Advisory Opinions - On Racial Redistricting

Episode Date: May 23, 2024

Sarah gives us a taste of her interview with retired Supreme Court Justice Stephen Breyer before she and David dive into the latest SCOTUS ruling on racial gerrymandering. The Agenda: —Justice Breyer and the Major Questions Doctrine —Alexander v. South Carolina State Conference of the NAACP —Conduct vs. speech and Morgan Wallen’s Nashville bar —Random swipes at text, history, and tradition from David —Approving a SCOTUS nominee from opposing parties? —Amending the amendment process —Codifying the judicial filibuster —Justice Samuel Alito flag watch Show Notes: —Previous AO episode on voting rights in Alabama —City of Austin v. Reagan National Advertising of Austin, LLC —Equal Protection Clause —Section 2 of the Voting Rights Act 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 and David. I just got done interviewing Justice Breyer with the City Arts and Lecture Series here in San Francisco. We had a packed crowd at the Sydney Goldstein Theater. It was an incredible event.

His book was such a treat to read. I highly recommend it. We're going to have a special episode replaying that interview here on Advisory Opinions that'll be coming up. In the meantime though, I grabbed Justice Breyer for a few Advisory Opinions questions.

Justice Breyer, we are backstage, about to go on for our interview. But before we do, I wanted to ask you a few questions for our Advisory Opinions audience first. It is a raging debate between me and David French. When someone asks, should I go to law school? What is your answer to them?

Do you want to be a lawyer? Because despite the fact that many used to think I'll go to law school and decide what to be later, that isn't what happens. They mostly become, almost all become lawyers. Not everybody. Cole Porter went to law school. He decided he'd do better writing music.

But I say, why might you want to be a lawyer? It's one profession among several. There are many other things you can do and they're very interesting things. But the advantage, one thing that lawyers do is they have to have a head and they have to have a heart and everybody has a heart. But you have to exercise that because you'll have clients

and you have to put their interests above your own. And you also have to have a head and maybe not everybody does, but you do if you get into law school. And so you want to exercise both those things, head and heart. And there are many things about it that might be boring, but there are many things about it that are very worthwhile. Justice Scalia at one point said that we're sending too many of our smartest people to law school, that they should be going into, you know, science and that the Supreme Court would be fine with a slightly lesser caliber of advocates. Agree or disagree?

Well, I disagree there as applied to our time now, because maybe there was a lot to be said at the time he said it. Right now, I think it's helpful to have people who are interested in public policy, among other things, and how the law works. Because we are now, as we have been for some time, 330 million people of every possible view in the world, every race, every religion, every point of view, and so forth, and we live together.

The country is no longer four million people. So these 330 million people have to figure out a system, and their law helps. It helps in so far as it's aimed at allowing them to live together, more peacefully, and more productively. That is a very valuable objective, and therefore I think I'm glad. Okay, I promised our audience that I would ask this question. You did an interview when this book first came out, just a few weeks past,

and the books were facing the wrong way, with the pages out instead of the spines out. And this caused quite a kerfuffle. And many, many people wanted to ask what in the world was going on with that. Now it has turned out, I believe, that in fact, your publisher had a little set that they put you in front of. Those were not your books that you were sitting in front of. But I now am curious, how do you arrange the books in your home? Is it by color, by topic, by author's last names, the Dewey Decimal System? If we were to have an interview in your home in front of your bookshelf? You would see chaos. There isn't a particular arrangement. And I have books in my library. My uncle loved to buy books, not very expensive books, but he bought old books, a lot of them. And when he died, he left them to me, 14,000. We gave

10,000. There were books in the refrigerator. There were books under the bed. There were books all over the apartment. And we gave about 10,000 of them in philosophy to the University of Massachusetts and others I put in our house in Cambridge or in my office in Washington or in our cabin up in New Hampshire, they spread around. How do you know how to find your books? Well, I don't. Okay, here's a substantive question.

We've talked a lot on the podcast about the major questions doctrine, and I may ask you this out on stage, but we might as well do a dry run here. In your book, you have a section entitled Where Did This Major Question Doctrine Come From? dry run here. In your book, you have a section entitled, Where did this major question doctrine come from? And I suppose I was a bit curious because to me, the major question doctrine came from a 1986 law review article, Judicial Review of Questions of Law and Policy, in

which the quote was, A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon and answered major questions while leaving interstitial matters to answer themselves in the course of the statute's daily administration.'" The author, of course, of that wonderful law of your article is you. Isn't that the major questions doctrine? Well, what I object to about it is not that it exists. I object to putting it in capital letters, either through your writing or in tone of voice.

When I taught administrative law, which I did for about 13 years, I guess, or 10 years anyway, I realized that administrative law was a topic that grew out of the New Deal. It was because power flowed to Washington and to administrative agencies. And the people who created the Administrative Procedure Act, the people who created the subject, Louis Jaffe at Harvard, Walter Gellhorn at Columbia, there were a handful of people who really made this doctrine work, as it does in all countries, really most Western countries. One of the questions that arises, there is something the agency did. The Interstate Commerce Commission did something and someone is challenging it, and they say

what they did is wrong because they don't have the power to do it. And what you, the judge, have to figure out is does that statute, which is often highly abstract and not necessarily very concrete, give the agency the power to do this, the thing that's being challenged. Does it or doesn't it? And there are many things that you might take into account. Is it the subject matter? Is it for example that this agency is involved in? Is it a sort of administrative question, which they have to know something about? Is it within their expertise? Is it a major question? The whole economy changes. And I used to teach that with two

cases, one called Skidmore and the other called Packard. And I taught that to the classes and I did that for whatever it was, eight or nine or 10 years and showed how often, but not always. The importance of a question has something to do with the answer as to whether, though it's one thing among several. And I'll see you on stage. Okay, David, react. Okay, so a few thoughts at once. Number one, he could have a second job as an NPR host.

For sure. Like his voice, you know, he's got this sort of real NPR sort of gentle vibe to it. A couple of things. One, completely wrong in response to the law school question. Because he sided with me. Yeah, well, yes. But I thought that was a great opening question. But on the substantive question, I thought that was really interesting.

You cited him to him. And the response was essentially, I agree that there's a major questions doctrine, but there's not a major questions doctrine. And I found that a little bit confusing, Sarah. But of course, you know, we go, we went sort of class to the classic Breyer balancing test, etc., etc. But it's clear that there is a major questions factor in his analysis, but there is not a major questions doctrine in his analysis, if that makes sense. But yeah, I thought that was a really interesting question.

Whereas it seems to me he's thinking the major questions is just one question out of many, whereas the current court would say the major questions doctrine would settle the issue, is kind of how interpreted. I think that's exactly right. I think you're right that his objection to the major questions doctrine

is that it should be a major questions factor I think that's the perfect raising for it. I end up not asking him about that on stage and instead I used one of your frequent thoughts about the the conflict and the broad interpretation of the equal protection clause making the 19th amendment superfluous and Why that doesn't highlight the problem of sort of expanding the court's role undercutting then the politics. Like why have this huge fight and battle over ratification of a new amendment when you could

instead have a smaller fight over confirmation of a Supreme Court justice, which seems easier. So that was a question I asked. I also asked him about books that changed his view of the world. He gave really fun answers to that. It was a wide ranging interview, if I do say so myself, but very, very briary. Like if you are not familiar with Justice Breyer, actually, I think that major questions doctrine answer. Perfect. It summarizes everything that Justice Breyer was when he was on the court, which is everything is a factor.

Yes. But nothing is dispositive. Yes. And it reminds me of this impression that this Supreme Court clerk did of Justice Breyer. They have a skit, the Supreme Court clerks put on a skit for the justices each year where they, you know, impersonate the justices, et cetera, or it's something funny that happened that term.

So Justice Breyer impression always features very heavily in this skit because he's so impressionable. And the impression is, you know, I'm often asked how to make French bread. Well, there are seven ingredients to French bread. All are relevant. None are necessary. That is so perfect. Now, as he was responding to you, I was literally smiling because it was such a Briar answer. And the other thing that was interesting was I saw him when he was a First Circuit judge. I went to oral arguments at the First Circuit when I was in law school, and he did, and

I think I've told this story before, but it's been a long time. He did not sit at the bench. He had a table out in front of the bench where the three judges were sitting and the lawyers came and sat at the table with the judges. And literally had a conversation kinda like you just had with him. It was the most unique thing I've ever seen.

They just sat down and he said, good morning, counsel. And then they started talking. Now I don't know if that was, that he had ever done that before or ever did that since, but he did that when we were there and it made such an impression on me. And in all of my career, only one other time have I ever seen a judge do anything like that. But we went back into their chambers and had the argument in the chambers

around the conference table. I kind of liked it, but anyway, that's neither here nor there, but it reminded just that conversational style was just exactly like I remember. Gosh, Sarah, 30 years ago, that's crazy. And you know, everything you ask him, right, everything's a factor, but nothing is dispositive. And so, for instance, asking about the dip in the Supreme Court's public approval rating, for instance. And this is an answer where I think it is the only answer.

He's just right about it. How is the court supposed to consider that? And he's like, well, on the one hand, it shouldn't matter at all. And on the other hand, of course it matters because the institution can only work if there's public acceptance of its decisions. So again, there'll be a whole special episode of advisory opinions of my conversation

with Justice Breyer at the Sidney Goldstein Theater. It was a real treat. And I mean, David, we just passed a milestone. We just had our first Supreme Court Justice on the pod. That's correct. That's amazing. Hopefully first of nine. No, it'd have to be first of 10, right. 11. So the retired justice.

11. Yeah, we still got Justice Kennedy too. Yeah. So we've got 11 justices to get through and we've gotten one down. One down, 10 to go. Yep. A journey of 11 justices begins with a single justice. I think that's how the saying goes.

Well, it was a real treat and thank you to Judge Chabria and Justice Breyer's clerks who were there, and the wonderful Kate and Holly at City Arts and Lecture. It was just, it all went flawlessly. It was such a fun thing to get to do. And the theater, I have to tell you, is incredible. It used to be a high school theater auditorium back in the 1930s.

And if you can just imagine all of the, you know, molding and the beautiful multi, you know, it's two tiers. It's like insane to think that high school students were sitting there. And we had high school students there for this conversation too, and who asked brilliant questions. So it was this wonderful sort of full circle moment and the purpose behind the City Arts and Lecture Series and Sidney Goldstein who started that and refurbished this entire theater to turn it into this venue. Incredible story behind her life.

So it was just a, it was a treat, David. But on to other things because we had a big Supreme Court decision actually come out on Thursday morning. So this is the Alexander v South Carolina state conference at the NAACP. It is on racial gerrymandering. And I wanted to remind people because of the Alabama case from last term, the difference between Voting Rights Act problems and constitutional problems when it comes to race considerations in redistricting. So in the Alabama case from last term, if you remember, they brought a Voting Rights Act section two claim about vote dilution. And they had to prove, one, that the affected minority group

is sufficiently large to elect a representative of its choice, two, the minority group is politically cohesive, and three, white majority voters vote sufficiently as a block to usually defeat the minority group's preferred candidates. We spent a lot of time on the Alabama case from last term. We can remind people in the show notes which episode that was.

But this case was not a Voting Rights Act case. They were not claiming that the districts diluted black voters' ability to elect a candidate because we're talking about 17% in the district before and in the district after. So it's not majority minority districts. It's not a vote dilution claim. So what can you do if they're, you know, using race? And that is an equal protection claim. So just a constitutional claim. And under the equal protection racial gerrymandering claim, well, it's a little bit weirder

because the question is whether race is a predominant factor in the redistricting process because that would trigger strict scrutiny. But then there's all of these, you know, how do you determine whether race was a predominant factor? Who has the burden? And that's what this case was supposed to kind of flesh out. My god, we've had plenty of cases on this before. This is not the first rodeo on racial gerrymandering. But it was a 6-3 decision along those ideological lines. Justice Alito, writing the opinion for the majority,

Justice Thomas with a concurrence, basically saying the court needs to get out of the business of redistricting and race entirely, which I wanna spend a lot of time on, and then Justice Kagan writing the dissent for Sotomayor and Jackson as well. David, reactions. Yeah, you know, I agreed with the court's decision in the Alabama case.

I agree, I believe, with the court's decision in this case. And I'm glad you explained the differences between the Voting Rights Act analysis and the Equal Protection Analysis. But to me, the really important key factor here is the pre... So if you're talking about the black voting age population percentage of the district. So when they redistricted, they increased the district one projected Republican vote share by 1.36% to 54.39. But it says the plan also raised the black voting age population from 16.56 to 16.72.

That's not a very big increase, but it was not really the kind of cracking and packing that we saw, for example, in the Alabama situation where you would have what would ordinarily be a majority minority district that is cracked apart so that its share is diluted or that all of the minority voters are pushed into one particular district packed so that again that there is decreased representation. Here you had this, as you were saying Sarah, the same, substantially the same percentage of the black voting age population. And that makes it really difficult as a practical matter to say, wait, race was the predominant factor here. That just as a matter of fact, if you're talking about

there's no cracking here, there's no packing here. What it seems to be happening is that what was more moved around were the white voters. That white voters were moved around a bit with a few more conservative white voters put into the district and a few fewer progressive white voters in the district with the same black voting age population percentage. And that gets you, just the sheer facts of that, Sarah, seem to move you much more into the partisan gerrymander world. And readers or listeners may forget, but partisan gerrymandering,

the court has held that partisan gerrymandering is not justiciable. You can crack and pack and you can do all of that if it's on the basis of Democrats versus Republicans as opposed to white versus black. And so if you have a situation where there has been some moving around of voters but there's been no change in the black voting age population percentage or no substantial change, it just moves you in the factual direction that this was a partisan gerrymander. It's such substantially different facts from the Alabama case. And we talked about this when CERT was granted that these facts were very, very different.

You know, race is a predominant factor. So on the one hand, there's this presumption of good faith from the legislature. And I feel like in this case, that presumption of good faith could also be translated to presumption of partisan gerrymandering. Yes, exactly. We're going to assume that you were trying to make a more Republican-friendly district because basically in 2018, this district very narrowly flipped to Democrats and then it flipped back to Republicans.

Or it might have been 2016 and then 2018. That's the Nancy Mace district, I believe. And so the Republican legislature obviously didn't want it to be that close. They wanted it to be, you know, a three-point district, so a little bit more Republican friendly. And they wanted Charleston to have a Republican representative and a Democratic representative, both, because that would help the city of Charleston, depending on who's in the White House. Having Jim Clyburn represent Charleston is super awesome for Charleston, again, according to the Republican legislature.

If you presume a partisan gerrymander, then how heavy is that presumption? How weighty is that thumb on the scale? I feel like that's where the dissent and majority disagreed. Now, the fact that this was a 6-3 case, I think tells you that there was probably a little more at work than just philosophically what a presumption of good faith means. But it seemed to me that, again, Thomas's concurrence was helpful here. Because what Thomas is saying is this is all really bad. It's bad for the

courts. It's bad for race in the country. So I wanted to read this one section of his concurrence. The mere fact that members of a racial group tend to prefer the same candidate is not licensed to treat that correlation as absolute truth. Plaintiffs make no effort to explore whether the affinity of the district's black population toward the Democratic Party might be the product of similar socioeconomic interests rather than some other factor related to race. They instead proceed on the working assumption that racial groups can be conceived of largely as political interest groups. The Constitution forbids such an assumption. The plaintiff's stereotyping does not stop there.

They contend that their vote dilution claim also finds support in an expert report evaluating the ability of black South Carolinians to elect the candidate of their choice. That expert based her conclusion on the result of elections with black candidates on the ballot. The plaintiff's argument therefore assumes that the black candidate of choice for black voters

is simply a black candidate. But the stereotyping is worse than that. In 2016, South Carolina re-elected Republican Tim Scott to the United States Senate. Scott is the first black senator from the South since Reconstruction. The plaintiffs and their experts nonetheless decided that this race was not considered probative

for black electoral opportunity. Plaintiffs' argument therefore combines two stereotypes by assuming that black South Carolinians can be properly represented only by a black Democrat. Such stereotyping is of course not limited to this case or black voters. For example, a district court recently concluded that Hispanic voters in a majority Hispanic district lacked an opportunity to elect the candidate of their choice even though the district elected a Hispanic Republican. The court

later purported to correct the lack of Hispanic opportunity by imposing a remedial map that made the district substantially more democratic, but slightly less Hispanic. In short, the court concluded that securing the rights of Hispanic voters required replacing some of those voters with non-Hispanic Democrats. That dismissive attitude toward non-Hispanic, non-democratic members of minority groups exemplifies the tendency of the court's race-obsessed jurisprudence to balkanize us into competing racial factions. The court should correct course now before it inflicts further damage.

Here's the problem, David. Yeah. The plaintiffs argued that the, it's not that they say that the Republicans didn't want a more Republican district, that they weren't motivated by partisanship. But their argument is that the partisan data that they had was simply not good enough and predictable enough to actually draw the map that they wanted. So they used race data for partisan ends. That gets really messy because then we're all agreeing that they didn't want to use race,

but that they in fact use racial stereotypes because 90% of black South Carolinians vote Democrat. Democrat, why did I pronounce it that way? Democrat. Democrat. They used race as a stand-in for partisanship because their partisan data wasn't good enough. South Carolina responded that they only looked at racial data after they'd already drawn the maps to ensure that they were complying with the Voting Rights Act. Because this would also be very easy. You would never,

ever need to look at race data. And so then you could just say, like, we didn't even get the numbers on race, except that you have to use race data to make sure that you comply with the Voting Rights Act. So you're not allowed to use race data to comply with the Equal Protection Clause, but you must use racial data

to comply with the Voting Rights Act. And this is where I'm very sympathetic to Justice Thomas's point. Are you kidding me? This is stupid.'m very sympathetic to Justice Thomas's point. Are you kidding me? This is stupid. There's got to be some other way. And if you really take the Equal Protection Clause seriously, then race should not be a factor at all.

Therefore, racial data should not be a factor at all. Therefore, the Voting Rights Act, section two, is a big problem, which, of course, is what Justice Thomas was saying in the Alabama case. And I think you get to a difference between sort of equal protection clause philosophy versus equal protection clause experience. Yeah, because the least persuasive part of his that entire excerpt that you read, Sarah, which when it said Tim Scott, the first black senator since Reconstruction. Okay. So when you're talking about South Carolina, you're talking about a state that it's not

majority minority, but it's got a very large percentage of black voters. And Tim Scott is the first black senator since Reconstruction., the flaw in the Thomas argument is, what if the racial discrimination, which the Equal Protection Clause says should not exist, has existed, is existing, is happening? You can't just sort of say, well, it shouldn't happen, and so therefore, we really can't be adjudicating it. No, it's happening. It's happening. Now, the evidence in the Alabama case was overwhelming by contrast to this one. This one is sort of a double bank shot of, yeah, I know we have the same percentage of black voters here. But the fact that there are 17% roughly or so of black voters, we

pulled them in because they were black, not because they were Democrats. And that's going to make this a racial gerrymander is a very hard case to make. It's a very difficult case to make. And I think it's interesting that when, you know, the dissent goes straight to, essentially, this was just a factual determination, a factual determination. And that, to me, is an unsatisfactory when you're looking at just the, this is so different, so substantially different from the Voting Rights Act type situation that we talked about with Alabama, that this is essentially using race to overrule prior precedent regarding the justiciability of political gerrymanders.

And so this is the kind of case where I think if the court had come out the way the dissent wanted, I don't know that you could have had, especially in states with racially diverse populations, I don't know how you would do a partisan gerrymander anymore. Now, some listeners might be going, good, partisan gerrymanders escourge upon the land. It's terrible. It's horrible. We need to be doing something about partisan gerrymanders. But the way to do something about partisan gerrymanders is legislatively do something about partisan gerrymanders. Because I don't know, I'm curious, Sarah, if you think I'm going too far with the dissent's reasoning, but it seems to me that the dissent's reasoning would make it very difficult to have a partisan gerrymander in a

racially diverse state where there are general racial voting patterns. Yes, because there was no direct evidence of race as a predominant factor here. So that was another issue that the dissent and the majority disagreed on. Basically the majority was saying, if there's no direct evidence, yes, there's some version of indirect evidence where basically you have a district where there's no other explanation other than race.

But if partisanship can explain it and you don't have direct evidence, then you simply do not have a racial gerrymander that is justiciable at least. And the dissent's like, no, look, they've got all this other indirect evidence and that should be good enough. And I think David, that's your point is that,

okay, the legislature says they didn't use race. The map drawer says they didn't use race. They say they wanted to increase the Republican voting percentage by whatever they did. They have explanations for everything that they did that are race neutral. But there are plausible explanations for all of that that's not race neutral as well. That for instance, their partisan data was not good enough and so they use racial data for these partisan means. data was not good enough. And so they use racial data for these partisan means, but that's indirect evidence.

They have no proof that that's what they did. So if you're willing to say that that indirect evidence would be sufficient to knock out this district, then yeah, there will be no more redistricting basically. It will all now be judged drawn districts because as long as the plaintiffs can come up with a plausible explanation for why they might have used race, even though they say that they didn't, that's sort of the ballgame. And this is where the burdens of proof,

I think, really matter. So from the majority from now on, the burden of proof is going to be pretty hard. You presume good faith on the legislature, meaning when the legislature says that they didn't use race, you basically take them at their word. Then you would have to have direct evidence to contradict that presumption of good faith. Oh, you don't have that. Then the circumstantial evidence would have to be so extreme that there is no other plausible explanation other than they used race. And those are basically the three factors or the burden shifting that's going to be on plaintiffs.

And that's going to be very, very hard to overcome unless you've got that smoking gun email that says, I want those black voters in that district. The problem with that is going to be David, and this is going to sound naive to some people. But having sort of been behind the scenes for some of this, it's all partisanship. That's all anyone cares about.

Now, I think that there are racial stereotypes that people have, but the goal is always partisanship. And so again, like set aside the equal protection philosophy for a second. What do you wanna do about the fact that the goal is always partisanship, that both sides use racial stereotypes to meet their partisan ends?

Like let's be real right now about why this case was brought. It's because the left wants more black voters in that district so that that district can occasionally go Democrat like it did in 2016 or again 2018, I forget which year. All of this is about partisanship, which is to me a great reason for the courts to GTFO. Well, and especially when you're talking about none of the markers that we saw in Alabama. And I keep using the terms cracking and packing for a good reason, because if what we saw in Alabama,

for example, yes, I think partisanship, and this is something we talked about in the context of the Alabama case, that partisanship really mattered in Alabama too. But when you're talking about one of these Voting Rights Act districts, and remember this was not a pre-clearance district anymore, but still you're talking about sort of the heart of the old Confederacy with extraordinarily racially polarized voting, just extraordinarily racially polarized voting, then the ability to unlock and unpack

what's the difference between a partisan gerrymander and a racial gerrymander gets very, very, very difficult. But when you see the absolute blunt force use of splitting apart these majority black neighborhoods, that is so very different from this case. And I think that a lot of people who are covering this do these two cases of disservice because you would read a lot of the coverage and you might think that you had a cracking

and packing type situation like you had in Alabama. You did not, you did not. You had the percentage of the black vote staying slightly the same or maybe even slightly more with this gerrymander. It's the other voters who were moved around that really adjusted this percentage. And, you know, what's your tattoo say, Sarah? Different cases presenting different facts may result in different outcomes. Yes. Greatest tattoo in the world. I will look forward to the day that one of two things or both things actually seem to

be happening. One mixed racial marriages will result in such a great mix in this country that you will not really have the same racial categorizing and stereotyping that we have today. That will be great. Number two, if we really are watching the realignment around education of the two parties, that will have all sorts of problems. But one of the good things will be that race will no longer be nearly as predictive as it is. And that's already happening in a lot of places.

So I expect that to increase and that as it happens, more groups are going to lose their racial gerrymandering claims, either under Voting Rights Act Section 2 vote dilution and under Equal Protection Clause racial gerrymandering claims, because the reality on the ground is going to look and feel so different. I think it's why you're already seeing such changes. And this is actually something, you know, Justice Breyer said that, I think, from a judicial realism standpoint, they've got a point.

Judges don't take into account the temperature on any given day, but they take into account the season. If you were having this case in 1965 or 1975, more realistically, I think it looks really different because that presumption of good faith looks different. The presumption that this is actually just all about partisanship wouldn't be nearly as strong because there would be so much more racial animus

at that point. And so fast forward another 50 years, and I think that will be a different season as well. And Justice Thomas will probably prevail, but it won't be the same season. And so it won't be the same as prevailing today. Yeah, we haven't talked a whole lot of politics on this podcast for a long time,

but the racial realignment element, which is both a political reality and could be very, very relevant relatively soon from a legal standpoint as well, from an equal protection standpoint as well. Because remember, by the way, that first jingles test, the affected minority group is sufficiently large to elect a representative of its choice.

And two, the minority group is politically cohesive. That is already falling apart. And once that falls apart, section two disappears. Yeah, yeah. Well, because if the reality then becomes that every American identity group is up for grabs politically, that it's not just a matter of mobilizing, okay, we've got, you know, out of a community of 100 people, we've got to mobilize 30 black voters, 17 Hispanic voters

and 15 white voters for us to guarantee victory or whatever, you know, whatever your number is, the more that you are aiming at people because of what they believe and the less white voters for us to guarantee victory or whatever, you know, whatever your number is. The more that you are aiming at people because of what they believe and the less you're aiming at people because of the color of their skin, the better off we're going to be. Now, I do know, I do know absolutely that religious identity politics can be just as dangerous and violent and toxic as racial identity politics. So it's not that you're completely in the clear once you leave behind racial identity politics, but it would be wholly good for our country if every single American racial group could not be stereotyped. And now I know there are lots of very good historic reasons

for these racial consolidated voting patterns. I know that. I'm just saying it's a very good thing if the members of different racial groups don't think that they have to vote in block form to protect their fundamental rights and civil liberties. All right, David, next up, we've got a fun little First Amendment situation bubbling up in your hometown.

So Morgan Wallen is a huge country music star. You may have been listening to his recent hit Think About Me, which has been just playing on repeat on every country music station for months. He is trying to open a bar. It's gonna be called Morgan Wallen's This Bar. And he wants to have a 20 foot sign, you know, like a vertical sign that would be out there signaling people

to come to his bar. Now what's interesting is that that sign has to be approved because of its aerial encroachment. Cause it like, you know, those like vertical signs that come out from the wall a little bit. So it's like, it's okay, I've got it 60 inches out from the wall of the outside of the bar and 240 inches tall. It's 18 inches thick for what that's worth.

The city council would have to approve the aerial encroachment permit and they denied it 32-3. Now, two reasons that they sided for denying this. One, a while back, he used a racial slur that he apologized for. And more recently, he's facing pending felony and misdemeanor charges for throwing a chair off another bar's six story roof last month.

So here's a quote from one of the at-large city council members. I don't want to see a billboard up with the name of a person who's throwing chairs off balconies and who is saying racial slurs. All right. So David, I want to put these in sort of two different categories. Yeah.

One, the racial slur as a reason to not allow him to have a sign that says, Morgan Wallins this bar. And two, sort of lawlessness. Generalized chaos, yeah. And for what it's worth, by the way, this whole story about him throwing a chair off the bar is sort of hilariously stupid. I mean, stupid like he's stupid.

So he was at Eric Church's six story hockey talk, Eric Church, another extremely famous country music singer. And Wallen threw a chair over the railing at 11 p.m. and it landed just a couple feet away from police officers who were standing in front of the building. Oh boy, yes. So you're a moron. So yeah, he faces three classy felony counts

of reckless endangerment with a deadly weapon and one count of disorderly conduct, which is a misdemeanor. All right, David, obviously this has First Amendment problems. We had a Supreme Court case on billboards where, if you remember, Austin said that you couldn't have a billboard and it was a little more complicated in terms of like, well, was it a digital billboard or whatever, but for our purposes.

Austin said you couldn't have a billboard in front of your establishment that advertised for something other than your establishment. And the discussion over that was, well, the only way you can determine whether a billboard meets with this requirement is looking at the content of the billboard. Therefore, it is not a content neutral rule. Therefore, it violates the First Amendment question mark. And the Supreme Court said, no, that's being overly formalistic. Of course, you'd have to look at the content, but it is not content-based by what we mean by content-based. So David, this has Morgan Wallen's name on it.

And they're saying that Morgan Wallen's name is associated with the use of racial slurs and throwing chairs off balconies next to police officers. What what sort of claim does Morgan Wallin have against the Nashville City Council right now? So the you can't have your name on a billboard because you uttered a racial slur once for which you apologized. And I think he also gave half a million dollars to various civil rights oriented causes.

And I think he also gave half a million dollars to various civil rights oriented causes. That's a clear First Amendment violation. You said something that a government official doesn't like, and so now they're going to essentially create a new rule that says that anyone who said, even if it's a terrible thing, and zero, zero, zero endorsement of anything that he said, but even if he's a terrible thing, and zero, zero, zero endorsement of anything that he said, but even if he said a terrible thing, you can have a billboard up with your name only so long as you haven't said terrible things is not a First Amendment compliant standard.

Now, the, and I think that was easy. Hold on. What if you wanted the bar sign to say, N-word bar? Obviously, the city council can bar someone from having the N-word on their sign out in Nashville's Broadway area. Why can they bar the N-word itself, but not someone who says the N-word?

Well, so some of this is going to be regulated under commercial speech. So there's going to be a higher level of discretion that the government's going to have under these commercial speech rules, including signage rules and zoning rules. They just can't be. Yeah, there's going to be a lot more ability to regulate.

However, the problem here is, if you're going to regulate signage and say, for example, you may not have a signage that has racial slurs or Kurt profanity, et cetera. Even that, Sarah, I think you're gonna have to articulate that in the actual rule, in the actual guidance. Now, what appears to have happened here was, just a purely post hoc rationalization

that we don't like this guy. And his name is not inherently profane. His name is not a slur. So I just don't like this guy because of what he said. And then the other part that's interesting is the, what he did. Now you're not, there's no constitutionally protected expression

in throwing a chair off a six story building and almost hitting and possibly seriously injuring and maybe killing a cop. There is no constitutionally protected expression there. That is not a first. Conduct versus speech. Yeah, that was not speech. That was conduct. So then you go to, well, what do the zoning regulations say? What do the regulations say? What are the grounds available for refusing a signage request? And so it's been a while and I have not looked up the Nashville regulation. So I'm sure there's a Nashville lawyer listening.

And so you can tell me right now how much discretion is given. But sort of here are the standards and then we have a generalized good conduct clause that then is related to your name specifically as a signage restriction, sort of as a due process matter, Sarah, I'm just very curious about what is the basis, what's the legal basis for saying your bad conduct for which you've not yet been convicted, he's charged, he's not yet been convicted, your bad conduct means your name cannot go on a sign. That is, I mean, I, you know, there are some First Amendment issues and just, hey, I want my name up. I want my name up. But the grounds for removing it, the throwing of the chair was not expressive. Putting your name on the sign is expressive.

But I don't see the link between the throwing of the chair and the state's ability to specifically target his name. That's where I'm having trouble, Sarah. I think all that's right. And I think just to break it down more, the state cannot disfavor someone because of their disfavorability by the state, if that makes sense. And it has to be speech related for sure. So the racial slur thing is an easy thing. If you, like, what's the difference between saying we don't want this guy's name on a sign because he used a racial slur, we don't want this guy's name on a sign because he voted for Joe Biden. We don't want this guy's name on a sign because he criticized the city council. All of that is going to be a no-go for the city council. So by even saying that a reason

was that he had used a racial slur, I think they're done. I don't think it actually is going to matter much that they have a second reason, because it's not clear that that second reason was in and of itself enough to prevent them from allowing him to have the sign. And all it's gonna take, by the way, on the conduct issue is proving that someone else has their name on a sign who also had been arrested at some point in their life.

And that's gonna be the end of the ball game, because then it's gonna show that that was pretextual, that it wasn't really about that. It was actually that it was disfavored speech, and they didn't want someone with disfavored speech to have signage in Broadway. But you're totally right on the commercial speech aspect, and that the city council generally would have a lot of control over the types of sign, the look of signs.

They could say that nobody can have their name on a sign. You know, that like all of the signs have to, I don't know, have the Nashville flag or something on them. Like all of that would probably be fine. There are limitations to the types of a compelled commercial speech you can do, but even that it's not like normal compelled speech. Having a sign outside a bar could have to meet with all sorts of different standards. But if you're allowing Eric Church to have his

name on his sign, you're going to have to have a lot of really strong, as you said, it would be really helpful if it was written into the code. But if it were just such a standard practice that everyone knew it, fine, maybe. That anyone who has ever been arrested for a crime can't have their name on a sign, like maybe? What? Yeah. Yeah, but I'm just guessing in Nashville, that's not true.

I don't know, that would even be rough. I know, and I think that would be rough. Yeah. You know, if they've been convicted of a crime, you can't have your name on a sign in Nashville, they might be able to get away with that one though. They might be able to, but on the underlying aspect that says, yes, the government can say,

your sign cannot curse, but the government can't say, if you've cursed before, you can't have a sign. That the government cannot do. You can't say, if you've cursed before, you can't have a sign. That the government cannot do. I think that's right. All right, fun times. And I have a feeling that this isn't even going to go to litigation because someone is going to point out to the city council what a monumental First Amendment crap pile

they just stepped into and how badly they're going to lose right away. So congrats Morgan Whelan on your future sign. Wallin, sorry. I'm just glad this 30 to 3 decision depriving him of his First Amendment rights was made now in the year 2024 rather than say in the year 1802 because then it would be text history and tradition. And we'd have to deal with the constitutional thoughts of the Nashville City Council for the next 200 years. That was such a random swipe at text history and tradition, but I'm kind of here for it.

Just an example, just what I'm talking about. I know, I know. Hey, but when you have your obsessions, Sarah, you have your obsessions. Yeah, you know, speaking of which though, I thought that Justice Breyer's book was so great at really explaining fairly, truthfully, and in detail, the different judicial philosophies and how,

and then taking individual cases and explaining how textualism would come out for that case versus how his sort of purpose-based, standards-based tests would come out in these cases in a way that I think you could read this book and very easily say like, ah, I think I understand both. And I think textualism makes more sense. And what an incredibly honest author and jurist to write a book like that.

I can't think of another example where sort of someone coming with, you know, for first impression could come out disagreeing with you based on your own explanation of the other side's beliefs. It's really impressive. Yeah, I am so looking forward to hearing the longer discussion that we're going to publish that. I'm really looking forward to hearing the longer discussion that we're going to publish that I'm really looking forward to that.

The short snippet was fun and because the short snippet hit all of the key AO topics, should you go to law school or not, we hit major questions and then we just had some random life thrown in there with the books. So perfect. Okay, so last thing, David, I wanted to do a really random war game exercise with you. Oh, okay. And in this exercise,

I would like you to be the Democratic majority leader and you have a 52 seat majority Democrats in the Senate. Okay? and you have a 52 seat majority Democrats in the Senate. Okay? I am the Republican president. Yep. Justice Thomas just resigned. I have nominated, let's start with Judge Andy Oldham to replace Justice Thomas.

Do you confirm Andy Oldham? So are we in, so you're asking me if I, David French, am the democratic majority, okay. No, you're the democratic majority leader with all of the constraints and interests and you want to stay democratic. They're not gonna confirm it, yeah, no. Okay, so we withdraw Andy Oldham.

We now send up Judge Amulathapar. I'm going to say that I am skeptical that a Democratic Senate would confirm any Republican nominee to SCOTUS if the Democrats held the Senate and Republicans held the White House and flip it around. I'm equal. I am equally skeptical on both ends. I'm at the point. I think this rule of, well, wait, the last year of the election is arbitrary or the year of an election is arbitrary. It has some surface plausibility, but the magic difference between-

But why eight months instead of 14 months instead of 18 months instead of 26 months? Yeah. Exactly. I just find it very difficult to believe that we would see a confirmation of a judge by the opposing party in the current political environment. It's just very hard for me to see that happening. Now, I could see it happening in some of the

lower courts as long as they restored the full all the way up through the appellate court's blue slip process so that it's not just district courts. Explain the blue slip process to everyone. So in other words, literally a senator returns a blue slip, a blue piece of paper to indicate approval of a judicial nominee. And it was one way that senators exercised really enormous powers within their states and within... So if you're talking about a nominee for district court in Tennessee, it would be something that typically the two Tennessee senators would agree on the person.

So it's one of the ways where you have, for example, appointees from opposing parties, but the judges seem to be maybe out of step with the actual judge, president appointed them because of that blue slip process. So if you have a robust blue slip process and you're a senator from a particular state, you essentially have veto power over the nominee. So I could imagine that if you had that robust blue slip process in place for appellate judges and below, I can see a opposing Senate confirming approved

nominees for Supreme Court. Sarah, I mean, do you think I'm wrong? I don't I don't see unless a president sort of yielded and came forward with an extremely moderate, extremely moderate candidate. I don't see it. You're more the political expert than I am. Do you see it? So I played this out with a good friend recently. And like, we really sat there and ping ponged back and forth. All of the different iterations, the timing of the vacancy, who the vacancy was, like it's a Republican president replacing Clarence

Thomas. And we couldn't make it work no matter what. Yeah. So the only time that you'll replace the Supreme Court justice from now on in the foreseeable future is when the president and the Senate majority leader are from the same party. And I think that's really bad. Like really, really bad. Oh, it's very bad. No, I think it's really bad, and I don't see a way through it for now. Look, politics changes. America goes less polarized, more polarized. So this is not now and forever, but for the foreseeable future, I'm with you, Sarah. I do not see a situation in which a Senate majority leader would confirm a SCOTUS justice from the opposing party if they could block him, period.

Can I tell you my odd solution to this? Yeah, I'm all ears. So you know, one of my big things that won't happen, I know, but that I think would actually fix a lot is to have an amendment lowering the requirements to have a constitutional amendment. So amending the amendment process. And if we lowered that requirement for the amendment process, I think we would rely a lot less on the courts because the political avenue would seem more of an option for people. And the distinction between like, well, there's almost no way on God's green earth, I can get an amendment, or I could just fight over this confirmation battle

for this justice and get what I want, because they'll have this view of expanding the Constitution in the direction that I want. We've now just totally ended up in the confirmation side of that versus the amendment side. So I would like to do that. But I now have a second amendment that I would like to propose. Okay. And it is an amendment codifying the judicial filibuster.

Ooh. It would codify the judicial filibuster and it would build in sort of, you know, after 60 days, then the requirement drops by two votes or something. So every 60 days it would drop by two votes or something. So every 60 days it would drop by two votes, which would incentivize the minority to take what they've got when they've got it, right?

Cause the majority will keep being empowered as time goes by. So, you know, both sides have an incentive to sort of take the best option. Now, the problem with my plan is that the majority, if they wanted to, could just wait a year or whatever and drop the requirement low enough to get their most extreme pick. But the hope would be that that would come with some political cost and that having more plausible picks that get some votes from the other side would be rewarded. Either way, I think it would be a good thing and think

that it is a very difficult but plausible path forward to fixing this war game problem where you're just not going to have Supreme Court justices confirmed until a president has control of the Senate, which, you know, President Obama had control of the Senate for the first, you know, while President Trump did, President Biden does. Yep. So right now, it has not been a crisis because our voting has become so nationalized,

but it will at some point. No, I like your filibuster idea. I'm also reminded of the filibuster idea from our HLS students, Tom, the Toms, remember where it was a filibuster cannot go through. If you have a filibuster and then there's an intervening election, no filibuster for that particular piece of legislation, I guess that would also mean

with judicial nominees as well. Yeah, I agree with that. Yeah, I like the idea. When I actually, when I wrote about the Toms idea, I asked for people to send me their own ideas. And one of the most popular was actually the one you laid out, Sarah, which is a filibuster clock starts in essence, that it's, if you can't get 60 in a week, it's 58 and another week, it's 56 and another week, it's 54 that, that eventually the filibuster will go away. But I'm, I am with you. I think this is one of the less discussed,

but more important reasons for our dysfunction is the elimination of the judicial filibuster. And I don't think it's going to be good. It's already not good for the judicial confirmation process. I think it's ultimately going to be not good for the judicial confirmation process. I think it's ultimately going to be not good for the judiciary because of this sort of auditioning signaling process that we're starting to see for judicial nominations or judicial promotions where district court's outlining what kind of appellate judge they'd be and appellate judges outlining what kind of scutus judge they'd be.

I just don't, I don't love it. I don't love it. And I'm very much with you on reimposition of a filibuster. Okay, last thing, David. I guess we're on Justice Alito flag watch these days. Someone went out and saw that at his lake house, they have a banner of heaven flag flying on the one hand. This was a flag, I believe, commissioned by George Washington with a long and interesting pedigree. On the other hand, it is now associated with more right-wingy stuff. On the other hand, it's been flying in front of the Speaker of the House's office in the Capitol for quite some time without reporters saying that he was an insurrectionist. On the other hand, we're in the news cycle from hell. I mean, yeah.

But reporters, they don't have to read tea leaves with Mike Johnson. They know he was involved in trying to steal the election. So it's like, I mean, like Mike Johnson was one of the alpha guys in Congress trying to steal the 2020 election. It's one of the reasons why Steve Bannon called him MAGA Mike Johnson. So I think it's a little different with Mike Johnson because he was out and proud about

what he was doing with the election. And so what you're doing with the so that banner of heaven flag isn't like, aha, you're flying the flag, Mike Johnson, what do you think of the 2020 election? We already know what he thinks of the 2020 election. He tried to overturn it. But the, I think the issue is the tea leaf reading of the flags. If you have one flag that had particular resonance in that period, and then you have another flag that also had particular resonance in that period, you're getting closer to understanding the message than if you just have one flag

that has double meanings. And then you have another flag that has double meanings. And both of those double, in both of the double meaning circumstances, one of those meetings is pretty bad. It's pretty gross. It's it's yeah, it's it troubles me. Yeah. Again, like as I said, I think that the upside down flag thing is really bad. But I think it's a three really bad, not a nine really bad. And I guess for this one, I think, yep, Martha Ann Alito is a conservative and she's a Republican. And this is a conservative and a Republican flag for sure.

It was associated with the Tea Party. But I just don't think, I think this whole like trying to read too many tea leaves thing is getting kind of old. Justice Alito's jurisprudence has been incredibly consistent. If you've got a problem with it, which many, many people do, and we've criticized some of it on this podcast, then great, criticize it. I've got no problem with that. But the, oh, actually, I liked his jurisprudence

fine, but now that I've seen he flies this flag now, I think X, Y, or Z, like, what? I haven't seen any of that. It doesn't inform your thoughts on his jurisprudence any. And in terms of recusal, I think the recusal conversation, as we talked about last time, is pretty dumb because of the duty to sit. You cannot allow Supreme Court justices to recuse except in the most extreme circumstances where they have a financial incentive based on the outcome of the case itself, because otherwise you leave open the court to extreme manipulation. Now, I would be more interested in more generous recusal rules if we thought it was constitutional, legal, etc., to have a sort of lottery system

for the chief judge of a circuit sit by designation whenever there's a recusal at the Supreme Court, I think that'd be really neat. But taken even to the extreme, though, I don't want rotating seats on the Supreme Court. I've seen other people say, like, why don't we just have the chief judges rotate into nine, you know, member panels to be the Supreme Court? I actually think we do need consistency and stability at the Supreme Court over time. Even if you don't like the outcome of those cases, the consistency and stability is more important than the outcome most of the time. Yeah, I think we sometimes conflate the is this bad conversation with the must he recuse conversation.

Yeah. Because the must he recuse conversation is governed by certain rules of which I've not seen that he's, he, he has violated. Because again, the rules govern him. If now, should there be that flag flying outside of his house or vacation home or main home, whatever it is, the should that be there?

I think that's the easiest call of all. No, it should not. Does that mean that he has to recuse? Again, you're gonna have to show me, because as you're talking about, Sarah, there is the duty to sit. Does this rise to this level under the rules and norms as currently exist requiring him to recuse himself?

That's what I don't see. And I'm more troubled, I'm very troubled. I really don't like this. But you can't just sort of say, I don't like this, therefore you must recuse. Because again, there is a cost to the recusal. You have an eight justice court. That means you're actually, we spent months and months

with an eight justice court in 2016, and we saw really important decisions not being made. And that's a problem, there's a cost to that. And so I'm with you on the recusal. But these flags, gosh, no. No, sorry. All right. With that, happy Memorial Day. We will hope to post that Justice Breyer interview so you guys can all get your Tuesday fix of advisory opinions. But we will be taking Memorial Day off from recording, and we'll see

you guys again next week for the next set of opinion hand downs. Exciting. And David, you know what? Pretty soon, we're going to get to start playing Supreme Court Bingo with these decisions. Once we get enough of them, we'll be able to start making very uneducated guesses about who's writing what, and therefore how they'll come out. The uneducated guess, the most fun guess, no question.