WEBVTT - Judges Direct Sharp Barbs at Colleagues 0:00:03.200 --> 0:00:09.640 This is Bloombird Law with June Brusso from Bloomberg Radio. 0:00:09.760 --> 0:00:11.840 Do you know how much that cost tested sponsorship dollars? 0:00:12.119 --> 0:00:15.320 With all due respect, Mr Dawn, I had no idea. 0:00:15.400 --> 0:00:22.400 You've got an experimental surgery to have your removed said, 0:00:22.440 --> 0:00:24.919 with all due respect. That doesn't mean you get to 0:00:24.960 --> 0:00:27.720 say whatever you want to say to me, he does. No, No, 0:00:27.800 --> 0:00:32.400 it doesn't mean convention. That's from the movie Talladega Nights, 0:00:32.479 --> 0:00:35.400 the Ballot of Rickey Bobby, and it's a line. Fifth 0:00:35.479 --> 0:00:39.040 Circuit Judge James Hoe referenced in calling out the claims 0:00:39.080 --> 0:00:42.000 of a dissenting judge who said he was writing with 0:00:42.120 --> 0:00:45.159 all due respect, but then used a quote from Macbeth 0:00:45.280 --> 0:00:49.040 about the sound and fury of idiots. Both pretty mild 0:00:49.080 --> 0:00:52.120 put downs compared to a recent opinion of Ninth Circuit 0:00:52.240 --> 0:00:55.600 Judge Lawrence Van Dyke, who wrote a concurrence to his 0:00:55.680 --> 0:01:00.000 own majority opinion dripping in sarcasm about his liberal colleague. 0:01:00.440 --> 0:01:03.360 These are just the latest examples of the sniping and 0:01:03.480 --> 0:01:07.680 politics spilling into judicial opinions in the circuit courts. Joining 0:01:07.680 --> 0:01:10.759 me as Rosscoperman, a legal writing coach who has taught 0:01:10.760 --> 0:01:14.440 classes for new Federal judges for a decade. So Ross 0:01:14.720 --> 0:01:17.959 Judge Van Dyke wrote a majority opinion which found that 0:01:18.000 --> 0:01:20.800 a closure of gun shops due to COVID was a 0:01:20.920 --> 0:01:24.600 violation of the Second Amendment. Then he wrote a concurrence 0:01:25.040 --> 0:01:28.720 to his own majority opinion in anticipation that the full 0:01:28.800 --> 0:01:32.640 circuit would reverse his decision. How unusual is that? So 0:01:32.800 --> 0:01:36.000 he did something I can't remember seeing before. So this is, 0:01:36.040 --> 0:01:37.760 as he said, a Second Amendment case. So it's a 0:01:37.840 --> 0:01:41.039 high profile case. So he was sort of assuming that 0:01:41.120 --> 0:01:44.679 the case was going to go on bonk, and his 0:01:44.800 --> 0:01:48.919 concurrence to himself basically tried to write what he thinks 0:01:49.200 --> 0:01:52.600 the majority will come up with. So he wrote an opinion, 0:01:52.680 --> 0:01:54.800 you know, going the opposite way from what he wanted. 0:01:55.000 --> 0:01:56.560 But then what he did is he had all these 0:01:56.560 --> 0:01:59.960 footnotes and thought bubbles with a very kind of snarky, 0:02:00.120 --> 0:02:05.320 sarcastic tone, essentially claiming that anybody who supports this particular 0:02:05.320 --> 0:02:09.280 California gun regulation was just completely making things up and 0:02:09.360 --> 0:02:12.360 had ulterior motives, almost like to put them on the 0:02:12.400 --> 0:02:15.160 defensive before they've even had a chance to rehear the case, 0:02:15.400 --> 0:02:17.560 sort of show that you can have a lot of 0:02:17.560 --> 0:02:20.400 what he would probably say, kind of gobbled the standards 0:02:20.400 --> 0:02:24.000 and quotations from case law and then picked a very 0:02:24.240 --> 0:02:27.440 strong suggestion that they were slimy for lack of a 0:02:27.480 --> 0:02:29.720 better word, and we're going to sort of make up 0:02:29.720 --> 0:02:32.120 the law in order to uphold the gun regulation. It 0:02:32.240 --> 0:02:35.519 was dripping in sarcasm. I'd say. In the past, he's 0:02:35.520 --> 0:02:39.520 accused his colleagues of engaging in mischief and jiu Jitsu 0:02:39.840 --> 0:02:42.480 compared them to a sullen kid who spits in the 0:02:42.520 --> 0:02:46.280 cookie jar after being caught red handed. What's the point 0:02:46.280 --> 0:02:48.919 of this, do you think to get attention? One thing 0:02:48.960 --> 0:02:52.480 I'd say is he's absolutely not the only judge alive 0:02:52.720 --> 0:02:55.280 or path who's used any of that rhetoric. I mean, 0:02:55.280 --> 0:02:58.480 it's all a question of degree right and also contacts 0:02:58.639 --> 0:03:02.119 and substantive point in question as far as why he's 0:03:02.160 --> 0:03:04.960 doing it. I mean, obviously I can't speak for somebody else, 0:03:05.040 --> 0:03:07.840 but he's a very new judge on the Ninth Circuit. 0:03:08.320 --> 0:03:11.200 You know, his nomination was controversial. I think he's the 0:03:11.200 --> 0:03:14.120 A B. It's onto not qualified, although many people argued 0:03:14.200 --> 0:03:16.799 with that conclusion. He's certainly very smart. I mean, he's 0:03:16.840 --> 0:03:19.760 got a great academic credentials, but he's a new judge. 0:03:19.800 --> 0:03:22.560 He's in that sort of federalist society group that most 0:03:22.600 --> 0:03:26.040 of the President Trump's judges came from. And he's sort 0:03:26.040 --> 0:03:29.640 of signaling, you know, we are onto what the liberals 0:03:29.720 --> 0:03:32.000 he probably called them are democrats are up to. He's 0:03:32.040 --> 0:03:34.800 signally that. But he's also, you know, here we are 0:03:34.920 --> 0:03:37.640 discussing his concurrence in the case that people probably wouldn't 0:03:37.640 --> 0:03:41.080 be talking about at all. He's certainly wanting attention, maybe 0:03:41.160 --> 0:03:44.280 the attention of people who might one day nominate him 0:03:44.320 --> 0:03:46.520 for the Supreme Court. It might be that he wants 0:03:46.560 --> 0:03:50.560 the attention of other judges who are like minded and 0:03:50.840 --> 0:03:52.880 kind of tell them, you know what, I just didn't this, 0:03:53.080 --> 0:03:56.280 and I was really purposely snyde and sarcastic. Maybe you 0:03:56.320 --> 0:03:58.840 should too. So it's probably some combination all the above. 0:03:58.880 --> 0:04:01.400 I mean, I guess we should also take him literally 0:04:01.440 --> 0:04:04.000 and seriously, and maybe that he's just in his mind 0:04:04.040 --> 0:04:07.640 of Paul, he thinks that judges are in a bad 0:04:07.640 --> 0:04:11.160 faith way upholding gun regulations that he would say violate 0:04:11.160 --> 0:04:13.920 at the Second Amendment. Maybe he is actually just genuinely, 0:04:13.920 --> 0:04:16.640 really really upset or distraught about it. Do you think 0:04:16.680 --> 0:04:21.279 it hurts the judges credibility to have opinions that are sarcastic, 0:04:21.720 --> 0:04:26.760 that perl insults at their colleagues on the bench. It's 0:04:26.800 --> 0:04:29.640 a great question. I don't think it has a really 0:04:29.680 --> 0:04:33.440 really easy, obvious answer. So one thing is there's two 0:04:33.520 --> 0:04:36.520 different ways judges are sarcastic and opinions. The main way 0:04:36.520 --> 0:04:39.040 it tends to be towards the counsel or the argument, 0:04:39.200 --> 0:04:42.719 kind of implying that an argument was preposterous or ridiculous, 0:04:42.720 --> 0:04:46.680 So a shot at the lawyers themselves. It's certainly much rarer, 0:04:46.920 --> 0:04:49.000 although Justice Scalia was known to do this from time 0:04:49.040 --> 0:04:52.080 to time. It's rare to take potshots that your colleagues. 0:04:52.279 --> 0:04:55.839 So I would first say there might be different credibility 0:04:55.880 --> 0:04:58.960 issues depending on which of those universities were in. Is 0:04:59.000 --> 0:05:01.039 it really just about the lawyers are the case or 0:05:01.080 --> 0:05:03.560 is it about judges? So in this case, who was 0:05:03.640 --> 0:05:06.520 certainly about judges, and it was like a preemptive strike. 0:05:06.880 --> 0:05:10.440 So at this point, and I think American legal history, 0:05:10.480 --> 0:05:12.400 a lot of judges are probably just hoping to have 0:05:12.480 --> 0:05:16.080 credibility with the like minded right there, not maybe so 0:05:16.160 --> 0:05:19.880 much as in the past. I'm worried about general credibility. 0:05:20.120 --> 0:05:22.080 I mean, there's a lot of tribalism going on in 0:05:22.120 --> 0:05:24.120 our country, as you know. I don't think they're immune. 0:05:24.480 --> 0:05:27.880 So maybe for his purposes, it makes them more credible 0:05:27.880 --> 0:05:30.080 with people who see the law the way he does. 0:05:30.320 --> 0:05:32.120 And just because I know a lot of judges, I'm 0:05:32.120 --> 0:05:33.800 training them and I'm friendly with them. A lot of 0:05:33.800 --> 0:05:36.039 people loved it. I mean a lot of judges thought 0:05:36.040 --> 0:05:38.960 it was great. Other judges thought it was appalling, And 0:05:39.240 --> 0:05:41.880 they might not be the sarcasm the same way that 0:05:42.040 --> 0:05:45.160 I might. They might see it as warranted and effective. 0:05:45.240 --> 0:05:48.080 Guess if the press who you want credibility with this circuit. 0:05:48.200 --> 0:05:52.520 Judge James Hose opinions have also gotten a lot of attention. 0:05:52.880 --> 0:05:55.120 In one opinion that I spoke about at the beginning 0:05:55.160 --> 0:05:58.320 of the segment, he and Judge Juck Weener were carping 0:05:58.360 --> 0:06:01.920 at each other. Doesn't that affect their relationship on the bench. 0:06:02.520 --> 0:06:05.520 And these judges have to work with each other for years, 0:06:06.120 --> 0:06:08.839 There's no doubt about it. You're absolutely right. I know 0:06:08.960 --> 0:06:11.400 you're right because I hear these things in my work. 0:06:11.720 --> 0:06:14.320 Judge Hoe is on the fifth circuit. That fifth circuit 0:06:14.400 --> 0:06:18.080 is notoriously tense with different factions with judges not being 0:06:18.080 --> 0:06:20.960 overly fond of other factions. You know their stories. So 0:06:21.000 --> 0:06:24.560 I'll keeping the Preme Court justices have intentions. Traditionally there's 0:06:24.600 --> 0:06:27.480 been a line they won't cross, you know. I think 0:06:27.720 --> 0:06:32.320 Justice Scalia kind of famously made a crack about Justice Kennedy. 0:06:32.320 --> 0:06:35.480 Even Burger fell about putting a bag over my head. 0:06:35.880 --> 0:06:38.800 I think since then, not that I'm saying it's Justice 0:06:38.920 --> 0:06:41.080 Lee as fault in any way, shape or form. I mean, 0:06:41.120 --> 0:06:44.080 it's just a lot of people try to copy him. 0:06:44.080 --> 0:06:46.680 Since then, it's been I think Judge has probably a 0:06:46.680 --> 0:06:49.760 good example as any It's been pretty common to have 0:06:50.200 --> 0:06:53.039 kind of name calling and a little bit of playground 0:06:53.120 --> 0:06:56.239 kind of kids fighting on the playground rhetoric one judge 0:06:56.400 --> 0:06:58.200 to the other. I think that what you're describing from 0:06:58.279 --> 0:06:59.880 Judge how I mean, the Fifth Circuits had ale out 0:07:00.160 --> 0:07:02.919 literard of pensions where you have, you know, one of 0:07:02.920 --> 0:07:06.400 these like I'm concurring in part two be uh not 0:07:06.440 --> 0:07:09.920 the seventh word and now three A. So, one thing 0:07:09.960 --> 0:07:11.760 I know from getting to know a lot of judges 0:07:11.840 --> 0:07:13.720 is they really are just like the rest of us. 0:07:13.840 --> 0:07:16.880 You know, they don't like people taking shots at them. Yeah, 0:07:16.880 --> 0:07:20.320 of course it causes pension. I suppose if you asked them, 0:07:20.400 --> 0:07:23.120 they would say, that's not the most important thing to me, 0:07:23.320 --> 0:07:26.520 you know, having like everybody get along for the Christmas party. 0:07:26.680 --> 0:07:29.280 It's not as important to me as you know, whatever 0:07:29.560 --> 0:07:33.560 my vision of the Constitution is. You mentioned Justice Scalia, 0:07:33.600 --> 0:07:39.200 who was known for his brilliant writing style, fiery descents. 0:07:39.600 --> 0:07:43.160 Do you see the kind of flare that Justice Scali ahead? 0:07:43.440 --> 0:07:46.920 But I think people have forgotten is that of what 0:07:47.000 --> 0:07:50.400 Justice Scalia wrote, including in this excent, was not was 0:07:50.440 --> 0:07:52.920 not in the pot shot category, right, It wasn't in 0:07:52.960 --> 0:07:57.040 the snarky, pure apple sauce quote unquote category. So I 0:07:57.080 --> 0:07:59.880 think what some of these newer judges are doing without 0:08:00.000 --> 0:08:03.600 realizing it is they're sort of copying those barbs that 0:08:03.720 --> 0:08:06.880 Justice Lee would use, but they don't really come across 0:08:06.960 --> 0:08:09.920 as well or as effectively because the rest of the 0:08:09.960 --> 0:08:13.960 opinion isn't quite a strong I mean, Justice Leo sounded genuine, 0:08:14.080 --> 0:08:15.880 but do you liked it or not? It was like 0:08:16.040 --> 0:08:19.040 his voice and he seem a little bit more like 0:08:19.080 --> 0:08:21.640 a pastiche or like I want to have everybody talk 0:08:21.720 --> 0:08:25.080 about me the way people talked about Justice s Glea 0:08:25.200 --> 0:08:28.440 saying pure apple sauce. He also, of course had the stature, 0:08:28.680 --> 0:08:32.840 so Justice Slea even among his foes, he was just 0:08:32.840 --> 0:08:35.319 going to get more different when he was a justice 0:08:35.440 --> 0:08:37.319 for what he would do in writing than some of 0:08:37.360 --> 0:08:38.839 these judges who have only been on the bench for 0:08:39.280 --> 0:08:42.160 with years. And sometimes you know, it's like anytime there's 0:08:42.200 --> 0:08:44.560 somebody new, you know, the new kid on the block. 0:08:45.080 --> 0:08:47.960 Sometimes they found I know just from what I hear 0:08:48.200 --> 0:08:50.040 so other judges who have been on the bench for 0:08:50.080 --> 0:08:53.520 a while, they sound a little boiled or cocky, right like, Okay, 0:08:53.520 --> 0:08:55.360 I've been doing this for two years and I now 0:08:55.400 --> 0:08:58.280 know everything, and I'm gonna just show the rest of 0:08:58.320 --> 0:09:01.560 the circuit where they've gone wrong. So you call it 0:09:01.800 --> 0:09:06.280 performance art. In the circuits, house'll explain that they're not 0:09:06.440 --> 0:09:10.160 really in the moment operating as a normal federal judge. 0:09:10.320 --> 0:09:13.080 They're playing to win audience. And by the way, there's 0:09:13.080 --> 0:09:15.960 nothing wrong with that, and people tend to dislike it, 0:09:16.040 --> 0:09:18.720 mainly when it's with the judge they don't agree with ideologically. 0:09:18.720 --> 0:09:22.040 I mean a lot of justices and judges engage in 0:09:22.160 --> 0:09:25.160 you know, rhetoric or they have examples or metaphors or 0:09:25.400 --> 0:09:28.360 terms of races that are clever. Why police they think 0:09:28.440 --> 0:09:30.760 they are. But in this case, it's not like a 0:09:30.760 --> 0:09:34.120 brief moment of performance art. It's like an entire concurrence 0:09:34.200 --> 0:09:37.720 to a concurrence of performance art. So again it's changed. 0:09:37.920 --> 0:09:41.240 They're now thinking about audiences. Maybe it's somebody in the 0:09:41.240 --> 0:09:45.120 White House, maybe it's somebody on Twitter. They're thinking about 0:09:45.160 --> 0:09:48.439 audiences besides the official audience for a federal judge. That's 0:09:48.480 --> 0:09:51.960 supposed to be the party's, the council, the other lawyers 0:09:51.960 --> 0:09:55.679 in the jurisdiction, and perhaps if you're influential enough of 0:09:55.720 --> 0:09:58.439 the judge or on the influential court law students, you're 0:09:58.480 --> 0:10:00.920 supposed to be thinking about those groups. But now they're 0:10:00.920 --> 0:10:02.920 thinking about, Hey, what are they going to say about me? 0:10:02.960 --> 0:10:06.800 On Twitter? Are there judges on Twitter? Well, some judges. 0:10:06.920 --> 0:10:10.080 It's like Judge Dillard from Georgia, he's on Twitter. The 0:10:10.160 --> 0:10:13.040 Chief Justice of the Michigan Court. I know she's on Twitter. 0:10:13.320 --> 0:10:15.440 I think they're quite careful and what they say. They're 0:10:15.480 --> 0:10:18.520 fun to follow, but they're not controversial. There actually are 0:10:18.600 --> 0:10:20.760 quite a few judges and justices I can tell you 0:10:20.800 --> 0:10:24.680 who are on Twitter. Under they absolutely follow. I can 0:10:24.760 --> 0:10:28.680 tell you for sure, they absolutely follow what people say 0:10:28.679 --> 0:10:31.840 about them. And I have to say, these attention getting 0:10:31.880 --> 0:10:36.760 opinions keep things interesting as opposed to those opinions, it's 0:10:36.880 --> 0:10:40.040 just so hard to wade through. We the lawyers of 0:10:40.080 --> 0:10:43.920 America are hypocrites on this because if you ask people, 0:10:43.920 --> 0:10:47.400 they always say like, judges should be somber and serious. 0:10:47.520 --> 0:10:49.400 They have a lot of power. But again, if you 0:10:49.440 --> 0:10:51.640 go back to Justice Scalia and you say, what are 0:10:51.679 --> 0:10:54.800 some quotes you remember from Justice Scalia, everything you will 0:10:54.840 --> 0:10:59.319 hear will be some kind of snark, sarcasm, pop shot criticism. 0:10:59.600 --> 0:11:02.760 People secretly love this stuff. They say they hate it. 0:11:02.840 --> 0:11:05.920 They might intellectually hate it, but I hate to tell 0:11:05.960 --> 0:11:08.439 you it works. And I think Justice Cagan is probably 0:11:08.440 --> 0:11:13.079 the greatest living legal writer, lawyer or judge. But the 0:11:13.080 --> 0:11:16.080 things that people associate with her are actually the very 0:11:16.080 --> 0:11:19.040 few things I don't think are that great. Like exciting, 0:11:19.200 --> 0:11:21.440 you know, making a making a reference to the TV 0:11:21.520 --> 0:11:24.360 show Beef. I know people think that's really clever and 0:11:24.400 --> 0:11:28.680 like populist. I love of every word she's ever written. 0:11:28.800 --> 0:11:31.680 That's the last thing how I would ever put on 0:11:31.720 --> 0:11:34.439 the list. Right, So, if you're a judge and people 0:11:34.440 --> 0:11:37.600 are saying, oh, it's so inappropriate to use this snark, 0:11:37.760 --> 0:11:41.359 but then in real life what people seem to applaud 0:11:42.000 --> 0:11:47.120 of these little barbs or cute pop culture references, You're 0:11:47.160 --> 0:11:50.120 gonna You're gonna see the split and do what people 0:11:50.160 --> 0:11:52.760 actually things are like as opposed to what they say 0:11:52.800 --> 0:11:57.880 they like. Thanks Ross. That's legal writing coach, Ross Cooperman, 0:11:58.320 --> 0:12:00.120 and that's it for this edition of the bloom Our 0:12:00.160 --> 0:12:03.160 Glass Show. Remember you can always get the latest legal 0:12:03.160 --> 0:12:06.480 news by listening to our Bloomberg Law podcast wherever you 0:12:06.480 --> 0:12:10.240 get your favorite podcasts. I'm June Grosso and you're listening 0:12:10.320 --> 0:12:14.920 to Bloomberg Beef News. Laws may not require us to 0:12:15.040 --> 0:12:17.440 count how many jelly beans are in a jar, but 0:12:17.559 --> 0:12:22.079 modern day voter suppression is no less pernicious. Representative Terry 0:12:22.120 --> 0:12:26.199 Sewell is the only black person serving in Congress from Alabama. 0:12:26.760 --> 0:12:30.880 The state is currently represented by one black Democrat, Sewell, 0:12:30.920 --> 0:12:34.920 elected from the state's only majority black district, and six 0:12:34.960 --> 0:12:39.480 white Republicans elected from the state's heavily white districts. That's 0:12:39.600 --> 0:12:44.440 even though about tent of Alabama's population is black. So 0:12:44.480 --> 0:12:47.640 a panel of three federal judges has ordered the state 0:12:47.720 --> 0:12:51.719 to draw new congressional districts including a second district with 0:12:51.840 --> 0:12:55.920 a substantial number of minority voters. Alabama is appealing that 0:12:55.960 --> 0:12:59.080 decision to the Supreme Court. Joining me is Rebecca Green, 0:12:59.440 --> 0:13:02.600 professor and director of the Election Law Program at William 0:13:02.600 --> 0:13:05.880 and Mary Law School. Rebecca explain this decision by the 0:13:05.920 --> 0:13:10.160 panel of judges. The case comes up under the Voting 0:13:10.240 --> 0:13:13.400 Rights Act, something called Section two, which is designed to 0:13:13.600 --> 0:13:16.800 ensure that minorities have the ability to elect their candidates 0:13:16.800 --> 0:13:19.920 of choice, or put a different way, that state rules 0:13:20.080 --> 0:13:23.400 and laws don't styn me the ability of minorities to 0:13:23.480 --> 0:13:26.080 elect their candidate of choice. One way that states have 0:13:26.160 --> 0:13:29.040 done this historically is by the way they draw their 0:13:29.080 --> 0:13:32.160 lines and the resisting process. And so what they can 0:13:32.200 --> 0:13:36.600 do is they can pack minority voters into a single district, 0:13:36.760 --> 0:13:40.160 thereby take their voting power away and in surrounding districts, 0:13:40.280 --> 0:13:43.559 or if there are concentrations of minority voters that would 0:13:43.559 --> 0:13:46.480 be able to elect their candidate choice, the line drawer 0:13:46.520 --> 0:13:48.400 could draw a line like in the middle of that 0:13:48.480 --> 0:13:51.840 concentration of minority voters in order to diffuse or dilute 0:13:51.880 --> 0:13:55.400 their ability to elect their connective choice. So redistricting has 0:13:55.440 --> 0:13:58.280 been a vehicle that states have used in the past 0:13:58.480 --> 0:14:02.679 to harm minority political strength. And if you look at 0:14:02.800 --> 0:14:06.160 the US congressional map in Alabama that plaintiff's challenged under 0:14:06.200 --> 0:14:09.720 section two, they did exactly what I just described. At 0:14:09.800 --> 0:14:12.920 least that's the allegation that they packed minority voters into 0:14:12.920 --> 0:14:15.160 a single district in one part of the state, and 0:14:15.480 --> 0:14:17.679 across the way on the right hand side of the state, 0:14:17.760 --> 0:14:21.480 they cut a line down the concentration of minority voters, 0:14:21.520 --> 0:14:24.840 and the allegation is that violates Voting Rights Act Section too. 0:14:25.160 --> 0:14:28.840 And so this three judge panel of federal judges, which 0:14:28.840 --> 0:14:33.760 included two appointees of former President Trump, said voting in 0:14:33.800 --> 0:14:38.280 the challenge districts is intensely racially polarized. This is not 0:14:38.480 --> 0:14:43.080 genuinely in dispute. Is that correct that it's not in dispute. Yes, 0:14:43.200 --> 0:14:46.800 So what they're referring to is an analysis that is 0:14:46.880 --> 0:14:51.760 required under section to vote dilution litigation. The first part 0:14:51.760 --> 0:14:54.680 of that analysis has to do with whether the minority 0:14:54.680 --> 0:14:59.360 community is sufficiently large and geographically compact to qualify for 0:14:59.520 --> 0:15:02.760 protection under section two. And then the second two prongs 0:15:02.800 --> 0:15:07.280 of analysis require the presence of racially polarized voting, meaning 0:15:07.360 --> 0:15:10.520 that you can look at how minorities vote and you 0:15:10.600 --> 0:15:13.480 can first of all, decide that they're politically cohesive and 0:15:13.520 --> 0:15:15.400 that they would vote for the same candidate if given 0:15:15.440 --> 0:15:17.320 the chance. And the other piece of that is that 0:15:17.400 --> 0:15:21.800 the majority voters consistently vote to defeat the minority candidates 0:15:21.800 --> 0:15:25.320 of choice. And my understanding of the data is that 0:15:25.440 --> 0:15:28.600 it is a racially polarized voting climate. What were the 0:15:28.640 --> 0:15:33.040 court's instructions to Alabama about redrawing the map? Basically, the 0:15:33.120 --> 0:15:37.880 state's map has only one majority minority district out of seven, 0:15:38.120 --> 0:15:40.480 despite the fact that there are almost thirty percent a 0:15:40.520 --> 0:15:43.560 black voting age population in the States. So it's skewed 0:15:43.840 --> 0:15:47.080 against minority voters for that reason, and so the command 0:15:47.200 --> 0:15:49.480 to comply with Section two is to draw a second 0:15:49.520 --> 0:15:52.880 majority minority district. What was interesting to me is that 0:15:53.240 --> 0:15:57.560 the panel refused to put its decision on hold while 0:15:58.080 --> 0:16:01.520 Alabama appeals to the Supreme Court, so that gives the 0:16:01.640 --> 0:16:05.720 legislature until Monday to draw a new map. In the meantime, 0:16:06.040 --> 0:16:09.240 the panel is working on a backup plan. Yeah, so 0:16:09.360 --> 0:16:12.800 I think that the urgency here is that the Panel 0:16:12.840 --> 0:16:15.280 of judges here thinks that the plaintiffs have an incredibly 0:16:15.320 --> 0:16:18.280 strong case and that the arguments the state was making 0:16:18.360 --> 0:16:21.560 two defendants maps were exceptionally weak. And one of the 0:16:21.680 --> 0:16:25.120 arguments that the defendants of the state made here was 0:16:25.360 --> 0:16:30.440 essentially that by prioritizing race for purposes of complying with 0:16:30.520 --> 0:16:32.560 Section two of the Voting Rights Act, that would be 0:16:32.600 --> 0:16:35.120 a racial gerrymanager. In other words, if you create the 0:16:35.160 --> 0:16:38.600 second majority minority district, it would effectively be prioritizing race 0:16:38.640 --> 0:16:41.160 over everything else. And the reason why I think the 0:16:41.160 --> 0:16:43.680 Court found that to be such a weak argument is 0:16:43.720 --> 0:16:47.360 that if you couldn't comply with Section two without violating 0:16:47.600 --> 0:16:51.680 the Constitution, then Section two would be unconstitutional. And you 0:16:51.720 --> 0:16:54.680 know that lainly the lower court judges weren't willing to do. 0:16:54.880 --> 0:16:57.440 In other words, they were taking it on faith that 0:16:57.560 --> 0:17:00.800 Congress has the power to enact that into and that 0:17:00.840 --> 0:17:05.000 plaintiff skins indicate those rights. So Alabama is appealing to 0:17:05.000 --> 0:17:08.200 the Supreme Court, as I said, and it argued that 0:17:08.560 --> 0:17:13.760 the injunction will throw state elections into chaos and require 0:17:13.800 --> 0:17:17.960 the state to draw districts based primarily on race instead 0:17:18.000 --> 0:17:20.760 of other factors. What do you think of that argument? 0:17:21.000 --> 0:17:22.560 So that's sort of what I was just alluding to 0:17:22.640 --> 0:17:25.520 their reacting to this idea that they should be prioritizing 0:17:25.600 --> 0:17:28.600 race in their line drawing, when that's sort of a 0:17:28.640 --> 0:17:31.679 strange argument, given that since the Voting Rights Act was 0:17:31.720 --> 0:17:36.360 passed in and particularly since it was applied to line 0:17:36.440 --> 0:17:39.360 drawing vote allution cases, that's what states have been required 0:17:39.400 --> 0:17:42.000 to do all along, and in fact, you know, obviously 0:17:42.200 --> 0:17:46.680 Alabama has been a losing defendant on many registricting cases 0:17:46.720 --> 0:17:49.120 since the Voting Rights Act was passed. So to complain 0:17:49.160 --> 0:17:51.520 that they are being forced to comply with the Voting 0:17:51.600 --> 0:17:54.320 Rights Act by taking race into account as it requires 0:17:54.600 --> 0:17:58.000 the sort of a strange argument because that's not anything new. 0:17:58.600 --> 0:18:01.200 So will the Supreme Court here that case. Yes, there's 0:18:01.200 --> 0:18:05.120 mandatory jurisdiction for the Supreme Court in statewide registricting cases. 0:18:05.560 --> 0:18:08.399 So unlike other cases where the Court can decide or 0:18:08.440 --> 0:18:10.840 not decide, here the Court will take it for part 0:18:10.880 --> 0:18:12.840 of the reason that you're suggesting, which is that you know, 0:18:13.119 --> 0:18:16.680 redistricting cases are a unique type of case because elections happen, 0:18:16.880 --> 0:18:20.200 and you can't delay decisions because elections have to happen. 0:18:20.560 --> 0:18:22.800 So I think you can expect that the Supreme Court 0:18:22.840 --> 0:18:24.760 will weigh in one way or the other here and 0:18:25.240 --> 0:18:29.920 how much will a decision by the Supreme Court enlighten 0:18:30.080 --> 0:18:34.520 us about how it's going to look at other similar challenges. 0:18:35.040 --> 0:18:38.200 And we're expecting other similar challenges, aren't we in the 0:18:38.280 --> 0:18:40.879 run up to the next election. Yeah, there's been a 0:18:40.920 --> 0:18:44.440 couple of instances where states are kind of being very 0:18:44.480 --> 0:18:48.560 assertive about wanting to draw lines from a color blind perspective. 0:18:48.880 --> 0:18:52.960 And I think what's happening there is they are wondering 0:18:53.000 --> 0:18:56.080 whether there are a majority of defices on the Court 0:18:56.080 --> 0:18:58.880 who would be open to the idea that using race 0:18:59.080 --> 0:19:03.000 in redistricting violates the Constitution, And so I wonder whether 0:19:03.119 --> 0:19:05.320 they're sort of taking this path because they want to 0:19:05.359 --> 0:19:07.960 test that out. Is it correct to say that the 0:19:08.080 --> 0:19:12.640 Roberts Court has been cutting back on voting rights. I 0:19:12.640 --> 0:19:15.600 think it's correct to say that the Roberts Court has 0:19:15.640 --> 0:19:17.840 been putting pressure on Section two of the Voting Rights 0:19:17.880 --> 0:19:21.000 Act for sure. I mean, you can look at redistricting 0:19:21.119 --> 0:19:26.879 cases in the last decade where the Court made clear 0:19:27.280 --> 0:19:29.800 that it would require states to comply with the Voting 0:19:29.880 --> 0:19:32.720 Rights Act. So it's not like they've been inching towards 0:19:32.960 --> 0:19:36.000 repudiating it wholesale In fact, Justice Thomas has been one 0:19:36.040 --> 0:19:39.360 of the only justices who've taken that line very firmly 0:19:39.400 --> 0:19:42.560 and consistently, that is that Section two is unconstitutional. So 0:19:42.600 --> 0:19:44.600 I don't think it's fair to say that there's been, 0:19:44.920 --> 0:19:47.119 you know, a drum beat by majority of justices of 0:19:47.160 --> 0:19:48.919 the Court to do away with it. And if you 0:19:48.920 --> 0:19:51.080 look at the decisions over the last ten years, the 0:19:51.119 --> 0:19:54.560 Court has certainly recognized that plantiffs can vindicate rights under 0:19:54.680 --> 0:19:58.640 Voting Rights Act Section two. Let's turn to to Pennsylvania 0:19:59.240 --> 0:20:03.639 and pans Sylvania Appellate Court struck down a law that 0:20:03.720 --> 0:20:09.360 allows no excuse absentee voting. Explain why it's struck down 0:20:09.440 --> 0:20:13.200 that law, what its reasoning was. Yeah, So this this 0:20:13.280 --> 0:20:16.919 is kind of a interesting set of circumstances. So in 0:20:16.960 --> 0:20:24.080 two thousand nineteen, the Pennsylvania legislature, on a bipartisan vote, 0:20:24.520 --> 0:20:29.199 past legislation to enable no youth absentee voting. And the 0:20:29.320 --> 0:20:31.960 legislation itself, I think it was a hundred and eighty 0:20:32.040 --> 0:20:35.800 days that you were that you could bring a challenge 0:20:35.880 --> 0:20:38.560 to it, and no one brought that challenge. In fact, 0:20:38.560 --> 0:20:42.560 it wasn't until after election when all of a sudden 0:20:42.640 --> 0:20:45.600 you started hearing this argument um that you know that 0:20:45.720 --> 0:20:49.520 law was unconstitutional at least with respect to the state Constitution. 0:20:50.440 --> 0:20:55.160 And basically the argument is that the state constitution requires 0:20:55.200 --> 0:20:59.680 that voters vote in person um and that therefore the 0:20:59.720 --> 0:21:05.399 state legislature lacked the ability to pass it's absentee voting 0:21:06.040 --> 0:21:09.520 um legislation UM, because what it would have had to 0:21:09.560 --> 0:21:14.040 do is essentially first amends the state Constitution. But the 0:21:14.040 --> 0:21:17.920 trick is that the state Constitution doesn't actually anywhere say 0:21:18.000 --> 0:21:20.920 that you have to vote in person. Rather, it says 0:21:21.080 --> 0:21:26.800 that it's the talking about how a qualified elector has 0:21:26.840 --> 0:21:29.919 to establish residencies days before an election, and the and 0:21:29.960 --> 0:21:32.040 the word in the constitution, the wards and the constitution 0:21:32.080 --> 0:21:35.800 are in the election district where he or she shall 0:21:35.920 --> 0:21:39.520 offer to vote. And so the argument that the Republicans 0:21:39.520 --> 0:21:42.720 are making is that the offer to vote language suggests 0:21:42.800 --> 0:21:45.399 that you're offering in person to vote um, which is 0:21:45.400 --> 0:21:47.840 a little bit of a stretch. Doesn't actually say that 0:21:48.000 --> 0:21:50.880 um in the constitution. But the but the argument anyway 0:21:51.080 --> 0:21:53.920 is that the the legislature couldn't pass that law because 0:21:53.920 --> 0:21:56.440 it would first about absentee voting, because it would first 0:21:56.480 --> 0:21:59.840 pass to amend the constitution to make it clear that 0:22:00.080 --> 0:22:04.760 could vote remotely. Judge Hannah Levitt wrote, no excuse. Mail 0:22:04.840 --> 0:22:08.400 in voting makes the exercise of the franchise more convenient 0:22:08.720 --> 0:22:11.639 and has been used four times in the history of Pennsylvania. 0:22:12.119 --> 0:22:14.760 Yet they went on to say you had to amend 0:22:14.760 --> 0:22:18.760 the constitution. Yep, it seems odd to say that. And 0:22:18.840 --> 0:22:22.480 then it is odd I think it is. It is odd, um, 0:22:22.520 --> 0:22:24.960 because they also said they also acknowledged that there was 0:22:25.200 --> 0:22:28.200