Advisory Opinions - Congress Did Something!

Episode Date: May 7, 2026

Welcome to Callais-a-palooza, where Sarah Isgur and David French discuss Louisiana v. Callais, the Supreme Court decision that struck down Lousiana's congressional map and allows Louisiana to draw a new map that will likely favor Republicans. The two read Justice Ketanji Brown-Jackson's dissent, discussed whether the decision violates the Purcell principle, and answer listeners' questions about the decision. The Agenda:—Sarah's dad is unconstitutional—The 32-day question—The three Honey Badgers—Partisan gerrymandering on steroids—“Kavanaugh stops” and Callais—Listener questions! Show Notes:—David French on Race, Rights, Trump, and Faith—The University of Michigan Doubled Down on D.E.I. What Went Wrong? Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. Welcome to Calais Apalooza, where we are going to talk for a whole hour about the Calais decision out of Louisiana. We have a new order from the Supreme Court putting the decision into effect immediately. We also got a ton of questions, brilliantly smart, thoughtful questions from you guys. And I want to go through as many as we can.

And buckle up. It's Voting Rights Act Day. Behind every F-35 jet is a Canadian company, horizontal tails built in Winnipeg, engine sensors from Ottawa, and stealth composite panels crafted in Loonberg to name just a few. Thanks to thousands of skilled Canadian workers, the F-35 aircraft is delivering unmatched capabilities for 20 allied nations around the world and will generate more than $15.5 billion in industrial value for Canada.

This ad is sponsored by the F-35 partner team, Lockheed Martin, BAE Systems, Northrop Grumman, and Rtiex. at www.f35.com slash Canada. In communities across Canada, hourly Amazon employees can grow their skills and their paycheck by enrolling in free skills training programs for in-demand fields. Learn more at aboutamazon.ca. Well, David, I am down here in the Woodlands at the Fifth Circuit Conference, and I just feel like I should give a warning to all of the other circuits.

Like, do not invite me to your circuit conference and think that I have, like, a toned-down version of Sarah. I wish I did. Like, there's not two modes or something. Lisa Blatt was down here. You know, she just eggs me on. You know, I see her, and it just, the amp turns up to 11, David. So did you at any point in your discussion with the Fifth Circuit say, 10 Commandments case, WTF? No, but I did call my dad unconstitutional from the stage with him in the audience.

and all of the other bankruptcy judges in attendance. Oh, nice. I'm glad. I'm glad. Sarah Unleashed is the only kind of Sarah that's out there. That's my point. It is the only one. So, like, just that's a warning, right?

Like, there's not, like, polite, nice Sarah. David, speaking of two different versions and whether there's a polite, nice version, we got an opinion relating to an order from the Supreme Court. I mean, I guess we got two, and I thought we should spend a moment on those. So background. When the Supreme Court decides a case, that decision does not go into effect for 32 days. There's versions of this, by the way, for every court in the country, whether the mandate

issues right away or there's basically a time where you can appeal. At the Supreme Court, of course, you can't appeal anywhere. But the 32 days is so that you can ask for a rehearing. Do they grant your rehearing? No, never. But you have that opportunity and you have just over a month to do it. So in the Calais case, this Voting Rights Act case, the Louisiana side was like, hey, instead of waiting 32 days, can you just issue this now?

Because if you issue it now, we can actually draw our districts in accord with your decision for the 2026 midterm elections. But if we have to wait 32 days, we cannot. And so we will have unconstitutional, as you said, districts if you wait the full 32 days. So David, the justices, the majority of justices said, yeah, and they issued it without waiting the 32 days. They waive this, you know, two times a year, two times a term, you know, out of 60 cases. I'm not saying it's a high percentage, but it's also not an unheard of thing to do either. Then we got a dissent from Justice Jackson that was not joined by any other justice.

And then we got a concurrence from Justice Alito co-signed by Justices Thomas and Gorsuch, the only point of which was to respond to the dissent. So, David, this is not a 333 situation. Yes, we have my three conservative Honey Badgers signing on to this concurrence. But Justice Jackson dissenting alone, which means we don't know what the vote was to issue this mandate without waiting the 32 days at all, actually. But we do know that Kagan and Sotomayor, for instance, did not join her dissent. So, David, there's like a meta question here, but let's do the substantive question first. Are you, like, my take is one way or the other, they were putting their thumb on the scale of which maps were going to be for the 2020.

midterms. These are sort of the worst, you know, decisions for the Supreme Court to have to make because either way it's partisan, either they're letting Republicans, you know, pick a new district for the 2026 midterms, or they're letting Democrats keep a district that they said was unconstitutional for the 26 midterms. Either way, it's a partisan decision. In that sense, I guess I think you go with what you said in the opinion, right? If you think a district's unconstitutional, all things being equal, that probably shouldn't be the district for the fall, even if that means you do your relatively unusual procedural move of issuing the mandate rather than waiting the 32 days.

But David, I can see the other side to this argument. A hundred percent. I can absolutely see the other side. But if I'm reading, this is the key language. The principal reason for the 32-day default rule is to give a losing party time to prepare a petition for rehearse. In other words, this is not a 32-day rule. There's just like everybody needs to take a breather. It's 32 days because you're going to have an opportunity in that time to file a petition for a rehearing.

And then it says, but here the Robinson Apollies have not expressed an intent to file such a petition, much less set out any ground on which a petition might be based. And the need for prompt action by the court is clear. date scheduled for the beginning of early voting and the primary election is already passed. So I would feel very differently about this if there was an intention to file a petition for rehearing and the petition for rehearing had good grounds to be filed. And they if they issue and they, and they just go ahead and go straight to judgment anyway, I would be thinking, uh, you're doing something unusual in contradiction for the meaning, for the reason for the rule. Here he's saying,

yeah, we have a reason for the rule, but it doesn't apply here. And so in that circumstance, I feel like it's unusual, but acceptable, because of the facts that he explained in this opinion. So I have my own issues with Calais, as we have discussed. I have fewer issues with this because of that reason. Now let's get to the meta question. The conservative honey badgers, Alito Thomas and Gorsuch, they write this concurrence for the purpose of responding, quote, unquote, to the dissent. And it ends with this.

The dissent accuses the court of, quote, unshackling itself from, quote, constraints. It is the dissent's rhetoric that lacks restraint. Let me read you now the end of Justice Jackson's dissent. The court unshackles itself. from both constraints today and dives into the fray. And just like that, those principles give way to power. Because this abandon is unwarranted and unwise, respectfully, I dissent. David, I get being frustrated with Justice Jackson.

She does write these separate descends more often than really any justice we've seen in modern history. And she started doing it in her first year on the court. You know, I think justice, the chief justice rather took 10 years to write a solo. dissent. She did three in her first term, something like that. Then again, he's Chief Justice. She's not. I got to say, I don't think there's anything inappropriate about her dissent here. I think it's written like every other dissent where you disagree with what the court's doing. And she says, respectfully, I dissent. I don't agree with her dissent, but I have no beef with the tone. Interesting. I have beef when it says those principles give way to power. And the reason I have beef is that's an attribution. To me, that feels like they're attributing motives. It's not that I believe the reasoning is wrong, which I'm completely fine with that argument. But to them to say, you have abandoned your principles, I would agree with that if, for example, as I said earlier, there is an incoming motion for rehearing and they're going to short circuit at that.

by not following the 32 days. But if there's no motion for rehearing and the purpose of the 32 days was to allow for rehearing, I don't know. I don't know. Maybe I'm particularly sensitive to sort of like the attribution of motives

kind of argument that I really hate. I really dislike that form of argument unless there's very, very compelling reason for it. But yeah, I don't know. I thought that was a bit much. All right, David. It's time to get to questions. when we get back, didn't we say Congress do your job?

They did. They passed the Voting Rights Act. All this and more. Coming up. Let's get to some of our listener questions that we've gotten in about Calais because they were so great and so smart and made me think about a lot of different things about this,

and I think it will illuminate the case further for every other listener. So thanks for raising your hand, those of you who sent in these questions. Let's start with one that Justice Jackson and herself brings up, which is the idea that the court is violating the Purcell principle. Basically, the Purcell principle is federal courts should be thoughtful to allow elections to go on under a state's preferred voting requirements or maps or other rules or, you know,

we've seen this in indictments of candidates potentially. Like, it's come up in all sorts of context. And frankly, I think the Purcell principle has been stretched like Taffy to try to cover whatever you think the other side is trying to do. If it's anywhere close or dealing with an election, it's like, well, Purcell principle, you can't change the rules three years away from the election. And the taffy has torn at this point, David. I think the Purcell principle is far beyond what the actual Purcell principle was about, which was basically, in 2006, on the emergency docket, the shadow docket, whatever you want to call it, the Supreme Court vacated a lower court's order that had blocked an Arizona voter ID law

during the 2006 midterm elections. And basically they were like, look, you know, it might be one way or the other, but like we're right before the election. We're not going to change this right now without explanation and everything else. the Ninth Circuit hadn't provided any explanation. And the idea is about issuing these orders so close to an election. That's the basis for the original Purcell. So, David, we got two questions about this.

One, doesn't Calais violate the Purcell principle, right? They just issued a major opinion, you know, within weeks of various filing deadlines, when these maps have to be confirmed, and now it's thrown the whole thing into chaos, and isn't that what the Purcell principle is about? I don't know that what I'm about to say is accepted by legal scholars across the spectrum or even by judges on the bench.

But let me give you my take on this, David. The Purcell principle applies to lower courts dealing with last-minute election challenges. Now, the last-minute election challenge doesn't need to be the general election. It can absolutely be a primary election or a candidate filing deadline, if that's what the lawsuit is about.

Right? So if you file a lawsuit having to do with a candidate filing deadline a month before the candidate filing deadline, that may trigger Purcell all by itself. But here's what I think Purcell definitely does not apply to. Supreme Court merits docket cases. Remember, this case was re-argued, in fact.

So this case has been at the Supreme Court for two terms. They have to issue the decision at, some point, I don't think Purcell covers this whatsoever because this is a merits docket decision at the highest court. Purcell, I think, is only lower courts, and I think it's, you know, again, injunctions, orders, stays, non-merits-based decisions. Interesting. Because I had the same Purcell question myself as I thought about it, in particular because as we've seen some of the reaction to this, as we've seen a number of states trying to move to redistrict super fast. And that

has raised Purcell questions for me. I must say that I've not previously thought Purcell is a procedural rule for non-merits decisions in lower courts. So I had Purcell questions about this, and I feel like the Purcell questions were being, the reason for the Purcell questions were being amplified is we're watching sort of this wild scramble taking place in a lot of southern states to try to, you know, for example, in Tennessee, they're trying to district out the Memphis representative to make the Tennessee slate 90 Republican in a state that's about 6040, 65, 35 Republican Democratic. And so I had Purcell questions myself. I do think there's a separate Purcell question with issuing the mandate faster. That's, of course,

what Justice Jackson is talking about in her dissent. That's one of the two constraints. She said the court had thrown off. That is at least closer to a procedural question to me than a merits question, though, again, I think when you're talking about the Supreme Court issuing a mandate, the Purcell principle doesn't apply. I would also just say it's a principle. It's not a rule. There's nothing in the Constitution. There's no statute about it. And I feel like it is being weaponized by both sides. This isn't partisan, but rather this idea of, I will prevent the federal courts from wading into this because Purcell is only used by the side that, you know, wants to benefit from Purcell. And you're supposed to. You're a lawyer and an advocate.

But I'm getting a little bit over the expansion of Purcell. I think Purcell needs to be kind of narrowed to its strongest form, which, again, is those lower court injunctions that people ask for right before an election that have to do with state rules. Yeah, it's very interesting. And, you know, part of, I do wish the Supreme Court had issued an opinion earlier, although this was still issued well before the end of the term. So it's issued, you know, before that June 30th end when a lot of the most controversial cases are issued. But interesting distinction, I'm not sure I'm not sure I'm convinced.

I'm not sure. Okay, David. Let's go to more questions. This is from a listener. I was reading someone's substack about the decision where he began with slavery and then segregation

leading up to the passage of the VRA. The writer wondered aloud if this decision could be remembered down the road in the same vein as Plessy v. Ferguson, which, if memory serves, involved the state of Louisiana.

His reasoning is akin to Robert Kagan's The Jungle grows back. My question is, could it? Could this ruling unleash not just gerrymandering on steroids but also actions that could disenfranchise blacks in southern states? I know the court is concerned about process and not outcomes,

but Plessy did, at the very least, cement some outcomes until Brown versus Board. A little background on me, I'm a native Michigander whose father grew up in Jim Crow, Louisiana, Alexandria, to be exact. He told me stories of dealing with racism as a kid and joined a lot of blacks in moving north in the 1950s. David, what do you think?

I'm worried about this. I'll be honest with you, Sarah. I think that there is going to be a scramble to gerrymander as much as possible. And now there is going to be a possibility of raising, of creating the dummymander, because you do have, you know, like Louisiana is a 6040 or 6633 state when it comes to black, white. Mississippi might be, say, 6040 or whatever. And you're going to cut your margins a lot closer so that, you know, if you had a true wave election, you might end up, things might not work out the way the gerrymanders want.

At the same time, it is very possible that we will see just a decimation of black representation from the south, just a decimation of it. It's going to be hard, honestly, to look at that and justify that, to sit there and say, well, having a region that is still, I believe, has the highest percentage of black, representative or highest percentage of black citizens in America, having that represent, having almost no black representatives or very, very fewer black representatives because there was this extreme wish for a quote unquote partisan gerrymander when we both win, it's going to, because of the racially polarized dynamics of the South, it becomes almost impossible to pull out

and parse what's a partisan gerrymander versus a racist gerrymander unless somebody just verbalizes it and says it's for race reasons. I'm having a very hard time to seeing how it's good for the United States of America, much less good for the culture in the American South, to just decimate black representation in the South in a head over heels rush to implement the most extreme partisan gerrymanders imaginable.

And that is not going to be good for us. It's not going to be remotely good for us. It's going to heighten racial tension in the United States. it is a very bad deal. And I do think that we could look back in this, not necessarily because the decision itself and the language of the decision is bad, but because of the way that bad faith actors

exploited this decision, I think, is, I'm very worried about it. I'll be honest. I guess, David, look, I think this will gut black representation in Congress from the South. There's no question that that will be the effect of this decision. But it seems to me that the decision to read Section 2 of the Voting Rights Act after the 1990 census

to allow for blatant racial gerrymandering, this idea that you will draw districts because of race so that one racial group can elect someone from their racial group. That seems to me the thing that was kind of crazy that in 1990 we basically decided. that one racial group gets to have districts drawn from them because we believe that they want to elect people of their race group. And so we're going to draw districts to ensure that that can happen. And in doing so, by the way, allow the Republican Party to pack those districts with all of that racial group so that they can only elect one person.

And they will actually have less representation in the rest of the congressional districts that might be in that area. that to me seems pretty gross. On the flip side, I completely accept your point that having less representation is not good for America. So I think the thing that ameliorates the grossness, so I would say if you're just talking about like walking in blind

and you just say, Mississippi is 60-40 white-black, and we need to draw districts so that the 40% of black citizens get to vote for black people and the 60% of white citizens vote for white people, yeah, that'd be super gross. I think that'd be super gross. If you're walking into a system that has said

that for hundreds of years, the 40% have had every kind of procedural maneuvering possible thrown at them to deny them the ability to vote for and to actually have representatives of their choice, then it changes the equation. And this is why, you know, I had a, a really interesting sit-down conversation with the folks in the fifth column podcast recently

about this, which was a great conversation when you watch the whole thing. When you watch the super short clips that were clipped and edited and put on Twitter, very misleading. Here's the problem you have in the South. You have a situation where if this was actually sort of a really moving towards a post-racial society, the best argument for that is the election of Tim Scott, like South Carolina, Senator Tim Scott. He's coming from the state that's the cradle of the Confederacy. He's a black Republican. He's won big margins. He's won a lot of white voters. And so that's a good

argument that, look, we've made progress. But in interesting ways, he's almost like the exception that proves the rule, because if you're looking at how many black representatives have been voted for by these majority white districts, in the 100 X numbers of years since the end of reconstruction. Is the answer, it's either zero or close to zero. Like zero or close to zero of House districts that are majority white districts in the American South have voted for a black candidate. And so that's remarkable. That is absolutely remarkable and absolutely contradicts the idea that we have achieved anything like what we're hoping to achieve as far as sort of a post-racial American society. And a lot of people hear me say that and I think, oh, David's saying

that nothing has changed in the South. No, tons of things have changed in the South. It is a lot better than it was. But look, if you're looking at this and you're saying of hundreds of house races, across more than thousands of house races, across more than 100 years, and zero times, zero times a black candidate has won in the white districts. Zero or close to zero. I'm trying to find examples. That's alarming to me, especially when you come from an environment

where you had the most virulent form of de jura. You had slavery, you had Jim Crow, you had all of this stuff. I just don't think we're as far advanced as we'd like to think we are. Oklahoma's had a few. Watts, Shannon, Will Hurd in Texas, but I take your point. Okay, next question. First, I generally agree that Congress do your job is pretty much always the right answer, except maybe, in the case of the Voting Rights Act, I'm not a lawyer, a cancer surgeon, so nowhere close. And I am just going on facts heard from different sources, but it seems like Congress did, in fact, update the law in 2006. And the Supreme Court seems to have really just

taken a significantly different interpretation of the law. So to me, this does read as the court acting politically. I did not hear anything about major questions in this debate. Great question. And we got lots of versions of this question, David, right? Like we're railing about Congress, you know, doing laws. Well, look, they did a law and now the Supreme Court, yeah, they didn't strike it down, but they basically were like, yeah, we're not actually going to do that thing. Or it would violate the Constitution, and we would strike it down. So we're not going to. Just on the major questions doctrine point, that is only about the president acting and whether Congress gave the president authority. So that's why major questions doctrine didn't come up in this

debate. But the underlying point is definitely worth talking about. David, in the 80s and 90s, we were worried about Congress being the threat to the constitutional order, right? So you have the Supreme Court restraining Congress by having more expansive or rather less expansive. readings of the Commerce Clause. They strike down congressional laws saying, actually Congress is supposed to have limited powers under the Constitution. They're not like a freewheeling writing of wrongs, legislative entity. In this case, right, this is a tough balance to strike. I want Congress to do more stuff, but at the end of the day, I still want the Supreme Court to be counter-majoritarian and to protect minority rights against the majority. Now, David, you,

raise all sorts of reasons why, you know, this case might have been wrongly decided. But if there were a case of Congress passing a law that categorized people by race that violated the Equal Protection Clause, I would still want the court to strike that down, even though it undermines my Congress do your job thing. Well, implicit in Congress do your job is the word constitutional. constitutionally. In other words, it is within every, you know, within the executive branch, the legislative branch, everything about do your job is subject to constitutional review. And so when Congress do your job, implicit within that is past constitutional statutes. Now I know that there's going to be dispute and good faith dispute as to when they've done that and not done that. But I'm just going to say section two, we read it aloud when you, you read it aloud when we first started talking about Calais. It's not self-evident how that is to be interpreted, right?

I mean, this is not a sharply, precisely written statute. And so, you know, the question then is how much is the court going to defer to whom on interpreting it? I mean, it is not a cleanly written statute. Let's just get that out there. Yeah. And, of course, like I've said many times, it was not applied, thought to have anything to do with redistricting from 1965 until after the 1990 census was the first time that we started doing this, which is what then flooded the courts with these racial gerrymandering cases. And I kind of think this is just another case of the court wanting to get out of the business of things that have pulled it in. into partisan fights.

You saw them get out of the business of it with partisan gerrymandering. And then everyone brings more racial gerrymandering cases because now they can't bring partisan gerrymandering cases. And the court's like, no, we're not doing these either. These are political questions. This is for the political process. If it is a partisan gerrymander, we're not doing it.

And just because you call it a racial gerrymander, you better have proof that it actually is a racial gerrymander. we're not just dressing up partisan gerrymandering claims as racial gerrymandering claims, because that just pulls us back in once again to all of the fights we were in with the partisan gerrymandering. But now we just have to say whether it's a racial gerrymander. And the proof in the pudding, of course, is Texas and California do partisan gerrymanders. And the first thing we see are immediate lawsuits arguing that they are racial gerrymanders. And the court in both those cases is like, no, those maps are staying. And by the way,

David, they weren't crazy cases. If Section 2 were interpreted the way that the, you know, plaintiffs who had brought those cases argued that it had been interpreted, I think both Texas and California fall as racial gerrymanders because they're required to take race into account, but only so much, not too much. What is enough, but not enough? Not too much. Oh, well, we're going to have to run to court every single time to do that and it was turning into a mess. Okay, next question, David. I don't understand why it's even a big deal to consider race and the furtherance of equity specifically for voting.

Doesn't the 15th Amendment explicitly empower Congress to do exactly that? It literally says race, a bridge, Congress can pass appropriate legislation. We always complain about Congress do your job, but here Congress did a job explicitly given to them, and it was overturned. I get the 14th Amendment might seem to push against this slightly, but don't hire ordinal amendment supersede lower ones? That's part of the definition of the word amendment. Why wasn't this case two lines? The plain reading of the 15th Amendment allows this. The Voting Rights Act stands. This is breaking my textualist brain. Please help. David, I love this question because

I love the idea of the 15th Amendment actually amending the 14th Amendment, which we haven't talked about this podcast. Frankly, I haven't read law review articles about this. And of course, that's exactly right. Anything the 15th Amendment says that contradicts the 14th Amendment, the 15th Amendment wins. Yep. Yep, true. But let's read it. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. The Congress shall have the power to enforce this article by appropriate legislation. So that means people of all races, all races, have, uh, they're protected by this.

So what the court is essentially saying is if you're taking into account race to increase black representation, that might actually violate the 15th Amendment because if you are doing a racial gerrymander that would limit the election of other candidates because you're wanting to allow for the election of another candidate on the basis of race, isn't this an actual kind of an equal protection? isn't the 15th Amendment, actually an equal protection amendment, with that extra really time-bound provision of previous condition of servitude because there are no currently living former slaves.

So what this is saying is that, in essence, you can't deny anyone on the basis of race or color, not just people who have been historically oppressed on the basis of race or color. So it really does read to me as a kind of equal protection provision. And so therefore, then that makes it very difficult because in some states in the union, as Justice Alito said in the opinion, there has been such explicit racial targeting of black voters that you're going to be allowed to do racial, racially conscious remedial measures to correct the explicit racial targeting. And it strikes me that the central question of our moment really is, have we progressed far enough where that explicit remediation is not only no longer necessary, but then becomes unconstitutional itself?

That is the $64,000 question. That really, when you're talking about voting rights cases in Louisiana and Alabama, it hits that much more than, say, a college admissions question in California. California or Massachusetts. All right, Dave, when we get back, we're getting to my favorite question. The one I've been waiting for us to answer, it's the whole reason we're doing this episode, frankly. Why is it okay to use race for reasonable suspicion immigration stops? But not okay to use race to increase black representation in Congress?

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With the ruling today, it feels like from my non-legal background that the general rule that courts have been following is that if race is considered when providing a benefit like admissions or representation, that is illegal. But if race is considered for hurtful actions, travel bans, ice profiling, that is okay, so long as the stated point is not racism. them. David, I got to tell you, I know this will annoy people because we do sort of a slow burn on this podcast sometimes where we have to sit with opinions for a long time to decide what we actually think about them after we explain them on the podcast. I would like to revisit Nome versus Vasquez Perdomo. This was, if you remember, the emergency docket, interim docket case about these immigration stops in California. and a majority of the court lifted the injunction

saying that they could continue doing these stops. I want to read you from Justice Kavanaugh's concurrence. That's why they're called Kavanaugh stops now. Now, I am still annoyed that they're called Kavanaugh stops. You're criticizing the court for not writing down their thoughts for the emergency docket, but then you criticize them when they do write them down. But, okay, whatever.

Here's from the concurrence. Immigration stops based on reasonable suspicion of illegal presence have been an important component of U.S. immigration enforcement for decades across several presidential administrations. In this case, however, the district court enjoined U.S. immigration officers from making investigative stops in the Los Angeles area when the stops are based on the following factors or combination of factors. One, presence at a particular location, such as bus stops, car washes, day laborer pickup sites, agricultural sites, and the like. Two, the type of work one does. Three, speaking Spanish or speaking English with an accent. And four, apparent race or ethnicity. And then when he describes the holding in this interim docket decision, to stop an individual for brief questioning about immigration status,

the government must have reasonable suspicion that the individual is illegally present in the United States. Reasonable suspicion is a lesser requirement than probable cause, etc., etc. Here, those circumstances include that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area, that those individuals tend to gather in certain locations to seek daily work, that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction that do not require paperwork and are therefore especially attractive to illegal immigrants, and that many of those illegally in the Los Angeles

area come from Mexico or Central America and do. not speak much English. To be clear, apparent ethnicity alone cannot furnish reasonable suspicion under this court's case law regarding immigration stops. However, it can be a relevant factor when considered along with other salient factors. David, I think that's just incorrect. I think it's incorrect based on the exact cases that this listener is citing. I think it's incorrect based on the Harvard case. I think it's incorrect based on the Calais case. This idea that any time you are grouping someone because of their race, you are violating the 14th Amendment is correct. That's why affirmative action is unconstitutional. That's why racial

gerrymandering is unconstitutional. And that's why using apparent race or ethnicity as any factor in a reasonable suspicion stop is also unconstitutional. Remember, when it comes to gerrymandering, you couldn't use it as the primary factor. You couldn't do, you know, put someone in one district versus another because of race. It was just one relevant factor. In that sense, it looks a whole lot like the reasonable suspicion test. Both cannot be true. I much prefer living under a constitution that is black and white on this, so to speak.

You cannot treat someone differently for any purpose, be it good purpose, bad purpose, helpful, harmful because of their race. It's not a relevant factor. The end of rant. How about you? Well, let me ask you this. Person robs a bank. And the part of the description is they're a black male, six feet tall, 190, et cetera.

And you're trying to find the person to arrest the robber. They're a Hispanic male or a white male. You're not, if you went and you arrested me because I was wearing all of everything exactly the same. So this is different, right? You don't know that Tom is an illegal alien and he's from Mexico. So now I'm looking for a Mexican illegal alien named Tom. No, you're stopping groups of people based on, at least one relevant factor being, their race. Not because you know one guy committed a crime.

You're doing reasonable suspicion stops. You know, again, if you're assessing someone as an individual and you know their race, nothing unconstitutional about that. No 14th Amendment problem. But when you are treating someone as part of a group, you are violating the 14th Amendment whether it is for good reasons or for bad reasons. Interesting. Because I don't think the 14th Amendment is saying that you cannot consider race.

It's an equal protection. It's an equal protection provision, not a race is irrelevant. They have less protection, right? If you are white and standing at a place where day laborers gather because you're from Syria or Norway or wherever the heck else, you are not subject to equal protection of the laws as the guy who's from Central America or Mexico, because you might get stopped more often

based on your race, not because of anything about you as an individual. I would agree with you if, for example, we had huge waves, if we had huge waves of Norwegian immigration, illegal immigration, and huge waves of Mexican immigration, and we said Hispanic ethnicity was a factor and not, you know, whatever Norwegian's look like. Are they blonde? I don't know. So that would be an equal protection violation to me.

It's if you had big weights of Norwegian immigration, you had big weights of Japanese immigration, you had big weights of Mexican immigration, and Hispanic identity was one factor among many. That would be, to be, but if you, let me put it, let's imagine you had something like we've got a, you know, we have serious concerns about a Haitian terrorist ring. We could look for, for race as a factor. It strikes me that there are circumstances in which race is relevant, but we can't choose that race will be relevant for one racial group and not for another racial group under the same circumstances. But do you see the tension between Pardomo and Calais? I absolutely. It's one of the questions as to why I'm questioning whether Calais is rightly decided.

Oh, interesting. You're the other way. I think Pardomo is wrongly decided because I agree with Calais. you think Calais is wrongly decided because you agree with Perdomo. Yeah. So, for example, if you had a history of white slavery and white deprivation of voting in the South and not black, the distinction you have here is you have a very specific history that is related to race where you would violate the Constitution as if you did not give a similarly situated because the core principle of equal protection is not treat everyone the same. That is not the same.

That is not what equal protection means. Otherwise, you would have nine-year-olds able to get driver's licenses because it would be, you know, everyone has to be treated the same. No, it is similarly situated people should be treated alike. And so who is similarly situated? And that is the, that's why I bring up the notion of like if you had a Norwegian illegal immigration wave and a Mexican, and then you put out APBs for everyone to look like, looked Mexican, but not Norwegian, there's your equal protection.

violation. I think I really like this. I think this is the most important part of this podcast, because I love that you're being consistent in the opposite way that I'm trying to be consistent, and I'm going to have to chew on this. Next question, David. I've also been trying, and probably butchering this, to square your, Sarah, institutionalist, consequentialist access with the ideological axis on Calais. At a surface level, I could have seen Barrett Roberts, Kavanaugh, feeling institutionally pulled to uphold the new map and preserve the VRA framework. But instead, it seems like the hierarchy of values tilted the other way and the ideological side won out. I'm sure that's an oversimplification, so I'd be curious how you think about that tension.

Okay, first of all, David, I of course think ideology plays an important role in lots of cases, just not all of them and just not, you know, all the cases that someone disagrees with the outcome of. So that's part one. But it's not that there's no ideology involved. Of course there is. But two, in terms of how I would lay out the institutionalist concerns in Calais, again, taking away any of the sort of merits question about Calais, it's back to that idea of the court continuing to be pulled into these partisan fights where it's a lose-lose. You're in a 50-50 country, so every time the court has to decide an election case where the outcome, will benefit one side and hurt the other side in a zero-sum election, the court as an institution

is being hurt by that. And so if you can avoid those cases, for instance, by saying we don't do partisan gerrymandering until and if Congress actually gives us principles by which we would do that, factors to consider when something is too partisan or not partisan or whatever, we're getting out of that business. Same thing again with the racial gerrymandering. People were dressing up partisan gerrymandering claims as racial gerrymandering claims. And they're really, to your point, David, about Section 2 being incredibly vaguely written, there really weren't factors set by the statute. Instead, they had been judicially created and built up over time that created this sort of bizarre racial gerrymandering world where, again, you must take into account race, you must not

take into account race too much, which is how Louisiana gets sued when they only have one majority minority district, and then they get sued again when they have two majority minority districts, and both times they lose in court. Like, what? How can this be? So that's where I think the institutionalism factor weighs in here, again, having nothing to do with kind of the merits. Let me just say, I agree with the Kavanaugh concurrence that you cannot use race as a factor by itself. Like, you can't just say, well, I see somebody who is Hispanic, stop them. I just want to make that absolutely 100% clear. Okay. Anyway, this is a very good question because I do think that there are some cases in which the institutionalist concerns are, it's not clear.

There are situations where I would say an incrementalist decision is clearly an institutionalist decision. But I didn't see that kind of path here. This seemed to be a pretty binary, this map or no. and it didn't strike me as very clear which one is the institutionalist path and which one isn't. I would suppose, yeah, that's a very, I'll have to think about that more. Well, one non-institutionalist path would have been to strike down the VRA because of the 14th Amendment, which they did not do. In that sense, they did take the more institutionalist narrower decision.

They did not, this was not a constitutional decision. this was a statutory interpretation case where they said, we don't think that Congress intended to force states to use race to draw these maps. So if a state uses race to draw its maps from now on, we absolutely will strike it down as a racial gerrymander any time you use race in your map, and there is evidence of you doing that. That is actually a much narrower decision than Section 2.

Congress can never include a version of Section 2 of the Voting Rights Act, because it violates the Constitution. The reality is then, if you're talking about that they actually did do an actually more incremental decision, this is institutionalist in important ways. It's just that the public reaction to it is almost as, the public reaction to it is almost as big as it would be if they struck down section two.

The interesting consequence of it may be almost, especially in the deep south, may be the same as if they struck down. section two. In other words, at the end result, you know, if you're talking about decimating, gutting black representation in the South, the end result may be the same, even though the court did not go as far as it could have gone. In that sense, it's almost like an institutionalist decision, but because of the political atmosphere surrounding it will have the same effect, both in the public square and on the ground, as if they went all the way. All right, David, last question.

show, but here is the sentence from the dissent in Louisiana versus Calais that I wish you would have read. Politicians have free reign to adopt partisan gerrymanders. It's something every day to regret not to use as an excuse for stripping minority rights. It boggles my mind that the spoils of victory in this country, if you are in the majority, is to banish your opponent via a redistricting map. We can go to the moon and back. Map the entire genome. operate on a fetus's heart in utero,

but the Supreme Court just throws up its hands when it comes to preventing a person's vote from being nullified? To me, it's frankly disgusting. David, again, we got lots of questions with this version of voting rights are being stripped from black Americans in the South, their votes are being nullified,

the sort of Jim Crow aspects of this. I want to be clear, I don't want to equate these two things. Race is different. There's a reason, race is different in the Constitution and in our laws. But we don't consider it nullifying someone's vote in New England if you're Republican or in a rural part of Massachusetts, for instance. The vast majority of Massachusetts is actually relatively rural. So New England as a whole is about, what do you think, David, at 65, 60 percent Democrat to 40 percent roughly Republican. It's actually

more divided, like more closely divided than I think people think. It's probably a complete mirror image of like Tennessee and Mississippi and Alabama. You know, it's 6535, 6040. Yeah. Something like that. There are zero members of Congress from New England that belong to the Republican Party. Again, I'm not equating this with race, but rather pointing out, we didn't nullify someone's vote in New England just because they're a Republican and they don't get to have the candidate of their choice, you know, or a district drawn to ensure that Republicans get 40% of the districts in New England. So I don't, I'm very unsympathetic, I guess, to the nullification or that voting rights are being taken away from black Americans. There might be good reasons, David, and you have made them

for why we might want to or need to draw districts to ameliorate past discrimination for black Americans in the South. But not doing that is not taking away their right to vote or nullifying their votes just because they are not a majority by race in the district that they are voting. Or the black Americans who don't live in majority minority districts, what their votes haven't counted this whole time. Like, nope, that's not the way we do this in this country. We do not have proportional representation by race, by party, by religion, or by anything else. or we wouldn't be able to have Congress, right? Congress is not representative of proportionality of all of these things that we think of ourselves.

LGBTQ status, religion, race, ethnicity. Nope, we do not do that. We do it by where you live. And as long as you have the right to vote, you don't have the right to have proportional representation in Congress based on the status of your choice. So two things. one, I loathe what partisan gerrymandering has become. I think it's absurd that there are zero Republicans coming out of New England.

And by the way, it would be better for America if there were, because you would have a greater diversity of Republicans. You would have more, it would be a bigger tent because to win in New England under fairly drawn districts, you would have to be a more moderate Republican in the same way that if you would have a ghost of chance of winning in the South,

as a Democrat and are more fairly non-drawn districts, you'd have to be a more moderate Democrat, right? And so I think the partisan gerrymandering has become terrible for us. We took something that was bad and we turned it into something that was dreadful. Okay. And then you layer onto that calais into this environment. And I know the court is not supposed to consider the surrounding cultural and political atmosphere. The Constitution is the Constitution. but you lay over this environment into the CalA decision and that partisan gerrymandering is now going to be on steroids. So I loathe partisan gerrymandering and I would want Congress to step in to do something about it. So that's number one. Number two, you know, I really just think that

we're getting to a point where there's almost this diametrically opposed view that people have on how much race, how much American racism still matters. And it's so funny, I've just been through, like, days of being absolutely piled on online about this from both sides. So on the one side is when I talked about Calais and how Calais could really give sanction to a lot of gross racism as long as they're quiet about it, which I think is nobody's like rebutted that on the merits. I think it's just true. It absolutely could do that. And then the argument is, well, that's absurd because that's just not the country we live in anymore. That just doesn't happen.

And I'm thinking, are you sure about that? Really? And then on the other side, it's like if you have this view, you know, if you have a view where you are that you're against a race-based affirmative action or that you want American society to be moving in the more colorblind fashion, et cetera, that you're just like, you've got your head in the sand, you're an idiot. We're very much more like Jim Crow than you could possibly imagine. And it feels like we just get into this diametrically opposed set of extremes

where we're one inch from Jim Crow on the other side, and we've already achieved the colorblind paradise, and it's just the race hucksters on the left that are keeping us from achieving the equal protection nirvana that's been envisioned by the 14th Amendment, when the reality is the truth is in a very messy middle ground there, where it is actually true in parts of the country, racism is much more alive and well than you might like to think. And it is actually true in other parts of the country

that's sort of that identity-based politics that is reducing everything to race, trying to be in this, quote-unquote, beneficial way, and is actually been incredibly toxic and incredibly damaging in certain parts of America. You know, like we had this incredibly, I don't know if you remember, but there was this great report we published in the Times about the identity, sort of the DEI infrastructure at the University of Michigan, and how toxic that had been and how intolerant that had been.

And we're in a country where that can exist side by side with another part of the country where there's really actual serious, real racism that's much more reminiscent of Jim Crow than we might like to think that both of these things can be true at the same time, I think, is breaking a lot of people's brains. All right, David, we're going to leave it there for this advisory opinions, the Kalea Paloosa of advisory opinions. And on the next episode, I mean, who even knows, David, the Wall Street Journal highlighted a religious liberty case out of Massachusetts. And I don't know, we haven't done a lot of circuit deep dives since the distillery circuit split between the fifth and the six. So I feel like there might be more to come on that front.

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