statute doesn't ask whether the rule goes too far, it doesn't say a normative inquiry about whether the equal openness is justified by some non equality based considerations.


Dan: (46:02)

Maybe you can build that into the concept of equally open somehow, but that's true that they don't clearly explain where that's coming from textually. But then he goes on and says one strong and entirely legitimate state interest is the prevention of fraud, ensuring that every vote is cast freely without intimidation or undue influence is also valid and important state interest. I want us to keep this in mind when we circle back to how the court approaches state interests in the other case we're going to talk about, if we ever get there, because we've got, there's two more to talk about here. This is a big one.


Will: (46:38)

Fair enough.


Dan: (46:39)

We've got those factors, we're told some other factors, the lower courts who looked at are less helpful, so we're ruling out some factors. That is strengthening the argument that this is going to be just taken as the test. Even if the court is denying that they're giving us the test.


Will: (46:56)

Even then, pages 19-20, the court says there are some other factors that are less helpful, but even then it says, we do not suggest that these factors should be disregarded. After all, section two B requires consideration of the totality of the circumstances, but their relevance is much less direct.


Dan: (47:13)

Then that goes on to say, “We're not going to use the disparate impact model that we use in title seven, and the fair housing act. This is a different test other than a straightforward, disparate impact test."


Will: (47:28)

Somewhat interesting is they then specifically cite an article by my former colleague and friend Nick Stephanopoulos in the LA law journal, disparate impact unified law.


Dan: (47:37)

Former colleague and current friend I hope?


Will: (47:39)



Dan: (47:41)

Grammatically ambiguous. I don't know whether, if people leave Chicago, you refuse to be their friend at that point.


Will: (47:46)

Nick, I hope we're still friends. They had to even file an Amicus brief, so they are in, it's actually, I think something of an honor, although I don't think he would receive it that way, to be specifically called out and rejected. He has argued, and I think plausibly that while the court purports to reject his analysis, it's not actually clear that they do. They rejected his analysis on the part of the grounds that applying the disparate impact model they use, and other civil rights statutes would be way too easy, and then I can do that. But in fact it's not that easy to bring a disparate impact claim under other statutes, and some of the structure what they're doing, does look like that. I'm not actually sure.


Dan: (48:21)

It is an unusual site though. This should be an inappropriate to follow this argument, see this article.


Will: (48:28)

I would be honored to ever make it into a majority opinion, even that way.


Dan: (48:30)

You've not made it into a majority opinion?


Will: (48:33)

No. I'm always undecided.


Dan: (48:36)

I guess I have to say I don't really want that to change, given my preferences about the law, but for your sake, maybe I hope you get a but see, or something like this.


Will: (48:47)

Thanks, Dan.


Dan: (48:47)

It depends, actually depends on which article we're talking about. There's a little, probably your articles are actually mostly pretty reasonable. You're pretty good at saying stuff that's more reasonable than things you say on this podcast, right?


Will: (49:00)

Thanks Dan.


Dan: (49:01)

They'll cite you when they get rid of qualified immunity, which they're never going to do. Then we have some bits in the opinion, respond to the dissent. I feel like we should maybe just wait to talk about the dissent, but then the court is going to apply these factors to the provisions here, and conclude that this is not a violation of section two.


Will: (49:26)

Having to go to the right polling place is not a big burden. The impacts are racial disparities are small. This is an example. The racial disparities are small in absolute terms. There's a real difference, approximately 1% of Hispanic, African-American and native American votes get thrown out under this requirement, and only half a percent of non minority voters, which is a huge disparity in relative terms. It's just a really small disparity in absolute terms, so these factors are doing-


Dan: (49:53)

The courts seems to say, look at the absolute numbers and not the relative numbers. Which is not obviously correct. At all.


Will: (50:02)

It sounded so intuitive when they said it earlier on, and they rely heavily on a very interesting opinion by Frank Easterbrook that upheld Wisconsin's voter ID law under section two, was a controversial decision at the time, and I'm not sure it was wrong, Judge Easterbrook is usually right about things. But that's a note.


Dan: (50:20)

I'm not sure I'm going to endorse that statement.


Will: (50:23)

Anytime the Supreme Court is effectively incorporating by reference a Frank Easterbrook opinion, like big things are happening, I guess I'll say that.


Dan: (50:28)

These are big things or good things?


Will: (50:31)

Big things.


Dan: (50:32)

Big things. I'm not saying it's a big deal.


Dan: (50:33)

I don't think it's obviously right to say that it's a distorted picture to look at relative differences rather than absolute differences. I think it could be meaningful that twice as many by percentage voters are affected. Of one subset of voters are effected even if in the bigger picture it's not that many. I think that both of those ways of looking at numbers seem relevant. I didn't buy this part of the opinion.


Will: (51:00)

This is part of what we used statistical significance for normally. The majority says, incorporating Judge Easterbook, if 99.9% of whites had photo IDs and then 99.7% of blacks did, you could say, there's a huge disparity, 3:1, but that would mask the fact that the populations are effectively identical. But statistical significance tests are part of what we use to ask is 99.9 and 99.7 effectively identical or not? Depending on sample sizes and other things, those might actually be effectively identical and they might not be.


Dan: (51:32)

As just Justice Kagan is going to note in your dissent, that could be the margin of difference in an election, in a close election. Not clear to me that, don't love that part of the opinion, that doesn't strike me as obvious, and so forth. Go on to talk about the provision that restricts giving the ballot to somebody else. Under Arizona law, you can go to the mail, you can put them in the mail or go to a certain Dropbox or an authorized election officials office, and other things like that, but you can't ask just any random person who's not in your family member or household member or caregiver, to take your ballot to a drop off point.


Will: (52:21)

The court says, they're not sure how big the burdens are, and they didn't have any individual evidence that anybody for whom this was a burden, because you can have a family member, household number take it to the mail. In any case, the Carter Baker commission said that third party ballot collection creates fraud risk, and the state is entitled to rely on a bi-partisan presidential commission that says, this is a real thing.


Dan: (52:46)

Then the court notes, and this is something Justice Kagan's going to flag more, that there was some witnesses in the district court who talked about how minorities and particularly native Americans are more likely to use these kinds of third-party assistance for dropping off the ballots. But the court says, "Well, we don't have enough evidence on the record. We need more concrete evidence, and without that, we can't conclude that this results in less opportunity to participate in political process."


Will: (53:20)

This is where it does seem relevant that the district court, which actually did all the fact finding, ultimately concluded there wasn't a disparate or ultimately upheld these laws, right?


Dan: (53:32)

Yeah. To the extent that we think this is largely turns on the factual question then in general, just categorically appellate courts tend to rely on fact finding spy trial court.


Will: (53:43)

I think all appellate courts, especially the Supreme court are very opportunistic about that, but at least in this case that is a point to the majority's favor.


Dan: (53:51)

Then the court says even if the plaintiff's had shown a disparate burden, state's justifications would suffice, and then points to this concern about fraud. Again, sure you're right, that they point to this Carter or Baker commission, but I just do want us to look later on at other places where the court is much less likely to just defer to assertive state interests like this, that are based, that are largely hypothetical, because in so far as the most people that have looked at these problems have concluded there's very little vote fraud that happens and much greater consequences in terms of reducing votes from measures like this and others. Some of which are intended to reduce turnout or to change turnout for partisan reasons.


Will: (54:40)

I think the consensus is that in-person fraud of the kinds of voter ID laws effect, is basically negligible. I think it's a little muddier that as the absentee ballots are an area, and what constitutes fraud versus under the influence, versus it's an area. That was part of, I thought that the bottom line-


Dan: (54:59)

We did have a case like that in St. Louis a few years ago, where people were doing some shady things with those ballots, so it's not nothing.


Will: (55:05)

Part of the question is really just like, yeah, shady things can happen, but these disparities happen every time, so part of there's this normative question about how to balance those things.


Dan: (55:15)

Yeah, but just note that here now, the court is relying a lot on basically like a secondary source, this commission report. Whereas elsewhere, they’re leaning much more heavily into district court factual findings. In terms of the actual facts, we don't have a lot of evidence that this is an actual problem, the voter fraud, or this other thing they point to, which is intimidation. We don't have a lot of evidence that says that's really a problem in Arizona. We have basically no evidence.


Will: (55:44)

I think the majority of you saying you don't have to show the problem in Arizona. They say Arizona's had the good fortune to avoid these problems, but it happens in North Carolina, so Arizona's entitled to try to stop itself from becoming like North Carolina. Then one last thing they do is on discriminatory intent. Even though the dissent doesn't disagree at this part, but the ninth circuit had also found that-


Dan: (56:06)

The dissent doesn't tell us whether it disagrees with this part.


Will: (56:08)

Yes, sorry. The dissent doesn't, yeah, exactly. They don't take a position on this part. The ninth circuit also found that even if you forget all this, that there's discriminatory intent because there were some ugly racially tinged things as part of the enactment of these processes, and it gets into this actual real problem of how to think about the discriminatory intent of a legislature, where there'll be some stuff floating around, but you almost certainly won't have direct evidence of the racial motives of every member of the majority, so the ninth circuit had tried to get around that by using what's called the cat's paw theory, where one person's racial discriminatory intent can be ultimately attributed to everybody else.


Dan: (56:46)

You've got this [inaudible 00:56:47] who's manipulating the legislature.


Will: (56:50)

In very strong terms, the majority rejected this, in a way that I think will have major consequences. The cat's paw theory has no application to legislative bodies. The theory rests on the agency relationship that exists between an employer and a supervisor. Legislators who vote to adopt a bill are not the agents of the bill sponsor or proponents. Under our form of government, legislators have a duty to exercise their judgment and to represent their constituents. It is insulting to suggest that they are mere dupes or tools. I think if the sponsor of a bill stands up on the floor and says, "We should adopt this as a tool of white supremacy," and everybody just silently votes for it, I think Justice Alito was saying, that's not enough to show discriminatory intent. You'd have to find-


Dan: (57:31)

You think he's actually saying you would need a majority of the legislature to-


Will: (57:36)

I don't know if you need the majority or if you need the swing votes, but you need something. The legislators who vote to adopt a bill are not the agents of the bill sponsor or proponents, and they have a duty to exercise their own judgment.


Dan: (57:47)

I guess it would turn on how much of a presumption you have. Here, the court of appeals said, we agree that some members of legislature had a sincere though mistaken non race based belief that there had been fraud. That might be different in a case where you have one person saying we need this for white supremacy, and then all the other legislators are just going along with it. Maybe you wouldn't have that presumption. If it goes, as this, then that's going to make it impossible to prove?


Will: (58:12)

Yeah, and we'd have to sort it out. But I do think it's going to make it, I do think it's going to make it very hard just given what the actual records look like.


Dan: (58:24)

That would be a big deal. You still have section two. Even in cases where it's hard to prove the discriminatory intent, you still have section two, but obviously this is-


Will: (58:33)

This is of relevance to everything outside of voting. All laws you want to say violate the 14th amendment. I think it's now very, very hard to prove that a law violates the 14th amendment as opposed to application.


Dan: (58:44)

That's at least possible, that if drawn that's big. Obviously this is not a constitutional holding, it's not a straight- because I don't really understand what that part of it is like. I'm still interpreting voting rights act. I guess it's the same. It's the same, because for discriminatory purpose, it's just directly applying the 15th amendment. Wait to see, then we have a couple other short opinions, Justice Gorsuch joined as Thomas [inaudible 00:59:14], to suggest some doubt that there's actually a private cause of action, there's an implied cause of action under section two.


Will: (59:21)

That'll be huge. That'll be huge.


Dan: (59:23)

If not, what does section two do? Does anybody get to enforce it at that point?


Will: (59:27)

If not, first of all, the federal government could still enforce it in direct lawsuits like Pam Karlan is doing right now in the winner institution, and Justice Gorsuch doesn't talk about this, but you can bring a lawsuit under section 83, the civil rights statute, which creates a cause of action for both constitutional and statutory claims. You can sometimes have a right that's created by the federal statute, that doesn't have its own cause of action, but they can still be hooked to section in 1983. Now, the tests whether are right, could we hope to section 1983 or not, borrows in part from the applied cause of action doctrine, but it's not exactly the same, so you could end up in a world where there's no implied cause of action under section two, but it doesn't really matter.


Will: (01:00:06)

I'm not sure it's what Justice means, but that might be where it would end up.


Dan: (01:00:10)

But that leads us to maybe the most interesting thing about this whole case, which is Justice Kagan's dissent, it's quite a long dissent, it's 40 pages and it's one she clearly put a lot of thought and energy into, and to some degree what makes it interesting is she's refighting Shelby County. It's directed both at the larger, what she sees as a larger project of the conservative majority to cut back on the Voting Rights Act, and to assail them for what they did in Shelby county, in addition to arguing about the specifics of this case, and what the court is doing with section two.


Will: (01:00:51)

That opens with just like a [inaudible 01:00:54] to the voting rights act.


Dan: (01:00:55)

I think this is effective. It would have been more effective as the dissent. She'd been able to write the dissent to Shelby county, but she says something which I think is true and important that basically this statute is a really big deal. This is a really important part of American history, and I know we'll get into that thing about section two in a second about whether that's really the same thing. People died for this. Many people laid down their lives so that this statute could be carried into law. Now, again, I think that is a much more persuasive argument against the court declaring part of the Voting Rights Act, the original Voting Rights Act unconstitutional based on a dubious constitutional principle that doesn't seem to do a lot of work in other places. But I think it's important to say in general, you don't like it.


Will: (01:01:40)

I agree with what you just said. It's a really important point, and it would have been a really important point to make it some case where it was relevant.


Dan: (01:01:47)

You don't think it's relevant at all, because I think that it's not crazy to say there is a larger tenor of the jurisprudence of the conservative Justices, which is arguably anti-democracy, and this can be cast in that project that this is the majority doesn't seem enthusiastic about the voting rights act, doesn't seem to see there's a lot of burdens that interposes, seems more concerned about the burdens that it imposes on election officials than the burdens that election laws impose on actual voters, and so forth. I don't think it's clearly right to say that this is a different case involving different provision. I think it’s inbounds to say, “Look, this is part of a larger mood, a larger project."


Will: (01:02:33)

That's a good point as a political matter, although I am reminded of a footnote in an opinion, in a dissent written by Justice Kagan, in a case called Edwards versus Vannoy, where she very indignantly rejects the idea of judging a score-keeping. How the aggregate of our decisions benefit a peculiar party. Instead she says, "Judges should take cases one at a time and do their best in each to apply the relevant legal rules. No one gets to bank capital for future cases. No one's past decisions can slip them from criticism. The focus always is, or should be getting the case before us right." That Justice Kagan I would've thought would've said to this Justice Kagan, "Look, the court may well be instead of in a bigger picture, up to something, but the question is about its mistakes. In this case, what is the section of the voting rights act mean-"


Dan: (01:03:21)

It's a slightly different point. There, she was responding to the argument that you're being inconsistent in these two cases. First, you thought they shouldn't be incorporated at all, and now you're saying it's wrong that it not be made retroactive. That's different right than saying, "Look, this is all of a piece like the court is doing something more generally."


Will: (01:03:42)

The majority was saying, "Look, yes, Edwards versus Vannoy may be for defendants, but Ramos was good, so we're not so bad. If you look at the bigger picture, we're not so bad." She says, "No, you don't get to say that. You don't get to bank any capital by being not so bad in another case." But apparently-


Dan: (01:03:57)

I don't think that takes out of bounds Justices ability to say, “Look, we're doing something bad and we've done it in a series of cases." I don't think that's right.


Will: (01:04:07)

It just seems a little weird to say you can't bank capital, but you can lose capital. Then it's just you really can't bank capital, at least by not losing it.


Dan: (01:04:14)

I think that doing something bad is always bad, but something, it could be worse if we think that you're doing the bad thing for a more nefarious reason, and you have done it a bunch.


Will: (01:04:22)

I do think-


Dan: (01:04:25)

But doing something good doesn't mean you can't do something, that the other bad thing gets you off the hook. I think that's reasonable. I don't think that crazy.


Will: (01:04:30)

I think the focus always is, or should be getting the case before us right. A very wise Justice wrote that. I think that's true.


Dan: (01:04:38)

She also thinks they don't though.


Will: (01:04:39)

No, that's fine. Look, Justice Kagan has two audiences for this dissent. The first time I read this dissent, I will confess I did not find it as persuasive as when I re-read it more carefully later, because the first time I had a hard time finding some of her legal points amidst the name calling, the soaring rhetoric.


Dan: (01:05:00)

Which name calling? What are you referring to as name calling?


Will: (01:05:03)

Senator name calling.


Dan: (01:05:06)

I don't see name calling as such.


Will: (01:05:08)

All right. Maybe that-


Dan: (01:05:09)

That might be-


Will: (01:05:11)

It's sarcasm. How about the sarcasm?


Dan: (01:05:13)

Yeah, that's present in all of her opinions though. That's just her voice.


Will: (01:05:16)

It's true. She's very sarcastic. She's very Scalia. I think Justice are entitled to be like that, I just think in this case, in this case she has two audiences. One is the broader world and Congress to try to convince them that something really bad is going on in the court and needs their intervention. I think she was very effective at that. Then I think she actually has some good points, some good question to raise about the majority of substantive analysis. She makes those points, but she had to make a choice about what to pitch as her first headline, and that wasn't that. Which makes sense. What Congress thinks is much more important than what you and I think.


Dan: (01:05:52)

To whom?


Dan: (01:05:54)

Justice Kagan.


Dan: (01:05:54)

Not to me.


Dan: (01:05:58)

Here we are.


Dan: (01:05:58)

But yes, fair. To her.


Will: (01:05:59)

To the world.


Dan: (01:06:01)

I'll concede it, grudgingly.


Will: (01:06:03)

Anyway, so there is a lot to the bigger picture stuff, but to make some of the points we've already talked about, and going through the majority opinion that it's not clear all these factors follow, it's not clear that you shouldn't just interpret this as a more normal disparate impact regime, for you to say, once there's a statistically significant disparity, we have to know why it's there, and whether there's a good reason for it, which also would have had some common sense appeal.


Dan: (01:06:26)

I wonder whether the right answer on the text is maybe something like a little bit, it's not quite Justice Kagan, because it is true that the statute is weirdly worded, and doesn't just say anything that results in discriminatory impact, and it has this weird thing, this totality of circumstances thing, and all this extra language. Maybe that is a good argument that this isn't just ordinary disparate impact. But I think that it's quite fair to say that the way in which the majority is interpreting it is really going to cut it back.


Dan: (01:07:02)

I do think it's also fair to look at this to say, this is of a piece with a larger project of hostility towards voting rights, which I think is not crazy, and I think it's also important given that we are in the middle of a moment when there's a bunch of false claims of voter fraud being made by the former president, and a bunch of States rushing to impose a bunch of other election law changes, election law restrictions that I think it is hard to dispute. At least a number of them are targeted at suppressing turnout. They may not be racially motivated in the sense that is required for a discriminatory intent claim.


Will: (01:07:46)

I think that all that stuff is very bad. I actually think a lot of them are not really designed to do anything other than symbolize the people adopting them falsely believe that Trump won the election. We now live in a weird world where adopting various anti voting measures is just your way of symbolizing that you believe in the big lie.


Dan: (01:08:06)

Although I think it's, some of them will do something. I think that look, I've seen stuff where people say, “Okay, some of the things people are saying about the Georgia law are not quite accurate. It doesn't go nearly that far," but there are changes that are going to matter, I think, that have some impact, like there is, it is now like a misdemeanor to bring water to people waiting in line. It is also true, more generally Justice Kagan notes this here that there's a lot of evidence that the waits at polling places are a lot longer in heavily minority areas. That should not be allowed. I feel like that in and of itself should be, that's something that seems like it should be, section two should say something about, and maybe it does. I'm not sure. I'm not sure.


Dan: (01:08:50)

But there's other stuff in some of these election laws that it's not really this case, but that I think are more concerning, which is the transfer of power over elections to a Republican legislatures raising the specter that we might just have those legislatures just ignore election results in the future. Don't know if that's going to happen, that would be super bad if it does.


Will: (01:09:15)

I get why she's doing all that. I do wonder whether that's counterproductive. A lot of people thought that the court might, some members of the court in the past have voiced constitutional concerns about section two before, and have suggested maybe section two has its own constitutional problems, and so on. There's none of that in this opinion, you might've-


Dan: (01:09:35)

Doesn't rule it out.


Will: (01:09:36)

No, but it doesn't even say I have a few shady footnotes saying by the way, there's no laying the groundwork for that. You might've wanted to have some level of rhetorical alarm bells to save for when the Supreme court strikes down section two.


Dan: (01:09:53)

Although, at that point it's pretty late in the day, right?


Will: (01:09:57)

Fair enough. But maybe it doesn't matter because maybe there's nobody who thinks in a non-partisan fashion on these issues anymore, so we're all just rallying the troops or something, but-


Dan: (01:10:09)

There's always you Will. You're above the fray.


Dan: (01:10:12)

One thing I wonder about this case is, is this one where there was some attempt at a compromise. That maybe this is a case where you could have had 90, that this doesn't violate section two, but we're not going to say much about section two, and we don't end up there, but I don't think that would have been a crazy outcome given that even some lefty election law types seem to think these were on the scale of things, not the strongest section two claims.


Will: (01:10:43)

I'll say the way Justice Kagan came out swinging her oral argument, hard to imagine she would have been open to such a compromise by then, but might've been better. It's an interesting question to ask in that compromise, what would have had to disappear from the majority opinion for that to be palatable. Would it just be, the majority would just say, the totality of circumstances and then have a couple of muddled paragraphs about a bunch of circumstances and quote the district court rather than quoting from Easterbrook. I'm not sure.


Dan: (01:11:11)

You know there obviously are cases where the liberal Justices seem to make that calculation. Let's go, or at least some of them let's go, let's go narrow and just go along with this. Trinity Lutheran church.


Will: (01:11:26)

You think when they do that, they don't actually believe in what they're saying?


Dan: (01:11:29)

I don't know. I don't know. I think that there are cases where it is fair to speculate that's what's going on. For example, I find it hard to believe that Justices Kagan and Breyer actually in their heart of hearts, believe that the Medicaid expansion in the affordable care act was unconstitutional. They go along there to form a 72 majority mix, the resulting decision where the court ends up upholding the individual mandate. Look a little bit less partisan. I don't know if I really believe that they believe in that in their heart of hearts.


Will: (01:12:07)

Isn't that troubling though?


Dan: (01:12:09)

Yeah, sure. But I feel like it's to some degree inevitable, maybe not among everyone, but I think a lot of the Justices have done that historically. They're playing a long game. They care about the law and care about the law going in a direction that they want, and I think that we can say as much as many times as it's all about just getting a neutral case, but Justices are in some sense, they’re political actors. They're politicians of a sort, and I think some of that is going to happen. Some of that is going to happen every time.


Will: (01:12:41)

I don't know if it's inevitable. Look, I think there's lots of compromising over the opinions, I'm sure that Justice Gorsuch would have written this opinion differently. The Justice leader wrote it, but is it too much to ask that they at least vote for the right side? That they don't compromise over the part, the actual access to the judicial power to decide who wins and who doesn't.


Dan: (01:13:00)

You could imagine being like, look I think this is a pretty close case. I'm not really sure how I come down on this, heading into the conference room. But I do know that I really don't want this to resolve a bunch of other cases. I don't want to endorse a rule that I think is really wrong. When it comes to my turn, we're going to see how the case is coming out, and if everybody else thinks this is problematic or this is not problematic, I'll go along. But maybe I can shape the resulting rule in the right way.


Will: (01:13:33)

I don't know. Maybe, maybe. All right. [crosstalk 01:13:37] but we've been talking for an hour and a half.


Dan: (01:13:40)

I think we’ve got to stop. We're going to chalk this up as a failure. We'll have to do another episode where we do Americans for Prosperity versus Bonta, which is also a fascinating case, and I think it's particularly fascinating for some parallels, comparisons, contrasts with a burn of edge, but we're going to have to give that a few days and do that one. Hold your horses. We will do it. We won't tell you when, but we'll do it.


Dan: (01:14:07)

All right. That's the episode. Thanks very much for listening, and please subscribe on your podcast app of choice and please rate and review the show everywhere you can, and particularly on the apple podcast app if you use that, because that is one of the main sources of discovery for podcasts and check out our website, dividedargument.com. We have a link to our merchandise store. We've got some t-shirts and mugs there. I'm told by some of our early purchasers that they are high quality items and check those out, and email us at pod@dividedargument.com. We don't promise to respond to those in a timely fashion, but we do read them all.


Will: (01:14:57)

Thanks also to the constitutional law Institute for supporting this endeavor. Thanks again to listeners for putting up with our unpredictable and unscheduled nature of this podcast, but hopefully it's worth it.


Dan: (01:15:08)

It is to me.