BREAKING: SCOTUS Deals Another Blow to Multiracial Democracy

Kate and Leah are joined by Democracy Docket’s Marc Elias to break down the Supreme Court’s shameful assault on multiracial democracy in its ruling on the Voting Rights Act case, Louisiana v. Callais. Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2026! 6/20/26 – New York City Learn more:http://crooked.com/eventsPreorder Melissa’s book, The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Preorder a signed paperback of Leah’s book, Lawless, here https://literatibookstore.com/book/signedlawless. Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.social

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Leah Litman?

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• 1:02Leah Litman?

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• 1:35Speaker 03

  Mr. Chief Justice, may it please the Court. It's an old joke, but when a hargoned man argues against two beautiful ladies like this, they're going to have the last word.

• 1:48Speaker 04

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 2:18Leah Litman?

  Yes, listeners, it's here. Today, we got the Supreme Court's decision in Louisiana versus Calais, the case about the future of the Voting Rights Act's protections against racial discrimination in redistricting. Spoiler alert, that future is over. It's just about as bad as expected. It was, after all, written by Sam Alito. We're going to quickly walk through the implications and potential fallout of the case with help from Mark Elias, chair of Elias Law Group and founder of Democracy Docket, and then we may add a few additional beats on the court's reasoning, such as it is. Welcome back to the show, Mark.

• 2:48Speaker 05

  Well, I wish I was coming back under better circumstances, but I guess I'm glad to be back.

• 2:52Kate Shaw?

  This is rarely the case in this line of work, but today is an especially bad one.

• 2:55Speaker 05

  You know, Leah Litman is a judicial realist, and she was right.

• 2:58Leah Litman?

  Careful. That's T-shirts printing in 30 seconds of the sound you're hearing right now, but she indeed was right then and will continue to be right.

• 3:08Kate Shaw?

  Anyway, Mark, super grateful that you're joining us on a day like this. Let's just quickly remind our listeners of the facts of Calais. They're pretty well-known. The state of Louisiana drew districts that allowed black voters to select preferred candidates in one out of six districts, even though about 1/3 of Louisiana citizens are black. The math wasn't mathing, unless districts were drawn to lock them out of power. Maybe ding ding ding.

• 3:30Leah Litman?

  Because courts said that map violated the Voting Rights Act, Louisiana was required to draw new districts that complied with the VRA. It did so. The districts gave minority voters opportunity to select another candidate, and that compliant map with two black opportunity districts was challenged as unconstitutional discrimination. And in Calais, Sam Alito said the Voting Rights Act, properly construed, did not require Louisiana to draw a new district because its initial map locking black voters out of political power was very legal, very cool, very demure, and very mindful.

• 4:00Kate Shaw?

  So, OK, Mark, we are legal nerds, as are you, so we are definitely going to get into the court's reasoning. But this decision is also just super significant for our multiracial democracy, and we wanted to start there with the question of impact. So can you talk about what effect the decision is going to have on maps, districting, and democracy in general?

• 4:18Speaker 05

  Yeah, so first of all, this was as cynical a decision as the Supreme Court could possibly issue. I mean, to be honest with you, it would have been much more intellectually honest for them to just say Section 2 of the Voting Rights Act is unconstitutional, under whatever theory of unconstitutional. The idea that the conservatives and the majority on this court are saying that they are properly construing Section 2 is literally them saying black voters can have districts as long as they vote for Republicans. That is essentially the holding of this. So what does this mean for democracy? It's a big setback, and we need to be honest about that. Like, you know, this was the gutting of the last piece of the Voting Rights Act doing work. And it was the provision that particularly was important because it applied nationwide. A point, I might add, that the Chief Justice himself

• 5:03Speaker 05

  made when he wrote the opinion striking down Section 5 of the Voting Rights Act in Shelby County, said, "Don't worry, this Section 2, still very vital, applies everywhere, don't worry." And then he said, "Watch this."

• 5:17Speaker 05

  So it's, look, it's bad for a multiracial democracy. It's bad for democracy. Like, what has happened here is that in a series of court cases, the Supreme Court has said, partisan gerrymandering, just fine. Discriminating against minority voters now, just fine. As law, and if you want to impose a minority-majority district or a Voting Rights Act district, it needs to reflect the partisan impulses of the legislature, which are just fine because partisan gerrymandering is just fine. So what we are left with is that in state after state where Republicans control the entire process, they have the legislative control

• 5:57Speaker 05

  and the gubernatorial process, governor control, they will now gerrymander on explicitly partisan grounds that will insulate them in one direction. They will trample all over the voting rights of minority voters with near impunity.

• 6:14Speaker 05

  And they will look and say, look, we met all the Supreme Court's tests under the Voting Rights Act. That is why it is so cynical, Kate. Because it would have been better for them to just say, there is no Voting Rights Act. But rather to hang that what they are now going to say is lawful under the Voting Rights Act is an absolute abomination.

• 6:35Kate Shaw?

  So it's an abomination and it's wildly cynical. Is it also politically strategic? I mean, you know, you think about comparing a decision like this to Dobbs, which said forthrightly, we are overturning Roe versus Wade. And that really galvanized an important electoral and popular reaction. I think it's entirely possible that a decision that said forthrightly, we are actually overruling on the grounds of the Constitution, the last remaining vestige of the Voting Rights Act, that might have spurred a real response. And I hope this one does too. But was it kind of framed the way it was in order to reduce the chances of that kind of response and pushback?

• 7:10Speaker 05

  Yeah, I think that's exactly why they did it this way. I think exactly they did it that way. And I think we can't, we can't allow them to get away with that. You know, I'm old enough, Kate, and this was very controversial at the time. It's hard for people to recognize this was actually controversial at the time. In 1993, there was a debate in the Casey decision whether the pro-choice group, uh, community ought to just say, this is overturning Roe versus Wade. And by the way, I was in the camp of saying, yeah, we ought to just say what the Supreme Court is doing here is fundamentally altering Roe versus Wade in a way that is going to allow for its eventual, uh, chipping away and overturning. Now, you know, that doesn't mean I was right. You know, it stood for a much longer period of time than I thought it would. But, but I, I think the risk that we face right now

• 7:54Speaker 05

  is those of us in the pro-democracy community take the bait and say, well, you know, at least they didn't overturn the Voting Rights Act. No, they overturned the Voting Rights Act.

• 8:02Leah Litman?

  And I think Justice Kagan also called this out, the attempt to basically depict the opinion as doing something other than it did. You know, she said, its opinion basically presents itself as understated, even antiseptic, um, and the majority.

• 8:16Kate Shaw?

  Doesn't announce today's holding as all but nullifying the Voting Rights Act. When it did, I mean, this could be the most significant Supreme Court race-related decision in a while, just given, you know, dismantling the number of districts electing representatives for minority communities that could be at stake. You know, we've talked about this before, but just to remind our listeners, Nick Stephanopoulos, professor at Harvard Law, voting rights expert, estimated that somewhere about 70 congressional districts could be stripped of protection under the Voting Rights Act, and that's just the number of districts in Congress. Mark, I know we've talked about this decision, and this decision has been talked about in terms of what it might mean for the 2026 midterms. Florida seemed interested in potentially taking this up and drawing even more districts.

• 8:58Kate Shaw?

  What might this decision mean for the upcoming midterms?

• 9:02Speaker 05

  All right, so Florida is, as we speak, drawing a new map. And they are going to add or try to add four more Republican seats. Now, I think in Florida, just at a political level, I think that's going to probably backfire on them. And I think actually the congressional delegation knows that, which is why they're not all that keen on this. I think, I think Ron DeSantis is auditioning for something else with Donald Trump, and like, he figures he won't be blamed if this winds up being a dummy mander. He'll get the credit for doing the here and now. Sounds very familiar in Trump world. But I think your broader question, though, is the right one, which is, what does this mean for 2026? What does it mean for 2028? In 2026, look, I, I think there will be, obviously, it'll affect at least one seat in Louisiana, maybe two. Perhaps it impacts a seat in Alabama. Maybe, maybe not.

• 9:45Speaker 05

  You know, I say that because there's another VRA case that's kind of percolating before the court. Beyond that, you know, Republicans need to be careful in two directions. The first is at a political level, like, they are, they are facing an unpopular electorate that doesn't much care for them. And, you know, it's not like when you redistrict, voters go away, right? I mean, these, these, these minority voters have to go in someone's district, and I don't see a lot of Republicans in these states raising their hand to say, oh, yes, please take my 65% Republican district and make it a 52, 55% Republican district in this political environment. So that may put a little bit of a break on it. But I think the real break on it for 2026 Is just the logistics and the practicality.

• 10:28Speaker 05

  I mean, you know, the, the federal law requires that military and overseas ballots go out 45 days before a primary and 90 days before a general. And like, those are hard federal deadlines that like states can't mess with. States have already had primaries and you know, there's a lot of talk, you know, on the right about, oh, we'll just hold new primaries. Let me be honest with you and I can, you can share this with your Republican guests if you ever have any. If they think they get to just disenfranchise a bunch of voters who have already voted by saying, never mind, they're going to get sued and under the, the conservatives analysis in Bost, where they adopted Justice Scalia's language about, about not essential, about undermining the, the foundation of democracy and confidence in elections by after the fact, throwing out votes.

• 11:13Speaker 05

  Like, like I, I don't think they're going to get away with that. At least they're going to get sued if they try to get away with it. So I think it'll be relatively modest for 2026. I think 2028, you know, I hear estimates all over the place. The New York Times says 12, Fair Fight founder, St. Louis Abrams says it's closer to 30. Nick Stephanopoulos says maybe it's 70. Like I, I just, it's going to be a lot of seats that are going to be in play, but, but I want to offer you one piece of hope. You know, after Shelby County, everybody said this is going to cost Democrat seats everywhere. And I went and I sued Virginia and I sued North Carolina saying, well, it turns out if section five wasn't a rationale to draw Bobby Scott's district, if it wasn't a rationale to support drawing the, the state legislative lines of Virginia, if it wasn't a rationale to draw to gerrymandering or blacks institute districts in North Carolina, then, then I

• 11:58Speaker 05

  guess it wasn't a rationale. And, and I sued and I won those cases in the US Supreme Court. It led to the creation of additional black districts and additional democratic seats in both states.

• 12:07Kate Shaw?

  So I guess when you're thinking about, you know, the prospect of future litigation, you know, Justice Kagan dissent said today's decision makes section two a dead letter. Justice Thomas seemed to enthusiastically agree, saying even though he would have said no challenge to redistricting should ever succeed, this decision basically put an edge to what he called the disastrous misadventure. You know, what does this decision do to section two? And relatedly, how does that interact with partisan gerrymandering, which seemed to be both part of the court's reasoning and also what it envisioned to be the future of American democracy?

• 12:45Speaker 05

  Yeah. So first of all, I just have to say, because you guys will appreciate this, you've got, you've got Justice Alito saying, We didn't do anything here. This was just like nothing.

• 12:56Kate Shaw?

  Yeah.

• 12:56Speaker 05

  And then you have Justice Thomas was like, thank God we over, thank God we did this.

• 13:01Kate Shaw?

  Speaking of Dobbs, right? The guy can't keep it under wraps. He's like, no, this is what we're doing, team.

• 13:08Speaker 05

  Like, they didn't, they didn't work that out, just like between them. Um, look, I think for Section 2 litigation, it's going to be virtually impossible to bring Section 2 cases successfully because in order to do so, you're, you know, you're going to have to say, you're going to have to meet the political objectives of the legislature. So effectively, what this means is that if you want to bring a Section 2 case in Alabama on behalf of black voters, you need to draw a map in which the black voters vote Republican, which the idea that we are hinging minority voting rights on a partisan outcome is an absolute catastrophe and insult. I mean, I can't use the word strongly enough. So I think that Section 2 will no longer be a vital tool.

• 13:50Kate Shaw?

  Like, you might as well require plaintiffs to show that the tooth fairy is real. Just walk you at it.

• 13:55Speaker 05

  That's right. So I think that the, I think that the, the two tools or the two things that, that remain out there is number one partisan gerrymandering, which, you know, conservatives have taken from a necessary non-justiciable evil. Right? We don't like it, but geez, we are, we, the Supreme Court are powerless to do anything about it. We, we looked for a test and geez, you know, we just couldn't come up with it. Like, it's the one thing that was just too, it was too complicated for us.

• 14:22Kate Shaw?

  But Roberts, right, remember in Ruto does say distasteful, maybe worse. Like, he is, he is very explicit about the disapproval. But sorry, Mark, you were going to say fast forward to this.

• 14:30Speaker 05

  Now they have turned it into a positive good.

• 14:32Kate Shaw?

  A constitutional entitlement, a highest value, in fact.

• 14:35Speaker 05

  It is, in fact, now a traditional rhetoric that we ought to value in the process. Yeah. So that's going on, but that doesn't mean that states, state courts will do that.

• 14:44Kate Shaw?

  Yeah.

• 14:44Speaker 05

  And, and so I think that there's going to be a lot of attention to state constitutions and state, state processes around partisan redistricting. And then the second, which you haven't mentioned, is there is still an inherent tension. And this was, this goes back to the cases that I brought after Shelby County. There is still this inherent tension between the Intentional discrimination line of cases, the racial gerrymandering line of cases. And this because like, does anyone think that when Republicans are going to draw a map? You know, they're not shuffling black voters based on their race? I mean, of course they are like, they don't want Democrats in their districts, but like, what they really don't want are black Democrats in their district.

• 15:28Speaker 05

  And, and, and if that sounds weird to people like, we were able to prove that in the post Shelby County litigation we brought where you looked at these neighborhoods and, and it was a professor from Stanford who did this analysis and I can't believe I'm blanking on his name. Roden, Jonathan Roden, I think, did this analysis. And you, you, he plotted it out on graphs and you'd look at these neighborhoods and there'd be like a group of, let's just call them white liberals, okay, but good Democrats, but white. Next to a neighborhood of black Democrats and the, the Republican legislature was taking the white Democrats, not the black Democrats. And you know that in the South in particular, that is going to be a dynamic that is going to leave them open to those challenges. Now, the question is whether under Alexander, yet another case where they kind of like,

• 16:13Speaker 05

  you know, uh, uh, you know, tried to limit this, whether they're going to say, well, that's okay. You know, it's okay if you are intentionally discriminating against black voters in that way.

• 16:25Kate Shaw?

  Well, whatever they're going to do.

• 16:26Speaker 05

  Sorry if that was very wonky.

• 16:27Kate Shaw?

  No, no, but I mean, I, I think that sort of the point is that they have not resolved all ambiguity in this incredibly complex body of law, nor have they foreclosed all possible avenues. Now, I wouldn't put it past them to do that down the road, but you're saying that the evidence of even, you know, even if they do impose, if they have imposed an intentional discrimination requirement, there may be enough evidence to actually succeed in making out those claims in future litigation. And we know enough to know that you, Mark Elias, are going to be dogged in bringing any bringable and winning any case out there that can be won. So.

• 17:00Speaker 05

  I want to, I want to add.

• 17:01Kate Shaw?

  Yeah. If there's any note of hope that you can leave our listeners with.

• 17:03Speaker 05

  It's not, it's not a note of hope.

• 17:04Kate Shaw?

  Okay.

• 17:05Speaker 05

  It's actually a note of where we are.

• 17:06Kate Shaw?

  Okay, that we'll take that.

• 17:07Leah Litman?

  I'll take that, yeah.

• 17:08Speaker 05

  So the, the lawsuit that challenged the Louisiana map was in fact. A racial gerrymandering challenge, right? The Supreme Court didn't have to decide this question.

• 17:17Leah Litman?

  No.

• 17:18Speaker 05

  The Supreme Court was not asked to decide this question. The Supreme Court ordered re-argument because they wanted to decide this question. So there's a lot of, you know, debate right now. And I know the New York Times published, you know, some papers involving the shadow docket. But there's a lot of debate about like this calling balls and strikes umpire thing. This was a case that nobody asked the Supreme Court to decide. And the Supreme Court ordered the parties to re-argue it to decide it.

• 17:48Leah Litman?

  Yeah.

• 17:49Speaker 05

  And that is a procedural piece of this that I don't think has got enough attention. It is the only other instance in my little area of the woods, but you guys are the experts that where I have experienced this with Citizens United, where literally what the Supreme Court was asked was whether or not pay-per-view movies on cable systems were covered by the campaign finance laws. That's literally the question that was posed to them. And instead of answering that, they ordered the parties to answer a different question, to brief and argue a different question, which led to Citizens United. And it feels like the conservatives are giving up even the pretense of we are just deciding the thing that is litigated before us.

• 18:30Speaker 05

  And I think that's really, that's like another layer of insult to this injury and another threat to where this court will go if they can just not just pick and choose the cases they want to hear, but actually then pick and choose cases they weren't asked to hear.

• 18:46Leah Litman?

  Yeah. Well, Mark, we know today is a super busy day for you. We so appreciate you taking the time to speak with us and to provide both our listeners a dose of reality and hope. So thank you so much, Mark.

• 18:58Speaker 05

  Thank you.

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• 22:18Leah Litman?

  So, we are going to spend, as promised, just a little bit more on the reasoning such as it is. As Mark kind of suggested, what Justice Alito wrote in this opinion basically is if a racial community consistently votes with the party, then it's okay to deny that racial community political representation because that's just partisan gerrymandering and it's awesome. The reasoning used to justify this requirement is that a plaintiff, in order to succeed in a Section 2 challenge under the Voting Rights Act, has to show it was both possible to draw a map with an additional district for minority voters to elect the candidate of their choice, and a map that retained the same partisan composition as the original map if the state was trying to do partisan gerrymandering.

• 23:03Leah Litman?

  Kind of means racial minorities could have an additional district as long as they selected the same candidate that would have won in the state's initial maps. That's not a political opportunity district. But, again, as Mark was saying, basically this says minorities, you can have your own district if you vote Republican.

• 23:20Kate Shaw?

  Right, and the idea of a political opportunity district is one that I think the court is pretty clearly intending to deal a death blow to. That's not, that's not actually something that a statute... Requires or even permits legislatures to pursue in the way that we have understood political opportunity districts, which is kind of one of the sort of sneaky and cynical things about the opinion that Mark was alluding to, that it really does completely upend Section 2 jurisprudence and pretends that it is not doing that. So as Mark, I think, mentioned, but maybe we'll underscore it for another minute, it's an anti-democratic decision, it has anti-democratic reasoning, and the reasoning is basically that anti-democratic behavior, and in particular partisan gerrymandering, is okay, it is legitimate,

• 24:04Kate Shaw?

  it is indeed a constitutional right. So let me just quote from the opinion here. "In considering the constitutionality of a districting scheme, courts must treat partisan advantage like any other race-neutral aim, a constitutionally permissible criterion that states may rely on as desired." It also identified as a significant development that the courts, via a jurisprudence, had to take into account this court's decision in Rucho versus Common Cause. So again, Rucho is a decision that only seven years ago said that federal courts are not going to intervene to stop partisan gerrymanders, but the political system should respond, could and should respond in other ways, and that in any event partisan gerrymandering was distasteful, just not something that courts could actually police or superintend.

• 24:48Kate Shaw?

  And we have something wildly different on the page in this opinion.

• 24:52Leah Litman?

  Yeah, here's what Alito had to say about Rucho. Quote, "The upshot of Rucho was that as far as federal law is concerned, a state legislature may use partisan advantage as a factor in redistricting." That's not what Rucho said, it just said non-justiciable, federal courts can't remedy them, not that they're consistent with the Constitution, much less something state legislatures are so entitled to do, they get to do other illegal, potentially illegal, things in the process. And yet, the Supreme Court injected partisanship and partisan gerrymandering into all aspects of the legal test for showing Voting Rights Act violations. The Jingles test, that is to establish a Voting Rights Act violation, has three steps. At the first step is where Justice Alito said plaintiffs have To show their alternative map would achieve the same objectives, including partisan objectives, states would.

• 25:37Leah Litman?

  At the second step, Justice Alito said plaintiffs must control for party affiliation. And then the kicker, the third and final step, which is about the totality of circumstances, he says courts must focus on one thing, quote, intentional present day voting discrimination, end quote. Even though the Voting Rights Act was amended so that the law did not just prohibit intentional discrimination. And the court has also made proving discriminatory intent impossible, which was basically the Texas redistricting case, where DOJ told Texas, go after majority minority coalition districts based on the legally incorrect claim that the Voting Rights Act prohibited them. And the Supreme Court said, that's not sufficient evidence of intentional racial discrimination.

• 26:20Kate Shaw?

  Now, Alito maintained that he wasn't overruling any of the court's precedents. He was just kind of updating them, giving them a makeover, which honestly is very consistent with both originalism and textualism, which are all about updating statutes to take into account subsequent developments in the world.

• 26:36Leah Litman?

  Oh, yeah. Right up there in Justice Scalia's reading law, you know, I'm pretty sure that's like the first entry.

• 26:42Kate Shaw?

  It should be.

• 26:43Leah Litman?

  You know, the makeover was more like Kris Jenner's recent facelift. Not great. But Justice Kagan, you know, said what the majority gives us today is not an updated framework. It is its own thing deserving of its own name, which she suggested the Calais contrivance.

• 26:58Kate Shaw?

  I think the Calais contrivance is good. I like it. In, you know, other Alito kind of reasoning that we should highlight, he wants to join John Roberts in proclaiming that racial discrimination is essentially over. So he writes, quote, vast social change has occurred throughout the country and particularly in the South where many Section 2 suits arise. He also says the Robinson Court also relied on the sordid history of intentional discrimination by Louisiana officials in the decades before the Voting Rights Act's passage. It cast aside as irrelevant the lack of evidence that black voters have faced intentional discrimination in recent years. That analysis had its priorities backwards. The 15th Amendment, which the Voting Rights Act enforces, is not designed to punish for the past, but works to ensure a better future. The focus of Section 2 must there-

• 27:41Kate Shaw?

  Before beyond current conditions, not on decades old data, relevant to decades old problems. Once again, originalism. We figure out what the 15th Amendment means by looking to evidence in the past, like six to 12 months. That's originalism.

• 27:55Leah Litman?

  I am just like clawing my face off because Section 2 suits rely on current data because they measure the current extent of racial polarization, extent of residential segregation. Who cares, right? Justice Alito just pretends otherwise. And, you know, the passage that Kate read from the Clay opinion sounds exactly like Shelby County's infamous, infamous pronouncement that things have changed dramatically in the South, which Justice Alito quoted in Clay. He just thought that slapped and had aged amazingly. Justice Alito also said that the Constitution really only allows there to be remedies for intentional racial discrimination, laws or policies that have the effect of disadvantaging racial minorities. Those are

• 28:40Leah Litman?

  basically cool. So he writes, quote, "The focus of Section 2 must be enforcement of the 15th Amendment's prohibition on intentional racial discrimination. While that interpretation, that is his interpretation of the Voting Rights Act, does not demand a finding of intentional discrimination, it imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred," end quote.

• 29:04Kate Shaw?

  First of all, obviously, we call BS on this claim that the interpretation does not demand a finding of intentional discrimination. That's exactly what he is requiring. Did you also catch his kind of casual reference to the, quote, "limited authority" that the 15th Amendment confers?

• 29:19Leah Litman?

  Yeah, of course, of course. Like, he just goes out of his way, in this opinion, to declare reconstruction ain't no thing, right? Didn't really allow Congress to do anything. No biggie.

• 29:32Kate Shaw?

  Indeed. And that kind of, sort of minimizing Congress's role, aggrandizing the court's role, sort of is energy that permeates this opinion. So it pretty clearly does something that Shelby County maybe implicitly did but didn't explicitly do, which is extend this City of Bernie versus Flores decision, which is wildly judicial supremacist opinion that says, "We courts, not really you Congress, get to decide what the Constitution means." And here, the 14th and 15th Amendments. And it basically, you know, is doing that, proclaiming its own supremacy in deciding what the 15th Amendment means. In the course of overruling Congress's decision about how to enforce reconstruction, which like, I guess I'd forgotten, but I thought it was Congress and not the court

• 30:16Kate Shaw?

  that in the Constitution was given the power to enforce the Reconstruction amendments, but I must be. Congress is a cuck. Constitution is for cucks. Congress is a cuck, right? Justice Alito just declares. He sure did. Things are gonna be what they're gonna be. Yeah. Justice Kagan, of course, is speaking truth to power. It summarizes the court's reasoning as availing itself again of the tools used before to dismantle the Voting Rights Act, untenable readings of statutory text, made up and impossible to meet evidentiary requirements, disregard for precedent, and disdain for congressional judgment. A few, just short additional notes before we go. One is, just to reemphasize, resist and strongly push back against efforts to minimize this

• 30:59Kate Shaw?

  decision that suggests could have been worse, they didn't strike down the Voting Rights Act, or the court even said compliance with the Voting Rights Act constitutes a compelling interest. No. That's how Alito attempted to spin this. Indeed, that's how he characterized his own ruling. My preferred framing would be something like a judicial coup or a revolution against multiracial democracy and for white supremacy. You know, second is this decision has to be understood as part of a trilogy of decisions in which the court effectively ended the Voting Rights Act, the law that made the country into a multiracial democracy. Justice Kagan characterized it as part of a set that included, as we noted, Shelby County versus Holder.

• 31:39Kate Shaw?

  After that came the 2021 decision, Bernovich versus DNC, which was about how Section 2 applied to voting precondition challenges, you know, challenges to laws that are about whether people can vote or their votes will be counted. The court interpreted the law, you know, by making it much harder, if not impossible, to challenge voting preconditions. Justice Kagan's dissent cites an article by Professor Rick Hossin, showing that since Bernovich, there have been zero zip successful challenges to voting preconditions under Section 2. And the last piece, as Justice Kagan describes it in her dissent, is Section 2.

• 32:10Leah Litman?

  Two, as applied to redistricting. Right? That's what this decision takes aim then. You want to read a few more passages from Justice Kagan's dissent or anything else?

• 32:20Kate Shaw?

  Let me just say maybe one more thing. So I think in addition to connecting this opinion to the other VRA opinions the court has handed down, I think what Mark said about Citizens United is actually also really important in that this is both a case where the court overreached really badly and just deciding to change a question in order to give itself an opportunity to supply an answer it wanted to give, but also because I think Citizens United, I think, has had, kind of in the public imagination, kind of remarkable staying power. It still polls at like 75 or 80% of Americans disapprove. There are constitutional amendment efforts sort of underway to this day. And I think that that this opinion too should have that kind of effect. And I think that what you said about resisting minimization frameworks is is just so important.

• 33:04Kate Shaw?

  And I think that linking this opinion to, again, both VRA and Citizens United, I think is critical. So, yeah, maybe let's end with a couple more lines from Kagan's dissent.

• 33:13Leah Litman?

  Well, so one more, since you said that. And also link it to the Texas redistricting decision.

• 33:16Kate Shaw?

  Yes.

• 33:16Leah Litman?

  Because what the court is saying is you can use race in partisan gerrymandering, but you can't use race to comply with the Voting Rights Act.

• 33:27Kate Shaw?

  Yes.

• 33:28Leah Litman?

  And that is...

• 33:29Kate Shaw?

  It said both of those things.

• 33:30Leah Litman?

  Yes.

• 33:31Kate Shaw?

  Yeah, absolutely. All right. So so that actually is the story of what happened in Calais. You know, except no alternative explanations. Okay, so to end with a few more Kagan lines, she says, "I dissent. The Voting Rights Act is, or now more accurately was, one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our nation's history. I dissent because the court betrays its duty to faithfully implement the great statute Congress wrote. I dissent because the court's decision will set back the foundational right Congress granted of racial equality in electoral opportunity. I dissent." And maybe one more? Okay, so "The VRA was born of the literal blood of Union soldiers and civil rights marchers.

• 34:14Kate Shaw?

  It ushered in awe-inspiring change, bringing this nation closer to fulfilling the ideals of democracy and racial equality, and it has been repeatedly and overwhelmingly reauthorized by the people's representatives in Congress. Only they have the right to say it is no longer needed, not the members of this court. I dissent then from this latest chapter in the majority's now completed demolition of the Voting Rights Act."

• 34:36Leah Litman?

  If those quotes didn't capture it, like, this is the anti-democracy court. And if this decision doesn't kind of get people to realize that Supreme Court reform has to be part of democracy reform, I'm not sure what would. Please send this podcast to your local Democratic representative. Because what this decision shows is Congress can enact all of the voting rights protections that it wants. And it won't matter if this court nullifies them or invalidates them.

• 35:05Kate Shaw?

  And maybe just one last asterisk, which is that if and when the Chief Justice writes the opinion for the court in the birthright citizenship case, saying the president cannot nullify the 14th Amendment by trying to nuke birthright citizenship. Remember, in sort of all the celebration of John Roberts institutionalist, that John Roberts gave this opinion to Sam Alito. He joined the opinion. And the opinion nullified the 15th Amendment and the law that made this country into a multiracial democracy. And try to bear that in mind and let it temper your celebration of that opinion if and when John Roberts pens it.

• 35:40Leah Litman?

  Indeed. And, look, we are only at the end of April. And, wow, we are already getting really bad decisions, which means by the time we are at the end of June, help us. And, you know, if you would like to, I don't know, participate in our processing and coping of said decisions.

• 36:00Kate Shaw?

  A little catharsis with us.

• 36:01Leah Litman?

  A little catharsis. A reminder that we will be in New York City at the end of June. You can catch us live at the Historic Gramercy Theater on June 20th in New York City. Tickets are on sale now. Grab them while you can at crooked.com/events.

• 36:16Kate Shaw?

  All right, and we'll be back in your ear holes for a regular episode on Monday morning.

• 36:30Kate Shaw?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Our senior producer and editor is Melody Rauel. Michael Goldsmith is our producer. Jordan Thomas is our intern. Music by Eddie Cooper. Production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production. And thanks to our digital team, Ben Heathcote, Johanna Case, Kenny Moffett, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcast so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

• 37:19Leah Litman?

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• 38:33Kate Shaw?

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