WEBVTT - Navy Can Reassign Unvaccinated SEALs 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law, with June Brusso from Bloomberg Radio. 0:00:09.200 --> 0:00:12.799 A divided Supreme Court said the Navy can limit deployment 0:00:12.840 --> 0:00:16.360 in training for thirty five seals and other special operations 0:00:16.440 --> 0:00:20.200 forces who are refusing on religious grounds to get vaccinated 0:00:20.239 --> 0:00:23.840 against COVID nineteen. A lower court judge had ordered the 0:00:23.920 --> 0:00:27.360 Navy to assign and deploy the sailors without regard to 0:00:27.440 --> 0:00:32.000 their unvaccinated status, but the Biden administration said that would 0:00:32.080 --> 0:00:36.560 jeopardize safety and mission success, given that seals often operate 0:00:36.640 --> 0:00:41.200 in tight quarters, including on submarines. My guest is Dorrit Reece, 0:00:41.240 --> 0:00:44.840 a professor at the University of California Hastings College of Law. 0:00:45.120 --> 0:00:48.280 What was the issue in this case before the court? 0:00:48.960 --> 0:00:51.720 The question before the court towards there's a challenge to 0:00:51.840 --> 0:00:57.040 the Navy denial of religious exemptions to the maybe decided 0:00:57.080 --> 0:01:00.520 to refuse maddic to the claim TIFFs and lower court 0:01:00.600 --> 0:01:04.160 decided to stay the application of the method and order. 0:01:04.200 --> 0:01:07.000 The Navy not achieved them differently in any way. The 0:01:07.080 --> 0:01:10.840 Navy didn't want to deploy unvaccinated people, and the lower 0:01:10.920 --> 0:01:14.520 court refused to modify. The state refused to allow the 0:01:14.640 --> 0:01:18.480 Navy not to deploy unvaccimate people. The Supreme Court was 0:01:18.560 --> 0:01:23.240 to decide whether the Navy may refuse to deploy unvaccinated people. 0:01:23.720 --> 0:01:26.480 There was no opinion for the court. Does the concurring 0:01:26.480 --> 0:01:30.480 oppinion of Justice Brett Kavanaugh tell us anything? Yes, it 0:01:30.560 --> 0:01:33.360 does so two things. First of all, it's very usual 0:01:33.760 --> 0:01:37.240 not to have a fully reasoned opinion on this kind 0:01:37.240 --> 0:01:41.360 of emergency stake cases. As a reminder, the case hasn't 0:01:41.400 --> 0:01:44.840 been fully briefed or decided, and the question is should 0:01:44.920 --> 0:01:49.520 we uphold or overturn an emergency stake The Court usually 0:01:49.520 --> 0:01:52.720 issues this precordium, though sometimes it does add the short opinion. 0:01:52.920 --> 0:01:55.720 The concurrence tells us that for at least some of 0:01:55.760 --> 0:01:58.600 the justices, the main issue was how much difference to 0:01:58.640 --> 0:02:01.320 give to the Navy decision who to deploy. The Court 0:02:01.360 --> 0:02:04.520 has a long tradition of deferring to the Navy's judgment 0:02:04.760 --> 0:02:08.720 and the military's judgment, as the Justice Cavano highlighted, and 0:02:09.080 --> 0:02:10.640 at least for some of it this is that was 0:02:10.680 --> 0:02:13.520 probably the issue here as well. A Secretary of Defense, 0:02:13.600 --> 0:02:17.200 Lloyd Austin, had urged the Court to remedy what he 0:02:17.240 --> 0:02:22.799 called an extraordinary and unprecedented intrusion into core military affairs 0:02:22.840 --> 0:02:26.200 that has no precedent in American history? Is he right? 0:02:26.440 --> 0:02:28.880 Is there any precedent for a court stepping in and 0:02:28.919 --> 0:02:32.760 telling the military what to do? No? Well, let me 0:02:32.880 --> 0:02:35.680 qualify that there is a history of the court telling 0:02:35.720 --> 0:02:38.519 the military is sometimes to what to do, but there 0:02:38.600 --> 0:02:41.639 is no case in which the court told the military 0:02:41.680 --> 0:02:46.560 to deploy people that the military thought were not deployment appropriate. 0:02:46.760 --> 0:02:49.840 The Secretary is completely right that that's a very unprecedented 0:02:49.880 --> 0:02:53.359 intrusion into the militaries of her So is this basically 0:02:53.440 --> 0:02:57.600 about the principle of separation of powers? Yes? I will 0:02:57.639 --> 0:03:01.120 add that there are some things in the descent that 0:03:01.480 --> 0:03:05.560 do raise questions. So the military acknowledges that there are 0:03:05.600 --> 0:03:09.120 subject to the Religious Free of Restoration Act requirements of 0:03:09.360 --> 0:03:12.919 only not respecting religious interests when it's a compelling interest 0:03:12.960 --> 0:03:15.520 in the list restrictive means, they still to have made 0:03:15.520 --> 0:03:18.919 it practically impossible to get a religious exemption and justice 0:03:18.960 --> 0:03:21.160 a little is right. Within any other context, that would 0:03:21.160 --> 0:03:24.200 be seen as a problem as bad space application of 0:03:24.280 --> 0:03:29.680 religious exemption. And here too, by doing it so aggressively, 0:03:30.200 --> 0:03:34.680 the military created an appearance of not really taking seriously 0:03:34.720 --> 0:03:37.760 the religious exemptions. There are two parts to this. First 0:03:37.760 --> 0:03:40.320 of all, it might be worth a phonomakers to consider 0:03:40.320 --> 0:03:42.680 whether the Religious Feed the Restoration Act should in fact 0:03:42.720 --> 0:03:45.280 applight of the military. This case was not under the 0:03:45.280 --> 0:03:48.480 first Amendment, which was under the Religious Preads Restoration Act, 0:03:48.600 --> 0:03:51.960 even for the descent, so there's a question should the 0:03:52.040 --> 0:03:55.000 Religious Feed the Reistration Act applied as a military. Second, 0:03:55.360 --> 0:03:58.720 if the Religious Freeministration Act does applies to the military, 0:03:58.960 --> 0:04:03.680 the military should at least assess religious exemption in good space. 0:04:04.280 --> 0:04:09.120 Considering whether deploying these people is appropriate is military discretion. 0:04:09.360 --> 0:04:13.560 But not even considering religious exemption is tricky. If the 0:04:13.640 --> 0:04:17.840 military soldiers have to obey orders. If you allow soldiers 0:04:17.839 --> 0:04:22.200 to start questioning orders, what happens. So when it comes 0:04:22.200 --> 0:04:25.000 to soldiers, soldiers right are limited and they do have 0:04:25.160 --> 0:04:29.479 to obey orders. However, there are limits to that. Soldiers 0:04:29.760 --> 0:04:33.159 rights are limited while the stirs, but they're not completely 0:04:33.200 --> 0:04:36.280 out of the window, and there are some protection. In 0:04:36.320 --> 0:04:38.119 this case. It would have have been a very different 0:04:38.120 --> 0:04:40.800 situation if the military is said the Religious with the 0:04:40.839 --> 0:04:43.320 Restoration Act does not apply to us and does not 0:04:43.400 --> 0:04:46.520 give soldiers this right. But the military didn't the military 0:04:46.560 --> 0:04:50.280 acknowledge that there's a right religious exemption, just didn't take 0:04:50.320 --> 0:04:53.560 it very seriously. The other part of this is also 0:04:53.640 --> 0:04:56.479 the question is what exactly do are we talking about. 0:04:57.000 --> 0:05:01.840 So the main question is deployment decision in theory the military, 0:05:02.040 --> 0:05:03.920 what they say, we're going to fire these people for 0:05:04.000 --> 0:05:07.520 religious exemption or punish them. They were saying, we don't 0:05:07.560 --> 0:05:10.960 want to deploy people who are unvaccinated. At this point, 0:05:11.520 --> 0:05:13.719 there's a difference between sayings to the military you have 0:05:13.839 --> 0:05:17.280 to seriously consider religious exemption and say to the military 0:05:17.360 --> 0:05:20.000 you have to deploy people you think are unsafe. You 0:05:20.040 --> 0:05:23.680 could say you have to seriously consider religious exemption, but 0:05:24.000 --> 0:05:27.280 you still have the discretion to decide would deploy. And 0:05:27.560 --> 0:05:29.479 it's not up to the court in any way, shape 0:05:29.480 --> 0:05:32.719 and form to tell you that people with religious exemption 0:05:32.760 --> 0:05:36.760 can do other things in the military stake take that. So, 0:05:36.880 --> 0:05:40.840 do you think that this was wrongly decided? Then I 0:05:40.880 --> 0:05:43.279 think this was rightly decided. I think the court was 0:05:43.440 --> 0:05:47.320 right to say the military gets decided who to deploy. However, 0:05:47.720 --> 0:05:51.720 I also think that two things should be changed. First, 0:05:52.120 --> 0:05:55.279 we should consider whether it's appropriate for the Religious Freedom 0:05:55.279 --> 0:05:57.919 Restoration Act to also apply to the military. If we 0:05:57.960 --> 0:06:01.120 want to allow the military discretion, the Act probably shouldn't 0:06:01.120 --> 0:06:05.960 apply to them. And second, well, deployment decision should be 0:06:06.040 --> 0:06:10.320 military discretion. If the military says that it's giving religious exemptions, 0:06:10.320 --> 0:06:12.720 it should probably take them seriously. Either make a case 0:06:12.760 --> 0:06:15.360 that you're you're don't have to give religious exemption at all, 0:06:15.880 --> 0:06:18.479 or take them seriously. I saw a head on it 0:06:18.520 --> 0:06:21.560 says the Supreme Court splits on whether Joe Biden is 0:06:21.600 --> 0:06:24.919 commander in chief. I don't think that's a fair description 0:06:25.000 --> 0:06:27.680 of the case. A better description would be to say, 0:06:27.880 --> 0:06:31.280 the Supreme Court splits on whether the military has to 0:06:31.960 --> 0:06:35.719 a limited deployment decision according to religious freedom, or the 0:06:35.720 --> 0:06:38.159 Supreme Court splits on whether the military has to respect 0:06:38.240 --> 0:06:42.039 religious freedom into deployment decision. And this doesn't end the case, 0:06:42.120 --> 0:06:44.479 does it. No, So there's a number of things that 0:06:44.520 --> 0:06:48.440 need to happen next. This is a decision about a 0:06:48.520 --> 0:06:51.800 temporary stay or not to stay. The case is still 0:06:51.800 --> 0:06:54.880 going forward, and this was about what happened while the 0:06:54.920 --> 0:06:57.039 case is being litigate. The Lorwer courts will have to 0:06:57.080 --> 0:07:01.279 decide whether the military violated either a law or the 0:07:01.360 --> 0:07:04.440 constitutional rights of the plaintiff, and then it will probably 0:07:04.480 --> 0:07:07.240 be appealed higher and it will probably get back to 0:07:07.279 --> 0:07:11.880 the Supreme Court on that question. Also, the judge below, 0:07:12.280 --> 0:07:18.120 Judge Rid O'Connor, is well known for his very conservative 0:07:18.240 --> 0:07:23.320 opinions and for ruling against Obamacare. So the United States 0:07:23.400 --> 0:07:28.520 judiciary has always been politically appointed, and especially in question 0:07:28.600 --> 0:07:31.280 where the law is at least some much vague, politics 0:07:31.440 --> 0:07:35.120 naturally come in. However, we expect our judges, whatever the 0:07:35.120 --> 0:07:40.400 political opinions, to follow the law, and if judge reads doesn't, 0:07:40.480 --> 0:07:43.200 I expect the higher court to pull him back in. 0:07:43.200 --> 0:07:46.240 In other words, politics come in. It's almost inevitable. We 0:07:46.280 --> 0:07:49.840 appoint judges politically more than most developed countries, but there's 0:07:49.840 --> 0:07:52.080 a limit to that, and judges first job is still 0:07:52.120 --> 0:07:54.720 to follow them up thanks to it. That's professor Dort 0:07:54.840 --> 0:07:58.400 Reese of the University of California Hastings College of Law. 0:08:00.400 --> 0:08:04.160 The confirmation hearings for Supreme Court nominee Judge Katangi Brown 0:08:04.280 --> 0:08:08.080 Jackson are over, but the voting is not. Jackson is 0:08:08.120 --> 0:08:11.160 continuing to meet with Senators on Capitol Hill this week 0:08:11.240 --> 0:08:14.840 in a push for bipartisan support of her nomination. Three 0:08:14.880 --> 0:08:18.440 Republicans senators voted in favor of Jackson's nomination to the 0:08:18.520 --> 0:08:21.280 US Court of Appeals for the d C Circuit, but 0:08:21.400 --> 0:08:24.800 there were sharp attacks on the judge by Republican senators 0:08:24.840 --> 0:08:28.120 at her hearings. Joining me is Gloria Brown Marshall, a 0:08:28.120 --> 0:08:32.200 professor of constitutional law at John j College of Criminal Justice. 0:08:32.800 --> 0:08:36.280 How do you think Judge Jackson handled herself and the hearings? 0:08:37.120 --> 0:08:41.600 I think Judge Jackson has shown grace under pressure, and 0:08:41.800 --> 0:08:46.680 she has handled herself with spectacular patients given the type 0:08:46.720 --> 0:08:51.040 of political gabbings that are going on between the parties 0:08:51.200 --> 0:08:54.520 using this platform to get back at each other for 0:08:55.120 --> 0:08:59.319 failed nominees in the past, such as Robert Borke, and 0:08:59.440 --> 0:09:03.600 the treatment has been alleged by the Republicans as being 0:09:04.000 --> 0:09:09.120 fraught with all types of political intrigue with Kavanov and 0:09:09.200 --> 0:09:12.520 even Clarence Thomas. So I think they're taking out past 0:09:12.559 --> 0:09:15.600 grudges on each other and using this platform and using her. 0:09:15.720 --> 0:09:17.880 So I think most of us would not be able 0:09:17.920 --> 0:09:20.400 to take this kind of abuse of the record and 0:09:20.559 --> 0:09:25.000 personal attacks about her and coddling criminals and people who 0:09:25.200 --> 0:09:28.440 possessed Chile pornography and keep a level head. But she's 0:09:28.559 --> 0:09:33.400 been showing herself through this entire time. She sailed through 0:09:33.640 --> 0:09:38.640 three confirmation hearings before this committee. She's replacing another liberal 0:09:38.679 --> 0:09:43.240 on the court. Did you expect such attacks by Republicans 0:09:43.280 --> 0:09:48.199 a lot on culture war issues. Yes, And I especially 0:09:48.360 --> 0:09:52.240 felt that given the mid term elections coming up, that 0:09:52.640 --> 0:09:56.439 these politicians are speaking more to their base. They're creating 0:09:56.559 --> 0:10:00.000 commercials for themselves as they go into mid term elections, 0:10:00.480 --> 0:10:03.680 and they're trying to gain some momentum with their voters 0:10:03.720 --> 0:10:07.280 and supporters, and a lot of this is grandstanding and 0:10:07.559 --> 0:10:12.360 hyperbole to the highest degree. That they're using this platform 0:10:12.400 --> 0:10:15.200 as a means to do this as shameful, but it's 0:10:15.320 --> 0:10:18.599 very political as well. So I expected the Republicans to 0:10:18.679 --> 0:10:20.560 behave this way, and I really expect them not to 0:10:20.640 --> 0:10:23.080 vote for her overall. And they had no intention of 0:10:23.160 --> 0:10:24.960 voting for her in the first place, because it was 0:10:24.960 --> 0:10:27.760 going to be so divisive around party lines that there 0:10:27.800 --> 0:10:30.360 was little expectation that their vote was needed. And I 0:10:30.400 --> 0:10:33.280 think they want to paint her so that when she 0:10:33.480 --> 0:10:36.480 does ascend to the bench still have some paint like 0:10:36.600 --> 0:10:39.920 that of Kavanov's confirmation hearing, with so many things came 0:10:39.960 --> 0:10:43.319 out about him, and of course Clarence Thomas and the 0:10:43.400 --> 0:10:49.199 Agnita Heal testimony about his behavior with sexual harassment. So 0:10:49.360 --> 0:10:53.280 Republican Senator Ted Cruz questioned her on critical race theory, 0:10:53.880 --> 0:10:56.920 read from books in the curriculum of a school that 0:10:56.960 --> 0:10:59.600 she's on the board of, and asked her, do you 0:10:59.640 --> 0:11:03.839 agree that babies are racist? Was that appropriate? And would 0:11:03.840 --> 0:11:06.760 that have been asked of a white nominee. I don't 0:11:06.760 --> 0:11:09.119 think it would have been asked of a white nominee. 0:11:09.160 --> 0:11:12.400 But I think also that critical race theory is a 0:11:12.480 --> 0:11:15.559 dog whistle right now for a lot of people who 0:11:15.600 --> 0:11:20.320 don't want to deal with actual American history. American history 0:11:20.360 --> 0:11:23.480 is racist, and for those people who have done well 0:11:23.480 --> 0:11:27.200 in this country, that's fine. But to turn a blind 0:11:27.240 --> 0:11:31.640 eye to the nation's documented history and then to say 0:11:31.720 --> 0:11:35.120 we're not supposed to teach it to children or try 0:11:35.200 --> 0:11:37.960 to teach how we can undo some of this damage 0:11:38.000 --> 0:11:40.760 are prevented from happening in the first place. So it's 0:11:40.960 --> 0:11:45.319 really an issue that many people on the conservative are right, 0:11:45.760 --> 0:11:49.600 who want to gain points on the political spectrum, have 0:11:49.760 --> 0:11:52.920 been using and so they're using it now. These are politicians. 0:11:53.440 --> 0:11:57.480 There's been a concerted effort by Republicans to paint the 0:11:57.600 --> 0:12:01.319 judge as soft on crime. I think that she's ritten 0:12:01.640 --> 0:12:04.560 as a district court judge and as the Pilate Court judge, 0:12:04.600 --> 0:12:09.000 I believe nearly six hundred opinions, maybe more. And so 0:12:09.360 --> 0:12:12.640 the job of people who want to oppose her domination 0:12:13.160 --> 0:12:16.040 or tank her before she ascends to the bench is 0:12:16.080 --> 0:12:19.920 to find the most scandalous, controversial things in her record 0:12:20.280 --> 0:12:22.439 and just keep saying it over and over again. It 0:12:22.520 --> 0:12:25.040 was successful for Donald Trump, and so they're trying to 0:12:25.080 --> 0:12:27.920 make it successful for them as Conservatives and once again 0:12:28.000 --> 0:12:30.640 playing to their base to try to get those conservative 0:12:30.679 --> 0:12:33.560 voters to vote for them in the midterm elections. I 0:12:33.600 --> 0:12:37.320 think it's the political ploy and I think it's scandalous. 0:12:37.320 --> 0:12:40.120 But these are politicians, and these are the highest ranked 0:12:40.120 --> 0:12:42.920 politicians in our country. So they know how to play dirty, 0:12:42.960 --> 0:12:46.360 they know how to throw mud, and they want to 0:12:46.360 --> 0:12:50.400 get back at the Democrat because of what happened with 0:12:50.520 --> 0:12:53.600 Frett Kevin Off, you know, and what was certainly something 0:12:53.600 --> 0:12:56.600 that should have happened with Clarence Thomas. But they believe 0:12:56.679 --> 0:12:59.800 that trying to use critical race theory is throwing meat 0:12:59.800 --> 0:13:03.240 to Alliance. Critical race theory is, to me, is nothing 0:13:03.280 --> 0:13:06.560 more than teaching about um the history of America that 0:13:06.600 --> 0:13:10.520 involves race and racial oppressions, but to turn it into 0:13:10.559 --> 0:13:15.120 something that is hurting children and therefore should not be taught. 0:13:15.360 --> 0:13:18.280 Case who twelve is what they're using. And she's on 0:13:18.320 --> 0:13:21.360 the board, and I'm on boards and other people who 0:13:21.360 --> 0:13:25.720 believe in public service or on boards of nonprofit organizations. 0:13:25.720 --> 0:13:28.880 We don't know everything that goes on within that organization. 0:13:28.960 --> 0:13:31.320 And she didn't know the books that the children were reading. 0:13:31.559 --> 0:13:34.640 But she's been held account for it. You know, a 0:13:34.679 --> 0:13:37.600 politician will use any type of ammunition to throw mud 0:13:37.600 --> 0:13:40.400 when mud is necessary in their in their minds. Fine, 0:13:41.040 --> 0:13:44.120 you mentioned a dog whistle, and soft on crime is 0:13:44.120 --> 0:13:47.360 is another dog whistle. The Times wrote that Third Good 0:13:47.400 --> 0:13:50.400 Marshal the nation's first black Supreme Court justice. As you know, 0:13:50.840 --> 0:13:55.400 Fay similarly coded language during his confirmation hearing fifty five 0:13:55.520 --> 0:14:00.280 years ago. So we haven't progressed very much. And that's 0:14:00.280 --> 0:14:03.920 why we need things like Black History to talk about 0:14:04.160 --> 0:14:07.439 lack of movement. We need we need to talk about 0:14:07.520 --> 0:14:10.319 these issues and so that we can better understand why 0:14:10.400 --> 0:14:14.040 we're not moving. Why is this such a trigger for 0:14:14.120 --> 0:14:17.440 a conservative? Why is it at some point we stopped 0:14:17.440 --> 0:14:20.840 believing in Santa Clause and we have to understand that 0:14:20.920 --> 0:14:24.800 there are parts of this country's history that are painful, 0:14:25.000 --> 0:14:27.280 not just painful to the people who are hearing it now, 0:14:27.360 --> 0:14:29.200 but painful to the people who went through it. Then 0:14:30.000 --> 0:14:33.040 I think it's difficult as well, um for us to 0:14:33.240 --> 0:14:36.840 actually believe that she would be considered soft on crime 0:14:37.240 --> 0:14:40.400 just because she's not rabbit about it as some many 0:14:40.480 --> 0:14:44.640 people want a person to be. And she's supposed to 0:14:44.720 --> 0:14:47.040 be someone with a judicial temperament who's supposed to look 0:14:47.040 --> 0:14:49.320 at both sides and the scales of justice and then 0:14:49.320 --> 0:14:51.480 the side which side is supposed to win based on 0:14:51.520 --> 0:14:54.120 the evidence, or which side is one that should be 0:14:54.280 --> 0:14:57.560 sentenced because of the evidence, And she's been doing that 0:14:57.680 --> 0:15:00.280 and the sentences may not be what they want since 0:15:00.440 --> 0:15:02.320 this to beat but if not, as though she told 0:15:02.320 --> 0:15:04.960 the people that they were going free, he did sentence 0:15:05.040 --> 0:15:08.840 them to confinement. So I think that the fact that 0:15:08.880 --> 0:15:12.120 her brother's in the military as well as a police officer, 0:15:12.320 --> 0:15:14.400 that he has uncles who were police officers, that her 0:15:14.480 --> 0:15:18.520 uncle was the former police chief of Miami, and yet 0:15:18.760 --> 0:15:21.280 this doesn't seem to be enough to appease them. So 0:15:21.520 --> 0:15:24.160 I think this goes beyond what her record is what 0:15:24.280 --> 0:15:26.840 her family is, what she's done. I think this goes 0:15:26.880 --> 0:15:29.320 beyond that. I think it's just a political ploy to 0:15:29.360 --> 0:15:32.760 try to undermine her as a nominee. The Republicans said 0:15:32.760 --> 0:15:35.440 that it wasn't going to be a circus like Kavanaugh, 0:15:35.440 --> 0:15:38.040 there weren't gonna be personal attacks. But some of the 0:15:38.080 --> 0:15:41.520 attacks have been very personal. I mean Tom Cotton said, 0:15:41.560 --> 0:15:43.680 you twisted the law and you rewrote it so you 0:15:43.680 --> 0:15:46.880 could cut the sentence of a drug kingpin. That's what 0:15:46.960 --> 0:15:51.080 you did, Judge. I mean, it got really personal and intense. 0:15:51.840 --> 0:15:54.520 It was really personal intense. You know, it should be 0:15:54.560 --> 0:15:58.240 embarrassing because at this point what we're looking at is 0:15:58.280 --> 0:16:04.440 not just um senators behaving badly, but wanting to make 0:16:04.560 --> 0:16:08.680 a public servant look as though they are not, you know, 0:16:09.040 --> 0:16:12.080 a person who cares about children, even though they have children. 0:16:12.400 --> 0:16:17.160 She has two girls. And also the fact that this 0:16:17.240 --> 0:16:21.840 is a way in which politicians can use their platform, 0:16:22.280 --> 0:16:27.800 this confirmation hearing, to throw shame onto the other political party. 0:16:28.280 --> 0:16:31.200 So this has I think little to do with her 0:16:31.600 --> 0:16:34.360 and more to do with revenge, and that's what it's 0:16:34.560 --> 0:16:38.560 It's just very vengeful and they're using anything to wreak 0:16:38.720 --> 0:16:43.080 revenge on the process because they feel that their candidates, 0:16:43.120 --> 0:16:46.240 even though their nominees, even though they were made Um 0:16:46.280 --> 0:16:49.280 Supreme Court justices, it's not enough that they should have 0:16:49.360 --> 0:16:51.880 just had been able to float through and not have 0:16:52.040 --> 0:16:56.240 any hard questions about their past, about their beliefs and ideologies. 0:16:56.680 --> 0:17:00.160 And at this point, Um, they're just gonna keep throwing mud, 0:17:00.360 --> 0:17:02.520 even though they know the Democrats have the votes. They're 0:17:02.520 --> 0:17:06.000 gonna keep throwing mud until the end of this process 0:17:06.160 --> 0:17:09.720 to really feel their their rancor and and to make 0:17:09.720 --> 0:17:12.760 sure that everybody knows that they've gotten their revenge against 0:17:12.800 --> 0:17:15.879 the past nominees that they put forward and had to 0:17:15.920 --> 0:17:20.640 go through a very serious testing. So tell us what 0:17:20.720 --> 0:17:24.280 she'll bring to the Supreme Court bench. I think she 0:17:24.400 --> 0:17:28.520 will bring persuasiveness. I think she would bring a level 0:17:28.760 --> 0:17:33.399 of insight because she has been a public defender. I 0:17:33.440 --> 0:17:37.600 think he'll also be someone who will bring um a 0:17:37.720 --> 0:17:41.040 sense of coming together of the different sizes Justice Brier did. 0:17:41.600 --> 0:17:44.880 I think it will also be a matter of bringing 0:17:45.000 --> 0:17:48.119 to the court her great insight as someone who was 0:17:48.160 --> 0:17:50.280 a trial court judge, and they are very few trial 0:17:50.320 --> 0:17:52.760 court judges who know what it's like to be on 0:17:53.320 --> 0:17:57.680 these time in place of the actual conflict. The color 0:17:57.760 --> 0:18:00.560 Court judges the issues on appeal, they don't see the 0:18:00.600 --> 0:18:04.400 actual defendants, they don't see the witnesses, they don't see 0:18:04.520 --> 0:18:07.880 the life of the case. And so see bringing that 0:18:08.119 --> 0:18:11.880 to the court. And I think that's a very important measure. 0:18:12.359 --> 0:18:15.720 I would say over the last two decades, most of 0:18:15.720 --> 0:18:18.439 these justices have not had Thanks for joining me on 0:18:18.480 --> 0:18:22.280 the show. That's Gloria Brown Marshall, Professor of Constitutional Law 0:18:22.320 --> 0:18:27.280 at the John Jay College of Criminal Justice. Welcome back, 0:18:27.840 --> 0:18:32.760 Judge Jackson. Yesterday you and I discussed the Court's increasing 0:18:32.840 --> 0:18:38.160 reliance on issuing unsigned orders on its shadow docket, and 0:18:38.600 --> 0:18:41.879 less than an hour ago, um the Court once again 0:18:42.000 --> 0:18:46.919 use the shadow docket to throw out Wisconsin's redistricting maps. 0:18:47.640 --> 0:18:52.680 On Wednesday, during Judge Katangi Brown Jackson Supreme Court confirmation hearings, 0:18:53.040 --> 0:18:56.960 Democratic Senator any Klobisher brought up a Supreme Court decision 0:18:57.320 --> 0:19:01.560 that for the first time this redistricting cycle overturned voting 0:19:01.600 --> 0:19:04.720 maps drawn by a state in an unsigned order. A 0:19:04.800 --> 0:19:09.639 divided court throughout maps for Wisconsin's Assembly and Senate maps 0:19:09.680 --> 0:19:12.840 that were selected by the Wisconsin Supreme Court and drawn 0:19:12.880 --> 0:19:16.760 by the Democratic governor and that added an additional assembly 0:19:16.840 --> 0:19:19.959 district with a majority of black voters. Joining me. As 0:19:19.960 --> 0:19:24.000 elections law expert Richard Rafalt, a professor at Columbia Law School, 0:19:24.520 --> 0:19:28.120 These voting maps in question were drawn by the governor. 0:19:28.160 --> 0:19:31.080 How did that come about? The strows out of a 0:19:31.200 --> 0:19:35.520 Wisconsin redistricting process for the state legislature. The Wisconsin legislature 0:19:35.560 --> 0:19:38.280 passed its own maps for the governor veto them. There 0:19:38.359 --> 0:19:41.200 was then an impass and the voters who are suffering 0:19:41.240 --> 0:19:44.040 from al apportionment as there's the government legislature basically asked 0:19:44.040 --> 0:19:47.480 the Wisconsin Supreme Court to draw new maps. The Wisconsin 0:19:47.480 --> 0:19:50.160 Supreme Court said, no, we're not good at joining maps. 0:19:50.280 --> 0:19:53.880 You governor and you legislatures submit to us your best 0:19:53.920 --> 0:19:57.320 efforts and we will pick. Our major criterion is which 0:19:57.440 --> 0:20:01.320 map the parts least from the pre existing maps. Obviously 0:20:01.359 --> 0:20:04.840 some departures necessary to be with population changes, but we're 0:20:04.840 --> 0:20:08.320 going to favor the map that otherwise has least change 0:20:08.600 --> 0:20:11.920 from the pre existing maps. The was constant been courted 0:20:11.920 --> 0:20:14.080 by a voter for to three pick the governor's map. 0:20:14.480 --> 0:20:16.400 It was not quite a partisan split. There were three 0:20:16.400 --> 0:20:19.560 Democrats and one Republican of the majority and three Republicans 0:20:19.560 --> 0:20:23.160 of the descent. The thing that became controversial is that 0:20:23.359 --> 0:20:27.080 although the Wisconsin Court said the governor's map did depart 0:20:27.200 --> 0:20:30.679 less from the pre existing maps and the legislatures, the 0:20:30.720 --> 0:20:35.560 governor's map proposed seven black majority stemily districts in the 0:20:35.600 --> 0:20:40.159 Milwaukee area. This is the legislature. There are currently six. 0:20:40.720 --> 0:20:45.520 The legislature's map had proposed basically five. The governor's position 0:20:46.040 --> 0:20:48.679 was that due to the increased black share of the 0:20:48.720 --> 0:20:52.520 area population, you needed an additional map in order for 0:20:52.600 --> 0:20:56.680 the black voters to receive their proportional share of representation, 0:20:57.359 --> 0:21:00.200 and that failure to do so would probably be a 0:21:00.320 --> 0:21:04.600 violation of a voting rights Act, and that intentionally doing 0:21:04.680 --> 0:21:07.840 so would not be a violation of the Fourteenth Amendment. 0:21:07.840 --> 0:21:10.480 And in that you basically see the governor trying to 0:21:10.520 --> 0:21:14.040 sort of navigate this narrow space that says that voting 0:21:14.040 --> 0:21:18.120 maps that dilute minority voting strength violate the Voting Rights Act, 0:21:18.280 --> 0:21:21.760 but that a state cannot give excessive attention to race 0:21:22.320 --> 0:21:25.159 in drawing maps, even when they're trying to enhance an 0:21:25.160 --> 0:21:29.280 already representation. So the governor's position, which the Wisconsin Supreme 0:21:29.280 --> 0:21:32.040 Court by a fourd to three vote accepted was that 0:21:32.280 --> 0:21:35.760 this additional district was necessary to avoid a voting rights 0:21:35.760 --> 0:21:39.400 set violation and therefore did not violate the Fourteenth Amendment, 0:21:40.760 --> 0:21:44.200 so which the U. S. Supreme Court left the congressional 0:21:44.240 --> 0:21:48.200 maps in place but tossed the legislative maps right. And 0:21:48.320 --> 0:21:50.920 for both the congressional and the legislative maps, the State 0:21:50.960 --> 0:21:54.800 Supreme Court standard was give us one that's the closest 0:21:54.840 --> 0:21:57.959 to the map that was adopted ten years ago, with 0:21:58.040 --> 0:22:01.880 appropriate adjustments for population change. In both cases, the State 0:22:01.920 --> 0:22:04.800 Supreme Court concluded that the governor's map did a better 0:22:04.880 --> 0:22:08.240 job of that. Various parties challenged both of those. What 0:22:08.359 --> 0:22:12.560 the U. S. Supreme Court said was that the governor's decision, 0:22:12.840 --> 0:22:16.360 which the State Supreme Court accepted, that the Voting Rights 0:22:16.440 --> 0:22:20.960 Act required an additional black majority district in the Milwaukee 0:22:21.040 --> 0:22:25.119 area and that doing that wouldn't violate the Fourteenth Amendment. 0:22:25.480 --> 0:22:27.600 The U. S. Supreme Court said the governor and the 0:22:27.640 --> 0:22:30.679 State Supreme Court neither of them did enough to show 0:22:30.760 --> 0:22:33.800 that that was correct. They failed to show that the 0:22:33.880 --> 0:22:36.639 Voting Rights Act required this, and therefore they failed to 0:22:36.640 --> 0:22:40.680 show that it didn't violate the Fourteenth Amendment, and therefore 0:22:40.880 --> 0:22:43.280 they reversed the decision to pick the assembly in the 0:22:43.320 --> 0:22:46.120 Senate maps and sent it back to the state Supreme 0:22:46.160 --> 0:22:50.520 Court for further analysis, which could include keeping the governor's 0:22:50.560 --> 0:22:54.080 maps if there was additional evidence that showed that there 0:22:54.160 --> 0:22:57.800 was a strong Voting Rights Act requirement for the additional district. 0:22:58.160 --> 0:23:01.240 But where the Supreme Court was the governor seemed to 0:23:01.320 --> 0:23:06.720 rely exclusively or almost exclusively on the need for proportionality 0:23:06.960 --> 0:23:10.120 given the black share of the area population, and that 0:23:10.119 --> 0:23:13.840 that's not enough to satisfy a Voting Rights Act argument, 0:23:14.000 --> 0:23:17.000 and therefore there was not a good Voting Rights Act 0:23:17.040 --> 0:23:21.240 defense to the challenge that this was excessively attentive to 0:23:21.320 --> 0:23:24.280 raise in violation of the Fourteenth Amendment. The Court said, 0:23:24.320 --> 0:23:27.520 the question that our Voting Rights Act precedents asked and 0:23:27.560 --> 0:23:30.400 the Court failed to answer, is whether a race neutral 0:23:30.440 --> 0:23:34.160 alternative that did not add a seventh majority black district 0:23:34.160 --> 0:23:38.280 would deny black voters equal political opportunity. Is that what 0:23:38.359 --> 0:23:43.520 Supreme Court precedents call for? Because in dissent, Justice Sonia Sotomayor, 0:23:43.840 --> 0:23:50.320 joined by Justice Elina Kagan, called the decision unprecedented and extraordinary. Yes, 0:23:50.440 --> 0:23:53.600 it's unprecedent extraordinary in several ways. For one, Normally, the 0:23:53.640 --> 0:23:56.560 burden is on the challenger to prove that race was 0:23:56.600 --> 0:24:00.119 the predominant motivating factor, whereas here the burden seem to 0:24:00.160 --> 0:24:03.159 be being put on the governor or state supreme court. 0:24:03.359 --> 0:24:06.480