1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law, with June Brusso from Bloomberg Radio. 2 00:00:09,200 --> 00:00:12,799 Speaker 1: A divided Supreme Court said the Navy can limit deployment 3 00:00:12,840 --> 00:00:16,360 Speaker 1: in training for thirty five seals and other special operations 4 00:00:16,440 --> 00:00:20,200 Speaker 1: forces who are refusing on religious grounds to get vaccinated 5 00:00:20,239 --> 00:00:23,840 Speaker 1: against COVID nineteen. A lower court judge had ordered the 6 00:00:23,920 --> 00:00:27,360 Speaker 1: Navy to assign and deploy the sailors without regard to 7 00:00:27,440 --> 00:00:32,000 Speaker 1: their unvaccinated status, but the Biden administration said that would 8 00:00:32,080 --> 00:00:36,560 Speaker 1: jeopardize safety and mission success, given that seals often operate 9 00:00:36,640 --> 00:00:41,200 Speaker 1: in tight quarters, including on submarines. My guest is Dorrit Reece, 10 00:00:41,240 --> 00:00:44,840 Speaker 1: a professor at the University of California Hastings College of Law. 11 00:00:45,120 --> 00:00:48,280 Speaker 1: What was the issue in this case before the court? 12 00:00:48,960 --> 00:00:51,720 Speaker 1: The question before the court towards there's a challenge to 13 00:00:51,840 --> 00:00:57,040 Speaker 1: the Navy denial of religious exemptions to the maybe decided 14 00:00:57,080 --> 00:01:00,520 Speaker 1: to refuse maddic to the claim TIFFs and lower court 15 00:01:00,600 --> 00:01:04,160 Speaker 1: decided to stay the application of the method and order. 16 00:01:04,200 --> 00:01:07,000 Speaker 1: The Navy not achieved them differently in any way. The 17 00:01:07,080 --> 00:01:10,840 Speaker 1: Navy didn't want to deploy unvaccinated people, and the lower 18 00:01:10,920 --> 00:01:14,520 Speaker 1: court refused to modify. The state refused to allow the 19 00:01:14,640 --> 00:01:18,480 Speaker 1: Navy not to deploy unvaccimate people. The Supreme Court was 20 00:01:18,560 --> 00:01:23,240 Speaker 1: to decide whether the Navy may refuse to deploy unvaccinated people. 21 00:01:23,720 --> 00:01:26,480 Speaker 1: There was no opinion for the court. Does the concurring 22 00:01:26,480 --> 00:01:30,480 Speaker 1: oppinion of Justice Brett Kavanaugh tell us anything? Yes, it 23 00:01:30,560 --> 00:01:33,360 Speaker 1: does so two things. First of all, it's very usual 24 00:01:33,760 --> 00:01:37,240 Speaker 1: not to have a fully reasoned opinion on this kind 25 00:01:37,240 --> 00:01:41,360 Speaker 1: of emergency stake cases. As a reminder, the case hasn't 26 00:01:41,400 --> 00:01:44,840 Speaker 1: been fully briefed or decided, and the question is should 27 00:01:44,920 --> 00:01:49,520 Speaker 1: we uphold or overturn an emergency stake The Court usually 28 00:01:49,520 --> 00:01:52,720 Speaker 1: issues this precordium, though sometimes it does add the short opinion. 29 00:01:52,920 --> 00:01:55,720 Speaker 1: The concurrence tells us that for at least some of 30 00:01:55,760 --> 00:01:58,600 Speaker 1: the justices, the main issue was how much difference to 31 00:01:58,640 --> 00:02:01,320 Speaker 1: give to the Navy decision who to deploy. The Court 32 00:02:01,360 --> 00:02:04,520 Speaker 1: has a long tradition of deferring to the Navy's judgment 33 00:02:04,760 --> 00:02:08,720 Speaker 1: and the military's judgment, as the Justice Cavano highlighted, and 34 00:02:09,080 --> 00:02:10,640 Speaker 1: at least for some of it this is that was 35 00:02:10,680 --> 00:02:13,520 Speaker 1: probably the issue here as well. A Secretary of Defense, 36 00:02:13,600 --> 00:02:17,200 Speaker 1: Lloyd Austin, had urged the Court to remedy what he 37 00:02:17,240 --> 00:02:22,799 Speaker 1: called an extraordinary and unprecedented intrusion into core military affairs 38 00:02:22,840 --> 00:02:26,200 Speaker 1: that has no precedent in American history? Is he right? 39 00:02:26,440 --> 00:02:28,880 Speaker 1: Is there any precedent for a court stepping in and 40 00:02:28,919 --> 00:02:32,760 Speaker 1: telling the military what to do? No? Well, let me 41 00:02:32,880 --> 00:02:35,680 Speaker 1: qualify that there is a history of the court telling 42 00:02:35,720 --> 00:02:38,519 Speaker 1: the military is sometimes to what to do, but there 43 00:02:38,600 --> 00:02:41,639 Speaker 1: is no case in which the court told the military 44 00:02:41,680 --> 00:02:46,560 Speaker 1: to deploy people that the military thought were not deployment appropriate. 45 00:02:46,760 --> 00:02:49,840 Speaker 1: The Secretary is completely right that that's a very unprecedented 46 00:02:49,880 --> 00:02:53,359 Speaker 1: intrusion into the militaries of her So is this basically 47 00:02:53,440 --> 00:02:57,600 Speaker 1: about the principle of separation of powers? Yes? I will 48 00:02:57,639 --> 00:03:01,120 Speaker 1: add that there are some things in the descent that 49 00:03:01,480 --> 00:03:05,560 Speaker 1: do raise questions. So the military acknowledges that there are 50 00:03:05,600 --> 00:03:09,120 Speaker 1: subject to the Religious Free of Restoration Act requirements of 51 00:03:09,360 --> 00:03:12,919 Speaker 1: only not respecting religious interests when it's a compelling interest 52 00:03:12,960 --> 00:03:15,520 Speaker 1: in the list restrictive means, they still to have made 53 00:03:15,520 --> 00:03:18,919 Speaker 1: it practically impossible to get a religious exemption and justice 54 00:03:18,960 --> 00:03:21,160 Speaker 1: a little is right. Within any other context, that would 55 00:03:21,160 --> 00:03:24,200 Speaker 1: be seen as a problem as bad space application of 56 00:03:24,280 --> 00:03:29,680 Speaker 1: religious exemption. And here too, by doing it so aggressively, 57 00:03:30,200 --> 00:03:34,680 Speaker 1: the military created an appearance of not really taking seriously 58 00:03:34,720 --> 00:03:37,760 Speaker 1: the religious exemptions. There are two parts to this. First 59 00:03:37,760 --> 00:03:40,320 Speaker 1: of all, it might be worth a phonomakers to consider 60 00:03:40,320 --> 00:03:42,680 Speaker 1: whether the Religious Feed the Restoration Act should in fact 61 00:03:42,720 --> 00:03:45,280 Speaker 1: applight of the military. This case was not under the 62 00:03:45,280 --> 00:03:48,480 Speaker 1: first Amendment, which was under the Religious Preads Restoration Act, 63 00:03:48,600 --> 00:03:51,960 Speaker 1: even for the descent, so there's a question should the 64 00:03:52,040 --> 00:03:55,000 Speaker 1: Religious Feed the Reistration Act applied as a military. Second, 65 00:03:55,360 --> 00:03:58,720 Speaker 1: if the Religious Freeministration Act does applies to the military, 66 00:03:58,960 --> 00:04:03,680 Speaker 1: the military should at least assess religious exemption in good space. 67 00:04:04,280 --> 00:04:09,120 Speaker 1: Considering whether deploying these people is appropriate is military discretion. 68 00:04:09,360 --> 00:04:13,560 Speaker 1: But not even considering religious exemption is tricky. If the 69 00:04:13,640 --> 00:04:17,840 Speaker 1: military soldiers have to obey orders. If you allow soldiers 70 00:04:17,839 --> 00:04:22,200 Speaker 1: to start questioning orders, what happens. So when it comes 71 00:04:22,200 --> 00:04:25,000 Speaker 1: to soldiers, soldiers right are limited and they do have 72 00:04:25,160 --> 00:04:29,479 Speaker 1: to obey orders. However, there are limits to that. Soldiers 73 00:04:29,760 --> 00:04:33,159 Speaker 1: rights are limited while the stirs, but they're not completely 74 00:04:33,200 --> 00:04:36,280 Speaker 1: out of the window, and there are some protection. In 75 00:04:36,320 --> 00:04:38,119 Speaker 1: this case. It would have have been a very different 76 00:04:38,120 --> 00:04:40,800 Speaker 1: situation if the military is said the Religious with the 77 00:04:40,839 --> 00:04:43,320 Speaker 1: Restoration Act does not apply to us and does not 78 00:04:43,400 --> 00:04:46,520 Speaker 1: give soldiers this right. But the military didn't the military 79 00:04:46,560 --> 00:04:50,280 Speaker 1: acknowledge that there's a right religious exemption, just didn't take 80 00:04:50,320 --> 00:04:53,560 Speaker 1: it very seriously. The other part of this is also 81 00:04:53,640 --> 00:04:56,479 Speaker 1: the question is what exactly do are we talking about. 82 00:04:57,000 --> 00:05:01,840 Speaker 1: So the main question is deployment decision in theory the military, 83 00:05:02,040 --> 00:05:03,920 Speaker 1: what they say, we're going to fire these people for 84 00:05:04,000 --> 00:05:07,520 Speaker 1: religious exemption or punish them. They were saying, we don't 85 00:05:07,560 --> 00:05:10,960 Speaker 1: want to deploy people who are unvaccinated. At this point, 86 00:05:11,520 --> 00:05:13,719 Speaker 1: there's a difference between sayings to the military you have 87 00:05:13,839 --> 00:05:17,280 Speaker 1: to seriously consider religious exemption and say to the military 88 00:05:17,360 --> 00:05:20,000 Speaker 1: you have to deploy people you think are unsafe. You 89 00:05:20,040 --> 00:05:23,680 Speaker 1: could say you have to seriously consider religious exemption, but 90 00:05:24,000 --> 00:05:27,280 Speaker 1: you still have the discretion to decide would deploy. And 91 00:05:27,560 --> 00:05:29,479 Speaker 1: it's not up to the court in any way, shape 92 00:05:29,480 --> 00:05:32,719 Speaker 1: and form to tell you that people with religious exemption 93 00:05:32,760 --> 00:05:36,760 Speaker 1: can do other things in the military stake take that. So, 94 00:05:36,880 --> 00:05:40,840 Speaker 1: do you think that this was wrongly decided? Then I 95 00:05:40,880 --> 00:05:43,279 Speaker 1: think this was rightly decided. I think the court was 96 00:05:43,440 --> 00:05:47,320 Speaker 1: right to say the military gets decided who to deploy. However, 97 00:05:47,720 --> 00:05:51,720 Speaker 1: I also think that two things should be changed. First, 98 00:05:52,120 --> 00:05:55,279 Speaker 1: we should consider whether it's appropriate for the Religious Freedom 99 00:05:55,279 --> 00:05:57,919 Speaker 1: Restoration Act to also apply to the military. If we 100 00:05:57,960 --> 00:06:01,120 Speaker 1: want to allow the military discretion, the Act probably shouldn't 101 00:06:01,120 --> 00:06:05,960 Speaker 1: apply to them. And second, well, deployment decision should be 102 00:06:06,040 --> 00:06:10,320 Speaker 1: military discretion. If the military says that it's giving religious exemptions, 103 00:06:10,320 --> 00:06:12,720 Speaker 1: it should probably take them seriously. Either make a case 104 00:06:12,760 --> 00:06:15,360 Speaker 1: that you're you're don't have to give religious exemption at all, 105 00:06:15,880 --> 00:06:18,479 Speaker 1: or take them seriously. I saw a head on it 106 00:06:18,520 --> 00:06:21,560 Speaker 1: says the Supreme Court splits on whether Joe Biden is 107 00:06:21,600 --> 00:06:24,919 Speaker 1: commander in chief. I don't think that's a fair description 108 00:06:25,000 --> 00:06:27,680 Speaker 1: of the case. A better description would be to say, 109 00:06:27,880 --> 00:06:31,280 Speaker 1: the Supreme Court splits on whether the military has to 110 00:06:31,960 --> 00:06:35,719 Speaker 1: a limited deployment decision according to religious freedom, or the 111 00:06:35,720 --> 00:06:38,159 Speaker 1: Supreme Court splits on whether the military has to respect 112 00:06:38,240 --> 00:06:42,039 Speaker 1: religious freedom into deployment decision. And this doesn't end the case, 113 00:06:42,120 --> 00:06:44,479 Speaker 1: does it. No, So there's a number of things that 114 00:06:44,520 --> 00:06:48,440 Speaker 1: need to happen next. This is a decision about a 115 00:06:48,520 --> 00:06:51,800 Speaker 1: temporary stay or not to stay. The case is still 116 00:06:51,800 --> 00:06:54,880 Speaker 1: going forward, and this was about what happened while the 117 00:06:54,920 --> 00:06:57,039 Speaker 1: case is being litigate. The Lorwer courts will have to 118 00:06:57,080 --> 00:07:01,279 Speaker 1: decide whether the military violated either a law or the 119 00:07:01,360 --> 00:07:04,440 Speaker 1: constitutional rights of the plaintiff, and then it will probably 120 00:07:04,480 --> 00:07:07,240 Speaker 1: be appealed higher and it will probably get back to 121 00:07:07,279 --> 00:07:11,880 Speaker 1: the Supreme Court on that question. Also, the judge below, 122 00:07:12,280 --> 00:07:18,120 Speaker 1: Judge Rid O'Connor, is well known for his very conservative 123 00:07:18,240 --> 00:07:23,320 Speaker 1: opinions and for ruling against Obamacare. So the United States 124 00:07:23,400 --> 00:07:28,520 Speaker 1: judiciary has always been politically appointed, and especially in question 125 00:07:28,600 --> 00:07:31,280 Speaker 1: where the law is at least some much vague, politics 126 00:07:31,440 --> 00:07:35,120 Speaker 1: naturally come in. However, we expect our judges, whatever the 127 00:07:35,120 --> 00:07:40,400 Speaker 1: political opinions, to follow the law, and if judge reads doesn't, 128 00:07:40,480 --> 00:07:43,200 Speaker 1: I expect the higher court to pull him back in. 129 00:07:43,200 --> 00:07:46,240 Speaker 1: In other words, politics come in. It's almost inevitable. We 130 00:07:46,280 --> 00:07:49,840 Speaker 1: appoint judges politically more than most developed countries, but there's 131 00:07:49,840 --> 00:07:52,080 Speaker 1: a limit to that, and judges first job is still 132 00:07:52,120 --> 00:07:54,720 Speaker 1: to follow them up thanks to it. That's professor Dort 133 00:07:54,840 --> 00:07:58,400 Speaker 1: Reese of the University of California Hastings College of Law. 134 00:08:00,400 --> 00:08:04,160 Speaker 1: The confirmation hearings for Supreme Court nominee Judge Katangi Brown 135 00:08:04,280 --> 00:08:08,080 Speaker 1: Jackson are over, but the voting is not. Jackson is 136 00:08:08,120 --> 00:08:11,160 Speaker 1: continuing to meet with Senators on Capitol Hill this week 137 00:08:11,240 --> 00:08:14,840 Speaker 1: in a push for bipartisan support of her nomination. Three 138 00:08:14,880 --> 00:08:18,440 Speaker 1: Republicans senators voted in favor of Jackson's nomination to the 139 00:08:18,520 --> 00:08:21,280 Speaker 1: US Court of Appeals for the d C Circuit, but 140 00:08:21,400 --> 00:08:24,800 Speaker 1: there were sharp attacks on the judge by Republican senators 141 00:08:24,840 --> 00:08:28,120 Speaker 1: at her hearings. Joining me is Gloria Brown Marshall, a 142 00:08:28,120 --> 00:08:32,200 Speaker 1: professor of constitutional law at John j College of Criminal Justice. 143 00:08:32,800 --> 00:08:36,280 Speaker 1: How do you think Judge Jackson handled herself and the hearings? 144 00:08:37,120 --> 00:08:41,600 Speaker 1: I think Judge Jackson has shown grace under pressure, and 145 00:08:41,800 --> 00:08:46,680 Speaker 1: she has handled herself with spectacular patients given the type 146 00:08:46,720 --> 00:08:51,040 Speaker 1: of political gabbings that are going on between the parties 147 00:08:51,200 --> 00:08:54,520 Speaker 1: using this platform to get back at each other for 148 00:08:55,120 --> 00:08:59,319 Speaker 1: failed nominees in the past, such as Robert Borke, and 149 00:08:59,440 --> 00:09:03,600 Speaker 1: the treatment has been alleged by the Republicans as being 150 00:09:04,000 --> 00:09:09,120 Speaker 1: fraught with all types of political intrigue with Kavanov and 151 00:09:09,200 --> 00:09:12,520 Speaker 1: even Clarence Thomas. So I think they're taking out past 152 00:09:12,559 --> 00:09:15,600 Speaker 1: grudges on each other and using this platform and using her. 153 00:09:15,720 --> 00:09:17,880 Speaker 1: So I think most of us would not be able 154 00:09:17,920 --> 00:09:20,400 Speaker 1: to take this kind of abuse of the record and 155 00:09:20,559 --> 00:09:25,000 Speaker 1: personal attacks about her and coddling criminals and people who 156 00:09:25,200 --> 00:09:28,440 Speaker 1: possessed Chile pornography and keep a level head. But she's 157 00:09:28,559 --> 00:09:33,400 Speaker 1: been showing herself through this entire time. She sailed through 158 00:09:33,640 --> 00:09:38,640 Speaker 1: three confirmation hearings before this committee. She's replacing another liberal 159 00:09:38,679 --> 00:09:43,240 Speaker 1: on the court. Did you expect such attacks by Republicans 160 00:09:43,280 --> 00:09:48,199 Speaker 1: a lot on culture war issues. Yes, And I especially 161 00:09:48,360 --> 00:09:52,240 Speaker 1: felt that given the mid term elections coming up, that 162 00:09:52,640 --> 00:09:56,439 Speaker 1: these politicians are speaking more to their base. They're creating 163 00:09:56,559 --> 00:10:00,000 Speaker 1: commercials for themselves as they go into mid term elections, 164 00:10:00,480 --> 00:10:03,680 Speaker 1: and they're trying to gain some momentum with their voters 165 00:10:03,720 --> 00:10:07,280 Speaker 1: and supporters, and a lot of this is grandstanding and 166 00:10:07,559 --> 00:10:12,360 Speaker 1: hyperbole to the highest degree. That they're using this platform 167 00:10:12,400 --> 00:10:15,200 Speaker 1: as a means to do this as shameful, but it's 168 00:10:15,320 --> 00:10:18,599 Speaker 1: very political as well. So I expected the Republicans to 169 00:10:18,679 --> 00:10:20,560 Speaker 1: behave this way, and I really expect them not to 170 00:10:20,640 --> 00:10:23,080 Speaker 1: vote for her overall. And they had no intention of 171 00:10:23,160 --> 00:10:24,960 Speaker 1: voting for her in the first place, because it was 172 00:10:24,960 --> 00:10:27,760 Speaker 1: going to be so divisive around party lines that there 173 00:10:27,800 --> 00:10:30,360 Speaker 1: was little expectation that their vote was needed. And I 174 00:10:30,400 --> 00:10:33,280 Speaker 1: think they want to paint her so that when she 175 00:10:33,480 --> 00:10:36,480 Speaker 1: does ascend to the bench still have some paint like 176 00:10:36,600 --> 00:10:39,920 Speaker 1: that of Kavanov's confirmation hearing, with so many things came 177 00:10:39,960 --> 00:10:43,319 Speaker 1: out about him, and of course Clarence Thomas and the 178 00:10:43,400 --> 00:10:49,199 Speaker 1: Agnita Heal testimony about his behavior with sexual harassment. So 179 00:10:49,360 --> 00:10:53,280 Speaker 1: Republican Senator Ted Cruz questioned her on critical race theory, 180 00:10:53,880 --> 00:10:56,920 Speaker 1: read from books in the curriculum of a school that 181 00:10:56,960 --> 00:10:59,600 Speaker 1: she's on the board of, and asked her, do you 182 00:10:59,640 --> 00:11:03,839 Speaker 1: agree that babies are racist? Was that appropriate? And would 183 00:11:03,840 --> 00:11:06,760 Speaker 1: that have been asked of a white nominee. I don't 184 00:11:06,760 --> 00:11:09,119 Speaker 1: think it would have been asked of a white nominee. 185 00:11:09,160 --> 00:11:12,400 Speaker 1: But I think also that critical race theory is a 186 00:11:12,480 --> 00:11:15,559 Speaker 1: dog whistle right now for a lot of people who 187 00:11:15,600 --> 00:11:20,320 Speaker 1: don't want to deal with actual American history. American history 188 00:11:20,360 --> 00:11:23,480 Speaker 1: is racist, and for those people who have done well 189 00:11:23,480 --> 00:11:27,200 Speaker 1: in this country, that's fine. But to turn a blind 190 00:11:27,240 --> 00:11:31,640 Speaker 1: eye to the nation's documented history and then to say 191 00:11:31,720 --> 00:11:35,120 Speaker 1: we're not supposed to teach it to children or try 192 00:11:35,200 --> 00:11:37,960 Speaker 1: to teach how we can undo some of this damage 193 00:11:38,000 --> 00:11:40,760 Speaker 1: are prevented from happening in the first place. So it's 194 00:11:40,960 --> 00:11:45,319 Speaker 1: really an issue that many people on the conservative are right, 195 00:11:45,760 --> 00:11:49,600 Speaker 1: who want to gain points on the political spectrum, have 196 00:11:49,760 --> 00:11:52,920 Speaker 1: been using and so they're using it now. These are politicians. 197 00:11:53,440 --> 00:11:57,480 Speaker 1: There's been a concerted effort by Republicans to paint the 198 00:11:57,600 --> 00:12:01,319 Speaker 1: judge as soft on crime. I think that she's ritten 199 00:12:01,640 --> 00:12:04,560 Speaker 1: as a district court judge and as the Pilate Court judge, 200 00:12:04,600 --> 00:12:09,000 Speaker 1: I believe nearly six hundred opinions, maybe more. And so 201 00:12:09,360 --> 00:12:12,640 Speaker 1: the job of people who want to oppose her domination 202 00:12:13,160 --> 00:12:16,040 Speaker 1: or tank her before she ascends to the bench is 203 00:12:16,080 --> 00:12:19,920 Speaker 1: to find the most scandalous, controversial things in her record 204 00:12:20,280 --> 00:12:22,439 Speaker 1: and just keep saying it over and over again. It 205 00:12:22,520 --> 00:12:25,040 Speaker 1: was successful for Donald Trump, and so they're trying to 206 00:12:25,080 --> 00:12:27,920 Speaker 1: make it successful for them as Conservatives and once again 207 00:12:28,000 --> 00:12:30,640 Speaker 1: playing to their base to try to get those conservative 208 00:12:30,679 --> 00:12:33,560 Speaker 1: voters to vote for them in the midterm elections. I 209 00:12:33,600 --> 00:12:37,320 Speaker 1: think it's the political ploy and I think it's scandalous. 210 00:12:37,320 --> 00:12:40,120 Speaker 1: But these are politicians, and these are the highest ranked 211 00:12:40,120 --> 00:12:42,920 Speaker 1: politicians in our country. So they know how to play dirty, 212 00:12:42,960 --> 00:12:46,360 Speaker 1: they know how to throw mud, and they want to 213 00:12:46,360 --> 00:12:50,400 Speaker 1: get back at the Democrat because of what happened with 214 00:12:50,520 --> 00:12:53,600 Speaker 1: Frett Kevin Off, you know, and what was certainly something 215 00:12:53,600 --> 00:12:56,600 Speaker 1: that should have happened with Clarence Thomas. But they believe 216 00:12:56,679 --> 00:12:59,800 Speaker 1: that trying to use critical race theory is throwing meat 217 00:12:59,800 --> 00:13:03,240 Speaker 1: to Alliance. Critical race theory is, to me, is nothing 218 00:13:03,280 --> 00:13:06,560 Speaker 1: more than teaching about um the history of America that 219 00:13:06,600 --> 00:13:10,520 Speaker 1: involves race and racial oppressions, but to turn it into 220 00:13:10,559 --> 00:13:15,120 Speaker 1: something that is hurting children and therefore should not be taught. 221 00:13:15,360 --> 00:13:18,280 Speaker 1: Case who twelve is what they're using. And she's on 222 00:13:18,320 --> 00:13:21,360 Speaker 1: the board, and I'm on boards and other people who 223 00:13:21,360 --> 00:13:25,720 Speaker 1: believe in public service or on boards of nonprofit organizations. 224 00:13:25,720 --> 00:13:28,880 Speaker 1: We don't know everything that goes on within that organization. 225 00:13:28,960 --> 00:13:31,320 Speaker 1: And she didn't know the books that the children were reading. 226 00:13:31,559 --> 00:13:34,640 Speaker 1: But she's been held account for it. You know, a 227 00:13:34,679 --> 00:13:37,600 Speaker 1: politician will use any type of ammunition to throw mud 228 00:13:37,600 --> 00:13:40,400 Speaker 1: when mud is necessary in their in their minds. Fine, 229 00:13:41,040 --> 00:13:44,120 Speaker 1: you mentioned a dog whistle, and soft on crime is 230 00:13:44,120 --> 00:13:47,360 Speaker 1: is another dog whistle. The Times wrote that Third Good 231 00:13:47,400 --> 00:13:50,400 Speaker 1: Marshal the nation's first black Supreme Court justice. As you know, 232 00:13:50,840 --> 00:13:55,400 Speaker 1: Fay similarly coded language during his confirmation hearing fifty five 233 00:13:55,520 --> 00:14:00,280 Speaker 1: years ago. So we haven't progressed very much. And that's 234 00:14:00,280 --> 00:14:03,920 Speaker 1: why we need things like Black History to talk about 235 00:14:04,160 --> 00:14:07,439 Speaker 1: lack of movement. We need we need to talk about 236 00:14:07,520 --> 00:14:10,319 Speaker 1: these issues and so that we can better understand why 237 00:14:10,400 --> 00:14:14,040 Speaker 1: we're not moving. Why is this such a trigger for 238 00:14:14,120 --> 00:14:17,440 Speaker 1: a conservative? Why is it at some point we stopped 239 00:14:17,440 --> 00:14:20,840 Speaker 1: believing in Santa Clause and we have to understand that 240 00:14:20,920 --> 00:14:24,800 Speaker 1: there are parts of this country's history that are painful, 241 00:14:25,000 --> 00:14:27,280 Speaker 1: not just painful to the people who are hearing it now, 242 00:14:27,360 --> 00:14:29,200 Speaker 1: but painful to the people who went through it. Then 243 00:14:30,000 --> 00:14:33,040 Speaker 1: I think it's difficult as well, um for us to 244 00:14:33,240 --> 00:14:36,840 Speaker 1: actually believe that she would be considered soft on crime 245 00:14:37,240 --> 00:14:40,400 Speaker 1: just because she's not rabbit about it as some many 246 00:14:40,480 --> 00:14:44,640 Speaker 1: people want a person to be. And she's supposed to 247 00:14:44,720 --> 00:14:47,040 Speaker 1: be someone with a judicial temperament who's supposed to look 248 00:14:47,040 --> 00:14:49,320 Speaker 1: at both sides and the scales of justice and then 249 00:14:49,320 --> 00:14:51,480 Speaker 1: the side which side is supposed to win based on 250 00:14:51,520 --> 00:14:54,120 Speaker 1: the evidence, or which side is one that should be 251 00:14:54,280 --> 00:14:57,560 Speaker 1: sentenced because of the evidence, And she's been doing that 252 00:14:57,680 --> 00:15:00,280 Speaker 1: and the sentences may not be what they want since 253 00:15:00,440 --> 00:15:02,320 Speaker 1: this to beat but if not, as though she told 254 00:15:02,320 --> 00:15:04,960 Speaker 1: the people that they were going free, he did sentence 255 00:15:05,040 --> 00:15:08,840 Speaker 1: them to confinement. So I think that the fact that 256 00:15:08,880 --> 00:15:12,120 Speaker 1: her brother's in the military as well as a police officer, 257 00:15:12,320 --> 00:15:14,400 Speaker 1: that he has uncles who were police officers, that her 258 00:15:14,480 --> 00:15:18,520 Speaker 1: uncle was the former police chief of Miami, and yet 259 00:15:18,760 --> 00:15:21,280 Speaker 1: this doesn't seem to be enough to appease them. So 260 00:15:21,520 --> 00:15:24,160 Speaker 1: I think this goes beyond what her record is what 261 00:15:24,280 --> 00:15:26,840 Speaker 1: her family is, what she's done. I think this goes 262 00:15:26,880 --> 00:15:29,320 Speaker 1: beyond that. I think it's just a political ploy to 263 00:15:29,360 --> 00:15:32,760 Speaker 1: try to undermine her as a nominee. The Republicans said 264 00:15:32,760 --> 00:15:35,440 Speaker 1: that it wasn't going to be a circus like Kavanaugh, 265 00:15:35,440 --> 00:15:38,040 Speaker 1: there weren't gonna be personal attacks. But some of the 266 00:15:38,080 --> 00:15:41,520 Speaker 1: attacks have been very personal. I mean Tom Cotton said, 267 00:15:41,560 --> 00:15:43,680 Speaker 1: you twisted the law and you rewrote it so you 268 00:15:43,680 --> 00:15:46,880 Speaker 1: could cut the sentence of a drug kingpin. That's what 269 00:15:46,960 --> 00:15:51,080 Speaker 1: you did, Judge. I mean, it got really personal and intense. 270 00:15:51,840 --> 00:15:54,520 Speaker 1: It was really personal intense. You know, it should be 271 00:15:54,560 --> 00:15:58,240 Speaker 1: embarrassing because at this point what we're looking at is 272 00:15:58,280 --> 00:16:04,440 Speaker 1: not just um senators behaving badly, but wanting to make 273 00:16:04,560 --> 00:16:08,680 Speaker 1: a public servant look as though they are not, you know, 274 00:16:09,040 --> 00:16:12,080 Speaker 1: a person who cares about children, even though they have children. 275 00:16:12,400 --> 00:16:17,160 Speaker 1: She has two girls. And also the fact that this 276 00:16:17,240 --> 00:16:21,840 Speaker 1: is a way in which politicians can use their platform, 277 00:16:22,280 --> 00:16:27,800 Speaker 1: this confirmation hearing, to throw shame onto the other political party. 278 00:16:28,280 --> 00:16:31,200 Speaker 1: So this has I think little to do with her 279 00:16:31,600 --> 00:16:34,360 Speaker 1: and more to do with revenge, and that's what it's 280 00:16:34,560 --> 00:16:38,560 Speaker 1: It's just very vengeful and they're using anything to wreak 281 00:16:38,720 --> 00:16:43,080 Speaker 1: revenge on the process because they feel that their candidates, 282 00:16:43,120 --> 00:16:46,240 Speaker 1: even though their nominees, even though they were made Um 283 00:16:46,280 --> 00:16:49,280 Speaker 1: Supreme Court justices, it's not enough that they should have 284 00:16:49,360 --> 00:16:51,880 Speaker 1: just had been able to float through and not have 285 00:16:52,040 --> 00:16:56,240 Speaker 1: any hard questions about their past, about their beliefs and ideologies. 286 00:16:56,680 --> 00:17:00,160 Speaker 1: And at this point, Um, they're just gonna keep throwing mud, 287 00:17:00,360 --> 00:17:02,520 Speaker 1: even though they know the Democrats have the votes. They're 288 00:17:02,520 --> 00:17:06,000 Speaker 1: gonna keep throwing mud until the end of this process 289 00:17:06,160 --> 00:17:09,720 Speaker 1: to really feel their their rancor and and to make 290 00:17:09,720 --> 00:17:12,760 Speaker 1: sure that everybody knows that they've gotten their revenge against 291 00:17:12,800 --> 00:17:15,879 Speaker 1: the past nominees that they put forward and had to 292 00:17:15,920 --> 00:17:20,640 Speaker 1: go through a very serious testing. So tell us what 293 00:17:20,720 --> 00:17:24,280 Speaker 1: she'll bring to the Supreme Court bench. I think she 294 00:17:24,400 --> 00:17:28,520 Speaker 1: will bring persuasiveness. I think she would bring a level 295 00:17:28,760 --> 00:17:33,399 Speaker 1: of insight because she has been a public defender. I 296 00:17:33,440 --> 00:17:37,600 Speaker 1: think he'll also be someone who will bring um a 297 00:17:37,720 --> 00:17:41,040 Speaker 1: sense of coming together of the different sizes Justice Brier did. 298 00:17:41,600 --> 00:17:44,880 Speaker 1: I think it will also be a matter of bringing 299 00:17:45,000 --> 00:17:48,119 Speaker 1: to the court her great insight as someone who was 300 00:17:48,160 --> 00:17:50,280 Speaker 1: a trial court judge, and they are very few trial 301 00:17:50,320 --> 00:17:52,760 Speaker 1: court judges who know what it's like to be on 302 00:17:53,320 --> 00:17:57,680 Speaker 1: these time in place of the actual conflict. The color 303 00:17:57,760 --> 00:18:00,560 Speaker 1: Court judges the issues on appeal, they don't see the 304 00:18:00,600 --> 00:18:04,400 Speaker 1: actual defendants, they don't see the witnesses, they don't see 305 00:18:04,520 --> 00:18:07,880 Speaker 1: the life of the case. And so see bringing that 306 00:18:08,119 --> 00:18:11,880 Speaker 1: to the court. And I think that's a very important measure. 307 00:18:12,359 --> 00:18:15,720 Speaker 1: I would say over the last two decades, most of 308 00:18:15,720 --> 00:18:18,439 Speaker 1: these justices have not had Thanks for joining me on 309 00:18:18,480 --> 00:18:22,280 Speaker 1: the show. That's Gloria Brown Marshall, Professor of Constitutional Law 310 00:18:22,320 --> 00:18:27,280 Speaker 1: at the John Jay College of Criminal Justice. Welcome back, 311 00:18:27,840 --> 00:18:32,760 Speaker 1: Judge Jackson. Yesterday you and I discussed the Court's increasing 312 00:18:32,840 --> 00:18:38,160 Speaker 1: reliance on issuing unsigned orders on its shadow docket, and 313 00:18:38,600 --> 00:18:41,879 Speaker 1: less than an hour ago, um the Court once again 314 00:18:42,000 --> 00:18:46,919 Speaker 1: use the shadow docket to throw out Wisconsin's redistricting maps. 315 00:18:47,640 --> 00:18:52,680 Speaker 1: On Wednesday, during Judge Katangi Brown Jackson Supreme Court confirmation hearings, 316 00:18:53,040 --> 00:18:56,960 Speaker 1: Democratic Senator any Klobisher brought up a Supreme Court decision 317 00:18:57,320 --> 00:19:01,560 Speaker 1: that for the first time this redistricting cycle overturned voting 318 00:19:01,600 --> 00:19:04,720 Speaker 1: maps drawn by a state in an unsigned order. A 319 00:19:04,800 --> 00:19:09,639 Speaker 1: divided court throughout maps for Wisconsin's Assembly and Senate maps 320 00:19:09,680 --> 00:19:12,840 Speaker 1: that were selected by the Wisconsin Supreme Court and drawn 321 00:19:12,880 --> 00:19:16,760 Speaker 1: by the Democratic governor and that added an additional assembly 322 00:19:16,840 --> 00:19:19,959 Speaker 1: district with a majority of black voters. Joining me. As 323 00:19:19,960 --> 00:19:24,000 Speaker 1: elections law expert Richard Rafalt, a professor at Columbia Law School, 324 00:19:24,520 --> 00:19:28,120 Speaker 1: These voting maps in question were drawn by the governor. 325 00:19:28,160 --> 00:19:31,080 Speaker 1: How did that come about? The strows out of a 326 00:19:31,200 --> 00:19:35,520 Speaker 1: Wisconsin redistricting process for the state legislature. The Wisconsin legislature 327 00:19:35,560 --> 00:19:38,280 Speaker 1: passed its own maps for the governor veto them. There 328 00:19:38,359 --> 00:19:41,200 Speaker 1: was then an impass and the voters who are suffering 329 00:19:41,240 --> 00:19:44,040 Speaker 1: from al apportionment as there's the government legislature basically asked 330 00:19:44,040 --> 00:19:47,480 Speaker 1: the Wisconsin Supreme Court to draw new maps. The Wisconsin 331 00:19:47,480 --> 00:19:50,160 Speaker 1: Supreme Court said, no, we're not good at joining maps. 332 00:19:50,280 --> 00:19:53,880 Speaker 1: You governor and you legislatures submit to us your best 333 00:19:53,920 --> 00:19:57,320 Speaker 1: efforts and we will pick. Our major criterion is which 334 00:19:57,440 --> 00:20:01,320 Speaker 1: map the parts least from the pre existing maps. Obviously 335 00:20:01,359 --> 00:20:04,840 Speaker 1: some departures necessary to be with population changes, but we're 336 00:20:04,840 --> 00:20:08,320 Speaker 1: going to favor the map that otherwise has least change 337 00:20:08,600 --> 00:20:11,920 Speaker 1: from the pre existing maps. The was constant been courted 338 00:20:11,920 --> 00:20:14,080 Speaker 1: by a voter for to three pick the governor's map. 339 00:20:14,480 --> 00:20:16,400 Speaker 1: It was not quite a partisan split. There were three 340 00:20:16,400 --> 00:20:19,560 Speaker 1: Democrats and one Republican of the majority and three Republicans 341 00:20:19,560 --> 00:20:23,160 Speaker 1: of the descent. The thing that became controversial is that 342 00:20:23,359 --> 00:20:27,080 Speaker 1: although the Wisconsin Court said the governor's map did depart 343 00:20:27,200 --> 00:20:30,679 Speaker 1: less from the pre existing maps and the legislatures, the 344 00:20:30,720 --> 00:20:35,560 Speaker 1: governor's map proposed seven black majority stemily districts in the 345 00:20:35,600 --> 00:20:40,159 Speaker 1: Milwaukee area. This is the legislature. There are currently six. 346 00:20:40,720 --> 00:20:45,520 Speaker 1: The legislature's map had proposed basically five. The governor's position 347 00:20:46,040 --> 00:20:48,679 Speaker 1: was that due to the increased black share of the 348 00:20:48,720 --> 00:20:52,520 Speaker 1: area population, you needed an additional map in order for 349 00:20:52,600 --> 00:20:56,680 Speaker 1: the black voters to receive their proportional share of representation, 350 00:20:57,359 --> 00:21:00,200 Speaker 1: and that failure to do so would probably be a 351 00:21:00,320 --> 00:21:04,600 Speaker 1: violation of a voting rights Act, and that intentionally doing 352 00:21:04,680 --> 00:21:07,840 Speaker 1: so would not be a violation of the Fourteenth Amendment. 353 00:21:07,840 --> 00:21:10,480 Speaker 1: And in that you basically see the governor trying to 354 00:21:10,520 --> 00:21:14,040 Speaker 1: sort of navigate this narrow space that says that voting 355 00:21:14,040 --> 00:21:18,120 Speaker 1: maps that dilute minority voting strength violate the Voting Rights Act, 356 00:21:18,280 --> 00:21:21,760 Speaker 1: but that a state cannot give excessive attention to race 357 00:21:22,320 --> 00:21:25,159 Speaker 1: in drawing maps, even when they're trying to enhance an 358 00:21:25,160 --> 00:21:29,280 Speaker 1: already representation. So the governor's position, which the Wisconsin Supreme 359 00:21:29,280 --> 00:21:32,040 Speaker 1: Court by a fourd to three vote accepted was that 360 00:21:32,280 --> 00:21:35,760 Speaker 1: this additional district was necessary to avoid a voting rights 361 00:21:35,760 --> 00:21:39,400 Speaker 1: set violation and therefore did not violate the Fourteenth Amendment, 362 00:21:40,760 --> 00:21:44,200 Speaker 1: so which the U. S. Supreme Court left the congressional 363 00:21:44,240 --> 00:21:48,200 Speaker 1: maps in place but tossed the legislative maps right. And 364 00:21:48,320 --> 00:21:50,920 Speaker 1: for both the congressional and the legislative maps, the State 365 00:21:50,960 --> 00:21:54,800 Speaker 1: Supreme Court standard was give us one that's the closest 366 00:21:54,840 --> 00:21:57,959 Speaker 1: to the map that was adopted ten years ago, with 367 00:21:58,040 --> 00:22:01,880 Speaker 1: appropriate adjustments for population change. In both cases, the State 368 00:22:01,920 --> 00:22:04,800 Speaker 1: Supreme Court concluded that the governor's map did a better 369 00:22:04,880 --> 00:22:08,240 Speaker 1: job of that. Various parties challenged both of those. What 370 00:22:08,359 --> 00:22:12,560 Speaker 1: the U. S. Supreme Court said was that the governor's decision, 371 00:22:12,840 --> 00:22:16,360 Speaker 1: which the State Supreme Court accepted, that the Voting Rights 372 00:22:16,440 --> 00:22:20,960 Speaker 1: Act required an additional black majority district in the Milwaukee 373 00:22:21,040 --> 00:22:25,119 Speaker 1: area and that doing that wouldn't violate the Fourteenth Amendment. 374 00:22:25,480 --> 00:22:27,600 Speaker 1: The U. S. Supreme Court said the governor and the 375 00:22:27,640 --> 00:22:30,679 Speaker 1: State Supreme Court neither of them did enough to show 376 00:22:30,760 --> 00:22:33,800 Speaker 1: that that was correct. They failed to show that the 377 00:22:33,880 --> 00:22:36,639 Speaker 1: Voting Rights Act required this, and therefore they failed to 378 00:22:36,640 --> 00:22:40,680 Speaker 1: show that it didn't violate the Fourteenth Amendment, and therefore 379 00:22:40,880 --> 00:22:43,280 Speaker 1: they reversed the decision to pick the assembly in the 380 00:22:43,320 --> 00:22:46,120 Speaker 1: Senate maps and sent it back to the state Supreme 381 00:22:46,160 --> 00:22:50,520 Speaker 1: Court for further analysis, which could include keeping the governor's 382 00:22:50,560 --> 00:22:54,080 Speaker 1: maps if there was additional evidence that showed that there 383 00:22:54,160 --> 00:22:57,800 Speaker 1: was a strong Voting Rights Act requirement for the additional district. 384 00:22:58,160 --> 00:23:01,240 Speaker 1: But where the Supreme Court was the governor seemed to 385 00:23:01,320 --> 00:23:06,720 Speaker 1: rely exclusively or almost exclusively on the need for proportionality 386 00:23:06,960 --> 00:23:10,120 Speaker 1: given the black share of the area population, and that 387 00:23:10,119 --> 00:23:13,840 Speaker 1: that's not enough to satisfy a Voting Rights Act argument, 388 00:23:14,000 --> 00:23:17,000 Speaker 1: and therefore there was not a good Voting Rights Act 389 00:23:17,040 --> 00:23:21,240 Speaker 1: defense to the challenge that this was excessively attentive to 390 00:23:21,320 --> 00:23:24,280 Speaker 1: raise in violation of the Fourteenth Amendment. The Court said, 391 00:23:24,320 --> 00:23:27,520 Speaker 1: the question that our Voting Rights Act precedents asked and 392 00:23:27,560 --> 00:23:30,400 Speaker 1: the Court failed to answer, is whether a race neutral 393 00:23:30,440 --> 00:23:34,160 Speaker 1: alternative that did not add a seventh majority black district 394 00:23:34,160 --> 00:23:38,280 Speaker 1: would deny black voters equal political opportunity. Is that what 395 00:23:38,359 --> 00:23:43,520 Speaker 1: Supreme Court precedents call for? Because in dissent, Justice Sonia Sotomayor, 396 00:23:43,840 --> 00:23:50,320 Speaker 1: joined by Justice Elina Kagan, called the decision unprecedented and extraordinary. Yes, 397 00:23:50,440 --> 00:23:53,600 Speaker 1: it's unprecedent extraordinary in several ways. For one, Normally, the 398 00:23:53,640 --> 00:23:56,560 Speaker 1: burden is on the challenger to prove that race was 399 00:23:56,600 --> 00:24:00,119 Speaker 1: the predominant motivating factor, whereas here the burden seem to 400 00:24:00,160 --> 00:24:03,159 Speaker 1: be being put on the governor or state supreme court. 401 00:24:03,359 --> 00:24:06,480 Speaker 1: So one thing is that totally shifted the burden. Normally, 402 00:24:06,480 --> 00:24:09,879 Speaker 1: a map gets adopted, the challenger says this violates equal 403 00:24:09,880 --> 00:24:12,679 Speaker 1: protection clause, and then the plaintiff has to make that 404 00:24:12,840 --> 00:24:16,119 Speaker 1: case by showing that it was predominantly motivated by race, 405 00:24:16,280 --> 00:24:18,560 Speaker 1: and then the status to come back and defend that 406 00:24:18,640 --> 00:24:21,000 Speaker 1: there was a strong basis and evidence for a Voting 407 00:24:21,080 --> 00:24:24,560 Speaker 1: Rights Act violation. They've never had a case before where 408 00:24:24,560 --> 00:24:27,040 Speaker 1: a similar challenge was brought to a map adopted by 409 00:24:27,040 --> 00:24:29,879 Speaker 1: a state supreme court as opposed to one adopted by 410 00:24:29,920 --> 00:24:32,840 Speaker 1: a legislature. And then there was also the argument is 411 00:24:32,920 --> 00:24:35,560 Speaker 1: that race was the predominant factor. It looks like one 412 00:24:35,640 --> 00:24:39,480 Speaker 1: argument is the predominant factor here was re change from 413 00:24:39,520 --> 00:24:43,399 Speaker 1: the prior map. And beyond that, there's a sense that 414 00:24:43,880 --> 00:24:46,840 Speaker 1: the interplay between the Voting Rights Act and the fourteen 415 00:24:46,840 --> 00:24:49,679 Speaker 1: Amendment is difficult. And indeed, the Supreme Court about a 416 00:24:49,720 --> 00:24:53,080 Speaker 1: month ago agreed to stay a map adopted by a 417 00:24:53,119 --> 00:24:56,720 Speaker 1: court in Alabama that held it over for full argument 418 00:24:56,880 --> 00:25:00,040 Speaker 1: because of the murkiness of the relationship that in the the 419 00:25:00,119 --> 00:25:03,280 Speaker 1: Voting Rights Act and the Fourteenth Amendment. But here the 420 00:25:03,280 --> 00:25:05,720 Speaker 1: supporting court actually made a ruling on the merits that 421 00:25:05,960 --> 00:25:08,879 Speaker 1: the language that you quoted about the burden being on 422 00:25:09,119 --> 00:25:11,359 Speaker 1: the state, whether it's the governor of the state Supreme 423 00:25:11,480 --> 00:25:13,760 Speaker 1: court to show that there was not on alternative means 424 00:25:13,760 --> 00:25:16,840 Speaker 1: of doing it, I don't think they'd ever ruled that before. 425 00:25:17,160 --> 00:25:19,520 Speaker 1: And here they're doing it in a so called shadow 426 00:25:19,560 --> 00:25:23,240 Speaker 1: docket case, without oral argument, without full briefing, and really 427 00:25:23,400 --> 00:25:25,960 Speaker 1: pretty close to the time where these maps have to 428 00:25:25,960 --> 00:25:28,600 Speaker 1: be finalized so that the state can do the redistricting 429 00:25:28,640 --> 00:25:31,840 Speaker 1: to allow the elections for the legislature to begin. So 430 00:25:32,000 --> 00:25:35,560 Speaker 1: the procedural posture was very unusual. It was a challenge 431 00:25:35,600 --> 00:25:38,320 Speaker 1: to a map really adopted by a state Supreme court. 432 00:25:38,720 --> 00:25:40,840 Speaker 1: I came up on a request for a state. They 433 00:25:40,840 --> 00:25:44,600 Speaker 1: turned it into a meritage proceeding, and they basically treated 434 00:25:44,800 --> 00:25:47,560 Speaker 1: the interplay the Voting Rights Act and the Fourteenth Amendment, 435 00:25:47,920 --> 00:25:50,600 Speaker 1: which not even six weeks ago in the opinion by 436 00:25:50,640 --> 00:25:53,400 Speaker 1: Justice Kavanal, they said was very murky and needs full 437 00:25:53,520 --> 00:25:56,960 Speaker 1: argument today. Say it's clear and it requires that. Would 438 00:25:56,960 --> 00:26:02,439 Speaker 1: you just simply explain the interplay of the Voting Rights 439 00:26:02,480 --> 00:26:06,600 Speaker 1: Act and the Equal Protection Clause? Okay, and I'm not 440 00:26:06,640 --> 00:26:09,959 Speaker 1: sure simply can do it, but here's my best effort. Um. 441 00:26:10,000 --> 00:26:13,440 Speaker 1: In a case called Chardi Reno, which was decided now 442 00:26:13,480 --> 00:26:17,440 Speaker 1: close to thirty years ago, the Supreme Court said that 443 00:26:17,680 --> 00:26:20,639 Speaker 1: if the primary mode of the predominant reason for a 444 00:26:20,680 --> 00:26:24,520 Speaker 1: line drawing is race, then it violates the Fourteenth Amendment, 445 00:26:24,960 --> 00:26:28,440 Speaker 1: even if the purpose is to provide racial proportional representation. 446 00:26:28,960 --> 00:26:30,639 Speaker 1: In other words, that was the case coming out of 447 00:26:30,680 --> 00:26:34,359 Speaker 1: North Carolina, where the state sort of drew the lines 448 00:26:34,400 --> 00:26:36,960 Speaker 1: on the map with a clear intent of creating a 449 00:26:37,000 --> 00:26:40,720 Speaker 1: new black majority district. The Court said that raises a 450 00:26:40,960 --> 00:26:44,720 Speaker 1: serious fourteen Amendment problem. Strict scrutiny applies to a map 451 00:26:44,800 --> 00:26:47,800 Speaker 1: in which raises the predominant reason for the line drawing. 452 00:26:48,000 --> 00:26:52,440 Speaker 1: It can be justified, though, if it's necessary to remedy 453 00:26:52,520 --> 00:26:55,520 Speaker 1: a Voting Rights Act violation, and the Voting Rights Act 454 00:26:55,560 --> 00:26:59,760 Speaker 1: violation has itself several criteria. But the essence of that 455 00:27:00,119 --> 00:27:03,080 Speaker 1: is is a racial block voting in the community and 456 00:27:03,119 --> 00:27:07,120 Speaker 1: the political process is not equally open to minority voters, 457 00:27:07,200 --> 00:27:10,400 Speaker 1: so that you need to have a plan which give 458 00:27:10,440 --> 00:27:14,000 Speaker 1: the minority voters a fair opportunity to win a fair 459 00:27:14,080 --> 00:27:18,120 Speaker 1: number of districts. If it's excessively attentive to raise that's 460 00:27:18,119 --> 00:27:21,520 Speaker 1: the Fourteenth Amendment problem. The Voting Rights Act can provide 461 00:27:21,560 --> 00:27:24,640 Speaker 1: a defense for that, but you need to show that 462 00:27:24,760 --> 00:27:27,399 Speaker 1: you need to attend to race and to remedy the 463 00:27:27,480 --> 00:27:29,840 Speaker 1: Voting Rights Act problem. And the question that comes up 464 00:27:29,880 --> 00:27:32,760 Speaker 1: at this stage, which is, given that no one has 465 00:27:32,800 --> 00:27:36,200 Speaker 1: brought a lawsuit saying that any plan violated the Voting 466 00:27:36,280 --> 00:27:39,720 Speaker 1: Rights Act, how far in advance can of state go, 467 00:27:39,920 --> 00:27:41,800 Speaker 1: whether it's the governor or the state Supreme Court and 468 00:27:41,840 --> 00:27:44,560 Speaker 1: saying we think that if we don't do this, there 469 00:27:44,560 --> 00:27:47,320 Speaker 1: could be a serious Voting Rights Act problem. So this 470 00:27:47,359 --> 00:27:49,600 Speaker 1: is what we're gonna do. I mean, that's really the 471 00:27:49,840 --> 00:27:54,280 Speaker 1: challenge here, an attack on the willingness of state decision makers. 472 00:27:54,280 --> 00:27:57,520 Speaker 1: Are governor or state Supreme Court to take steps to 473 00:27:57,680 --> 00:28:00,399 Speaker 1: avoid a Voting Rights Act challenge if they think there's 474 00:28:00,520 --> 00:28:04,040 Speaker 1: a serious possibility that a serious Voting Rights Act challenge 475 00:28:04,040 --> 00:28:06,600 Speaker 1: could be brought, And with the Supreme Court is saying 476 00:28:06,680 --> 00:28:09,760 Speaker 1: here is no you really have to do all the 477 00:28:09,880 --> 00:28:12,639 Speaker 1: homework to show that there probably was going to be 478 00:28:12,680 --> 00:28:15,639 Speaker 1: a Voting Rights Act not a serious possibility, but you 479 00:28:15,680 --> 00:28:17,959 Speaker 1: really have to show that if you didn't do it, 480 00:28:18,359 --> 00:28:21,600 Speaker 1: there would be a Voting Rights Act violation. That's a 481 00:28:21,640 --> 00:28:25,359 Speaker 1: really serious burden on state decision makers and effect to 482 00:28:25,359 --> 00:28:27,680 Speaker 1: show that they would be guilty if they didn't do 483 00:28:28,200 --> 00:28:30,280 Speaker 1: the thing that they were going to do. So the 484 00:28:30,400 --> 00:28:33,679 Speaker 1: Wisconsin Governor Tony Ever said, if we have to go 485 00:28:33,720 --> 00:28:36,800 Speaker 1: back to the Wisconsin Supreme Court, who have already called 486 00:28:36,800 --> 00:28:40,480 Speaker 1: our maps superior to every other proposal, to demonstrate again 487 00:28:40,520 --> 00:28:42,880 Speaker 1: that these maps are better and fairer than the maps 488 00:28:42,920 --> 00:28:46,840 Speaker 1: we have now, then that's exactly what we'll do. So 489 00:28:46,920 --> 00:28:49,880 Speaker 1: what happens now they go back to the Wisconsin Supreme 490 00:28:49,920 --> 00:28:53,840 Speaker 1: Court and they make a better argument or what they 491 00:28:53,880 --> 00:28:57,640 Speaker 1: would have to do now. It's interesting because the Voting 492 00:28:57,720 --> 00:29:01,840 Speaker 1: Rights Act argumenting other has several prongs to it, several 493 00:29:01,920 --> 00:29:05,120 Speaker 1: things that under prior Supreme Court precedent, somebody has to 494 00:29:05,200 --> 00:29:07,480 Speaker 1: show in order to just so there was a voting 495 00:29:07,560 --> 00:29:11,000 Speaker 1: rightside a violation. Part of the problem was that both 496 00:29:11,080 --> 00:29:14,360 Speaker 1: parties below agreed on a number of those prongs, so 497 00:29:14,520 --> 00:29:17,600 Speaker 1: that there was not much litigation about it, and they 498 00:29:17,640 --> 00:29:19,280 Speaker 1: actually the Supreme Court said it was done a very 499 00:29:19,280 --> 00:29:22,520 Speaker 1: conclusively fashion. But actually that's where Justice sodom Or makes 500 00:29:22,560 --> 00:29:25,160 Speaker 1: that point. The reason some of this was conclusivey is 501 00:29:25,160 --> 00:29:28,200 Speaker 1: actually wasn't much debate. The Supreme Court did not make 502 00:29:28,200 --> 00:29:31,880 Speaker 1: it very clear what a better argument or what better 503 00:29:32,120 --> 00:29:35,920 Speaker 1: proof would require. But they will have to make more 504 00:29:35,960 --> 00:29:38,000 Speaker 1: of an argument and then they have to persuade the 505 00:29:38,040 --> 00:29:40,400 Speaker 1: Wisconsin Supreme Court again. And that was a four to 506 00:29:40,480 --> 00:29:43,680 Speaker 1: three decision with the key decision maker is the Republican 507 00:29:43,720 --> 00:29:46,000 Speaker 1: justice who voted with the Democrats to say it's a 508 00:29:46,040 --> 00:29:48,520 Speaker 1: close case. But on balance, I think the governor's map 509 00:29:48,600 --> 00:29:51,400 Speaker 1: is better. The one question is whether the U. S. 510 00:29:51,400 --> 00:29:54,920 Speaker 1: Supreme Court decision will shake the view of the Justice 511 00:29:54,920 --> 00:29:58,480 Speaker 1: Hagadorn of the Wisconsin Supreme Court that the governor's map 512 00:29:58,680 --> 00:30:00,719 Speaker 1: is better. I mean, I think the governor can come 513 00:30:00,720 --> 00:30:02,800 Speaker 1: back and make a case, and maybe there's more lawyering 514 00:30:02,800 --> 00:30:04,560 Speaker 1: that needs to be done, maybe they have to submit 515 00:30:04,600 --> 00:30:06,760 Speaker 1: some more affidavits, maybe they need to put some more 516 00:30:06,760 --> 00:30:09,440 Speaker 1: empirical evidence in. But in the end, I think much 517 00:30:09,480 --> 00:30:11,720 Speaker 1: is going to turn on that central justice in the 518 00:30:11,920 --> 00:30:14,480 Speaker 1: in the Wisconsin Supreme Court, whether he sticks with his 519 00:30:14,520 --> 00:30:16,959 Speaker 1: prior opinion or whether from U. S. Supreme Court has 520 00:30:16,960 --> 00:30:21,000 Speaker 1: sufficially shaken him, did he change his sides? Do Republicans 521 00:30:21,680 --> 00:30:26,560 Speaker 1: or Democrats get an advantage with either of these maps, 522 00:30:27,400 --> 00:30:30,320 Speaker 1: because it seems like Republicans from what I've read, Republicans 523 00:30:30,320 --> 00:30:35,800 Speaker 1: would still remain, you know, the majority. I So that's 524 00:30:35,840 --> 00:30:38,040 Speaker 1: that's sort of two questions and one. I think, under 525 00:30:38,240 --> 00:30:42,440 Speaker 1: all the circumstances, either map in Wisconsin, Republicans certain majority. 526 00:30:43,240 --> 00:30:46,120 Speaker 1: One thought, as the governor's map makes it a slightly 527 00:30:46,200 --> 00:30:49,240 Speaker 1: smaller majority. Uh. In the legislature, I think it's not 528 00:30:49,320 --> 00:30:52,760 Speaker 1: clear that the effects them the congressional delegation at all, 529 00:30:53,320 --> 00:30:56,520 Speaker 1: which is currently five three Republican. I believe maybe well 530 00:30:56,520 --> 00:30:59,480 Speaker 1: maybe maybe the Republicans are open for six too. I 531 00:30:59,520 --> 00:31:01,560 Speaker 1: think one thing that could be the case in the 532 00:31:01,640 --> 00:31:06,200 Speaker 1: legislature UM is um less likely Republics have to get 533 00:31:06,200 --> 00:31:09,160 Speaker 1: a supermajority because right now there is a Republican legislature 534 00:31:09,520 --> 00:31:13,280 Speaker 1: with large majorities in both houses UM and democratic governor. 535 00:31:13,480 --> 00:31:16,600 Speaker 1: Democratic governor will can vet them anythings that the legislature does, 536 00:31:16,640 --> 00:31:19,880 Speaker 1: but if they have two thirds Republicans, they can override 537 00:31:19,880 --> 00:31:22,280 Speaker 1: as Vetos. It seems to be that in almost any 538 00:31:22,280 --> 00:31:26,360 Speaker 1: scenario of the legislature in Wisconsin will remain Republican. The 539 00:31:26,480 --> 00:31:28,280 Speaker 1: question is how large was the margin thing, and that 540 00:31:28,320 --> 00:31:31,600 Speaker 1: could matter for things like dealing with Vetos. Up until 541 00:31:31,640 --> 00:31:36,960 Speaker 1: this point, the Supreme Court has basically left maps in place. 542 00:31:37,320 --> 00:31:40,480 Speaker 1: You know, at this point in time, these pre election 543 00:31:41,120 --> 00:31:43,360 Speaker 1: maps to be changed after. Is that true or not? Well, 544 00:31:43,360 --> 00:31:45,320 Speaker 1: there was one that the one that I think that 545 00:31:45,440 --> 00:31:47,600 Speaker 1: connects more to this one is the one from Alabama. 546 00:31:48,160 --> 00:31:52,240 Speaker 1: The Supreme Court has left alone. Uh. The challenges that 547 00:31:52,320 --> 00:31:55,240 Speaker 1: seem to go on partisanship and the role of independent 548 00:31:55,240 --> 00:31:59,080 Speaker 1: districting commissions, because there's a new Republican talking point that 549 00:31:59,160 --> 00:32:02,960 Speaker 1: the use of independent districting commissions is unconstitutional and that 550 00:32:03,080 --> 00:32:06,320 Speaker 1: I think came up in or the use of state 551 00:32:06,400 --> 00:32:11,239 Speaker 1: constitutional anti partisan gerrymandering norms. I think that came up 552 00:32:11,280 --> 00:32:15,440 Speaker 1: in Pennsylvania. In Michigan maybe uh, and the Spood Court 553 00:32:15,440 --> 00:32:18,440 Speaker 1: hasn't been Ohio might have been buying that, But in 554 00:32:18,560 --> 00:32:22,360 Speaker 1: Alabama and in Wisconsin, the thing that they did buy 555 00:32:22,600 --> 00:32:26,080 Speaker 1: was the argument that there was um uh, that there 556 00:32:26,120 --> 00:32:30,360 Speaker 1: was excessive attention to race, or that um they they 557 00:32:30,440 --> 00:32:34,960 Speaker 1: bought challengers arguments that that the justification for a map 558 00:32:35,040 --> 00:32:38,320 Speaker 1: under the Voting Rights Act was itself excessively attempted to raise. 559 00:32:38,760 --> 00:32:41,960 Speaker 1: And so they stayed a decision by a federal court 560 00:32:42,000 --> 00:32:46,520 Speaker 1: in Alabama which would have which blocked a map in Alabama. 561 00:32:47,000 --> 00:32:49,160 Speaker 1: The map the Federal court in Alabama, so that felt 562 00:32:49,160 --> 00:32:54,120 Speaker 1: that that map underrepresented black voters, and uh, he stayed 563 00:32:54,160 --> 00:32:56,560 Speaker 1: that map. Supreme Court undid that stay and staid, no, 564 00:32:56,680 --> 00:33:00,560 Speaker 1: this map can go forward. Um uh. And then until 565 00:33:00,600 --> 00:33:02,360 Speaker 1: there's a full trial on the merits. And then you 566 00:33:02,440 --> 00:33:05,720 Speaker 1: get the Wisconsin one where the Supreme Court nomal we 567 00:33:05,840 --> 00:33:09,520 Speaker 1: didn't just stay the decision of lower crecision, but actually 568 00:33:09,680 --> 00:33:12,120 Speaker 1: returned it and said you've got to go back. And again, 569 00:33:12,120 --> 00:33:14,880 Speaker 1: I think in both of them, what we're seeing is 570 00:33:14,920 --> 00:33:20,080 Speaker 1: a majority of the Supreme Court UM uncomfortable with the 571 00:33:20,160 --> 00:33:24,800 Speaker 1: argument that the Voting Rights Act requires additional attention to 572 00:33:24,840 --> 00:33:28,000 Speaker 1: minority representation. And I think we're seeing this, along with 573 00:33:28,040 --> 00:33:33,680 Speaker 1: the Burnish decision of last year, UH, increasing pushback on 574 00:33:33,760 --> 00:33:37,960 Speaker 1: the Voting Rights Act as a means of enhancing UM 575 00:33:37,960 --> 00:33:42,160 Speaker 1: minority representation outside the most open and shut areas of 576 00:33:42,200 --> 00:33:45,440 Speaker 1: clear cut discrimination. I guess we'll see what happens when 577 00:33:45,440 --> 00:33:48,800 Speaker 1: this goes back to the Wisconsin Supreme Court. Thanks so 578 00:33:48,840 --> 00:33:51,480 Speaker 1: much for being on the show. Rich that's Professor Richard 579 00:33:51,480 --> 00:33:54,480 Speaker 1: Brafalt of Columbia Law School. And that's it for this 580 00:33:54,640 --> 00:33:57,360 Speaker 1: edition of The Bloomberg Law Show. Remember you can always 581 00:33:57,360 --> 00:34:00,320 Speaker 1: get the latest legal news on our Bloomberg Law pod Cast. 582 00:34:00,600 --> 00:34:03,600 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 583 00:34:03,800 --> 00:34:08,799 Speaker 1: www dot Bloomberg dot com, slash podcast Slash Law, And 584 00:34:08,880 --> 00:34:11,600 Speaker 1: remember to tune into The Bloomberg Law Show every week 585 00:34:11,719 --> 00:34:15,320 Speaker 1: night at ten pm Wall Street Time. I'm June Grossow, 586 00:34:15,400 --> 00:34:17,000 Speaker 1: and you're listening to Bloomberg