Will the Voting Rights Act Survive SCOTUS?

Leah, Kate, and Melissa break down last week’s agonizing two-and-a-half-hour oral argument in Louisiana v. Callais, a case that could see the already weakened Voting Rights Act gutted even further. They highlight the themes that emerged and dig into the case’s broader context with Sam Spital, Associate Director-Counsel at the Legal Defense Fund, then recap the week’s other arguments and the latest legal news. Finally, Leah talks with Joyce Vance about her new book, Giving Up Is Unforgivable: A Manual for Keeping a Democracy https://bookshop.org/p/books/giving-up-is-unforgivable-a-manual-for-keeping-a-democracy-joyce-vance/22426839?ean=9798217178117&next=t. Favorite things: Leah: The Bow Street Runners https://bookshop.org/p/books/worth-any-price-bow-street-runners-lisa-kleypas/586be24c1a80fe93?ean=9780380811076&next=t series, Lisa Kleypas; Flirting Lessons https://bookshop.org/p/books/flirting-lessons-jasmine-guillory/8aad68b88e9492fe?ean=9780593100912&next=t, Jasmine Guillory Kate: What Are We Living Through? https://www.bostonreview.net/articles/what-are-we-living-through/ By Jedediah Britton-Purdy & David Pozen (Boston Review); Originalist ‘Bombshell’ Complicates Case on Trump’s Power to Fire Officials https://www.nytimes.com/2025/10/13/us/politics/originalism-trump-supreme-court-unitary-executive.html, Adam Liptak (NYT) Melissa: The Lawyer, the Witch, and the Witness: Proving Witchcraft in the English Courts https://openyls.law.yale.edu/entities/publication/8d1fdb63-703a-4249-b4dc-beb97f865a9f, Trace M. Maddox (Yale Journal of Law & the Humanities); Slow Dance, Rainbow Rowell; One Battle After Another https://www.onebattleafteranothermovie.com/ Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky 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.

• 0:00Melissa Murray?

  Strict scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting some precedents, shattering some norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that is relentlessly pushing to impose a Christian nationalist agenda on our lives and our laws. Church-state separation is the bulwark blocking their agenda. One of the last bastions of church-state separation is our public school system. So, they are pushing vouchers everywhere. They are arguing for religious public schools. Yes, you heard that right. Religious public schools. And they're doing it at the Supreme Court, as we've covered on this podcast.

• 0:43Melissa Murray?

  If you're listening to us, you already see the writing on the wall, and you know that we can and we must fight back. Join Americans United for Separation of Church and State and their growing movement, because church-state separation protects us all. You can learn more and get involved at au.org/crooked.

• 1:02Speaker 01

  Introducing The Weeknight on MSNBC. Join hosts Alicia Menendez, Michael Steele, and Simone Sanders Townsend for a spirited conversation challenging each other and our leaders about the biggest issues of the day.

• 1:16Speaker 02

  It's about knowing what you are for, who you are for.

• 1:19Speaker 03

  That's what politics is about, is engagement.

• 1:21Speaker 01

  We are going to dive deeper into the legal side of today's breaking news. The Weeknight, Monday through Friday at 7 PM Eastern on MSNBC.

• 1:33Speaker 04

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

• 1:45Speaker 05

  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."

• 2:15Speaker 06

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

• 2:22Melissa Murray?

  I'm Melissa Murray.

• 2:23Speaker 06

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

• 2:56Melissa Murray?

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

• 3:39Melissa Murray?

  But at least some justices of the Supreme Court appear poised to say that any consideration of race is unconstitutional, especially when drawing legislative districts if the purpose is to ensure that minorities, racial minorities, that is, are not shut out of the political process. So just wanted to note the coming together of Article II and Article III here.

• 4:03Speaker 06

  Yeah. Colorblind constitutionalism.

• 4:05Melissa Murray?

  In theory and practice.

• 4:08Speaker 06

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

• 4:14Melissa Murray?

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

• 4:31Speaker 02

  All of which suggests we are living in a post racial democracy.

• 4:35Melissa Murray?

  I was going to say.

• 4:36Speaker 02

  Where race is irrelevant and shouldn't be considered at all.

• 4:40Speaker 06

  Right, which is why it's not a big deal when young staffers, and some of them not so young, make violent racist jokes on text message chains because we are post racial and so it's no problem.

• 4:50Melissa Murray?

  Anyway.

• 4:52Speaker 06

  So if you're wondering how to make all of this make sense, so are we, and we will do our best to muddle through at least the Supreme Court case part of it. So Louisiana versus Calais was argued Wednesday for the second time after the court put it back on the calendar for reargument rather than deciding it last term. It was argued by a friend of the show, an LDF president and director counsel, Janine Nelson. She argued against the Solicitor General of Louisiana, a Missouri attorney representing a group of Louisiana voters, and a lawyer for the federal government. So yes, it was one on three. And the fact that Janine argued the case herself is a sign of exactly how big a deal this case is. So we're going to talk through some key themes in the case, and since we are assuming that at least some of you did not have the experience of spending two and a half hours, like truly

• 5:37Speaker 06

  appalling hours, listening to the argument, we will play you some of the highlights slash lowlights from the argument.

• 5:44Speaker 02

  I am just going to interject here with what will surely be one of many "we need to talk about Justice Thomas" segments in this episode. Listeners, the argument actually ended with Justice Thomas saying on a hot mic, "See, that wasn't so bad," and somebody, likely John Roberts, though it's hard to be sure, audibly shushing him. But listeners, as ever, don't listen to Justice Thomas because, yes, it was.

• 6:09Melissa Murray?

  So bad. We will play that clip for you at the end of our discussion of the case just so that it will hit you the same way it hit us as we were listening live. But we'll start instead with a comment from Justice Sotomayor that got right to the heart of the case. The bottom line is just get rid of Section 2 because the test you're providing doesn't do anything for the effects test that Congress identified. So that clearly is what's at stake in this case. Louisiana and the federal government would like to functionally, if not formally, get rid of Section 2 of the Voting Rights Act, which I will remind you is all that is left of the hobbled Voting

• 6:52Melissa Murray?

  Rights Act after the court gutted Section 4 and effectively Section 5, the preclearance regime in Shelby County versus Holder back in 2013. All of this is why it is just so strange that for a significant portion of this two and a half hours of oral argument, the Republican appointees were actually fairly muted. It almost felt like they were so sure of what they wanted to do here. That is, they wanted to invalidate Louisiana's congressional map just because it has two majority-minority districts rather than just one. And even if they aren't entirely sure how they're going to write that opinion, they're pretty sure what they're going to do here, which is to lay waste to the Voting Rights Act. And so

• 7:34Melissa Murray?

  it seemed like they weren't even especially interested in having any kind of meaningful back and forth about the merits of doing so because they were all pretty secure about what the plan was and where they were going. And it was just basically time to buckle in and take a ride, take a ride back to reconstruction, I guess.

• 7:54Leah Litman?

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

• 7:58Speaker 06

  I think redemption more. I think reconstruction, I think they'd be troubled by too much black representation in state houses.

• 8:04Melissa Murray?

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

• 8:13Leah Litman?

  If those are your bona fides, things are looking great.

• 8:16Melissa Murray?

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

• 8:22Leah Litman?

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

• 9:04Speaker 05

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

• 9:07Leah Litman?

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

• 9:20Speaker 05

  Yeah, absolutely. So if I can start by taking just one step back before we talk about Jingles, which is to go back to the Voting Rights Act of 1965, which is widely understood to be the most successful piece of civil rights legislation in our nation's history. And what happened quite successfully with the Voting Rights Act of 1965 is that barriers to registration, barriers to actual voting for Black voters and other voters of color throughout this country were significantly reduced. And that meant that there was this massive rise in registration rates and actual ability to vote for Black people in jurisdictions that previously they had been not able to vote in. And so what this led to in many places of the country was a new effort to ensure that

• 10:04Speaker 05

  now newly enfranchised Black people could not actually exercise political power. And so one of the classic ways to do that is through gerrymandering, through grind districts in ways that ensure that the votes of a group of people, in this case, often Black people, would be minimized.

• 10:18Speaker 06

  Cancelled out. And so that's really what then Congress addressed in 1982 with amendments that strengthened Section 2 of the Voting Rights Act. And that was what the Supreme Court was talking about in Jingles.

• 10:29Leah Litman?

  And can you remind us, in 1982, what communist, who is a super hippie liberal and

• 10:37Melissa Murray?

  And squishy, very squishy and wobbly.

• 10:39Leah Litman?

  And squishy, was president and would sign this legislation into law, this amendment?

• 10:43Melissa Murray?

  It was Zorin Ramdani. No, it wasn't it.

• 10:45Leah Litman?

  Right?

• 10:46Speaker 06

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

• 11:01Leah Litman?

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

• 11:07Speaker 06

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

• 11:45Melissa Murray?

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

• 12:03Speaker 06

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

• 12:12Leah Litman?

  We're taking good Sam's word for it.

• 12:14Melissa Murray?

  In the war of the Sam, exactly. I'm going with good Sam. Okay.

• 12:17Leah Litman?

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

• 12:52Speaker 06

  So the Solicitor General filed an amicus brief at the supplemental briefing stage of this case. So after the case had already been argued, the first time, the court asked for additional briefing about an additional question over the summer. And that actually, the question the court asked wasn't actually about Jingles. But nonetheless, the Solicitor General filed an amicus brief, and I'll just note for sort of good order that normally parties are not supposed to inject new issues through an amicus brief. That's not, you might expand on an existing issue in the case, but not sort of bring up a new issue. But the Solicitor General filed a brief that argued for a number of changes to the Jingles test. And there are a number of different sort of things that the Solicitor General is focused on, but the ones that I think are the most important, and the ones that

• 13:36Speaker 06

  the Solicitor General acknowledged during the argument, or the Deputy Solicitor General acknowledged during the argument, would actually require changing the Jingles test, have to do with the issue that you just talked about. So in the, there are several preconditions that voters have to establish in order to show a violation of Section 2 under Jingles. The first one is that they have to show that there could be a district drawn that would be reasonably configured, meaning that it sort of complies with the state's traditional redistricting criteria, and also that would be majority black if it's on behalf of black voters, or majority on behalf of another group of voters of color in other, in other contexts. And so what the Solicitor General has said that would really be quite radical

• 14:20Speaker 06

  is that, at this first stage of the process, some of what should be considered traditional redistricting criteria are things like partisanship and incumbency Protection, which have never previously been understood to be traditional registering criteria. Traditional registering criteria are supposed to be things like, is it the district geographically compact? Does it respect county lines? Does it respect political subdivisions? Those sorts of things, not things like partisanship and incumbency protection. And you can, I think, pretty quickly see why, which is that if one allows sort of partisanship or incumbency protection to become the focus of a map at that first stage, it's going to be very difficult for plaintiffs to present a map that has the exact same partisan breakdown

• 15:03Speaker 06

  or doesn't have any sort of impact on the partisan lean. Because race and partisanship, while certainly not identical, there is often a correlation. And so this would really limit the ability of plaintiffs to present maps that satisfied jingles and would freeze in place prior discrimination because it would be almost impossible in most places to present a map that sort of even guided through the threshold.

• 15:27Leah Litman?

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

• 16:08Speaker 06

  Yeah, absolutely. And I mean, if I could just say one more thing, if it were accepted, it would actually make a Section 2 claim, which is supposed to ultimately be about discriminatory result and discriminatory effect, even though the test is a complicated test, it's a very rigorous test, and it does have some aspects of discriminatory intent sort of baked in. But it would make this test, which overall is designed to be easier than proving discriminatory intent, because we know how difficult it is to prove discriminatory intent, especially in a multi-member ...legislative body situation, it would actually make it harder to succeed on a Section Two case. And the reason for that is that you could have a situation where a legislature, there was overwhelming evidence that there was an actual intent to discriminate against

• 16:52Speaker 06

  black voters, but still, there could be no illustrative map that would be consistent with the prior partisan makeup of the map. So it would make it impossible to prove a Section Two case, even in cases of intentional discrimination. And that obviously is not what Congress intended in Section Two.

• 17:07Melissa Murray?

  Yeah. And just to sort of pick up on that last thing you said, obviously not what Congress intended when it amended Section Two, because the Supreme Court had actually said you need to show intent to establish a violation of Section Two, and Congress explicitly overrode that when it amended the Voting Rights Act to say, no, you don't have to show intent. This is an effects test. And as you say, this is an incredibly complicated body of law. And intent is not irrelevant. But to say this has to be an intent test flies in the face of what Congress did when it amended the Voting Rights Act. And just to maybe say one other thing about this kind of partisanship issue, we're going to come back to it and play some clips from the oral argument. But I mean, for a court that is as fixated on history and tradition, to consider with a straight face saying, six years into

• 17:51Melissa Murray?

  our blessing, the use of partisanship in redistricting, it is part of the traditional redistricting criteria that partisan advantage has to be maintained, or we kind of consider kind of partisan advantage as one of the traditional redistricting criteria, is, I think, madness. And just on the Solicitor General's argument, again and again, the lawyer for the SG kept referencing the fact that white Democrats in West Virginia have, you know, basically zero congressional representation, even though there are a lot of them. So basically, why should black voters in Louisiana make out so much better? It makes very, very clear. They basically think that partisanship as a justification will swallow everything else and thus essentially drain the force of Section Two.

• 18:33Leah Litman?

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

• 18:40Melissa Murray?

  Perfect. Yep.

• 18:41Leah Litman?

  Glad you covered that.

• 18:42Speaker 06

  I mean, one of the things that I think was so troubling about that part of the argument is that it represents This effort to sort of suggest that the Voting Rights Act is really about partisanship, which could not be further from the truth. If you look at the history of the Voting Rights Act and litigation enforcing it, there have been times where Democrats have controlled legislative bodies and drawn maps that discriminated against black voters. There have been times that Republicans have controlled legislative bodies and discriminated against black voters. And the reason why race is so different than partisanship and why the West Virginia example, from my perspective, is so unhelpful is that, to what you were saying, Lee, about the Reconstruction

• 19:23Speaker 06

  Amendments, the Reconstruction Amendments are not troubled by the partisan situation in West Virginia. They are troubled when black voters consistently are locked out of power. And in a place like Louisiana, where, to this day, since Reconstruction, there's not been a single black candidate who has won statewide, essentially, all of the representation that black voters and black candidates have achieved in recent years is because of districts that were created under the Voting Rights Act. That is a very different circumstance, and that is what Congress is rightly concerned about with the Voting Rights Act.

• 19:57Melissa Murray?

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

• 20:19Speaker 06

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

• 21:01Melissa Murray?

  Yeah.

• 21:01Speaker 06

  injecting race into the process. The Voting Rights Act is remedying a situation where there's already racial discrimination in the process.

• 21:07Melissa Murray?

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

• 21:45Speaker 06

  Yeah, absolutely. And I really appreciate that question, Melissa, because I think it gets to one of the things that was also, there was such a disconnect in some of the questions and some of the arguments that you saw. So one of the other aspects, we've talked about how these illustrative districts that plaintiffs have to draw, have to be reasonably configured, they have to respect traditional districting criteria. They also have to be majority minority. And that's not because of something the statute says, and it's not because of something that civil rights plaintiffs wanted. It's because of a Supreme Court decision called Barlet versus Strickland, written by Justice Kennedy, a plurality opinion, and this was the controlling opinion, joined by Chief Justice Roberts and Justice Alito. And the court in that case held that these illustrative districts have to be majority minority. And the theory essentially was that in order to show vote

• 22:30Speaker 06

  dilution, members of a protected group need to show that they could be a majority in an illustrative district, in a differently configured district. So part of the conversation that we heard in court yesterday was that, oh, civil rights plaintiffs are always looking for, they're fixated on race, they're always looking for these majority minority districts. We are not fixated on race. We have to create these illustrative districts because the Supreme Court said you have to do this. But then at the remedial phase, to your question, Melissa, the legislature or the, the local body in a local case, they do not have to draw majority minority districts to remedy the All they have to do is come up with a district that will stop the vote dilution.

• 23:14Speaker 06

  And that district does not necessarily have to be majority minority or majority black. It does not have to ensure that it will be sort of a safe district for black candidates or or black voters. Competitive districts can remedy the violation. Districts that do not even look at the race of voters in their creation can remedy the violations. All that needs to happen at the remedial phase is that there needs to be some sort of remedy so that black voters or voters of color, whoever sort of the plaintiff in the cases, is not are not consistently locked out of any opportunity to have to participate in the political process and to elect candidates of choice.

• 23:49Leah Litman?

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

• 24:20Speaker 06

  I mean, the consequences, depending on sort of which direction the the court might go, but if the court significantly weakens Section 2, the consequences would be dire. It's important to remember that there's this previous case, Shelby County versus Holder, where the court essentially invalidated Section 5 of the Voting Rights Act, which was the other key provision of the Voting Rights Act. And when it did so, one of the things that the court said, this is the opinion by Chief Justice Roberts for the, at that point, the conservative majority of the court, said, you know, nothing in our opinion is affecting in any way the permanent ban on voting discrimination in Section 2 of the Voting Rights Act. Essentially, look, you know, we understand there are concerns about Section 5, but we think that there are problems with Section 5.

• 25:07Speaker 06

  We disagree with, but that's the conclusion the court reached. But part of why they said we can trust that there's still going to be a vehicle for remaining discrimination is that you still have Section 2. If now the court significantly weakened, and some of the proposals, as we were talking about from the Solicitor General, would more than significantly weaken, they would essentially end Section 2 of the Voting Rights Act, that would mean that in places like Louisiana and many parts of this country still, where the only progress that Black voters and Black candidates have been able to make is because of the Voting Rights Act, those districts would all be up for grabs. And we even see that the Solicitor General for Louisiana said, I don't know what would happen if there were no Section 2 here.

• 25:49Speaker 06

  Maybe the state would go for a 6-0 map where there were no opportunities for Black voters to have any, to be able to elect any candidates of choice in Congress, which would be sent us back to, you know, pre-1980s sort of period. So the risk to our multiracial democracy would be, would be very, very stark if the court were really to significantly erode Section 2 of the Voting Rights Act.

• 26:13Leah Litman?

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

• 26:26Speaker 06

  Thank you.

• 26:32Melissa Murray?

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• 28:43Speaker 03

  CrookedCon is coming up right after the election, and we have just added a bunch more great names to the lineup. We got Governor JB Pritzker coming, Senator Chris Murphy, and then over from the House side, Ilhan Omar, Robert Garcia, Sarah Jacobs, Jamie Raskin, Sarah McBride. We also have Carlos Eduardo Espina, Simone Sanders Townsend, Eugene Daniels, David Pakman, Jessica Tarlov, Heather McGee, and then all the other people that we've announced on the website, plus more to come. Great list. Check out the full lineup and get tickets right now at crookedcon.com. We'd love to see you there. That's crookedcon.com.

• 29:24Leah Litman?

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

• 29:30Melissa Murray?

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

• 30:04Leah Litman?

  Sounds so familiar, what you're describing.

• 30:05Melissa Murray?

  I know. It's so weird. Anyway, before finding the map invalid, the court did allow Alabama to use the illegal map in a congressional cycle where that might have had something to do with the Republicans gaining control of the House. But just one congressional cycle, just the tip, as it were.

• 30:25Leah Litman?

  They did that on the shadow docket, the "just the tip" docket.

• 30:30Melissa Murray?

  They sure did. That's when we should have known, "just the tip." Anyway, in any event, when the court finally resolved the case on its merits docket, it applied the Jingles test and affirmed the lower court's determination that the map was unlawful. It also stated pretty unequivocally that in order to establish a Section 2 violation, you had to show effects, not intent, which is something we've been talking about. The court then confirmed that Section 2 applies to redistricting challenges and that it is not unconstitutional. So effects, not intent. Section 2 applies to redistricting. Section

• 31:11Melissa Murray?

  2 is not unconstitutional. It would seem that Allen versus Milligan kind of ticked a lot of boxes that have been raised.

• 31:18Leah Litman?

  Yes.

• 31:19Melissa Murray?

  Anna versus Milligan, don't know her. Don't know her.

• 31:22Leah Litman?

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

• 31:53Melissa Murray?

  Say it the right way.

• 31:54Leah Litman?

  Institutionalist.

• 31:55Melissa Murray?

  Institutionalist.

• 31:56Leah Litman?

  You got it.

• 31:57Melissa Murray?

  Okay.

• 31:58Leah Litman?

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

• 32:08Speaker 05

  Counsel, you began with Allen against Milligan. That case, of course, took the existing precedent as a given and considered Alabama's application of its approach to the evidence and all that under that precedent.

• 32:23Leah Litman?

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

• 33:04Speaker 05

  General, a couple of years ago, when we decided Milligan, the party there, the state there, made several arguments that we specifically rejected. And in the answers that you just gave to me, it seems to me that you've repeated each and every one of those arguments that we rejected. So I'll just run through a few of them. What they said was that the 15th Amendment permits Congress to legislate against only purposeful discrimination by the states. We rejected that. We said, nope. Section 2, which is an effects-based test of vote Dilution is permitted under the 15th Amendment.

• 33:46Speaker 05

  There, in Milligan, the state said that the 15th Amendment doesn't authorize race-based redistricting as a remedy for vote dilution Section 2 violations. We said, no, that wasn't correct either.

• 34:01Melissa Murray?

  There was another related theme that surfaced at this argument. And it's one that's, I think, often in play at the court, certainly in recent years. And that theme is the desire to magically rethink the past, even when we have actual record evidence of what the actual past was. So here, the Louisiana SG and the Republican appointees really insisted that Milligan was an entirely different challenge. It was not on all fours with this particular case, and therefore, it could easily be distinguished from this challenge, and therefore, was not a binding precedent.

• 34:45Melissa Murray?

  All to say, actual magical thinking, like Joan Didion, a year fucking magical thinking this through. And the fact that they do this makes it so much easier to understand why they are so utterly inconsistent and itinerant about this history and tradition method. It's like they don't realize that all of us have Google and encyclopedias and can go and look this stuff up at any point and see that Milligan is actually the same effing case.

• 35:16Leah Litman?

  Ladies and gentlemen, the originalists, this is the new, the aristocrats punchline. These guys are so good at history. But because reading is fundamental, I went back to peek at the briefs in Milligan, and it is just utterly fucking insane that they're going to say none of these arguments were on the table in that case. So here is a statement from Alabama's application in Milligan. Quote, "This court's precedents and the Constitution make clear that a Section 2 plaintiff alleging vote dilution must first prioritize traditional redistricting criteria." That is part of Calais. Like, do you have to show? That creating a second majority minority district advances the state's supposed aims like incumbency or partisan advantage. They also made the argument that compliance with the Voting Rights Act doesn't allow states

• 36:01Leah Litman?

  to take into account race. Quote, "The three judge court's view of the Voting Rights Act makes VRA compliance irreconcilable with the U.S. Constitution," end quote. They asked the court to narrow the Voting Rights Act because they argued that jingles, as the lower courts were applying it, was unconstitutional. Asked and answered. Right.

• 36:19Melissa Murray?

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

• 36:27Leah Litman?

  I looked that up, too.

• 36:28Melissa Murray?

  In which, am I using it properly, Melissa?

• 36:30Leah Litman?

  You are.

• 36:31Melissa Murray?

  I made a note in the show note, and then I was like, I think I'm using that right. And I think I was. So in any event, that's what they're trying to do, make this into a case in which no one raised, and the court did not address any constitutional arguments at all.

• 36:43Leah Litman?

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

• 37:07Melissa Murray?

  Yeah, that was sort of later in the argument, as they started to kind of enjoy themselves. Yeah, that's right. All right, another theme. I can't even decide if this is theme two, or if the magical thinking was theme one and a half, maybe this is two, I don't know. But there are a lot of themes here. In any event, this theme is how the court's embrace of partisan gerrymandering means that legislatures can not only get away with partisan gerrymandering, they can also get away with racial gerrymandering, as long as we frame it.

• 37:37Leah Litman?

  Two for one.

• 37:38Melissa Murray?

  Yeah, it's a two for one. Yeah, it's a two for, for sure. So, listeners, here's what I mean. When the court decided Russo versus Common Cause back in 2019, it said that federal courts elect jurisdiction to hear partisan gerrymandering challenges. And part of the reason was because the court couldn't figure out a workable standard for determining how much partisanship was too much in adjudicating a gerrymander. And indeed, the court seemed to be of the The view in Ruchu and elsewhere that partisanship is just endemic in the political process and as such, it can't really be policed properly by the federal courts. Fine. When Ruchu was announced, we noted that although racial gerrymandering challenges remain justiciable, they were likely to be reframed as nonjusticiable partisan gerrymandering challenges because

• 38:23Melissa Murray?

  historically, race and partisan membership are very closely aligned. Most black voters are Democrats. So especially in the South, if you're gerrymandering for partisan advantage, you might actually be boxing out some racial minorities who are of the other party. So you can draw a district that boxes out black voters and when it's challenged, all you have to say is, I wasn't trying to racially discriminate, I was simply trying to maximize partisan advantage. Well, friend of the pod, Samuel Alito, touched on all of this when he suggested that it might be a good time to include partisanship among the gingles factors for determining whether an electoral system illegally dilutes the power of minorities.

• 39:04Melissa Murray?

  And by itself, that is not necessarily objectionable until you realize that doing so would erase the Voting Rights Act entirely by bootstrapping the permissibility of partisan gerrymandering into a regime that effectively blesses racial gerrymandering by redefining racially polarized voting as partisan or politically polarized voting.

• 39:26Leah Litman?

  Note what a market shift this is from Ruchu, a case decided six years ago, which at least pretended to treat partisan gerrymandering as disdainful and destructive to democracy. So there, the court wrote, quote, "Excessive partisanship and districting leads to results that reasonably seem unjust," end quote. Now, however, six years later, partisan gerrymandering appears to be Republicans' God-given right, so much so that partisan gerrymanders allow Republicans to violate the Voting Rights Act by drawing districts that result in unrepresentative legislatures and underrepresenting voters of color.

• 40:02Melissa Murray?

  And other voters, not just voters of color.

• 40:05Leah Litman?

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

• 40:30Melissa Murray?

  Yeah.

• 40:30Leah Litman?

  That was their aim.

• 40:31Melissa Murray?

  Yeah. So I think, you know, just like its attempt to recast Milligan, the court is here really trying to recast Rucho as not a case about the limits of federal courts authority, right? So as Leah was just saying, Rucho is ostensibly a political question doctrine case, but instead they are treating it as a celebration of partisan gerrymandering. Kavanaugh also at points seemed to be trying to turn Rucho into some kind of change circumstance or intervening development that maybe rendered irrelevant all previous Voting Rights Act cases.

• 41:04Leah Litman?

  Superseding intervening cause.

• 41:07Melissa Murray?

  Right, which, you know, they're that, but they have in the story decisiveness analysis, right? Like as you, Melissa, have written about, they are, they have long been fond of suggesting, like if they can identify things that they can call, you know, change circumstances, they might be able to get out from under the weight of inconvenient precedent. So if there's precedent that is squarely on the side of the constitutionality of the Voting Rights Act, but this convenient intervening precedent can be recast as blessing on the merits partisan gerrymandering, maybe that weakens the force of these other inconvenient precedents. So maybe before Rucho, no legislature could admit to engaging in partisan gerrymandering, which means that it's all a totally new world and a different set of questions now when

• 41:50Melissa Murray?

  a state can say permissibly that it's engaging in political gerrymandering, not racial gerrymandering.

• 41:55Leah Litman?

  It's going to make a great listicle.

• 41:58Melissa Murray?

  Yes. All right. I guess unfortunately, we're kind of in one of our own listicles because we're getting to three.

• 42:04Leah Litman?

  We are.

• 42:05Melissa Murray?

  Which is.

• 42:05Leah Litman?

  I learned it from watching you, Brett.

• 42:08Melissa Murray?

  I think our listicles are better. And this one.

• 42:12Leah Litman?

  Are there at least complete sentences?

• 42:13Melissa Murray?

  Complete sentences. There's, and there's like citations in there. They, we've put some thought into it. I put our listicles against.

• 42:19Leah Litman?

  As any day. And this one is a return to one of Leah's term themes from our term preview, which is the kind of when is time's up for section two of the Voting Rights Act? And what I mean by that is the Republican appointees on the court, or at least some of them, really seem to think that the 14th and the 15th amendments have an expiration date and that that expiration date is right now. Or maybe they think that the amendments are OK, but legislation to implement them has an expiration date and that expiration date is right now. Or maybe the 14th endures in their particular reading of it and it has overtaken the 15th, which has expired. I think there's lots of different possibilities. But whatever it is, Kavanaugh-

• 43:01Melissa Murray?

  Time's up.

• 43:02Leah Litman?

  Time is up.

• 43:03Melissa Murray?

  There's a shot clock.

• 43:04Leah Litman?

  So let's play Kavanaugh leaning into this.

• 43:06Speaker 06

  As you know, is that this court's cases in a variety of contexts have said that race-based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but that they should not be indefinite and should have a endpoint. I'm asking what you think the time limit on that should be, or there really shouldn't be a time limit. I think you might be saying there shouldn't be a time limit unless Congress chooses one. But part of scrutiny, again, is the temporal limit. That's been part of strict scrutiny for a long time.

• 43:46Leah Litman?

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

• 43:53Melissa Murray?

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

• 44:21Leah Litman?

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

• 44:24Melissa Murray?

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

• 44:31Leah Litman?

  I'll play Regina any day.

• 44:33Melissa Murray?

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

• 44:40Leah Litman?

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

• 45:13Melissa Murray?

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

• 45:48Speaker 05

  It's a pretty significant showing to establish that unequal opportunity of electoral processes is happening in a situation.

• 45:57Melissa Murray?

  That's correct. Jingles is an exacting test. It is data obsessive. It brings in experts and many other forms of evidence to establish a racial violation. There are many cases where the plaintiffs fail in bringing the jingles one precondition or jingles two or jingles three before they even get to the totality of circumstances.

• 46:19Speaker 05

  So if we're talking about a time limit. General, I mean, what jingles does, and, you know, the idea that this is like 50 years later, this is not a kind of Shelby County thing. Where one could say that Congress had acted and 50 years later, you know, the conditions on the ground might have changed and there would be no way to respond to that change. Because what Jingles does and what these Section 2 suits do is they ask about current conditions and they ask whether those current conditions show vote dilution, which is violative of Section 2. So they say, is there racial segregation, racial residential segregation now?

• 47:03Speaker 05

  Is there racially polarized voting now?

• 47:06Leah Litman?

  I just want to note that the escalating rage in Justice Kagan's voice is my personality. I felt very seen and heard from this. But I think, you know, the point or problem is it's true that, of course, Jingles takes into account current conditions. It's also true that these remedies are only ordered when there is a violation, a finding of unlawful discrimination of the Voting Rights Act. But these guys don't think that's real discrimination because the TLDR of so many of the court's cases is that suggesting white people are engaged in discrimination is really awful,

• 47:48Leah Litman?

  probably itself is a form of discrimination, and it simultaneously maintains there is no racial discrimination against racial minorities unless you say you're racially discriminating and wear your white hood while you say it.

• 48:01Melissa Murray?

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

• 48:47Melissa Murray?

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• 49:30Melissa Murray?

  to get 10% off your next order at bookshop.org. Your next great read is just a click away. On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents Live Election Results. We're going to have Jon Favreau, John Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all going to help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3rd, at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 50:23Melissa Murray?

  All right, there's yet another theme. And this one, I think, hearkens back to Justice Sotomayor's opening question. Separate and apart from whether there is an expiration date on the Voting Rights Act or the Constitution writ large, the bottom line question here is Section 2 unconstitutional. And I just want to say, by way of a preface, when John Roberts wrote his In 2013, Shelby County versus Holder, and he totally dismantled the preclearance regime. He assured us that Section 2 still endured and was still a way for minority voters to ensure that their rights could be vindicated under the Voting Rights Act. Well, here we are.

• 51:01Leah Litman?

  True, in 2013.

• 51:02Melissa Murray?

  Well, I mean, and this is the question. This goes back to the point Kate was making. Has there been a superseding intervening event that would make Section 2?

• 51:10Leah Litman?

  That superseding intervening event is the confirmation of a sixth Republican appointee. Turns out, changed circumstance by previous precedent.

• 51:20Melissa Murray?

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

• 51:30Leah Litman?

  Put in a blender, you got some SFFA, you got some Rucho, and bam.

• 51:34Melissa Murray?

  So, I mean, this was actually wild to me, how a very limited case about college admissions now becomes a question of whether or not a key provision of a super statute that literally brought minorities into the body politic is still constitutional. So, in the certiorati I'm questioning, Justice Sotomayor asked Janine Nelson, why would the VRA be unconstitutional in light of decisions like Students for Fair Admissions? And she responded by distinguishing the legal violation here, saying that the legislature drew districts that reduced minority voters' power and the remedy, rectifying legislative maps that result in white voters

• 52:17Melissa Murray?

  being overrepresented. And she then argued that SFFA actually allows race to be used when there is a legal finding of discrimination, like when you have a bad map and you then draw a new map that is not bad, right?

• 52:35Leah Litman?

  Right, but this also gets back to this idea of like, what do they think is discrimination? And in Janine's answer here, she also invoked the idea that Congress deserves some deference in supplying remedies for constitutional violations that might be difficult to prove, like intentional racial discrimination.

• 52:53Leah Litman?

  Justice Kavanaugh responded, "That deference isn't appropriate when dealing with the equal protection clause," which would be news to the Reconstruction Amendments. Right? Like, did you realize there's a Section 5 to the 14th Amendment, which gives the Congress the power to enforce the amendments? Like, same thing in the 15th Amendment, there's a Section 2. Did he not read to the end?

• 53:15Melissa Murray?

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

• 53:25Leah Litman?

  So he's read Section 3, but I just don't think he's gone all the way to 5.

• 53:28Melissa Murray?

  He just stopped right there.

• 53:28Leah Litman?

  Yeah, I think that's, yeah.

• 53:30Melissa Murray?

  He got the 3 confused with the 5. He's like, this is it.

• 53:33Leah Litman?

  Yeah, that's it. So, I mean, all this to say, like, it is very clear what these guys think discrimination is and isn't. And at one point, Louisiana Solicitor General, who was, you know, marching to the same tune, referred to, quote, "This court's dedication to fixing race-based discrimination." My eyes rolled out of the back of my head. L-O-L. Except for, I thought he actually might have been making an inadvertently profound point if he meant fixing in the sense of setting it in stone, not like ending or stopping it. Like, maybe he had a point. Yeah, yeah, yeah. So, yeah.

• 54:11Melissa Murray?

  Like, fixture.

• 54:12Leah Litman?

  Yeah, you know, exactly. So that, this court wants that. I don't think that's necessarily wrong. And, you know, I think that might be especially true because in the same argument, the Louisiana Solicitor General admitted that Louisiana would never have drawn a second black district if it was not forced to.

• 54:28Melissa Murray?

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

• 54:57Leah Litman?

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

• 55:10Melissa Murray?

  Breathing room. So do they have the breathing room to intentionally discriminate on the basis of race? They don't have breathing room to intentionally discriminate on the basis of race. They have breathing room to use race to remedy their own discrimination. And so there's one possible position here, and it's clear that both Justice Gorsuch and Justice Thomas are here. And that position is that any Section 2 remedies that touch on race at all are presumptively unconstitutional. Or maybe it's just that Section 2 is unconstitutional, full stop. That's a possibility. Another possibility that would get too much the same place is the conclusion that complying with the VRA is no longer a compelling governmental

• 55:52Melissa Murray?

  interest. So here's the attorney for the Apples discussing that point.

• 55:56Speaker 03

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

• 56:10Melissa Murray?

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

• 56:22Leah Litman?

  And because that Missouri lawyer made a reference to stereotyping, this is something

• 56:28Speaker 05

  that the challengers repeatedly invoked. And there was a very satisfying moment, I thought, when Justice Kagan made really short work of this allegation of stereotyping. So let's play that here. Mr. Graham, you and the Solicitor General spoke about stereotyping and how there's no place for stereotyping. But I'm wondering what stereotyping has to do with any of this. The requirements of a Section 2 vote dilution claim are essentially that there is residential segregation by race. That's not stereotyping. That's just where people live. And that there is racial block voting, essentially that whites won't vote for a

• 57:08Speaker 05

  black candidate. That's not stereotyping either. That's just what the data shows about racially black voting.

• 57:20Leah Litman?

  All right. Is this the last theme? There's so many themes. For now, this is the last. Okay. And that is that this court, or at least some justices, seemed during this argument significantly more extreme than the Trump Justice Department, which is really saying something. And I'll just make one point on that theme, which is that Mupin, who is one of the deputy solicitor generals, essentially was kind of disclaiming asking the court to announce a test that only intentional discrimination can be remedied. And the other two lawyers were like, a little bit dodgy about exactly where they stood on that, but I think basically did seem to concede that they really are asking for an intent-only test. And Mupin was like, no, we're actually not saying that. Whether you take that at face value or not, I don't know, but he at least did say it.

• 58:05Leah Litman?

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

• 58:41Melissa Murray?

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

• 59:20Speaker 06

  If you look at the districts, there are only 15 majority-black districts. So even if, we're not even urging Section 2 to be eliminated, but even if you eliminated Section 2 entirely, fully 75% of the black congressmen in this country are in districts that are not protected by Section 2.

• 59:37Leah Litman?

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

• 59:49Melissa Murray?

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

• 59:51Leah Litman?

  Well, I was gonna ask, is that three fifths of the current? No, does that not go in the episode? I'm not sure. I'm not sure. But here is an actual truth teller, Janine Nelson, telling us what is really at stake in Louisiana, but in many other states.

• 1:00:10Speaker 06

  If we take Louisiana as one example, every congressional member who is black was elected from a VRA opportunity district. We only have the diversity that we see across the South, for example, because of litigation that forced the creation of opportunity districts under the Voting Rights Act. Every justice in Louisiana has been elected through a VRA opportunity district, and nearly all legislative representatives have been elected on those same districts. So Louisiana alone is an example of how important it is to have Section 2 continue to be enforced to create these opportunities.

• 1:00:51Melissa Murray?

  Because the South.

• 1:00:53Leah Litman?

  Because the South.

• 1:00:54Melissa Murray?

  All right.

• 1:00:55Leah Litman?

  All right, so there, we could go on, but I think we hit some lowlights. I mean, in terms of bottom line kind of takeaways or predictions, it will be bad. I feel pretty confident saying that. I think to that last set of observations about the federal government's argument, they could do some version of what the federal government is asking and, you know, not say they are touching Section 2 on its own, just, you know, making it much more difficult to apply it in any instance. It doesn't have a threshold finding of intentional discrimination in a very similar way to sort of Melissa was talking earlier about the way Shelby County, you know, actually says they're just invalidating the coverage formula, but obviously it eliminates Section 5, maybe

• 1:01:37Leah Litman?

  something that is superficially not the most radical or extreme version of the court strikes down the last remaining pillar of the Voting Rights Act. But In kind of actuality does that. Yeah, I agree. They are going to make it practically impossible to enforce Section Two of the Voting Rights Act and to remedy cases of vote dilution. I don't know how they're going to do it. I'm not sure they even know how they're going to do it, but they're going to do it. Co-sign all of this. All I want to say is, back in 2023, when Allen versus Milligan came out, didn't I say that that was just an it'll? Like, they would be back and they would totally trash the Voting Rights Act. And so many people got mad at me, like, friends in the civil rights community were like, you know, why are you harshening on this victory?

• 1:02:22Leah Litman?

  Like, LDF won this victory. And I know, but I was just like, you could see it. You could see it in the Thomas separate opinion. You could see it in the Kavanaugh separate opinion. Like, it was coming. And so, again, this is not like a fight with my husband where I take real pleasure in being right. I take no pleasure in being right here, but, like, they show us continually who they are. Like, just, like, prepare for it. Don't get wrapped up in, like, one minimal victory that they literally yank away from you. Like, literally, like Lucy and the fucking football. Yeah. I can confirm that the day Allen versus Milligan dropped, Yes. you were already like, don't trust this for one second. And Nope. Yeah. Seems like you're right.

• 1:03:06Leah Litman?

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

• 1:03:35Leah Litman?

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

• 1:04:16Melissa Murray?

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

• 1:04:21Leah Litman?

  We will cover them relatively briefly, but we do want to spend a little bit of time on them. And the next one we're going to talk about is Bo versus United States, which is a complicated federal courts and habeas case, which is, of course, Leah Litman's bat signal. So Leah, take it away. So in the interest of time, and again, the fact that I'm giving up airtime on these issues should underscore how significant Louisiana versus Colay is, but we're not going to talk a lot about this one. It does present two questions about whether some statutory limitations that apply to habeas petitions brought by people who are convicted in state court also apply to habeas petitions brought by people who are convicted in federal court. The two limits are, one, whether claims that are presented in previous habeas petitions

• 1:05:02Leah Litman?

  must be dismissed when they appear in second or successive habeas petitions. And the second is whether you can file a cert petition or request panel rehearing after a court of appeals has granted or denied permission to file a second or successive habeas petition.

• 1:05:19Melissa Murray?

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

• 1:06:04Leah Litman?

  Now they're humble.

• 1:06:06Melissa Murray?

  Restraint.

• 1:06:08Leah Litman?

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

• 1:06:22Speaker 01

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

• 1:06:38Leah Litman?

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

• 1:06:47Melissa Murray?

  Just thrusting. Oh, my God.

• 1:06:50Leah Litman?

  That's literally what he says.

• 1:06:53Melissa Murray?

  He said the thrust.

• 1:06:56Melissa Murray?

  We're not doing textualism.

• 1:06:58Leah Litman?

  He's not really attentive to terminology.

• 1:07:00Melissa Murray?

  Just the thrust.

• 1:07:02Leah Litman?

  No terminology, just the thrust.

• 1:07:04Melissa Murray?

  Just the thrust.

• 1:07:06Leah Litman?

  He said it.

• 1:07:07Melissa Murray?

  And we take our joy where we can find it, don't we? All right. I think he does, he puts these little Easter eggs in for us. Anyway, okay. So there was another oral argument. This was in Ellenberg versus United States, where the court has to decide whether restitution awards under the mandatory Victims Restitution Act might be criminal punishment or civil punishment. And it's actually a very narrow question about whether restitution is penal in nature, which might mean that if it is penal in nature, it can't be applied retroactively under the ex post facto clause. We might, we say might, and this also explains why it's a very narrow question, because there are other factors that courts have to consider when determining whether ex post

• 1:07:48Melissa Murray?

  facto clause prohibits the government from retroactively applying a particular provision. And those other factors will still have to be weighed before a court decides whether restitution under the statute can be applied retroactively.

• 1:08:02Leah Litman?

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

• 1:08:11Melissa Murray?

  And as Leah just said, because both the federal

• 1:08:14Leah Litman?

  Government and the petitioner are arguing that this kind of restitution is criminal. The court appointed an amicus, John Bash, to take the other position. And I misspoke last week when I said Bash was invited to argue in Barrett versus United States. That was actually Luke McLeod. And there was another attorney, Kasdan Mitchell, who was invited to argue part of Bo versus United States, the habeas case that we were just talking about. For folks who aren't familiar with the phenomenon, the court occasionally invites a party to argue on one side of a case or one issue in a case, usually because the federal government has changed positions and there would otherwise be no one arguing in support of the judgment below. But it is really striking to see this happen three times in one sitting. And it is also really striking how strong a type the justices have when it comes to

• 1:08:59Leah Litman?

  issuing these invitations. So we mentioned last week that there were only eight women arguing in the October sitting. One of those is Kasdan Mitchell, but the justices could help bump that number up with more such invitations, but they pretty clearly have very limited interest in doing that.

• 1:09:15Melissa Murray?

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

• 1:09:49Leah Litman?

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

• 1:10:06Melissa Murray?

  Like make a remedial map after being shown the illustrative map that was clearly discriminatory on the basis of gender, they might make a remedial map?

• 1:10:14Leah Litman?

  When you put it that way, clearly they were never going to do that. And in fact, they haven't. It seems like they have just doubled down. The last 10 years have not been any better than the ones I was cataloging. So. And the last case in this sitting that we'll talk about was Case versus Montana. At issue in this case, case, is what standard applies to police officer's decision to enter a home because they think someone inside is in need of emergency? The Fourth Amendment generally prevents officers from entering a home without a warrant, and getting a warrant requires convincing a judge that there's probable cause to believe someone committed a crime. But there are exceptions to the warrant requirement. Among other things, the court has allowed warrantless entries, quote, "when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury," end quote.

• 1:10:59Leah Litman?

  But it has rejected, like, a general kind of caretaking or emergency exception to the warrant requirement.

• 1:11:05Melissa Murray?

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

• 1:11:50Leah Litman?

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

• 1:12:00Speaker 06

  If we are not allowed to use what other people use against us, there's no defense. It'd be a disaster for America. That's why I think I'm going to go to the Supreme Court to watch it. I've not done that, and I had some pretty big cases. I think it's one of the most important cases ever brought.

• 1:12:19Leah Litman?

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

• 1:12:23Melissa Murray?

  Has anyone ever gone up to the bench and thanked them afterwards? After oral arguments? That would be amazing.

• 1:12:29Leah Litman?

  Thank you, I won't forget this. First time for everything. I mean, obviously, it'll be kind of a spectacle if he is there. The argument will be in part about his wholly unsupported claims that emergency conditions require these insane tariffs. And if he's sitting right there, it might, you know, cast a shadow over the proceedings, which maybe is his point. But, I mean, I am genuinely curious. I have not been to arguments for a while. I don't think any of us have. And I probably can't make the time to go, even if I could get a seat. But I'm sort of tempted to try. And I was reminded when I saw this, you know, him floating the possibility of the fact that Trump and Melania were both in the courtroom for Gorsuch's investiture, which I was in the press section for.

• 1:13:12Leah Litman?

  And they're both really tall. And the courtroom seating is, as you guys both know, like, really small and cramped. And they seemed very uncomfortable. It's like, you know, wooden benches. There's no padding, like, the angle's not great. And that was like, I don't know, 10, 15 minutes. So I find it kind of hard to see him suffering through hours of the tariff case. I feel like those will be very long arguments, but I guess we'll see.

• 1:13:35Melissa Murray?

  And whether or not we actually venture down to DC to see the arguments in the tariff case, we are definitely going to be in DC that week to unpack them before a live audience at CricketCon two days later on Friday, November 7. And yes, listeners, you already know this, but I'm going to say it anyway. CricketCon is the event that keeps on giving. It is our day-long November 7 CricketCon event that now features three stages, which means even more guests. And latest additions to our lineup include Jen Psaki, Jessica Valenti, Melissa Morales, Simone Sanders Townsend, Tim Miller, Walid Shaheed, Adam Mockler, and Kai Polanco. They will join Senator Ruben Gallego, Representative Sarah McBride, Governor Andy Beshear, and many more.

• 1:14:20Melissa Murray?

  And just a reminder, we will be closing out CricketCon. All those people were just a warm-up act for Strict Scrutiny. You heard it here, folks. We are going to have a live Strict Scrutiny show. CricketCon ticket holders can attend our show, as well as live tapings of Hysteria and Crooked's subscriber-exclusive show Terminally Online. It's not just what we call Kate in our spare time. So grab tickets and get more updates on the programming. Just head on over to crookedcon.com.

• 1:14:48Leah Litman?

  And other developments in Article Two. So another week, another round of presidential threats of yet more illegal and unconstitutional targeting of political opponents and critics, this time from the Oval Office, where he talked about a recent public event by Jack Smith. That event, the one involving Jack Smith, was in London, and it was a conversation between Smith and Andrew Weisman. The event was hosted by friend of the pod, Aaron Delaney, at the University College London's Global Centre for Democratic Constitutionalism. I listened to part of it. It was a very good conversation. It was also a conversation that apparently was very triggering to President Trump, who, at the Oval Office presser, suggested that he might go after Smith.

• 1:15:30Leah Litman?

  He then mentioned Andrew Weisman and Lisa Monaco, Biden's former deputy attorney general. And he did all this in the Oval Office. And it's like if the insane, like, gold flourishes everywhere wasn't enough, we have to watch him now explicitly promise multiple constitutional violations on camera with his attorney general and deputy attorney general and FBI director looking on. And, I mean, I find from week to week, I don't know about you two, sort of hard to predict what will break me, and this really kind of broke me this week. In addition to the persecuted white refugees and Voting Rights Act argument kind of collision, this was really pretty tough.

• 1:16:14Leah Litman?

  Nothing breaks me. Okay. What else happened? So briefly, on District Court Watch, last week, a California District Court preliminarily enjoined the executive branch from engaging in mass layoffs, which they're describing as reductions in force during the government shutdown. The opinion describes the absolute chaos in agencies as furloughed employees can't even check their emails to find out if they are receiving reduction in force notices. Pregnant or seriously ill employees don't know how to find out the status of their health insurance and more. As the judge noted, in addition to the chaos, quote, "It is also far from normal for an administration to fire line-level civilian employees during a government shutdown as

• 1:16:58Leah Litman?

  a way to punish the opposing political party." But this is precisely what President Trump has announced he is doing.

• 1:17:05Melissa Murray?

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

• 1:17:21Leah Litman?

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

• 1:17:56Melissa Murray?

  And speaking of things developing quickly, the U.S. Court of Appeals for the Seventh Circuit decided to leave in place the district court order blocking the deployment of the National Guard in Chicago, which means we may be off to the shadow docket quite soon. All right. Moving away from Article 2, brace yourselves, ladies. We have some news from dun dun dun dun, Article 1. Yes, what's that? Is it Congress calling? I barely know you. Where have you been? Well, you got off the couch. We almost never mention Congress these days because really, what is there to say? But this week, it seems like Congress,

• 1:18:40Melissa Murray?

  like Whip Van Winkle, woke up and has done something, something worth talking about, or not, or not done something, as the case may be. And this is what I mean. Speaker Mike Johnson is now on his third week of refusing to seat Arizona Congresswoman-elect Adalita Grealva. She was elected to Congress in a special election back in September. Yes, September, many months ago. Like, that's literally enough of time for the Supreme Court to overrule a former precedent. Like, just a month, that's all it would take. Despite the fact that Grealva won by an Enormous margin and is already in DC, ready to get to work for the people of her district who elected her in a free and fair election.

• 1:19:22Melissa Murray?

  Speaker Johnson has still not sworn her into Congress. Krihalva and many Democrats think that he is delaying because she has pledged to sign a petition that would force a vote to release a tranche of Jeffrey Epstein documents. She would be the 218th signature, which in the House is a magic number for getting things done. And that seems to be all he needs to keep her out of her seat. But do not worry, the Democrats are on the case and are keeping the pressure on. More to come, I am sure.

• 1:19:54Leah Litman?

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

• 1:20:09Melissa Murray?

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• 1:20:51Melissa Murray?

  You can have a great fitting bra that looks great under your clothes without actually digging into your skin and making you uncomfortable all day. It's not that hard. She tried it. She loved it. She knows I'm right. I could have told her that from the beginning, but here we are. So you don't have to suffer. Go shopping for your new favorite bra and underwear at skims.com. After you place your order, be sure to let Skims know that we sent you. Select Podcast in the survey and be sure to select Strict Scrutiny in the drop-down menu that follows.

• 1:21:22Leah Litman?

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents Live Election Results. We're going to have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all going to help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3rd at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 1:22:14Leah Litman?

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

• 1:22:55Leah Litman?

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

• 1:23:17Melissa Murray?

  Yeah, so you know, it's interesting. I may have an aberrant view on the indictment.

• 1:23:21Leah Litman?

  indictment of John Bolton because I view it very differently than I view the indictments that were brought against Jim Comey and Letitia James in the Eastern District of Virginia. This new indictment, John Bolton, is out of the District of Maryland. The acting U.S. Attorney in that district is a career prosecutor, and she did not go into the grand jury on her own, as did Trump's appointee in the Eastern District, to get this indictment. Instead, two senior career prosecutors in her office, joined by lawyers from DOJ's National Security Division, went in and indicted John Bolton. This indictment looks a lot more like the traditional indictment I'm used to seeing in a good case.

• 1:24:02Leah Litman?

  Twenty pages of factual predicate, and if DOJ has the evidence they say they have, then they have a strong case, not an airtight case, not a case that Bolton can't defend against. But this is not a case where you can look at the indictment and say on its face, this indictment was not warranted. You can say that with Comey and with James. And so here's the problem that I think you're driving at. Donald Trump has so compromised public confidence in the integrity of the criminal justice system that people now think, you know, whenever, whenever the defendant in a case is somebody that he's targeted, and he has targeted John Bolton outrageously, then people will, will be uncomfortable.

• 1:24:46Leah Litman?

  Well, is what's in the complaint, is, are all of the allegations in the indictment true? Right? Can we trust the Justice Department? To me, that's, that's really one of Donald Trump's greatest sins. Yeah, and I should say, if you want to hear more about this, you should read Joyce's Substack, Civil Discourse, which had a great post about this. But yes, part of what concerns me is, I don't know why this case was brought against John Bolton, and I can look at other cases, including that involving David Petraeus, where it looked like, you know, someone who did something similar to John Bolton got much more lenient treatment anyways. Well, can we, can we just belabor the Petraeus point for a second? Because I think it's fascinating. That case was brought during the Obama administration by one of my friends, who was one of the North

• 1:25:30Leah Litman?

  Carolina U.S. Attorneys, Ann Tompkins, who handled that case very deftly. Petraeus's conduct was very similar, right? It involved using a shared email account and not a family member like Bolton, but a woman.

• 1:25:42Speaker 02

  He was having an affair with who was his biographer to share classified information. Petraeus was permitted to plead to a misdemeanor. And and that I think is the comparison and something DOJ strives for is uniformity. Treat similar cases alike. So what I'll be listening for is whether or not these prosecutors can distinguish this situation from Petraeus and explain why Bolton's conduct is more serious.

• 1:26:09Leah Litman?

  Absolutely. So the point you made about Donald Trump kind of defiling our institutions, including the Department of Justice, goes directly to your book because there is a chapter that is entitled "The Myth of Broken Institutions," and it begins this way. "In the popular imagination, Donald Trump is invincible, but that's a myth, not a reality." And it goes on to explain how many of our institutions have held. So I agree in many respects. This was especially true during Trump 1.0. I guess I would be curious to hear, like, how many institutions do you think have held up in Trump 2.0? And how do we communicate to people the imperative of reforming our institutions

• 1:26:51Leah Litman?

  that might stand in the way of getting us out of this mess while also not causing people to lose faith and check out from the system?

• 1:26:59Speaker 02

  Yeah, so that question, you've actually just defined the syllabus for my semester-long Democratic Institutions class. I think that this is a really important question. And can I just start by saying it's not a question just for lawyers or politicians. This is the foundational question as Americans that we are both capable. You know, you don't have to have gone to law school to understand or be an expert in the institutions. So I think that this is important, sort of like a shared civics education endeavor that we all take part in. What we see, because, you know, we live in a world where the media has to sell whatever it is they're selling, advertising to support their outlets. So we don't hear the good stories. As often as we see the cracks, right?

• 1:27:43Speaker 02

  The chinks in the armor of democracy are what we see.

• 1:27:48Speaker 02

  And so the institutions, when you think about it writ large, you know, you can talk about big letter institutions, the executive branch, the executive branch agencies, Congress, the courts. And so we see where there are problems more readily than we see where there is strength. And because those institutions are made up of people and that's sort of an ever-changing cast of characters, there's always the opportunity to bolster the institutions. So the institution that's nearest and dearest to my heart is the Justice Department. We see so much strength there, right? We see prosecutors who have resigned and walked away rather than doing what they believe is the wrong thing. What we don't see is the thousands of prosecutors across the country

• 1:28:33Speaker 02

  who every day keep their heads down, do their jobs, take seriously their obligation to keep their communities safe and who even, even as we're speaking, I think are very deliberately confronting what they will do if they are told by political forces to make a decision they disagree with. Look, in my old office, we really hated Washington. I'm just going to be frank. We resented any time folks in DC tried to intrude in our decision-making process. At one point, I had a prosecutor in a very sensitive public corruption case. The Attorney General had asked for a briefing and he said, "I'm not going to share my evidence, it might get compromised." And I was like, "Oh, friend, we're going to share, share our evidence

• 1:29:18Speaker 02

  with the Attorney General of the United States." But the point that I'm making is for prosecutors, this is not a political matter. The idea, no matter who the president is, that he or she would tell you how to handle one of your cases is so foreign to prosecutor DNA. This is a Strong institution. It is being tested. Some of the folks at the top are not doing their jobs. But I think we'll see this institution reemerge.

• 1:29:45Leah Litman?

  I wanted to put a quick plug in for the book in light of something you said, which is about shared civics education. So I just got back from a trip to LA and a woman who was a doctor was telling me she has a reading group of her friends and they are reading the Federalist Papers. Now, this book does a superb job of weaving in some Federalist Papers, some history, but situating it alongside what is happening in our current day. So if you have a reading group like that, this is literally the book for you. And there is, in another chapter, you wrote something that really resonated with me. And that is, quote, "I hope this book has made the case that it's true. The next election is always the most important one of our lives," end quote.

• 1:30:28Leah Litman?

  This was a great perspective because to me it responds to critiques of, "It can't be that like every four years, right? You are beating the drums and telling me I need to like put all I can, you know, on the field." And so I guess like, was that kind of what you were responding to as you were situating? You know, the energy we all need to have for our democracy?

• 1:30:48Speaker 02

  Yeah, very, very much so. Like every other voter in America, I sort of roll my eyes and take another swig of my drink, whatever it might be at the moment. Every time a politician tells me the next election is the most important election of our lives. But we now live in an era where that is profoundly true, right? The midterm elections will determine whether or not we have the ability to reestablish guardrails that will protect democracy. If, if Democrats and, and not even just Democrats, but pro-democracy candidates at every level of government, federal, state and local, win in this next election, that's a game changer. You know, 2028, the presidential election, it will be a game changer.

• 1:31:31Speaker 02

  But also Congress, the Senate, who your governor is. We're seeing that now, right? We're seeing real federalism in play with governors and mayors.

• 1:31:40Melissa Murray?

  Standing up for democracy too. So yeah, sadly, the next election is always going to be the most important one.

• 1:31:46Leah Litman?

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

• 1:32:08Melissa Murray?

  So I am not a native southerner. I'm born and raised in Los Angeles, but I have lived in the South for long enough to acquire the accent and also to absorb the cultural, some aspects of the cultural understanding of the Confederacy where it's romanticized and viewed as a sentimental patriotic lost cause, which is is not my view as someone who has a very different view of slavery. But in any event, that persistent myth in many ways was permitted to linger because what didn't happen at the end of the Civil War was accountability. Really Confederate leaders got off relatively light. There was

• 1:32:48Melissa Murray?

  very little in the way of prosecution or jail time. And in the culture, they were resurrected in many ways as heroes. So fast forward to the modern day, I see a repetition of that with January 6th, where instead of being viewed as insurrection for many people and for the president, right, who has abundantly pushed this narrative by pardoning people who were convicted for their conduct on January 6th.

• 1:33:17Leah Litman?

  Referring to them as prisoners.

• 1:33:19Melissa Murray?

  Exactly, right, as patriots, you know, the Patriots Choir that they convened while they were still in custody. And this whole notion that these people who engaged in violence at the Capitol are sort of heroes. I think that that's become a second lost cause, a way of focusing Americans away from true patriotism and the constitutional basis for the republic onto something much darker.

• 1:33:47Leah Litman?

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

• 1:34:18Speaker 02

  This is my favorite part.

• 1:34:19Leah Litman?

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

• 1:34:48Speaker 02

  So, you know, one of the great things about being the US Attorney in Birmingham is that you get to spend a lot of time with a lot of different people. And my personal favorite place to go, good Jewish girl that I am, is 16th Street Baptist Church in downtown Birmingham, the site of the bombing that killed four young girls during the civil rights era. But my favorite thing about being at 16th Street Baptist Church is the fact that I adore the pastor. We went through Leadership Birmingham together. The music is unbelievably moving. The call and response during church services is great. You have this feeling of warmth and support and of being nurtured and recharging your batteries

• 1:35:33Speaker 02

  and that you can take on the world and sort of right any wrongs. I think that's the feeling that we all need right now. This is, this is a tough moment. I've talked to a lot of people who have said, "My temper is frayed. I'm impatient." You know, I had a conversation with a friend who told me a story about being mean to a waitress in a restaurant, which is just not in her DNA. And she was horrified by herself and ended up appalled.

• 1:35:57Melissa Murray?

  I think that we're all living through that moment and being with other people who are like minded. Not only do we find support for the actions that we personally want to take to preserve democracy. I think it's just the mental health care that we all need right now.

• 1:36:13Leah Litman?

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

• 1:36:58Melissa Murray?

  Yeah, so you know what motivated me to write this? It's something I think about a lot, right? I mean, I'm a former dancer. I think dance can be a powerful form of protest. One of my students, my democratic institution students, wrote a paper about art and democracy. And working with her on the research, I just kept thinking, this is so powerful. And, you know, I have kids who would never in a million years go out and protest and hold a song, but they would write a short story or they would engage in, you know, some form of creative artwork collage or sort of a group traditional piece. And I think it's really important for us to say to everyone in our communities,

• 1:37:41Melissa Murray?

  there is a space for you to protect democracy and it has to be authentic for you and who you are and what you care about. So, you know, some people may care about public health and want to work in that area. I think that's fabulous and we desperately need that. Some people like us are nerdy, traditional, legal academics. And, you know, we find this stuff compelling and fascinating and that's our work. But some people

• 1:38:06Speaker 02

  Much more activated by the arts or by religion or by some form of science. I I just think it's wonderful to to live in a country where we have so much diversity.

• 1:38:18Leah Litman?

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

• 1:38:56Speaker 02

  Yeah, so, look, I think the problem comes in compromise with the bully, right? I think you've got to just make a decision early on about what you will and what you won't tolerate. And this is sort of where we started, right? So many people are overwhelmed by this. They just want to unplug. They don't want to deal. They hate it. They want it to go away. And look, I I don't criticize. I think we're all different. We all have different capabilities and situations. And and you've got to be who you are. What I fear, though, are people who are, for instance, in government or at the Justice Department,

• 1:39:34Speaker 02

  who think, OK, I can put up with this one degradation to stay in place and keep doing my job. And that, by the way, may be sort of a legitimate decision, right? I think that there are people that are struggling with that. Maybe I do have to go along a little bit so that I can act as an important barrier when important developments happen. But there are some things that you can't and won't tolerate. And and I think where we saw that, frankly, was in the US Attorney's Office in the Southern District of New York, when it became apparent that leadership at the Justice Department, sponsored from the White House, were going to dismiss the pending prosecution.

• 1:40:13Melissa Murray?

  Of Mayor Eric Adams on public corruption charges, a strong case. And it was very clear to them that this was politically motivated. And look, you don't dismiss cases against criminal defendants so that they can do the president a political favor. We saw resignations out of that office rather than having those people participate in dismissals. That is knowing who you are, drawing your line in the sand. And at great personal cost, right? Leaving a job that that you love for an unknown future where you may well be targeted because we all understand how MAGA works. But better that you do that than die a death by a thousand cuts. So I think we just all have to define that line for ourselves.

• 1:40:57Leah Litman?

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

• 1:41:20Melissa Murray?

  Thank you for having me.

• 1:41:23Leah Litman?

  That was a nice jolt of fired up energy and on the heels of the No Kings protest, no less. So we also have some of our favorite things to share. So last week I was traveling, which means I was able to do a lot of reading. I read Jasmine Guillory's new book, Flirting Lessons, loved it. I also read the Bow Street Runners series from Lisa Kleypas and loved that as well. I was traveling to LA, which I loved. I just love it there so much. And when I was there for an event at the Henry Museum, I got to meet a lot of wonderful West Coast stricties. I am not nearly as good as Melissa about remembering to write people's names down, but wanted to say hello to Chris Eric Sky Alexa Ruth.

• 1:42:08Leah Litman?

  And I'm sorry to those of you whose names I didn't write down and to Drusha, who I met at the Los Angeles Airport Hotel as well.

• 1:42:18Melissa Murray?

  All right, I've got a couple of recommendations. One, a must read by Dave Posen and Jed Britton Purdy in the Boston Review. It's titled, What Are We Living Through? And it just sort of asks, are we in an authoritarian crisis? Are we in a period that is just really about exacerbating existing pathologies? Or is this just transformational constitutional politics, ala FDR in the 30s? Pretty sure that third is wrong, but one and two are sort of like interesting, different ways to understand the current moment, which I think matters a lot in terms of trying to chart a path out of it. And the other thing I wanted to mention was Adam Levitt's piece in the New York Times about a new essay by Virginia Law Professor Caleb Nelson. And the Nelson piece itself, very much also worth reading. It relies heavily on Leo's colleague Julian Mortenson.

• 1:43:01Melissa Murray?

  And it just basically concludes that the court is wrong to think that the vesting clause or anything else in Article II gives the president unlimited removal authority as the court will decide whether it does in the case involving the FTC and kind of in the case involving the Federal Reserve that are both on the docket. And Caleb Nelson is a very prominent originalist. And so, you know, maybe it matters. This is somebody that justices cite a lot and very much an ideological fellow traveler and basically says the path that you guys are on when it comes to presidential power is unmoored from constitutional text or history in a way many, many others have said for quite some time, but maybe it matters that he is now saying it. So definitely do recommend that.

• 1:43:43Melissa Murray?

  And actually, there's like the last sentence or two of Nelson's piece, I think, you know, basically says, even if it's not that clear what the history shows, the court should not pretend that its hands are tied. Like, it actually is OK for them to acknowledge they are taking into account the consequences of their decisions. And the fact that they might be unleashing the full exertion of a tyrannical disposition by empowering a president with kind of no constraints is something that they should be forced to contemplate. So recommend that. OK, nothing so highbrow from me. I want to recommend Rainbow Rowell's new book, Slow Dance. It is a departure from her usual YA fare. She usually is a young adult writer, Eleanor and Park, et cetera.

• 1:44:28Melissa Murray?

  But this book, Slow Dance, is for adults, and it's about a rekindled high school romance. And it's very sweet, and I like it a lot. I also, because I love a good title, was riveted when it came across my feed. Trace Maddox's The Lawyer, The Witch, and The Witness: Proving Witchcraft in English Courts in the Yale Journal of Law and Humanities, obviously very esoteric, not for everyone, but I found it to be a very interesting read about the rules of evidence in witchcraft trials in merry old England. So never say I'm not a Renaissance woman. I really am. And then finally, I finally saw one battle after another. And oh, my God, like, I thought it was so good.

• 1:45:12Melissa Murray?

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

• 1:45:54Melissa Murray?

  Yes. Peak Christmas adventurers. That's all I'm gonna say. So, yeah, find your joy where you can. Indeed.

• 1:46:03Leah Litman?

  Amen.

• 1:46:04Melissa Murray?

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

• 1:46:52Leah Litman?

  Strix Scrutiny is a Crooked Media production, hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rauel. Michael Goldsmith is our associate producer. Jordan Thomas is our intern. Audio support from Kyle Seglan and Charlotte Landis. 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, Joe Motoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strix Scrutiny on YouTube to catch full episodes. Find us at youtube.com/AtStrixScrutinyPodcast. If you haven't already, be sure to subscribe to Strix Scrutiny in your favorite podcast app 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.

• 1:47:50Leah Litman?

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents: Live Election Results. We're gonna have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all gonna help us make sense of what's happening as the election results roll in. So, here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3 at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 1:48:29Leah Litman?

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• 1:48:46Speaker 03

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• 1:49:10Leah Litman?

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