Advisory Opinions - Did Alabama Defy the Supreme Court?

Episode Date: July 25, 2023

It is NOT the doldrums of this podcast. Sarah and David have prepared a sufficiently full pod starting with Trump's looming federal indictment. Also: -Alabama's creative response to SCOTUS -Did Alabama defy the ruling? -New study of college admissions: being rich might be helpful -Listener questions about the Two Bronze Doors  -We'll see you in a few minutes... This episode is sponsored by FIRE. FIRE's mission is to safeguard and uphold the right of all Americans to freedom of speech. Be a part of the front line of a growing movement by joining the FIRE Update. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Details at fizz.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And it may be the doldrums of summer, but it is not the doldrums of this podcast. There's a lot to discuss today, David. We have the impending federal indictment. We're expecting that any day this week, any hour, federal indictment. We're expecting that any day this week, any hour, we'll set that up. We'll talk a little bit about what we're looking for. But when that indictment comes out and we actually have the charges and what I imagine will be a speaking indictment, we will do one of our

separate side emergency pods, however you want to call it, related to that as we have done for the past indictments. So we'll continue that tradition. Second, well, there's some news related to some of the big decisions from this Supreme Court's term. First of all, Alabama has decided on their new redistricting map. It's interesting. Yeah. We're going to talk about whether they're defying the Supreme Court, whether they are in line with the concurrence from Kavanaugh, all of that. We'll get to that. Second, some new data on how college admissions works at that most elite level, and it might

shine a little bit of light on the affirmative action future decisions as well. And lastly, we got a really interesting question from our bronze door pod about why some other things weren't included, like Moses, Solomon. I want to talk to David about that. All right. That's a full pod, David. It's a full pod. I'm excited. And you know what? Also thinking of past pods, I forgot to mention that I have something new on my desk and it is a framed, it's a framed quote from one of the Paul Weiss Summer Associates.

Oh. You know what it says. Oh yes. Oh yeah. It was a framed quote given to you by a Paul Weiss, not a framed quote of a Paul Weiss Summer Associate. That would be weird. Yeah. It could be a killer quote. That would be weird. Yeah.

It could be a killer quote. Like that would be. Yeah. But yes. So thank you, Paul Weiss summer associates. And you know which summer associate in particular you are really kind. We so appreciate all of our dedicated listeners in your extreme nerdiness. So I'll read the quote again.

Other cases presenting different allegations and different records may lead to different conclusions because David, that's going to be so relevant to our conversation today. Yes. All right. Let's start with the Trump pending indictment. So remember the special counsel is given three buckets. Bucket number one, the documents at Mar-a-Lago, the retention of classified documents. Bucket number two, obstruction related to the retention of those documents. And bucket number three, January 6th question mark and Donald Trump specifically related to January 6th. So we've had the indictments on bucket one and bucket two. Those were all in one thing, 37 counts. We believe that we're going to now have indictments related to bucket number three. Why? Because Donald Trump says he received this target letter from the

Department of Justice inviting him, if he so chose, to come address the D.C. grand jury. Now, while the letter itself, like a picture of the letter, has not been released, there's been a lot of reporting on it. The initial reporting turned out to be incorrect. And that's why we wait at this podcast for things, David, because the initial reporting was that the target letter mentioned basically violating someone's civil rights under color of law. That would be 18 USC section 242, but give it a day or two. And it turned out that that's not what the target letter mentioned. It mentioned 18 USC section 241. Now there's still a lot we don't know and why we would want

to wait for the actual indictment and the actual facts that are going to back up that charge. However, Section 241 is interesting on its own. And I thought, David, we could do a little preview of what we're both looking for, what we're expecting, but also what we're not expecting. Yeah. So I have to start, though, with a little pundit victory lap. Who has two thumbs, predicted that 18th USC Section 241 was in play, and likes Aquaman?

This guy. Do you know what actually makes that more impressive, though, David? Is that I literally never saw anyone else mention 241. You know, I had not seen it either. And I was starting to be plagued with self-doubt because it seemed to be, well, let me put it this way and we'll talk about this. Depending on the angle of the investigation, it seemed to plainly apply. And, but if the angle of the investigation is different, I feel like it's a stretch. So to just sort of dive into it.

So what is 18 U.S.C. Section 241? 18 U.S.C. Section 241 is called Conspiracy Against Rights. And it says, in relevant part, if two or more persons conspire to injure, oppress, threaten, or intimidate any person in any state, territory, commonwealth, possession, or district in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or blah, blah, blah, they shall be fined under this title or imprisoned not more than 10 years or both. And this is a law that goes pretty far back. I mean, this is ultimately related to and originally related to the post-Civil War Klan activity and is designed to secure the

civil rights of freedmen and is broad. It is very broad. And so whenever you see a broad statute like that, the first thing you should not think this right away, oh, look how broad that language is. That language, that broad clearly encompasses the actions I don't like. No, no, no. The very first thing you should think is, whoa, that language is broad. Before I go run around charging it, I want to see if there's precedent applying it to my situation. And it turns out that there's actually quite a bit of precedent extending 18 U.S.C. Section 241 to voting rights, that this is one of the rights that is secured.

And extending 18 U.S.C. Section 241 to voting rights, that this is one of the rights that is secured and extending 18 U.S.C. Section 241 to voting rights in a number of different ways. Now, some of these. So, for example, in Anderson, a case from the Supreme Court from 1974, the Supreme Court said that the right to an honest count is a right possessed by each voting elector. And to the extent that the importance of the vote is nullified wholly or in part, he has been injured in the free exercise of a right or privilege secured to him by the laws and constitution of the United States. That was in a case where people were trying to add votes,

wrongly add votes to the vote count. And so what you've seen is a number of cases, And so what you've seen is a number of cases, mainly concentrated in the 1930s, where the right to vote, the application of this to the right to vote, has been very clear and pretty broad, but broad in some specific ways. So a 1933 case in the Second Circuit where people conspired to tally ballots incorrectly. A 1937 case out of Missouri where election commissioners conspired to count certain votes for a different candidate. Another one in 1937, changing votes after polls had been closed. Another one from 1937, bad year for voting fraud. Another one from 1937, county election officials conspired to count, record, and certify the ballots of voters falsely. This was in a presidential election with fraudulent intent. That's an Eighth Circuit case. with fraudulent intent.

That's an Eighth Circuit case. Eighth Circuit, 1938, holding that a jury was correct and finding that ballots were falsified and other ballots changed from Democratic to Republican by a certain Ward's Republican committee woman. So you add it up and essentially it comes to this. If somebody's trying to count more votes for your candidate than actually exist.

Bad. If they're falsely certifying account, bad. All of this starts to sound familiar if you overlay it on top of the fake elector scheme. And so this has always screamed to me, fake electors slash Georgia, Sarah. It does not scream to me January 6th, at least based on the information we have. So that's sort of the broad, high altitude overview of it. What are your thoughts? So I'm going to retread a bunch of what you said, but with a slightly different spin on it. Okay. If that works. So I literally start out from a bunch of what you said, but with a slightly different spin on it. Okay. If that works. So I literally start out from the same place that you do, which is whenever you see a broad

statute, you should not think, whee, but you should think, uh-oh. Yeah. And the uh-oh here is that courts, if it were read to be incredibly broad and encompass everything, it would be void for vagueness. And so how have courts limited this so that the statute still stands? And in this case, like you said, David, it's been limited both in terms of its topic areas. I wouldn't say that it's been limited only, of course, to voting. Right.

But when you're in that core voting KKK, why this statute was passed in the first place, you're in a really safe place. But the second place that it's been limited gets more interesting for me, and that's on the intent question. Right. So for instance, by the way, you mentioned all those 1937 cases. I'll mention the most recent use of section 241, which was last year by the Department of Justice, also in voting. And we talked about the case multiple times on this podcast. Drum roll, please. It's that social media case involving the guy on Twitter, Facebook, et cetera, who said, you know, hey, if you want to vote for Hillary Clinton, text this number to send in your vote. And that was a Section 241 case. So think about that, right? It's in the core of voting. And we'll get the intent in a second. The novelty about that

case, what made it new, is that it was the first case to use social media disinformation and charge it under 241. But, quite relevantly here, there was no question that the guy knew what he was doing. They had plenty of conversations between him and others of him saying, I'm going to paraphrase the quote here, but he said something like, oh, it has curse words in it. These dipshit liberals would fall for this because they're so stupid type thing. So he knows that he's telling someone to do something that will result in them not casting their ballot. So the only novelty there, it's in the voting, core of voting.

We're going to have the specific intent question solved here. The novelty is the social media, the place that he's doing it. Well, that's a really safe place to be, I think, if you're the Department of Justice. Yes. But let's get to what might make this novel, which is the specific intent side. So, you know, you mentioned that Anderson case from 1974. Good times in Anderson had by all. I want to read another little section of it here. The defendants were convicted of casting false votes in an election, but that election included federal, state, and local offices. They argued, the defendants here argued, that since their primary purpose was to influence a local election, that they couldn't establish an intent to interfere with federal voting rights.

The court, the Supreme Court in this case, dismissed this argument, saying that regardless of whether the conspiracy to interfere with a federal election was primary or secondary effect, the defendants intended to violate federal law, Section 241's mens rea component was satisfied. So let me give another example of this, David, and I'm going to give it outside the voting context because I think it's easier to understand. You're robbing people at the state line between Tennessee and I don't know, what's the state that you touch, David? I mean, you touch a lot of states. Kentucky, Alabama. Tennessee and Kentucky.

Okay. You're robbing people between Tennessee and Kentucky at the state line. There's one reason why you might rob them because you want the stuff. You think that people traveling from Tennessee into Kentucky have a lot of money. I don't know why. And you're going to rob them for their stuff. That's your intent. But let me give another version. You're robbing people at the Tennessee, Kentucky state line because you want to discourage people from leaving Tennessee. You think that people in Tennessee should stay in Tennessee, God damn it. And so that's why you're robbing them. One of those is a very different intent question, even though both of them are encompassed under the

broad language of 241 because you are stopping people from exercising their constitutional right to travel across state lines. Both of those result in that. But one of them seems far more encompassed by 241 under sort of a need for specific intent. OK, so go back to the Ehrlichman case. You know, the Nixon, Ehrlichman, Plummer dude. Yeah. He's charged under 241. And the D.C. Circuit's charged under 241 and the DC Circuit

basically says, we don't care. They did not require specific intent. The intent required was to do the thing you were doing. Mm-hmm.

Not to prevent someone from exercising a constitutional right. Right. The DC Circuit has sort of, and Ehrlichman in particular, kind of stands alone on that. In the Anderson case, you could argue

that maybe the intent has been cooled off just a little. They had to intend to violate someone's right to vote. It just didn't matter that they really wanted to violate their right to vote in a local election versus a federal election. But at least it was that right to vote. It was a constitutional right. In Ehrlichman, that wasn't the case at all, in theory, at least that the D.C. Circuit said it didn't matter. So fast forward to here, David, is there going to be a specific intent requirement or is it just the intent to do the thing you did. And this will become really important if it's January 6th

or if it's the fake electors. And that's why I want to wait to potentially have more of this conversation because the answer may solve itself in the indictment. Yes. But it's a really important part of the ongoing question marks around 241

and what's going to allow it to really move forward is not vague, is going to be around that intent question. Well, and there's a few unanswered questions that a speaking indictment might answer. So here's one unanswered question. How much was Donald Trump involved in the fake elector scheme? We've already seen an indictment and we saw an indictment. We didn't really discuss it in Michigan, where there was a state law indictment, essentially a forgery indictment handed down against 16 Republican officials who tried to present themselves as electors in Michigan in 2020 and falsely certified that they were electors.

So this was our first real fake electors indictment. And it was a state, basically a state forgery case so far. And so we've known about these fake electors, but we've had no real insight into is, was Donald Trump involved in any of that? Or was this just sort of like the Trump board operating as the Trump board? And so if you had direct Trump involvement in the fake elector scheme, the case suddenly gets stronger. The other thing is one of the reasons why I've zeroed in on Georgia is because we do have the tape of Georgia where he's talking to Brad Raffensperger. He's saying

we need the 11,780 votes or however many it was. He is not so implicitly threatening criminal action. So there is a lot of evidence there that he's trying to put his thumb on the counting scales upon pain of law enforcement action at his direction. And so that's why I've always pinned the Georgia situation as more dire for him, because we actually have the direct involvement, the evidence of his direct involvement. But if you then start to move to 18 USC section 241 and the actual charging of the Capitol on January 6th, then you're starting to veer into absent evidence we absolutely don't have, which is he was plotting to execute an attack on the Capitol, which is not evidence that we have, then we're

starting to move into the incitement kind of analysis that Sarah and I have gone back and forth about quite a bit, where, let me just put it this way, to summarize where we are, I'm shakily on the grounds that I think he incited the attack on January 6th. And I think Sarah's on the grounds that he did not incite. And by incite, we're not meaning it in the colloquial sense. We're meaning it in the formal, legal, Brandenburg v. Ohio sense of what is incited. The criminal sense.

Criminal sense. Does not meet the criminal standard, in my view. It probably does to you. I bet I'm shaky. Yeah. Because lots of people, like one Sarah, who I really, really respect their legal opinion, disagree with me. And that always makes me a little bit wobbly and shaky like we were. As it should. I know. Well, like we were in the Counterman

v. Colorado case over threats. All of our free speech friends were like, no. And so that made us the shaky yes. You also get into a specific intent problem, even I think around the fake electors or potentially like we have not seen the evidence to solve this problem for me, which is you need evidence that Donald Trump had the intent to deprive people of their lawfully cast ballots. So for instance, people of their lawfully cast ballots. So for instance, it's not enough to show that Bill Barr thought the election wasn't stolen. That may be some evidence that Donald Trump's statements were not true or that he didn't really believe them, all of that. But I've just heard this sort of thrown around like, well, everyone told him the election wasn't stolen. Oh, OK. That is not actually relevant or rather not enough. It's relevant.

Maybe it's relevant. It doesn't seal the deal. That's right. Yeah. And so to prove that that he didn't want people's lawful votes to be counted, that he knew these electors had no lawful right to be submitted or that he wanted to use fraud to change the outcome of the election could make for an interesting defense, because that means this trial. And I'm going to put that

in quotes until again, we sort of get the indictment, get all the facts. This trial would turn around Donald Trump basically wanting to prove to a jury that the election was stolen or that a reasonable person would believe that it was stolen. Yikes. Yes. Yeah, exactly. And it's also one of the reasons why you're there's a lot of testimony in the January 6th commission did this.

They tried to really tease out a lot of testimony about what people told Donald Trump, who was telling Donald Trump that what were they saying? Were they telling him it was stolen and also trying to find evidence that Trump maybe admitted to someone in private, maybe a family member, maybe somebody else that he knew it was stolen, but he wasn't going to give up or something to that effect. So I'm looking at here. Here's a list of things I'm looking at in the in the intent category. What is the indictment going to say about what Trump knew and critically what Trump said? There's any evidence that he said anything because the big shocker in the in the classified and not classified information,

The national defense information, to be precise, indictment was when he had the recorded conversation that was like, hey, yeah, I could be classified this, but I didn't. And now it's still secret. I'm paraphrasing, but it was essentially one of these recordings where somebody is coming really darn close to say, hi, I'm criming now. Watch me crime. So that was a big surprise in that case. So we don't know if there's anything like that. But we have had a lot of evidence that a lot of people told him that he lost the election. So I'm looking for the evidence of intent. I'm looking definitely for what is the object of the 241 conspiracy. Is it the fake electors? Or is it the charging of the Capitol? Is it some combination of both?

And I think if it's the fake electors or pressuring Georgia to find votes, whatever that means, it's on stronger ground than it is the charging of the Capitol, if the focus on the charging of the Capitol. So those are the things that I'm looking for. You know, it's sort of like when you have a commentator before the Super Bowl and they're

saying, well, what are you looking for out of Patrick Mahomes? Well, I'm going to see in the first quarter, is he going to go deep or is he, you know, that kind of, so that's what I'm looking for. That's my Super Bowl preview, Sarah. I think that's fair. All right. Well, now we're going to sit and wait for that. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day

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advisory at checkout to save. Terms and conditions apply. TheFairestTermsNames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Let's move to Alabama and some news out of Alabama, some headlines. The headlines have been a little all over the place, but look, at the, I think, fairest, most informative, Alabama state legislature passed a new redistricting map in response to the Supreme Court's opinion in Allen v. Milligan, the case that upheld Section 2 of the Voting Rights Act. Okay, here's what's interesting about that map, David. Yep. It only has one majority-minority congressional district out of the seven. Well, that's what the last map had. Yep. And just to refresh people's memory. So after the 2020 Daniel census, Alabama redistricts, uh, and their new map looks basically the same

as their 2011 map. It has one majority minority district out of the seven, even though, you know, 20 plus percent of the state's population is black plaintiffs sued. There were three different cases on this. They were consolidated for our purposes in this conversation, a district court panel struck down that map. That injunction was stayed by the Supreme court. So everyone thought section two is going down. Alabama is going to be able to have the map that they want goes to the Supreme Court. And in a surprise, in a 5-4 decision with the chief writing and the three, quote unquote, liberal justices joining with Kavanaugh joining all but one part and with a concurrence, and that's going to become pretty relevant here.

They uphold section two of the Voting Rights Act, uphold jingles and the jingles factors, and affirm that district court decision, finding that there was a racial gerrymander and finding that Alabama needed to have two majority minority districts or something close to it. All right. So now Alabama has this new map. It still only has one majority minority district. So you have a lot of screaming people on Twitter and headlines saying Alabama is defying the Supreme Court. And David, I want to talk about it because it's an interesting question to me of whether Alabama justified the Supreme Court. There's a legal question involved, which I find really fascinating, but maybe more fascinating is the political ramifications of what they've just done, both in Alabama and in some of these other cases. As I don't know, the temperature gets ratcheted up around Supreme Court opinions. So let me explain Alabama's argument here.

Okay. So their argument is basically, look, in our map that we went to the Supreme Court with, we were making three arguments to defend our map. One, a core retention argument. Core retention argument was that it is part of Jingles, part of this redistricting analysis that our new map looks a lot like our old map. And the Supreme Court basically

gnawed dog that one because then it just means you get to grandfather and discrimination. So one of their chief arguments got tossed out just onto the street, on its face, you know, kicked on its way out. Okay.

Another one was, well, we want to keep communities of interest together. And so we've kept the Gulf community of interest together. And, you know, we've only split up six counties. And the plaintiff's response to that was, well, you've kept the Gulf community together, but you've split up the Black Belt community. Right. You've only split six counties. Okay. But our map splits the Gulf community, keeps the Black Belt community together.

And we also only split six counties. And what the chief said to that is like, looks like a wash to me, right? Like you split one, they split the other. We don't really need a beauty contest of which community of interest is more important because you both split a community of interest. Well, in the golf community doesn't necessarily have a civil rights interest in the way that the black belt community does. But regardless, politically, even like you split one, you split one and you both split up six counties tie. And in this case,

like you say, David, maybe the tie goes to the runner for a few different reasons. Their third argument was race neutrality, right? That you can't use race as the predominant reason why you've drawn the district that you've drawn. And the chief largely rejects that as a benchmark argument, that we don't use sort of your computer generated districts as a benchmark. Okay. So Alabama's coming back now and they're saying, aha, we fixed some of the problem. So we're not going to argue core retention anymore. That's out. Got it. But here's what we've done in our new map. We have kept together the Black Belt community of interest and the Gulf community of interest. And we haven't split. We split even fewer counties. So under one of these, you know, jingles tests, a plaintiff's proposed map.

So the challenger has to have an alternative map with a proposed majority minority district that is quote reasonably configured and that is defined as respecting compactness principles and other traditional districting criteria such as county lines which is what we're talking about here so alabama's argument is basically we've upped the game. We've now made our map better than their map. So now they need to come up with an even better map to beat our map. Right. I think there's some problems with this, but it's an interesting argument. And well, why don't I get your reaction to this, David?

And then I'll give you Alabama's best arguments. Yeah. So the interesting question here is, does the new map comply with the court orders? That's, you know, if you're ever looking at a response to a remand where somebody does something in response to a court order, you want to go back and you want to look at the court orders. So I went back and I and you want to look at the court orders. So I went back and I looked at the Supreme Court and the Supreme Court, Justice Roberts, the opinion of the court affirms the three judge ruling of the panel of judges who originally

struck down the Alabama map. And so what's interesting to me, and this is where Alabama, I would say Alabama has a sliver of a chance with the current map. I think a sliver, I don't think they have, I think they're going to lose on their new map, but here's why they have a sliver. So if you go back and you read the remedy section of the original three-judge ruling, it says federal court review of districting legislation represents a serious intrusion

on the most vital of local functions. It is well settled that reapportionment is primarily the duty and responsibility of the state. Indeed, federal courts are barred from intervening in state apportionment in the absence of a violation of federal law. So in other words, what it's saying is when a redistricting plan violates federal law, the Supreme Court has repeatedly held that redistricting and reapportioning legislative bodies is a legislative task with the federal court should make every effort not to

preempt. So in other words, hey, what we're doing here is we're giving you a chance, Alabama, Alabama to redraw this, not us. So we're not redrawing it. You're redrawing it. And so then the question really becomes is where were they specifically required to redraw with two majority minority districts? Was that the was that the assignment? And so the interesting question is, well, if the assignment was to redraw with two majority black districts, well, they failed in that. But was it that or was it two majority black districts or two districts in which black voters, quote, otherwise have an opportunity to elect a representative of their choice

or a combination of two such districts. And I think that the question here is going to be, is this second district, which is now as I, correct me if I'm wrong, Sarah, but it's 40% Black? Correct. So the one district is exactly 50% Black. So that's now the one majority minority district. The second black belt district is 40% black. If you ran the simulation over, for instance, how Tommy Tuberville would have done in his last election in this new district,

he would have won by six points, which compared to other parts of Alabama makes it a real toss up district compared to, you know, common sense is not a majority minority district and is a pretty a solid lean are, which I know is an oxymoron. But six points is a lot to me. Yeah, it's a strong lean. And so the question is, does that meet the requirements of opportunity to elect? And I think the answer, the three judge, in my view, the three judge panel is going to say, nope, nope, nope. This is not this does not meet the requirement. the three judge, in my view, the three judge panel is going to say, nope, nope, nope. This does not meet the requirement. But this redraw rests in that wiggle room of opportunity to elect

a representative of their choice. But if you go back and you look at the original factors that led to this case in the first place, we have a long history, and this was very, very, very important for the facts of the case, of extremely racialized, racially polarized voting. Extremely. So that it's so extreme

and so consistent for so long that this is, as you said, to call this a lean R feels underestimating how much of a Republican district it is because of one of the very factors that led to this being on the Supreme Court close enough to the opportunity to elect to try to withstand the review of the three judges, but not so close that they actually have created an opportunity to elect another Democratic representative. And so I'm agreeing in agreement with you on our texts about this. I would suspect the three judge panel is going to toss this and the Supreme Court just won't retake it back up again. In other words, the Supreme Court's just going to leave this with the three judge panel.

I think that's exactly right. So let's talk about then some of the real politique on both the law and the political side of this. So first of all, remember when I mentioned that this was a 5-4 decision with the chief writing, the three liberal justices, and Justice Kavanaugh joining all but Part 3b-1 and writing his own concurrence. A lot of this hangs on the fact that there is a section of the majority opinion that's actually just a plurality opinion. That's interesting to me for a few reasons moving forward at the Supreme Court. Because if you're going to try to fit an elephant through this little mouse hole, that's going to annoy the chief, I think. I know it's going to annoy the chief. I think it's going to annoy Kavanaugh, though, because he's the one who

made it a plurality opinion by not joining that section. And let me give the best, briefest overview that I can of what this one little plurality section is. Again, it's section 3B1. It's like small compared to the rest. So here's how it starts. Although we are content to reject Alabama's invitation to change existing law on the ground that the state misunderstands Section 2 of the Voting Rights Act and our decision implementing it, we also address how the race-neutral benchmark, remember that's the sort of computer simulations, this idea that you can't use race against the benchmark map, would operate in practice. Alabama's approach fares poorly on that score, which further counsels against our adopting it. So section one, the first change to existing law that Alabama would require

is prohibiting the illustrative maps that plaintiffs submit to satisfy the first Jingles precondition from being, quote, based on race. So that's the part that Kavanaugh's not joining. But David, you'll note that you don't need section three at all for this opinion to come out the way that it did. Right. Which makes this all, I think, a little messy, will make it less likely on the margin to have this included in the future regardless.

And I don't just mean in this context. I mean, in any context, you sort of have Kavanaugh being like, well, I don't want to join this. I'll just write a concurrence as to why I'm not joining this one specific part. And then you have a state being like, cool, cool. We're going to keep litigating this forever. Yeah, right. So the chief, I think, will be deeply annoyed by what Alabama's done. But I think you're going to annoy Kavanaugh in a different way. That like this is his fault that this is still being litigated to death. So, A, I think that will be one of the effects. B, you know, I think Alabama's best argument here is something like a hiring policy in the employment context. So, you know, a boss has a policy of only hiring his buddies as, you know, frat grows or whatever. It results in a

disparate impact, obviously, because his fraternity is all white or something. He loses the lawsuit because the policy is not based on legitimate goals, he replaces it with a test that perfectly advances legitimate hiring goals, even if that new test now still results in a disparate impact because there is no better alternative, that employer would not be in violation of the law. I think that's Alabama's best argument. Yeah.

But the problem here is that they, they didn't just go with, I hire my frat bros in the Supreme Court case. They had a map. They argued communities of interest. They argued the county split. And I think it's a misreading of Section 2 that the plaintiffs always have to beat the state map and that you can keep racing. As long as the state can beat the plaintiffs by a little, then the plaintiffs have have to beat the state map and that you can keep racing. As long as the state can beat the plaintiffs by a little, then the plaintiffs have to come back and we can just

keep litigating this for 10 more years. As long as you can come up with small ways to beat the plaintiff map. All it says is that the plaintiff map, the challenger map with the majority majority minority district has to be quote reasonably configured. It never says it has to be the most reasonably configured, the best reasonably configured. And I think that's a core problem in the Alabama argument and why I think you're right. The lower court here is going to be like, no, what? No, you need two majority black districts. I thought we made that really clear. They'll appeal it to the Supreme Court and the Supreme Court is just going to be like, what? Can't hear you. So why did they do this? There's not a lot of downside for them, David, because you can't in Alabama basically draw three majority minority districts. If they

were risking a third district, I don't think you do this. But if the biggest quote unquote punishment is two democratically held districts, which is what the court, like what your a third district, I don't think you do this. But if the biggest quote unquote punishment is two democratically held districts, which is what the court, like what your alternative is anyway, then why not roll the dice on this one? I've talked to some political operatives in Alabama and they point out that there is actually a cost here and that a lot of Republican political operatives in Alabama are deeply annoyed with the state legislature doing this, because while they would have two of the seven congressional districts held by Democrats under the sort of understood of what they were going to do after the Supreme Court decision,

and that the worst case scenario here is also two democratically held districts drawn now by a special master, there's a big difference between what it looks like when a special master draws your two districts. Right. And when the state legislature, which is controlled by Republicans, gets to draw those two Democratic districts. For instance, are you now going to pin two of the most senior incumbents against each other? Are you going to lose core, you know, other local races? There's all sorts of reasons why you definitely want your guys drawing this and having the control over it if you think the chances of you actually winning this argument are in the roughly 5% category.

Yeah, I agree with you on the downsides analysis. And let me just add layer onto it this. I mean, there's a lot of national anger about this. There is some local anger about this. But do you know who does not give a rip about national anger about this? The Alabama state legislature. You know, it reminds me very much of the dynamic here in Tennessee, in these states where you have a super majority on one side, you have one thing to worry about for your political career, and that's your primary. That is it.

And so if you are giving two middle fingers to federal courts and they make you do something you don't want to do, you go to your constituents and you say, well, I did everything I could do, and you don't pay that political price. If you happily comply with the Supreme Court and you redraw districts in accordance with the Supreme Court,

you might get that primary challenger, right? That says, hey, you didn't have to do that. The court didn't say specifically you had to do that. And so it is this really sort of dysfunctional and it works in some really disturbing ways. This sort of one party rule works in really disturbing ways. In fact, because what you're really talking about is the the salient group is the primary voter, not the majority sentiment in the state. It's the primary voter. It really is pushing a lot of these legislatures about as extreme as they can go.

I mean, you have here in Tennessee after the Covenant shooting in August, it looks like we're having a legislative session to deal with gun issues. And you might have a very strong majority of Tennesseans who, for example, want a red flag law, of Tennesseans who, for example, want a red flag law, but you're going to have some Tennessee legislators coming into that session knowing that even if 70% of Tennessee wants a red flag law, the 30% that doesn't actually governs their political fate. Because in the general, some of those Republicans who support the red flag law will still not under any circumstances vote for Democrat. So so you reach a point where you have the the primary select somebody who's out of step

with at least some of the Republican voters, but not so out of step that they're going to go and vote Democratic. And this is how you end up with this incredibly resistant and often dysfunctional political dynamic that we have. So is Alabama defying the Supreme Court? I think the answer to that is no. I think in the redistricting context, again, it gets messy if you are simply going to sort of keep the race going. Like, well, we've got another map, a map that you could have had the first time, but you didn't because you tried to get away with an even better map for yourself. And now, like each time you're going to try this new map,

it's not defying the Supreme Court. I think in part because of that, unfortunately, Kavanaugh concurrence, this little plurality part about the race neutrality argument. I mean, some of Alabama's argument here is going to be, look, we get that you rejected our benchmark race neutrality argument. But, you know, Section 3 of the Voting Rights Act has a bail in provision. This goes back to Shelby County versus Holder about preclearance. They got rid of sort of the grandfathered in preclearance places. But you can still get bailed into preclearance if you are found to have violated, you know, to have racially gerrymandered. And so their argument is if we use race as the primary reason

why we're drawing a district the way that we're drawing it, we could get bailed into Section 5, and that can't be the way that it is. So race neutrality still has to have some role here, some purpose. And that's a lot of what Kavanaugh's concurrence leaves open, even though he says none of this is necessary to throwing out Alabama's map. So I don't think Alabama's defying the Supreme Court, but I think this is legally not going to work, legally a bad idea, and politically really dumb. If you're a Republican member of the Alabama congressional delegation, you're in danger right now. Yeah, I would say we have to define what defy means to say they're not defining define. I would say they're not defying it in a contempt of court rule 11 kind of way.

Certainly not that. Certainly not that. But I think they are defying the intention of the ruling, which the intention of the ruling is pretty clearly two majority minority districts or a district that's not majority minority, but has a there's a real, truly viable actual chance that black voters would get the candidate of their choice. And I think that that is they have not accomplished that mission that was laid down for them. They have not done that. But again, because it's a 40 percent minority district that they've created, it's not so far beyond the pale. And they've kept the Black Belt community of interest together.

Right. And they've kept the Gulf community of interest together. It is a better map. There's no question. Yeah, it's a better map than existed before. And I don't think the three-judge panel is going to buy it. And I don't think the Supreme Court is going to buy it either. So I think that's where we'll end up.

court's going to buy it either. So I think that's where we'll end up. So can I give you the last thing that I think is legally unwise about this move? Yes. Because it's a good segue. That's why I'm saving it for last. Because I think it's exactly what Harvard could do, for instance, with their admissions policy or any other argument from the right or the left where you lose because of the specifics of the record, whether it's a map or an admissions policy, or as I've sort of laid out a potential Alabama argument, a hiring policy. Whenever you can tweak something and try again, this goes to David's point. What's the definition of defy? But under this logic, David, why can't Harvard come up with an admissions policy that still uses race, still uses checkbox, but does it better? So now there's 5% more

Asian students being admitted. They've gotten rid of some of their legacy thumb on the scale. They've increased their use of socioeconomic factors. So that matches with everything the Supreme Court said, especially if you look at footnote yada, yada, yada, yada. Yeah. And we try it again. I mean, can you imagine how frustrating I think people on the right would feel about that?

Well, that's how people on the left feel about the Alabama new map. So put yourself in the other camp's position here and decide whether then you think it's, quote, defying the Supreme Court. to some of the Second Amendment cases that you've seen where the local jurisdictions tweak their law ever so slightly. And then here we go again, right back up into court. And there have been years of frustrations about that from the legal right. And there's been years of resistance from some of these municipalities to gun rights rulings. And that's why there's like a heller one and a heller two. And so, yeah, this is this kind of, I'm going to kind of sort of barely comply to the minimal possible standard

and you can always sue me again is, yeah, this is something that we have seen before. But that's a perfect segue, yeah, this is something that we have seen before. But that's a perfect segue, Sarah, mentioning Harvard because- Yes, because there is a new study out that shows, well, I'll just read here. The study shows the admissions policies amounted to affirmative action for the children of the 1%

whose parents earn more than $611,000 a year. That is holding all sorts of other things steady, like test scores. They, in fact, did not use race, for instance. And if you look, holding all of those things steady, if you are in the lowest tenth, you have a slightly above average chance of being admitted. But of course, you're far less likely to apply. If you're in the 60th to 90th percentile, so upper middle class, you are way below average likelihood to be admitted. But if you are in the 95th to 99.9, 0.1%, you are wildly more likely to be admitted to these top elite schools. That's the affirmative action that's going on. It's for rich kids.

The chart, Sarah, and I know you can, you know, by messing with the X and Y axis, you can make charts look more dramatic. But by golly, when you're talking about 2.2 times likelier admission for the top 0.1%, that's going to pop on about any chart you want to do because it is a dramatic difference if you're in the top 0.1%, 2.2 times likelier admission. And that is stunning. And this goes back to something that I have been banging. I'm going to use the Jonah-ism. I'm like the toddler banging my spoon on the high chair. I've been banging my spoon on the high chair. I've been banging my spoon on the high chair of all of these folks who've been really outraged

at the outcome of the Harvard case is defend Harvard. Don't defend your idealized view of what the use of racial box checking is. Defend Harvard here. And you're walking into court with a system where you've got the legacy thumb on the scales. And now we learn you have the income thumb on the scales in a massive way, just a massive way. Which of course has a racial implication. Yes. So that top 0.1% is far and away more likely to be white. And again, holding test scores steady, everything else,

they're letting those kids in more. So they're doing affirmative action for the white kids. The reason they're then using affirmative action for the non-white kids is to balance out the affirmative action they really want to do because they don't want to let in poor kids because that's not helping them at all. And it's why you get some of these wild statistics about, you know, 60 percent of the class is in the top. Was it one percent? Five percent? I mean, it was something outrageous. Oh, in terms of income. And let me just mention another part of this study, David, because they then looked at the causal effect of attending an Ivy League school versus an average state flagship. of attending an Ivy League school versus an average state flagship. Okay.

So, fascinating. It does not really affect, and they looked at kids on the wait list, basically. They took kids on the wait list, those that got off the wait list versus those that didn't. So you're trying to then not have some self-selection bias

of like, well, those kids were better. That's how they got into Princeton in the first place or whatever. Okay, so they're only looking at the wait list kids. In terms of your mean income, your average income, it's not actually affecting you much at all, whether you go to Harvard or the University of Texas. Congrats. Interesting.

But it affects it a lot if you're looking at the earnings in the top 1%, going to an elite grad school, working at an elite firm, um, or a prestigious firm. And I'm not sure why elite and prestigious are in different categories, but they are, uh, it's a lot. So like a lot, a lot. So it is important. These are keys to the kingdom of those things, not average income, but basically you're taking the children of the top 1% and then they're far more likely to stay in the top 1% and you're doing it for white kids.

And then you're saying that you need affirmative action and to consider race for these other kids. Yeah. And part of it is, look, we get what's happening here. The top 0.1% pay full freight. They write the check and they pay the full tuition. And this is something that is very appealing to schools. And sometimes they'll justify it by saying we need the people paying the full freight to fund the needs-based financial aid that we do. But again, you're looking here, you're walking, this is the thing that's so frustrating to me, you're walking in to court.

And one of the things that you want to do when you're walking into court, there's a phrase in the law called clean hands. When you come into court, you want to be as much on the side of the angels as you can possibly be. And so Harvard is walking in here. It doesn't have clean hands. It's got hands that look like somebody just got through working on an oil rig. And then it's sort of saying to the court, because the other alternative is someone might say, well, Harvard really botched this, but other institutions can do sort of the racial box checking correctly. And you walk in with these extremely dirty hands and then you say, no, no, no, no, no. Let us still have freedom.

We'll clean our hands this time is not the position you want to be in. And you know, there's another really, really important case where the party walked in with really dirty hands, and that's New York State Rifle and Pistol Association versus Bruin, where there was a lot of evidence that, look, the right to carry a gun in New York

was sort of like a friends and family thing for connected people. That if you were connected in New York and you kind of knew how to work the system, yeah, you could carry a gun. But if you're like a nurse's aide living in a tougher part of town, working in the night shift,

well, just good luck to you. Good luck to you in this system. And then to walk in and sort of say, no, no, no, just good luck to you. Good luck to you in this system. And then to walk in and sort of say, no, no, no, no, no, no. This time we'll do it correctly is one of the least compelling arguments you can make to a court. Whereas when the other side is saying, I'll tell you why their hands are filthy. I'll tell you why their hands are dirty. It's because they're violating a particular legal principle that I'm articulating of equal protection under the law or they're violating the plain language of a second amendment

that says there's a right to bear arms that's why this is what it looks like this is what it looks like when you don't respect these principles everybody's hands get filthy dirty and so that is a lot easier case to make than the Harvard case, which is, oh yeah, well, what's that soap that was used to be advertised, like where somebody comes in and their hands are filthy and it's like this real grainy soap. I forget what it's called,

lava or something like that. We're going to lava soap ourselves and then we'll be good. And you help us, Court. You help us lava soap ourselves. That's a bad posture. It's a really bad posture. I have one more piece of data. So they do the income distribution of students with a $1,500 or higher on the SAT. It will not surprise anyone that richer students are 15 times more likely to get above a 1500 on the SAT if your parents are in the 99.9 percentile of the income distribution. Very unlikely to get above a 1500 if your parents are below the 50th percentile, like really, really you're scraping zero that you're going to get above a 1500. Okay. So already very likely to be white if you're getting above a 1500. But then let's add in your chances of admissions at a college.

If you're getting above a 1500 and we factor in your parents' income, it'd be one thing if it matched that other curve. Right. But it doesn't, David. It's much, much worse. It's much steeper. So in fact, if you get a 1500, we would expect, based on that other curve, that you would be 15 times likelier to get in, based on, you know, if your parents then were at the 99.9 percentile. But you're not 15 times

as likely to get in. You're 30 times as likely to get in. Goodness. That's just pure affirmative action for rich people. And yeah. Yeah. So one in six students at elite colleges come from the richest 1% of families. When you look at 1300 or higher, by the way, the difference is even larger, which is kind of wild. So the income distribution part gets flattened.

You're only like eight times as likely to get above a $1,300 if you come from that top income one percentile. But you're still 28 times as likely to get into an elite school. How much fun is that? You know, I think this goes to something that I've seen and experienced, which is a lot of folks, especially on the right side of the spectrum, they're down on higher education. But they or their kids will have recorded having a good experience at their school. They go to school and they have a good experience at school. And I think one of the ways you square that circle is it's not so much that people are down

on the actual education that their kids have received. I know, although some, you know, I think it's really exaggerated and the data bears out that it's really exaggerated the extent to which college quote indoctrinates anybody. In fact, it's people who graduated from college who are more likely to attend worship services than people who've not graduated from college, which has been a longstanding reality. But I do think that there is an accurate perception by many people in the United States

that even if, say, for example, my kid's marketing education or business administration education was really good, that the institution of higher education is there's something really wrong with it, that it's broken in some fundamental ways. And one of the ways in which it's broken is this whole overt social justice sort of presentation that it gives to the public while this nonsense is going on. And so, you know, people are much more willing to respect someone of even pretty radical political

views when they see conduct consistent with their professed values. When you see conduct so dramatically inconsistent with professed values, I'm sorry, your history department might be great and you might have some of the best history scholars there are and the actual educational experience might be phenomenal, but the gatekeeping that you've done is so inconsistent with the values that you profess that, yeah, I'm going to lose confidence in that. And yeah, you're going to need some

judicial intervention here. And so, yeah, I just wish some of my friends who really are upset about the Harvard decision would look at what Harvard did and tell us that's okay. And make the case, make the case that what Harvard did was okay. And really, Sarah, I haven't seen many cases made like that. All right, last up, we have a little question and revisit from our bronze door pod. So first of all, from our excellent speaker, Judge Eskridge, he had a regret. He did not get to toss in his own epic concert moment that we discussed with Cannon Shanmugan and wants to note that your Joshua Tree tour thing, that was pretty good, but that in high school, he got to see Fleetwood Mac at the Summit

on tour for Tusk, their follow-up to Rumors. Ooh. He's like, talk about a band at the height of their powers. Wow. Yeah. But we got a question. As to why Moses, Hammurabi, Solomon, et cetera, weren't included in the bronze door panels. It's worth noting that those are all included in various other places in the court.

There's sort of friezes above the justices' heads in the courtroom. there's sort of freezes above the justices heads in the courtroom there's also some others around the courthouse outside as well that you can see i'll note that in the department of justice for instance all of those are there in terms of law givers quote unquote but i still think it's a really good question of why they're not in the panels of the door. So I asked our expert, let me read you what he said, but then David, I have my own thoughts. I think you do too. They're each depicted in other areas of the court. And I had thought about the question and thinking of the bronze door selection when writing the paper. I think in the main, it traces down to the panels being sources of quote, man-made law, reasoned judgment, as opposed to anything faith-based or derived from the divine.

It isn't the latter have no role in informing the sources of the law, but I think that the doors, being for the court, were intending to evoke the source of human law that adjusts relationships between ourselves as citizens, or more broadly, as to, quote, the people versus, quote, government. Those other great lawgivers are reflecting sources that adjust relations on a religious plane, and that's not the role of the court, notwithstanding how godlike some might like our justices to be. I also thought this was a really fun fact. You know how the eight panels were chosen, David? It was a two-page memo from the Donnellys to Gilbert.

There isn't some big paper trail, draft iterations, redline documents. It was just like, hey, here's the eight we think. Yeah, go for it. That's it. Imagine now how that would work in the crowdsourcing that would be involved and we'd start with a thousand to try to get down to eight and there'd be all these arguments and all these fights. And also, by the way, I think that would result in far less interesting and maybe less helpful panels if we tried to do it that way today yikes okay so here's my take very similar to what Judge Eskridge said law is handed down by God is about our relationship to the divine that's very different than creating a government whose power is derived by the consent of the governed.

So the panels are relational. It's how we built a system of justice based on citizens' duties to one another. Or, to put it another way, thou shalt not murder is substantive outcome-based law. Due process is process-based law. And these eight panels are about process. Interesting. I had a couple of thoughts. One was, I think the question itself is somewhat shaped by how the culture war has distorted

the way we view the American, the development of the American experiment. Because it has become very, very important for one side of the spectrum to emphasize the religious roots of the American experiment and American law. And to some extent, the other side maybe de-emphasize it when I don't think that that was necessarily sort of a front of mind issue. I think that when you're talking about the roots of the American experiment and the roots of American law, there's an awful lot of people who go back. They don't go to Moses. They think instead, oh, how did we develop small L liberal democracy? And that has much more of its roots in Athens and Rome and then moving on to England.

And that's exactly the progression you see. Now, that's not to say that there weren't religious arguments or religious influences on the development of liberal democracy, of course. But if your assignment is to sort of say, trace the development of the rule of law leading up to American classical liberal democracy from a judicial framework, that's an assignment that's going to take you back to Athens and Rome and take you to the Magna Carta, for example, where I found it fascinating that who resisted the Magna Carta? The Pope. I mean, to the point of excommunication, which is very, very interesting. And so I think there is an element here where folks look at historical development of law

and are kind of primed to say, where's the religion in it? And when the reality is, when you're looking at, say, for example, the development of the classical liberal American legal structure, there's a lot of it that is just, you know, starts in ancient Greece, starts in Rome, and moves forward from there.

And so I think it's perhaps an artifact of our times that we're looking for the religious linkage in American legal development and are primed to look for it, if that makes sense. When other points in American history, I don't think it just wasn't top of mind. It wasn't front of mind because that was not a contentious part of American life. That's my, for what it's worth. I like that. Well, let's see what this week brings. Yes, for today. It could be quite a bit. Here's what I don't want, Sarah.

I don't want for us to upload this podcast and 45 minutes later, down comes the indictment. I think that's a high likelihood of happening. Oh my gosh. Okay. Well, I might see you shortly. So enjoy your break. And yeah, I might see you shortly. So enjoy your break.

And yeah, I'll see you in a few minutes. All right. Thank you, listeners. See you soon.