Speaker 1: This is Bloomberg Law, with June Brusso from Bloomberg Radio.
Speaker 1: A divided Supreme Court said the Navy can limit deployment
Speaker 1: in training for thirty five seals and other special operations
Speaker 1: forces who are refusing on religious grounds to get vaccinated
Speaker 1: against COVID nineteen. A lower court judge had ordered the
Speaker 1: Navy to assign and deploy the sailors without regard to
Speaker 1: their unvaccinated status, but the Biden administration said that would
Speaker 1: jeopardize safety and mission success, given that seals often operate
Speaker 1: in tight quarters, including on submarines. My guest is Dorrit Reece,
Speaker 1: a professor at the University of California Hastings College of Law.
Speaker 1: What was the issue in this case before the court?
Speaker 1: The question before the court towards there's a challenge to
Speaker 1: the Navy denial of religious exemptions to the maybe decided
Speaker 1: to refuse maddic to the claim TIFFs and lower court
Speaker 1: decided to stay the application of the method and order.
Speaker 1: The Navy not achieved them differently in any way. The
Speaker 1: Navy didn't want to deploy unvaccinated people, and the lower
Speaker 1: court refused to modify. The state refused to allow the
Speaker 1: Navy not to deploy unvaccimate people. The Supreme Court was
Speaker 1: to decide whether the Navy may refuse to deploy unvaccinated people.
Speaker 1: There was no opinion for the court. Does the concurring
Speaker 1: oppinion of Justice Brett Kavanaugh tell us anything? Yes, it
Speaker 1: does so two things. First of all, it's very usual
Speaker 1: not to have a fully reasoned opinion on this kind
Speaker 1: of emergency stake cases. As a reminder, the case hasn't
Speaker 1: been fully briefed or decided, and the question is should
Speaker 1: we uphold or overturn an emergency stake The Court usually
Speaker 1: issues this precordium, though sometimes it does add the short opinion.
Speaker 1: The concurrence tells us that for at least some of
Speaker 1: the justices, the main issue was how much difference to
Speaker 1: give to the Navy decision who to deploy. The Court
Speaker 1: has a long tradition of deferring to the Navy's judgment
Speaker 1: and the military's judgment, as the Justice Cavano highlighted, and
Speaker 1: at least for some of it this is that was
Speaker 1: probably the issue here as well. A Secretary of Defense,
Speaker 1: Lloyd Austin, had urged the Court to remedy what he
Speaker 1: called an extraordinary and unprecedented intrusion into core military affairs
Speaker 1: that has no precedent in American history? Is he right?
Speaker 1: Is there any precedent for a court stepping in and
Speaker 1: telling the military what to do? No? Well, let me
Speaker 1: qualify that there is a history of the court telling
Speaker 1: the military is sometimes to what to do, but there
Speaker 1: is no case in which the court told the military
Speaker 1: to deploy people that the military thought were not deployment appropriate.
Speaker 1: The Secretary is completely right that that's a very unprecedented
Speaker 1: intrusion into the militaries of her So is this basically
Speaker 1: about the principle of separation of powers? Yes? I will
Speaker 1: add that there are some things in the descent that
Speaker 1: do raise questions. So the military acknowledges that there are
Speaker 1: subject to the Religious Free of Restoration Act requirements of
Speaker 1: only not respecting religious interests when it's a compelling interest
Speaker 1: in the list restrictive means, they still to have made
Speaker 1: it practically impossible to get a religious exemption and justice
Speaker 1: a little is right. Within any other context, that would
Speaker 1: be seen as a problem as bad space application of
Speaker 1: religious exemption. And here too, by doing it so aggressively,
Speaker 1: the military created an appearance of not really taking seriously
Speaker 1: the religious exemptions. There are two parts to this. First
Speaker 1: of all, it might be worth a phonomakers to consider
Speaker 1: whether the Religious Feed the Restoration Act should in fact
Speaker 1: applight of the military. This case was not under the
Speaker 1: first Amendment, which was under the Religious Preads Restoration Act,
Speaker 1: even for the descent, so there's a question should the
Speaker 1: Religious Feed the Reistration Act applied as a military. Second,
Speaker 1: if the Religious Freeministration Act does applies to the military,
Speaker 1: the military should at least assess religious exemption in good space.
Speaker 1: Considering whether deploying these people is appropriate is military discretion.
Speaker 1: But not even considering religious exemption is tricky. If the
Speaker 1: military soldiers have to obey orders. If you allow soldiers
Speaker 1: to start questioning orders, what happens. So when it comes
Speaker 1: to soldiers, soldiers right are limited and they do have
Speaker 1: to obey orders. However, there are limits to that. Soldiers
Speaker 1: rights are limited while the stirs, but they're not completely
Speaker 1: out of the window, and there are some protection. In
Speaker 1: this case. It would have have been a very different
Speaker 1: situation if the military is said the Religious with the
Speaker 1: Restoration Act does not apply to us and does not
Speaker 1: give soldiers this right. But the military didn't the military
Speaker 1: acknowledge that there's a right religious exemption, just didn't take
Speaker 1: it very seriously. The other part of this is also
Speaker 1: the question is what exactly do are we talking about.
Speaker 1: So the main question is deployment decision in theory the military,
Speaker 1: what they say, we're going to fire these people for
Speaker 1: religious exemption or punish them. They were saying, we don't
Speaker 1: want to deploy people who are unvaccinated. At this point,
Speaker 1: there's a difference between sayings to the military you have
Speaker 1: to seriously consider religious exemption and say to the military
Speaker 1: you have to deploy people you think are unsafe. You
Speaker 1: could say you have to seriously consider religious exemption, but
Speaker 1: you still have the discretion to decide would deploy. And
Speaker 1: it's not up to the court in any way, shape
Speaker 1: and form to tell you that people with religious exemption
Speaker 1: can do other things in the military stake take that. So,
Speaker 1: do you think that this was wrongly decided? Then I
Speaker 1: think this was rightly decided. I think the court was
Speaker 1: right to say the military gets decided who to deploy. However,
Speaker 1: I also think that two things should be changed. First,
Speaker 1: we should consider whether it's appropriate for the Religious Freedom
Speaker 1: Restoration Act to also apply to the military. If we
Speaker 1: want to allow the military discretion, the Act probably shouldn't
Speaker 1: apply to them. And second, well, deployment decision should be
Speaker 1: military discretion. If the military says that it's giving religious exemptions,
Speaker 1: it should probably take them seriously. Either make a case
Speaker 1: that you're you're don't have to give religious exemption at all,
Speaker 1: or take them seriously. I saw a head on it
Speaker 1: says the Supreme Court splits on whether Joe Biden is
Speaker 1: commander in chief. I don't think that's a fair description
Speaker 1: of the case. A better description would be to say,
Speaker 1: the Supreme Court splits on whether the military has to
Speaker 1: a limited deployment decision according to religious freedom, or the
Speaker 1: Supreme Court splits on whether the military has to respect
Speaker 1: religious freedom into deployment decision. And this doesn't end the case,
Speaker 1: does it. No, So there's a number of things that
Speaker 1: need to happen next. This is a decision about a
Speaker 1: temporary stay or not to stay. The case is still
Speaker 1: going forward, and this was about what happened while the
Speaker 1: case is being litigate. The Lorwer courts will have to
Speaker 1: decide whether the military violated either a law or the
Speaker 1: constitutional rights of the plaintiff, and then it will probably
Speaker 1: be appealed higher and it will probably get back to
Speaker 1: the Supreme Court on that question. Also, the judge below,
Speaker 1: Judge Rid O'Connor, is well known for his very conservative
Speaker 1: opinions and for ruling against Obamacare. So the United States
Speaker 1: judiciary has always been politically appointed, and especially in question
Speaker 1: where the law is at least some much vague, politics
Speaker 1: naturally come in. However, we expect our judges, whatever the
Speaker 1: political opinions, to follow the law, and if judge reads doesn't,
Speaker 1: I expect the higher court to pull him back in.
Speaker 1: In other words, politics come in. It's almost inevitable. We
Speaker 1: appoint judges politically more than most developed countries, but there's
Speaker 1: a limit to that, and judges first job is still
Speaker 1: to follow them up thanks to it. That's professor Dort
Speaker 1: Reese of the University of California Hastings College of Law.
Speaker 1: The confirmation hearings for Supreme Court nominee Judge Katangi Brown
Speaker 1: Jackson are over, but the voting is not. Jackson is
Speaker 1: continuing to meet with Senators on Capitol Hill this week
Speaker 1: in a push for bipartisan support of her nomination. Three
Speaker 1: Republicans senators voted in favor of Jackson's nomination to the
Speaker 1: US Court of Appeals for the d C Circuit, but
Speaker 1: there were sharp attacks on the judge by Republican senators
Speaker 1: at her hearings. Joining me is Gloria Brown Marshall, a
Speaker 1: professor of constitutional law at John j College of Criminal Justice.
Speaker 1: How do you think Judge Jackson handled herself and the hearings?
Speaker 1: I think Judge Jackson has shown grace under pressure, and
Speaker 1: she has handled herself with spectacular patients given the type
Speaker 1: of political gabbings that are going on between the parties
Speaker 1: using this platform to get back at each other for
Speaker 1: failed nominees in the past, such as Robert Borke, and
Speaker 1: the treatment has been alleged by the Republicans as being
Speaker 1: fraught with all types of political intrigue with Kavanov and
Speaker 1: even Clarence Thomas. So I think they're taking out past
Speaker 1: grudges on each other and using this platform and using her.
Speaker 1: So I think most of us would not be able
Speaker 1: to take this kind of abuse of the record and
Speaker 1: personal attacks about her and coddling criminals and people who
Speaker 1: possessed Chile pornography and keep a level head. But she's
Speaker 1: been showing herself through this entire time. She sailed through
Speaker 1: three confirmation hearings before this committee. She's replacing another liberal
Speaker 1: on the court. Did you expect such attacks by Republicans
Speaker 1: a lot on culture war issues. Yes, And I especially
Speaker 1: felt that given the mid term elections coming up, that
Speaker 1: these politicians are speaking more to their base. They're creating
Speaker 1: commercials for themselves as they go into mid term elections,
Speaker 1: and they're trying to gain some momentum with their voters
Speaker 1: and supporters, and a lot of this is grandstanding and
Speaker 1: hyperbole to the highest degree. That they're using this platform
Speaker 1: as a means to do this as shameful, but it's
Speaker 1: very political as well. So I expected the Republicans to
Speaker 1: behave this way, and I really expect them not to
Speaker 1: vote for her overall. And they had no intention of
Speaker 1: voting for her in the first place, because it was
Speaker 1: going to be so divisive around party lines that there
Speaker 1: was little expectation that their vote was needed. And I
Speaker 1: think they want to paint her so that when she
Speaker 1: does ascend to the bench still have some paint like
Speaker 1: that of Kavanov's confirmation hearing, with so many things came
Speaker 1: out about him, and of course Clarence Thomas and the
Speaker 1: Agnita Heal testimony about his behavior with sexual harassment. So
Speaker 1: Republican Senator Ted Cruz questioned her on critical race theory,
Speaker 1: read from books in the curriculum of a school that
Speaker 1: she's on the board of, and asked her, do you
Speaker 1: agree that babies are racist? Was that appropriate? And would
Speaker 1: that have been asked of a white nominee. I don't
Speaker 1: think it would have been asked of a white nominee.
Speaker 1: But I think also that critical race theory is a
Speaker 1: dog whistle right now for a lot of people who
Speaker 1: don't want to deal with actual American history. American history
Speaker 1: is racist, and for those people who have done well
Speaker 1: in this country, that's fine. But to turn a blind
Speaker 1: eye to the nation's documented history and then to say
Speaker 1: we're not supposed to teach it to children or try
Speaker 1: to teach how we can undo some of this damage
Speaker 1: are prevented from happening in the first place. So it's
Speaker 1: really an issue that many people on the conservative are right,
Speaker 1: who want to gain points on the political spectrum, have
Speaker 1: been using and so they're using it now. These are politicians.
Speaker 1: There's been a concerted effort by Republicans to paint the
Speaker 1: judge as soft on crime. I think that she's ritten
Speaker 1: as a district court judge and as the Pilate Court judge,
Speaker 1: I believe nearly six hundred opinions, maybe more. And so
Speaker 1: the job of people who want to oppose her domination
Speaker 1: or tank her before she ascends to the bench is
Speaker 1: to find the most scandalous, controversial things in her record
Speaker 1: and just keep saying it over and over again. It
Speaker 1: was successful for Donald Trump, and so they're trying to
Speaker 1: make it successful for them as Conservatives and once again
Speaker 1: playing to their base to try to get those conservative
Speaker 1: voters to vote for them in the midterm elections. I
Speaker 1: think it's the political ploy and I think it's scandalous.
Speaker 1: But these are politicians, and these are the highest ranked
Speaker 1: politicians in our country. So they know how to play dirty,
Speaker 1: they know how to throw mud, and they want to
Speaker 1: get back at the Democrat because of what happened with
Speaker 1: Frett Kevin Off, you know, and what was certainly something
Speaker 1: that should have happened with Clarence Thomas. But they believe
Speaker 1: that trying to use critical race theory is throwing meat
Speaker 1: to Alliance. Critical race theory is, to me, is nothing
Speaker 1: more than teaching about um the history of America that
Speaker 1: involves race and racial oppressions, but to turn it into
Speaker 1: something that is hurting children and therefore should not be taught.
Speaker 1: Case who twelve is what they're using. And she's on
Speaker 1: the board, and I'm on boards and other people who
Speaker 1: believe in public service or on boards of nonprofit organizations.
Speaker 1: We don't know everything that goes on within that organization.
Speaker 1: And she didn't know the books that the children were reading.
Speaker 1: But she's been held account for it. You know, a
Speaker 1: politician will use any type of ammunition to throw mud
Speaker 1: when mud is necessary in their in their minds. Fine,
Speaker 1: you mentioned a dog whistle, and soft on crime is
Speaker 1: is another dog whistle. The Times wrote that Third Good
Speaker 1: Marshal the nation's first black Supreme Court justice. As you know,
Speaker 1: Fay similarly coded language during his confirmation hearing fifty five
Speaker 1: years ago. So we haven't progressed very much. And that's
Speaker 1: why we need things like Black History to talk about
Speaker 1: lack of movement. We need we need to talk about
Speaker 1: these issues and so that we can better understand why
Speaker 1: we're not moving. Why is this such a trigger for
Speaker 1: a conservative? Why is it at some point we stopped
Speaker 1: believing in Santa Clause and we have to understand that
Speaker 1: there are parts of this country's history that are painful,
Speaker 1: not just painful to the people who are hearing it now,
Speaker 1: but painful to the people who went through it. Then
Speaker 1: I think it's difficult as well, um for us to
Speaker 1: actually believe that she would be considered soft on crime
Speaker 1: just because she's not rabbit about it as some many
Speaker 1: people want a person to be. And she's supposed to
Speaker 1: be someone with a judicial temperament who's supposed to look
Speaker 1: at both sides and the scales of justice and then
Speaker 1: the side which side is supposed to win based on
Speaker 1: the evidence, or which side is one that should be
Speaker 1: sentenced because of the evidence, And she's been doing that
Speaker 1: and the sentences may not be what they want since
Speaker 1: this to beat but if not, as though she told
Speaker 1: the people that they were going free, he did sentence
Speaker 1: them to confinement. So I think that the fact that
Speaker 1: her brother's in the military as well as a police officer,
Speaker 1: that he has uncles who were police officers, that her
Speaker 1: uncle was the former police chief of Miami, and yet
Speaker 1: this doesn't seem to be enough to appease them. So
Speaker 1: I think this goes beyond what her record is what
Speaker 1: her family is, what she's done. I think this goes
Speaker 1: beyond that. I think it's just a political ploy to
Speaker 1: try to undermine her as a nominee. The Republicans said
Speaker 1: that it wasn't going to be a circus like Kavanaugh,
Speaker 1: there weren't gonna be personal attacks. But some of the
Speaker 1: attacks have been very personal. I mean Tom Cotton said,
Speaker 1: you twisted the law and you rewrote it so you
Speaker 1: could cut the sentence of a drug kingpin. That's what
Speaker 1: you did, Judge. I mean, it got really personal and intense.
Speaker 1: It was really personal intense. You know, it should be
Speaker 1: embarrassing because at this point what we're looking at is
Speaker 1: not just um senators behaving badly, but wanting to make
Speaker 1: a public servant look as though they are not, you know,
Speaker 1: a person who cares about children, even though they have children.
Speaker 1: She has two girls. And also the fact that this
Speaker 1: is a way in which politicians can use their platform,
Speaker 1: this confirmation hearing, to throw shame onto the other political party.
Speaker 1: So this has I think little to do with her
Speaker 1: and more to do with revenge, and that's what it's
Speaker 1: It's just very vengeful and they're using anything to wreak
Speaker 1: revenge on the process because they feel that their candidates,
Speaker 1: even though their nominees, even though they were made Um
Speaker 1: Supreme Court justices, it's not enough that they should have
Speaker 1: just had been able to float through and not have
Speaker 1: any hard questions about their past, about their beliefs and ideologies.
Speaker 1: And at this point, Um, they're just gonna keep throwing mud,
Speaker 1: even though they know the Democrats have the votes. They're
Speaker 1: gonna keep throwing mud until the end of this process
Speaker 1: to really feel their their rancor and and to make
Speaker 1: sure that everybody knows that they've gotten their revenge against
Speaker 1: the past nominees that they put forward and had to
Speaker 1: go through a very serious testing. So tell us what
Speaker 1: she'll bring to the Supreme Court bench. I think she
Speaker 1: will bring persuasiveness. I think she would bring a level
Speaker 1: of insight because she has been a public defender. I
Speaker 1: think he'll also be someone who will bring um a
Speaker 1: sense of coming together of the different sizes Justice Brier did.
Speaker 1: I think it will also be a matter of bringing
Speaker 1: to the court her great insight as someone who was
Speaker 1: a trial court judge, and they are very few trial
Speaker 1: court judges who know what it's like to be on
Speaker 1: these time in place of the actual conflict. The color
Speaker 1: Court judges the issues on appeal, they don't see the
Speaker 1: actual defendants, they don't see the witnesses, they don't see
Speaker 1: the life of the case. And so see bringing that
Speaker 1: to the court. And I think that's a very important measure.
Speaker 1: I would say over the last two decades, most of
Speaker 1: these justices have not had Thanks for joining me on
Speaker 1: the show. That's Gloria Brown Marshall, Professor of Constitutional Law
Speaker 1: at the John Jay College of Criminal Justice. Welcome back,
Speaker 1: Judge Jackson. Yesterday you and I discussed the Court's increasing
Speaker 1: reliance on issuing unsigned orders on its shadow docket, and
Speaker 1: less than an hour ago, um the Court once again
Speaker 1: use the shadow docket to throw out Wisconsin's redistricting maps.
Speaker 1: On Wednesday, during Judge Katangi Brown Jackson Supreme Court confirmation hearings,
Speaker 1: Democratic Senator any Klobisher brought up a Supreme Court decision
Speaker 1: that for the first time this redistricting cycle overturned voting
Speaker 1: maps drawn by a state in an unsigned order. A
Speaker 1: divided court throughout maps for Wisconsin's Assembly and Senate maps
Speaker 1: that were selected by the Wisconsin Supreme Court and drawn
Speaker 1: by the Democratic governor and that added an additional assembly
Speaker 1: district with a majority of black voters. Joining me. As
Speaker 1: elections law expert Richard Rafalt, a professor at Columbia Law School,
Speaker 1: These voting maps in question were drawn by the governor.
Speaker 1: How did that come about? The strows out of a
Speaker 1: Wisconsin redistricting process for the state legislature. The Wisconsin legislature
Speaker 1: passed its own maps for the governor veto them. There
Speaker 1: was then an impass and the voters who are suffering
Speaker 1: from al apportionment as there's the government legislature basically asked
Speaker 1: the Wisconsin Supreme Court to draw new maps. The Wisconsin
Speaker 1: Supreme Court said, no, we're not good at joining maps.
Speaker 1: You governor and you legislatures submit to us your best
Speaker 1: efforts and we will pick. Our major criterion is which
Speaker 1: map the parts least from the pre existing maps. Obviously
Speaker 1: some departures necessary to be with population changes, but we're
Speaker 1: going to favor the map that otherwise has least change
Speaker 1: from the pre existing maps. The was constant been courted
Speaker 1: by a voter for to three pick the governor's map.
Speaker 1: It was not quite a partisan split. There were three
Speaker 1: Democrats and one Republican of the majority and three Republicans
Speaker 1: of the descent. The thing that became controversial is that
Speaker 1: although the Wisconsin Court said the governor's map did depart
Speaker 1: less from the pre existing maps and the legislatures, the
Speaker 1: governor's map proposed seven black majority stemily districts in the
Speaker 1: Milwaukee area. This is the legislature. There are currently six.
Speaker 1: The legislature's map had proposed basically five. The governor's position
Speaker 1: was that due to the increased black share of the
Speaker 1: area population, you needed an additional map in order for
Speaker 1: the black voters to receive their proportional share of representation,
Speaker 1: and that failure to do so would probably be a
Speaker 1: violation of a voting rights Act, and that intentionally doing
Speaker 1: so would not be a violation of the Fourteenth Amendment.
Speaker 1: And in that you basically see the governor trying to
Speaker 1: sort of navigate this narrow space that says that voting
Speaker 1: maps that dilute minority voting strength violate the Voting Rights Act,
Speaker 1: but that a state cannot give excessive attention to race
Speaker 1: in drawing maps, even when they're trying to enhance an
Speaker 1: already representation. So the governor's position, which the Wisconsin Supreme
Speaker 1: Court by a fourd to three vote accepted was that
Speaker 1: this additional district was necessary to avoid a voting rights
Speaker 1: set violation and therefore did not violate the Fourteenth Amendment,
Speaker 1: so which the U. S. Supreme Court left the congressional
Speaker 1: maps in place but tossed the legislative maps right. And
Speaker 1: for both the congressional and the legislative maps, the State
Speaker 1: Supreme Court standard was give us one that's the closest
Speaker 1: to the map that was adopted ten years ago, with
Speaker 1: appropriate adjustments for population change. In both cases, the State
Speaker 1: Supreme Court concluded that the governor's map did a better
Speaker 1: job of that. Various parties challenged both of those. What
Speaker 1: the U. S. Supreme Court said was that the governor's decision,
Speaker 1: which the State Supreme Court accepted, that the Voting Rights
Speaker 1: Act required an additional black majority district in the Milwaukee
Speaker 1: area and that doing that wouldn't violate the Fourteenth Amendment.
Speaker 1: The U. S. Supreme Court said the governor and the
Speaker 1: State Supreme Court neither of them did enough to show
Speaker 1: that that was correct. They failed to show that the
Speaker 1: Voting Rights Act required this, and therefore they failed to
Speaker 1: show that it didn't violate the Fourteenth Amendment, and therefore
Speaker 1: they reversed the decision to pick the assembly in the
Speaker 1: Senate maps and sent it back to the state Supreme
Speaker 1: Court for further analysis, which could include keeping the governor's
Speaker 1: maps if there was additional evidence that showed that there
Speaker 1: was a strong Voting Rights Act requirement for the additional district.
Speaker 1: But where the Supreme Court was the governor seemed to
Speaker 1: rely exclusively or almost exclusively on the need for proportionality
Speaker 1: given the black share of the area population, and that
Speaker 1: that's not enough to satisfy a Voting Rights Act argument,
Speaker 1: and therefore there was not a good Voting Rights Act
Speaker 1: defense to the challenge that this was excessively attentive to
Speaker 1: raise in violation of the Fourteenth Amendment. The Court said,
Speaker 1: the question that our Voting Rights Act precedents asked and
Speaker 1: the Court failed to answer, is whether a race neutral
Speaker 1: alternative that did not add a seventh majority black district
Speaker 1: would deny black voters equal political opportunity. Is that what
Speaker 1: Supreme Court precedents call for? Because in dissent, Justice Sonia Sotomayor,
Speaker 1: joined by Justice Elina Kagan, called the decision unprecedented and extraordinary. Yes,
Speaker 1: it's unprecedent extraordinary in several ways. For one, Normally, the
Speaker 1: burden is on the challenger to prove that race was
Speaker 1: the predominant motivating factor, whereas here the burden seem to
Speaker 1: be being put on the governor or state supreme court.
Speaker 1: So one thing is that totally shifted the burden. Normally,
Speaker 1: a map gets adopted, the challenger says this violates equal
Speaker 1: protection clause, and then the plaintiff has to make that
Speaker 1: case by showing that it was predominantly motivated by race,
Speaker 1: and then the status to come back and defend that
Speaker 1: there was a strong basis and evidence for a Voting
Speaker 1: Rights Act violation. They've never had a case before where
Speaker 1: a similar challenge was brought to a map adopted by
Speaker 1: a state supreme court as opposed to one adopted by
Speaker 1: a legislature. And then there was also the argument is
Speaker 1: that race was the predominant factor. It looks like one
Speaker 1: argument is the predominant factor here was re change from
Speaker 1: the prior map. And beyond that, there's a sense that
Speaker 1: the interplay between the Voting Rights Act and the fourteen
Speaker 1: Amendment is difficult. And indeed, the Supreme Court about a
Speaker 1: month ago agreed to stay a map adopted by a
Speaker 1: court in Alabama that held it over for full argument
Speaker 1: because of the murkiness of the relationship that in the the
Speaker 1: Voting Rights Act and the Fourteenth Amendment. But here the
Speaker 1: supporting court actually made a ruling on the merits that
Speaker 1: the language that you quoted about the burden being on
Speaker 1: the state, whether it's the governor of the state Supreme
Speaker 1: court to show that there was not on alternative means
Speaker 1: of doing it, I don't think they'd ever ruled that before.
Speaker 1: And here they're doing it in a so called shadow
Speaker 1: docket case, without oral argument, without full briefing, and really
Speaker 1: pretty close to the time where these maps have to
Speaker 1: be finalized so that the state can do the redistricting
Speaker 1: to allow the elections for the legislature to begin. So
Speaker 1: the procedural posture was very unusual. It was a challenge
Speaker 1: to a map really adopted by a state Supreme court.
Speaker 1: I came up on a request for a state. They
Speaker 1: turned it into a meritage proceeding, and they basically treated
Speaker 1: the interplay the Voting Rights Act and the Fourteenth Amendment,
Speaker 1: which not even six weeks ago in the opinion by
Speaker 1: Justice Kavanal, they said was very murky and needs full
Speaker 1: argument today. Say it's clear and it requires that. Would
Speaker 1: you just simply explain the interplay of the Voting Rights
Speaker 1: Act and the Equal Protection Clause? Okay, and I'm not
Speaker 1: sure simply can do it, but here's my best effort. Um.
Speaker 1: In a case called Chardi Reno, which was decided now
Speaker 1: close to thirty years ago, the Supreme Court said that
Speaker 1: if the primary mode of the predominant reason for a
Speaker 1: line drawing is race, then it violates the Fourteenth Amendment,
Speaker 1: even if the purpose is to provide racial proportional representation.
Speaker 1: In other words, that was the case coming out of
Speaker 1: North Carolina, where the state sort of drew the lines
Speaker 1: on the map with a clear intent of creating a
Speaker 1: new black majority district. The Court said that raises a
Speaker 1: serious fourteen Amendment problem. Strict scrutiny applies to a map
Speaker 1: in which raises the predominant reason for the line drawing.
Speaker 1: It can be justified, though, if it's necessary to remedy
Speaker 1: a Voting Rights Act violation, and the Voting Rights Act
Speaker 1: violation has itself several criteria. But the essence of that
Speaker 1: is is a racial block voting in the community and
Speaker 1: the political process is not equally open to minority voters,
Speaker 1: so that you need to have a plan which give
Speaker 1: the minority voters a fair opportunity to win a fair
Speaker 1: number of districts. If it's excessively attentive to raise that's
Speaker 1: the Fourteenth Amendment problem. The Voting Rights Act can provide
Speaker 1: a defense for that, but you need to show that
Speaker 1: you need to attend to race and to remedy the
Speaker 1: Voting Rights Act problem. And the question that comes up
Speaker 1: at this stage, which is, given that no one has
Speaker 1: brought a lawsuit saying that any plan violated the Voting
Speaker 1: Rights Act, how far in advance can of state go,
Speaker 1: whether it's the governor or the state Supreme Court and
Speaker 1: saying we think that if we don't do this, there
Speaker 1: could be a serious Voting Rights Act problem. So this
Speaker 1: is what we're gonna do. I mean, that's really the
Speaker 1: challenge here, an attack on the willingness of state decision makers.
Speaker 1: Are governor or state Supreme Court to take steps to
Speaker 1: avoid a Voting Rights Act challenge if they think there's
Speaker 1: a serious possibility that a serious Voting Rights Act challenge
Speaker 1: could be brought, And with the Supreme Court is saying
Speaker 1: here is no you really have to do all the
Speaker 1: homework to show that there probably was going to be
Speaker 1: a Voting Rights Act not a serious possibility, but you
Speaker 1: really have to show that if you didn't do it,
Speaker 1: there would be a Voting Rights Act violation. That's a
Speaker 1: really serious burden on state decision makers and effect to
Speaker 1: show that they would be guilty if they didn't do
Speaker 1: the thing that they were going to do. So the
Speaker 1: Wisconsin Governor Tony Ever said, if we have to go
Speaker 1: back to the Wisconsin Supreme Court, who have already called
Speaker 1: our maps superior to every other proposal, to demonstrate again
Speaker 1: that these maps are better and fairer than the maps
Speaker 1: we have now, then that's exactly what we'll do. So
Speaker 1: what happens now they go back to the Wisconsin Supreme
Speaker 1: Court and they make a better argument or what they
Speaker 1: would have to do now. It's interesting because the Voting
Speaker 1: Rights Act argumenting other has several prongs to it, several
Speaker 1: things that under prior Supreme Court precedent, somebody has to
Speaker 1: show in order to just so there was a voting
Speaker 1: rightside a violation. Part of the problem was that both
Speaker 1: parties below agreed on a number of those prongs, so
Speaker 1: that there was not much litigation about it, and they
Speaker 1: actually the Supreme Court said it was done a very
Speaker 1: conclusively fashion. But actually that's where Justice sodom Or makes
Speaker 1: that point. The reason some of this was conclusivey is
Speaker 1: actually wasn't much debate. The Supreme Court did not make
Speaker 1: it very clear what a better argument or what better
Speaker 1: proof would require. But they will have to make more
Speaker 1: of an argument and then they have to persuade the
Speaker 1: Wisconsin Supreme Court again. And that was a four to
Speaker 1: three decision with the key decision maker is the Republican
Speaker 1: justice who voted with the Democrats to say it's a
Speaker 1: close case. But on balance, I think the governor's map
Speaker 1: is better. The one question is whether the U. S.
Speaker 1: Supreme Court decision will shake the view of the Justice
Speaker 1: Hagadorn of the Wisconsin Supreme Court that the governor's map
Speaker 1: is better. I mean, I think the governor can come
Speaker 1: back and make a case, and maybe there's more lawyering
Speaker 1: that needs to be done, maybe they have to submit
Speaker 1: some more affidavits, maybe they need to put some more
Speaker 1: empirical evidence in. But in the end, I think much
Speaker 1: is going to turn on that central justice in the
Speaker 1: in the Wisconsin Supreme Court, whether he sticks with his
Speaker 1: prior opinion or whether from U. S. Supreme Court has
Speaker 1: sufficially shaken him, did he change his sides? Do Republicans
Speaker 1: or Democrats get an advantage with either of these maps,
Speaker 1: because it seems like Republicans from what I've read, Republicans
Speaker 1: would still remain, you know, the majority. I So that's
Speaker 1: that's sort of two questions and one. I think, under
Speaker 1: all the circumstances, either map in Wisconsin, Republicans certain majority.
Speaker 1: One thought, as the governor's map makes it a slightly
Speaker 1: smaller majority. Uh. In the legislature, I think it's not
Speaker 1: clear that the effects them the congressional delegation at all,
Speaker 1: which is currently five three Republican. I believe maybe well
Speaker 1: maybe maybe the Republicans are open for six too. I
Speaker 1: think one thing that could be the case in the
Speaker 1: legislature UM is um less likely Republics have to get
Speaker 1: a supermajority because right now there is a Republican legislature
Speaker 1: with large majorities in both houses UM and democratic governor.
Speaker 1: Democratic governor will can vet them anythings that the legislature does,
Speaker 1: but if they have two thirds Republicans, they can override
Speaker 1: as Vetos. It seems to be that in almost any
Speaker 1: scenario of the legislature in Wisconsin will remain Republican. The
Speaker 1: question is how large was the margin thing, and that
Speaker 1: could matter for things like dealing with Vetos. Up until
Speaker 1: this point, the Supreme Court has basically left maps in place.
Speaker 1: You know, at this point in time, these pre election
Speaker 1: maps to be changed after. Is that true or not? Well,
Speaker 1: there was one that the one that I think that
Speaker 1: connects more to this one is the one from Alabama.
Speaker 1: The Supreme Court has left alone. Uh. The challenges that
Speaker 1: seem to go on partisanship and the role of independent
Speaker 1: districting commissions, because there's a new Republican talking point that
Speaker 1: the use of independent districting commissions is unconstitutional and that
Speaker 1: I think came up in or the use of state
Speaker 1: constitutional anti partisan gerrymandering norms. I think that came up
Speaker 1: in Pennsylvania. In Michigan maybe uh, and the Spood Court
Speaker 1: hasn't been Ohio might have been buying that, But in
Speaker 1: Alabama and in Wisconsin, the thing that they did buy
Speaker 1: was the argument that there was um uh, that there
Speaker 1: was excessive attention to race, or that um they they
Speaker 1: bought challengers arguments that that the justification for a map
Speaker 1: under the Voting Rights Act was itself excessively attempted to raise.
Speaker 1: And so they stayed a decision by a federal court
Speaker 1: in Alabama which would have which blocked a map in Alabama.
Speaker 1: The map the Federal court in Alabama, so that felt
Speaker 1: that that map underrepresented black voters, and uh, he stayed
Speaker 1: that map. Supreme Court undid that stay and staid, no,
Speaker 1: this map can go forward. Um uh. And then until
Speaker 1: there's a full trial on the merits. And then you
Speaker 1: get the Wisconsin one where the Supreme Court nomal we
Speaker 1: didn't just stay the decision of lower crecision, but actually
Speaker 1: returned it and said you've got to go back. And again,
Speaker 1: I think in both of them, what we're seeing is
Speaker 1: a majority of the Supreme Court UM uncomfortable with the
Speaker 1: argument that the Voting Rights Act requires additional attention to
Speaker 1: minority representation. And I think we're seeing this, along with
Speaker 1: the Burnish decision of last year, UH, increasing pushback on
Speaker 1: the Voting Rights Act as a means of enhancing UM
Speaker 1: minority representation outside the most open and shut areas of
Speaker 1: clear cut discrimination. I guess we'll see what happens when
Speaker 1: this goes back to the Wisconsin Supreme Court. Thanks so
Speaker 1: much for being on the show. Rich that's Professor Richard
Speaker 1: Brafalt of Columbia Law School. And that's it for this
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