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Speaker 1: You've heard me bring up Obergafeld before, and now there's

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Speaker 1: this whole conversation about a case that might overturn it.

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Speaker 1: And I've been very clear that I favor the overturning

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Speaker 1: of Obergafeld. And what's going to happen is that's going

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Speaker 1: to lead to people who think they understand my position

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Speaker 1: to scream that I'm anti gay.

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Speaker 2: That's all so incredibly boring.

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Speaker 1: Tony Katz, Tony Katz today, good to be with You

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Speaker 1: find everything at tonycats dot com.

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Speaker 2: Obergafel.

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Speaker 1: The Obergafel decision, going back to twenty fifteen is the

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Speaker 1: decision that quote unquote legalize same sex marriage. My issue

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Speaker 1: is not with two people living their lives together. My

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Speaker 1: issue is that it seems like the Supreme Court created

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Speaker 1: a rite out of hold cloth. There's no law, there's

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Speaker 1: nothing on the books. They just simply decided that this exists.

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Speaker 1: And that's not what the Supreme Court should be doing.

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Speaker 1: Zack Smith joins me right now, senior Legal Fellow and

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Speaker 1: manager Supreme Court Appellate Advocacy Program at the Edwin Meses

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Speaker 1: Center for Legal and Judicial Studies. A short way of

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Speaker 1: saying it is senior legal fellow at the Heritage Foundation

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Speaker 1: Heritage dot Org, and Zach, I want to get into

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Speaker 1: this Obergerfeld decision conversation. I want to dig deep. But

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Speaker 1: there's been so much going on about redistricting. How the

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Speaker 1: Texas Democrats fled to Illinois, because I guess that's where

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Speaker 1: democrats flee. This is about a mid decade redistricting, which

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Speaker 1: is within the law. Nobody's even questioning whether there's a

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Speaker 1: violation of the law. Republicans think maybe there's an opportunity

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Speaker 1: to do this in other places. But you're telling me

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Speaker 1: that there's a case coming to Scotis that might have

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Speaker 1: an impact on all of this.

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Speaker 2: What's the story.

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Speaker 3: Yeah, that's exactly right. Well, thanks for having me on

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Speaker 3: this show today. The big case that may impact redistricting

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Speaker 3: at the Court is a case called Louisiana versus Calai.

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Speaker 3: This is a case out of Louisiana where essentially several

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Speaker 3: groups are challenging Louisiana's drawing of different majory minority congressional districts. Now,

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Speaker 3: the problem for many years that's existed for many states

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Speaker 3: is that Section two its Voting Rights Act purports to

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Speaker 3: require states to take race into account when drawing congressional districts.

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Speaker 3: And yet the Fourteenth Amendment to our Constitution, the Equal

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Speaker 3: Protection Clause, explicitly prohibits states from taking race into account

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Speaker 3: when taking certain governmental actions. And in fact, we heard

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Speaker 3: the Supreme Court reaffirm that principle just recently in the

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Speaker 3: Harvard and U and C. Decisions saying that universities colleges

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Speaker 3: can't take race into account and admissions decisions. And yet

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Speaker 3: states are being told they have to take race into

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Speaker 3: account when dealing with some of our most fundamental political rights,

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Speaker 3: involving how we vote, where we vote, who we can

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Speaker 3: vote for. And so what's interesting about this case in

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Speaker 3: particular is that the Court heard arguments in it last term,

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Speaker 3: but they decided to hold it over. And here are

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Speaker 3: arguments again in this same case this upcoming term, which

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Speaker 3: starts in October.

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Speaker 2: So wait, I'm gonna stop it. I'm going to stop

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Speaker 2: you right there.

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Speaker 1: That's not something you hear of often hearing the argument

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Speaker 1: and then deciding, you know what, let's hold How often

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Speaker 1: does that happen? And specifically to this case, why did

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Speaker 1: that happen?

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Speaker 3: Yeah, So that's what I was going to say. It

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Speaker 3: doesn't happen very often and in the past, whenever it

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Speaker 3: has happened, that typically means that the Court is likely

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Speaker 3: looking to change the current legal landscape in this particular area.

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Speaker 1: So if they're, if they're if we're doing it in

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Speaker 1: a short sentence, an easy elevator pitch kind of way,

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Speaker 1: what is it that you feel the Supreme Court is

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Speaker 1: looking to do here on redistricting.

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Speaker 3: Well, I think there's a very real chance the Court

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Speaker 3: may reaffirm the idea that states cannot take race into

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Speaker 3: account withdrawing congressional districts. And from my perspective, that's a

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Speaker 3: good thing.

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Speaker 1: Talking to Zach Smith, senior legal fellow at the Heritage

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Speaker 1: Foundation Heritage dot org, none of us are fools, right,

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Speaker 1: We're all adults here. The audience here is massive, and

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Speaker 1: it's white, and it's black, and it's Asian, Hispanic, and

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Speaker 1: it's all sorts of things. And we understand that states

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Speaker 1: draw districts. They are they all gerrymander. They all do this,

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Speaker 1: and they draw districts to gain political advantage, and very

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Speaker 1: often that means they do draw districts based on these

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Speaker 1: racial lines.

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Speaker 2: I guess the question is, if the Supreme Court were.

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Speaker 1: To affirm that indeed that is not allowed. How does

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Speaker 1: how does that now then go back to the states

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Speaker 1: where they draw them differently?

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Speaker 2: Like, how can you force them to do such a thing.

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Speaker 3: Well, the justification states have used whenever taking race in

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Speaker 3: account is they have been saying that Section two of

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Speaker 3: the voting Attack requires them to take race into account

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Speaker 3: and requires them in certain instances to draw these majority

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Speaker 3: minority districts. So I suspect if the Supreme Court overturns

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Speaker 3: that says no, you can't take race into account, then

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Speaker 3: what would happen is it would go back to the

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Speaker 3: state legislature and they would be forced to redraw other

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Speaker 3: congressional maps and any other legislative districts that may be

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Speaker 3: impacted as well.

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Speaker 2: But I guess that's the real question. What's going to

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Speaker 2: force them to do it? They could say, what was

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Speaker 2: never racially drawn?

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Speaker 1: Anyway, It's fine, can't they?

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Speaker 3: Well, the issue is, so I think we're probably about

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Speaker 3: two different things. Whenever we talk about jerrymandering, drawing the

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Speaker 3: congressional districts for political advantage, which is what we're hearing

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Speaker 3: so much about in Texas and in Illinois and these

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Speaker 3: other places right now, there's widespread agreement. You can politically jerrymander,

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Speaker 3: and I think we've seen states do that, but you're

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Speaker 3: not supposed to be able to take race into account

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Speaker 3: when jerrymandering. You don't want to dilute the voting power

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Speaker 3: of certain minority groups. And yet what certain states like

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Speaker 3: Louisiana has been saying is that while we can't jerry

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Speaker 3: mander based on race for political advantage, the vot voting

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Speaker 3: right check requires us to try to get certain ethnic

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Speaker 3: or minority groups more voting power than they might otherwise have.

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Speaker 3: We have to take race into account and draw a

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Speaker 3: certain majority minority congressional districts. And so I think at

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Speaker 3: least that explicit justification could no longer be relied on

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Speaker 3: by the states.

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Speaker 1: Talking to you, Zach Smith, a senior legal fellow at

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Speaker 1: the Heritage Foundation Heritage dot org.

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Speaker 2: Let's move it over to a Berga fell.

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Speaker 1: This case back to twenty fifteen, which asserted the right

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Speaker 1: the same sex marriage.

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Speaker 2: That I have made the argument since then, not certainly,

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Speaker 2: not every day. Other subjects have come up.

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Speaker 1: That this was a Supreme Court making a decision a law,

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Speaker 1: if you will, out of whole cloth, and this isn't

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Speaker 1: what the Supreme Court should be doing. If you want

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Speaker 1: to argue this in the States, I was winning at

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Speaker 1: the time. In the States, you can create, you can

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Speaker 1: engage legislation via Congress. But the Supreme Court was wrong

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Speaker 1: in this decision. The majority opinion being written by Anthony Kennedy.

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Speaker 1: Talk to me about what it is the Supreme Court

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Speaker 1: is going to hear and whether or not they're going

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Speaker 1: to act upon it.

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Speaker 3: Well, the Supreme Court hasn't agreed to hear anything yet.

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Speaker 3: There is a cert petition or request in the court

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Speaker 3: asking them to hear a case involving Oberga Fell on

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Speaker 3: a potential of challenge to it. You may remember there

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Speaker 3: was a county clerk in Kentucky named Kim Davis who

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Speaker 3: refused to issue marriage licenses to same sex couples. As

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Speaker 3: a result, she moved from office. She was sued. Heavy

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Speaker 3: monetary damages were imposed against her, and so she has

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Speaker 3: brought a case to the Supreme Court, essentially arguing that

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Speaker 3: she should not be personally required to pay some of

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Speaker 3: those damages. And there are several issues she's asking the

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Speaker 3: court to take up, primarily related to whether or not

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Speaker 3: she can be helped personally liable in her situation, but

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Speaker 3: is one of the issues that she raises. She's asking

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Speaker 3: the Court to also consider whether Oberga Felt was correctly decided. Now, again,

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Speaker 3: the Court has not agreed to hear any of these issues.

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Speaker 3: Just the filing of this a certain petition, Just the

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Speaker 3: filing of this request of the Court has certainly garnered

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Speaker 3: a lot of media attention.

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Speaker 1: To the actual decision of a Berga Fell itself. I

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Speaker 1: make the argument that this was a Supreme Court creating law,

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Speaker 1: not engaging a decision based on the law or an

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Speaker 1: interpretation of the law, and for that reason alone, it

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Speaker 1: shall be overturned.

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Speaker 2: In your expert view, am I right or am I wrong?

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Speaker 3: Well, that's certainly the view that was shared by Justice

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Speaker 3: antonin Scalias, certainly the view that was shared by Justice

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Speaker 3: Clarence Thomas, Certainly the view that was shared by Chief

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Speaker 3: Justice John Roberts and some of their separate opinions at

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Speaker 3: the time. You know, if you look at what many

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Speaker 3: commentators are saying right now, there's a question of whether

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Speaker 3: or not there are five votes on the Court to

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Speaker 3: overturn Oberga Fell. You still have the Chief Justice on

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Speaker 3: the court. You still have Justice Clarence Thomas on the Court.

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Speaker 3: You still have Justice Samuel Alito on the court, but

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Speaker 3: there's a question of whether or not you know, maybe

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Speaker 3: Justice Course, it's just cavanught Justice Barrett would want to

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Speaker 3: take up this issue in this particular case. Now, it

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Speaker 3: only takes four justices to agree to hear a case,

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Speaker 3: but it takes five justices to issue a binding ruling

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Speaker 3: to overturn prior president. So I think a lot of

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Speaker 3: people are watching this petition very closely. But certainly those

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Speaker 3: arguments that Justice Thomas, Justice Scalia, the Chief Justice, Justice

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Speaker 3: Alito have made me it past. You're right, all of

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Speaker 3: those arguments certainly still have a lot of force. So the.

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Speaker 1: Argument is that I have as an argument that the

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Speaker 1: justice had, including the late Justice Scalia. Is it your

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Speaker 1: take that that argument is going to be part of

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Speaker 1: or could be part of this conversation here.

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Speaker 3: Well, certainly that is what Kim Davis is lawyers. She's

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Speaker 3: represented by a group called Liberty Council. They're excellent constitutional lawyers.

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Speaker 3: They've had many wins at the Supreme Court. They primarily

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Speaker 3: deal in religious liberty litigation. They're certainly reiterating those arguments

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Speaker 3: that the right to same sex marriage is unmoored from

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Speaker 3: the text, history, or structure of the Constitution that essentially

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Speaker 3: it is an invented right by the Supreme Court. If

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Speaker 3: you read their CIRT petition, they go into some more

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Speaker 3: detail in some of those arguments. So again we'll have

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Speaker 3: to wait and see whether there are four justices who

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Speaker 3: want to take up in this case and want to

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Speaker 3: take up that particular issue within this case as well.

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Speaker 2: What issue would they have with taking up this issue.

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Speaker 3: Well, you know, we really don't know why the justices

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Speaker 3: decide to take up cases or don't decide to take

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Speaker 3: up cases. They usually don't issue opinions explaining why. Sometimes

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Speaker 3: if the justices declined to take up a case, if

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Speaker 3: they reject the case, individual justices sometimes right explaining why

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Speaker 3: they voted to take up the case or why they

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Speaker 3: wish the Court would have heard a particular case. But

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Speaker 3: they're not required to do that. So if the Court

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Speaker 3: ultimately reject this case, we won't know why they did

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Speaker 3: that more likely than not. The other consideration that's worth

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Speaker 3: taking into account is something known as stery decisis. Now,

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Speaker 3: that's a technical Latin term. It basically just means that

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Speaker 3: once the Court has decided an issue, typically the court

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Speaker 3: doesn't like to go back and revisit that issue. And

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Speaker 3: we saw this in a couple of the Chief Justice's

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Speaker 3: opinions in recent years, where he has said, although if

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Speaker 3: he was asked to decide the issue differently in the

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Speaker 3: first instance, even though he might have decided the issue

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Speaker 3: differently because the Court has already decided the issue because

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Speaker 3: of the principles of stereodecisis that he would vote to

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Speaker 3: reaffirm the court's prior folding, even though he personally may

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Speaker 3: not agree with it. So that may be another dynamic

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Speaker 3: that's a play. But again we'll have to wait and

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Speaker 3: see what happens.

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Speaker 1: But it's not unheard of for the Court to go

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Speaker 1: back and take a look at what it's done and said,

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Speaker 1: you know what, that doesn't work. Wouldn't that be the

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Speaker 1: argument regarding plus e versus Ferguson. Wouldn't that be the

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Speaker 1: argument regarding what we just saw with the Dobbs decision

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Speaker 1: that overturned Roe v.

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Speaker 3: Wade.

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Speaker 2: I mean, to the extent of bad decisions.

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Speaker 1: We can look at dred Scott, but I don't know

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Speaker 1: exactly where the overturning would take place there. In terms

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Speaker 1: of how many court decisions happened to eliminate that bad decision,

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Speaker 1: but the court's done it before.

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Speaker 2: I only mentioned a couple here.

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Speaker 3: Yeah, that's exactly right. I mean, look, we did see

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Speaker 3: that most recently with Roe versus Wade and the Dobbs decisions.

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Speaker 3: Certainly the court can go back and overturned prior decisions.

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Speaker 3: In fact, several years ago, one of my colleagues and

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Speaker 3: I we wrote a paper called Scary Decisives one O

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Speaker 3: one outlined in some previous instances where the Court has

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Speaker 3: overturned prior precedent, explaining some of the factors that the

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Speaker 3: court typically takes into account. You can find that on

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Speaker 3: my heritage or at page Heritage dot org, or you

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Speaker 3: can go to my x speed at tz Smith that's

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Speaker 3: at tz smith to read more about scare decisives how

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Speaker 3: that comes into play. But you're certainly right, the court

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Speaker 3: has and should overturn prior president when they're wrong. But

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Speaker 3: that will certainly will be a consideration. Those scary decisive

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Speaker 3: factors will be a consideration if the Court agrees to

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Speaker 3: take up this issue.

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Speaker 1: Before I let you go, Zack Smith, Senior legal Fellow

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Speaker 1: at the Heritage Foundation Heritage dot org. As we're discussing

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Speaker 1: scotis I want to discuss Justice Katanji Brown Jackson.

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Speaker 2: I'm not asking you for a.

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Speaker 1: Conversation about anything regarding her personally, but certainly her actions

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Speaker 1: on the bench. This back and forth with Amy Cony Barrett.

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Speaker 1: Justice Barrett really a response from Sonya sotomayor, her fellow

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Speaker 1: liberal saying I don't think you understood this case properly.

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Speaker 1: There is a conversation about how she not only is

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Speaker 1: ruling from the bench, but how she is actually acting

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Speaker 1: on the bench, and with a series of questions and

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Speaker 1: the utilization of the phrase I'm having a hard time understanding.

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Speaker 1: I'm trying to understand what I don't understand. It happens

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Speaker 1: a tremendous amount. I understand where the political right is

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Speaker 1: on this, for sure. I understand where people hearing this

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Speaker 1: might be like, Okay, what's wrong with her? Is there

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Speaker 1: anything being said from the court, former clerks, etc. Regarding

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Speaker 1: Kaitanji Brown Jackson or is the court on this subject

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Speaker 1: still being very very silent.

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Speaker 3: The Court is being silent outside of their writings. Now

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Speaker 3: you reference kind of a back and forth she got

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Speaker 3: into with Justice Amy Cony Barrett. I think that exchange

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Speaker 3: in and of itself was very talent. You know, we're

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Speaker 3: used to kind of the rough and tumble political world

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Speaker 3: where shirt barbs are not uncommon. That doesn't happen very

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Speaker 3: often at the Supreme Court in their writings, particularly when

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Speaker 3: one of the justices very personally rebukes another justice. And

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Speaker 3: what was telling about that exchange. Not only was it

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Speaker 3: Justice amy Cony Barrett who used that very strong by

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Speaker 3: Supreme Court terms, a very pointed language rebuking Justice Jackson,

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Speaker 3: but you had many of the other justices also signing

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Speaker 3: on to an agree with that very pointed, very personal

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Speaker 3: rebuke by Justice Barrett of Justice Jackson. And so I

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Speaker 3: say that is certainly a dynamic that's worth watching at

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Speaker 3: the Court. There may be some tension there among the justices.

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Speaker 3: Justice Kankanji Brown Jackson certainly talks more than any other

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Speaker 3: justice at oral argument. She's one of the most prolific speakers,

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Speaker 3: one of the most prolific questioners at oral argument. I

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Speaker 3: think a couple of times you see where either the

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Speaker 3: Chief Justice or as you mentioned, Justice on am Or

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Speaker 3: may have apparently gotten a little irritated with Justice Jackson

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Speaker 3: for some of her ongoing questioning and commentary so I

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Speaker 3: think that's certainly a dynamic that is worth watching. And

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Speaker 3: the last thing I'll say very quickly is that Jackson's

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Speaker 3: view of her role as a Supreme Court justice, her role,

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Speaker 3: a view of the role judges in our society, is

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Speaker 3: a very troubling view, because apparently she thinks it is

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Speaker 3: her role to be a roving commission of dogurs to

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Speaker 3: impose her own policy preferences whenever that might conflict with

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Speaker 3: the presidents or Congresses. And that is a very dangerous

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Speaker 3: view of how Supreme Court justice, or a federal judge,

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Speaker 3: or any judge should discharge his or her duties.

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Speaker 1: Zach Smith, a senior legal fellow at the Heritage Foundation

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Speaker 1: Heritage dot org.

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Speaker 2: I appreciate you taking the time to be with us.

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Speaker 2: More coming up. I'm Tony Katz.

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Speaker 1: This is Tony Katz today