Advisory Opinions - State Courts, Voting Maps, and the Supreme Court

Episode Date: March 10, 2022

On today’s episode, Sarah and David spend serious time discussing the Supreme Court’s latest voting rights decision, then they launch into their long-awaited, much anticipated analysis of Ketanji Brown Jackson’s “most controversial” opinion (spoiler alert: it’s not that controversial). They end with a chat about free speech on campus and why the culture matters.   Show Notes: -Revisiting the History of the Independent State Legislature Doctrine -Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish -Merrill v. Milligan -Moore v. Harper -Arizona State Legislature v. Arizona Independent Redistricting Comm’n -Rucho v. Common Cause -Make The Road New York v. McAleenan -Make The Road New York v. Wolf Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And we've got more Supreme Court content today, including some Supreme Court content regarding voting and gerrymandering that got a little controversial. And so we're going to try to break it all down for you today. That's going to be a big part of the podcast. And we're going to also, okay, we are actually, Sarah, I think we're going to do it. We're doing it. We're doing it. We're doing it.

It's number two today. Yeah. It's number two on the menu. Yeah. Ketanji Brown-Jackson's controversial case that is so controversial that has bumped from two to three consecutive advisory opinions podcasts. And then if we have time, we'll talk about a free speech on campus dust up where some folks got very, very, very angry that a senior at the University of Virginia wrote an op-ed saying that a lot of people are afraid to speak their minds in college. So an old argument arises again, and we'll get to that if we've got time. But first, Sarah, Supreme Court refuses an application for a stay to stay the effect of a North Carolina Supreme Court ruling that rejected the state's gerrymander.

Do you want to kind of set this thing up and talk about the controversy and we'll roll from there? Yeah, so this was another emergency docket case, shadow docket. Now remember a few weeks back, emergency docket case, shadow docket. Now, remember a few weeks back, the court basically undid a federal court's map in Alabama. So this is the Supreme Court leaving in place a state Supreme Court's map in North Carolina. Pennsylvania was also involved, but we're just going to ignore Pennsylvania. Pretend that Pennsylvania didn't happen. And so, look, what happens is the North Carolina legislature draws a map. The state Supreme Court says that the state constitution bars

partisan gerrymandering. The state constitution says that it will guarantee free, quote unquote, free elections. And the state Supreme Court interprets that to mean no partisan gerrymandering. So they reject the legislature's drawn map and draw their own map. That goes up to the Supreme Court. Supreme Court refuses to stay that state Supreme Court map, leaving in place the court-drawn, but the state court-drawn map. the court-drawn, but the state court-drawn map. Alito, Thomas, Gorsuch, dissent. Kavanaugh has a concurrence that we're going to talk about as well. But that means, by the way, that not only Kagan, Breyer, Sotomayor, but Roberts and Barrett don't write. So we don't know. We just know that they leave in place the state Supreme Court map, and that's going to get really important, particularly on the Barrett side.

But before we can get to the meatiness of this, we kind of got to go back and do some Supreme Court history on voting. All right. So we're going way back. 2015. That's way back. The way back machine. Yeah. 2015. That's way back. The way back machine. Yeah. So in 2015, there's a case called Arizona State Legislature versus Arizona Independent Redistricting Commission. And it's exactly what it sounds like from the title, right? The Arizona State Legislature sues because there was an Arizona ballot measure basically that passed that said that districts would be drawn by an independent redistricting commission. And the state legislature claimed

that the Constitution says that the time, place, and manner of choosing house and Senate representation, um, will be decided by the state legislatures. And it's kind of a weird opinion, David, because it's 2015, but it feels like it could have been so much earlier than that. Um, it's Ginsburg writing for the majority. Uh, it's Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy joins. That's your five, okay? Right. And basically Ginsburg says, look, when the Constitution says legislature in the election clause, you know, people passing a ballot measure, that is legislating of a kind, you know, people passing a ballot measure that is legislating of a kind, and therefore it fits within the pernumbers and emanations of the elections clause, basically. And you have this

dissent by the chief justice writing the main dissent. Scalia, Thomas, Alito join that. Scalia writes another dissent that Thomas joins. Thomas writes a dissent that Scalia joins. But Roberts' dissent is like, you got to be kidding me. It says legislature. It says the state legislature. And that term is used throughout the Constitution in ways that you couldn't possibly substitute the word state or the word people. It means the state legislature, not an independent redistricting commission. A very textualist opinion, a pretty originalist opinion. And so that's 2015. And nobody pays much attention because frankly, you know, everyone's kind of in favor of independent redistricting commissions. Right. Nobody wants to get up in arms about that one. Okay. So fast forward to 2019, David, and you have Rucho. Rucho versus Common Cause gets a lot of attention because this is the

partisan gerrymandering case where a majority of the court says, this is a political question. The courts aren't going to touch it. It's beyond the reach of the federal court. So partisan gerrymandering, not just permissible, but in fact, unchallengeable. And that opinion is written by the Chief Justice, And that opinion is written by the Chief Justice, joined by Thomas Alito, Gorsuch, Kavanaugh, Kagan, Ginsburg, Breyer, Sotomayor, dissenting. All right. So those two cases become really important when we're now talking about 2022 redistricting in the emergency docket especially because david they're a little bit um it's all a little bit in tension with what's going on with this theory called the independent state legislature theory and we have a couple law review articles that have come out of late about this. Forthcoming 2022

in St. Mary's Law Review, revisiting the history of the independent state legislature doctrine, arguing that the original public meaning of the state legislature doctrine at the time of the founding,

at least, was certainly cabined by both the procedural and substantive parts of the state constitution itself. It wasn't just that the legislature got to like willy-nilly run around and do whatever. This makes some intuitive sense, obviously, because the legislature only exists because of the state constitution. Otherwise, like, what is the legislature? Who belongs to the legislature? And then you have a little bit more of a, I don't know, breathless law review article by Akhil Reed Amar and Vikram David Amar in the Supreme Court review,

eradicating Bush League arguments, root and branch. The article to independent state legislature notion and related rubbish and bush by the way is in italics because it's referring to bush v gore um so but same idea right that basically the independent state legislature doctrine uh isn't all it's built up to be so dav David, you and I have actually talked about parts of the independent state legislature doctrine, but it was in relation to a different part of it referring to the electoral college. So Article 2, Section 1, Sarah, of the Constitution says, each state shall appoint in such manner as the legislature thereof may direct a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the Congress.

So this came up as a result of pandemic era changes in voting rules that did not come directly from state legislatures. So essentially what happened is during the big, long, sprawling fight over the 2020 presidential election, a number of Trump's supporters claimed that, for example, a ruling by the secretary of state who is designated, say, by statute to govern elections in a state, a ruling by Secretary of State to add drop boxes or to extend the period of absentee voting or to allow for, say, no excuse absentee voting or any number of changes that were made during the pandemic to make it easier to vote that did not come directly by an act of the legislature violated this provision. This provision that says each state shall appoint in such manner as the legislature thereof may direct a number of electors. So the argument read quite reading this quite narrowly was that any election rule that doesn't come from the legislature violates Article 2, Section 1. And so therefore, an elector is elected under such a system.

Quite simply, their election should have been rendered null and void. and void. Now, this issue was actually litigated at the district court and the circuit court level arising out of, if I remember correctly, Wisconsin. And in both circumstances, both at the district court level and at the federal circuit court level, the judges said, no, that's not quite right. When it says manner, it doesn't mean all of the processes and procedures at issue. For example, it doesn't mean the number of drop boxes or the specific number of days of absentee balloting. It's talking about the general way in which an elector is selected. So are the electors appointed by the governor? Are the electors appointed by the legislature? Are the electors selected by voters? And once you decide the manner, the general manner, then each precise procedure does not have to be determined by the legislature. The legislature can set up a statutory system for doing it. There's going to be discretion and play in the joints.

But the reality is this is a broad term, meaning how do you select them? Is it popular vote? Is it governmental appointment? It is not a very precise word that says all of the ways in which elections are governed are governed by the legislature of the state. So that's why this came up, and it was not ultimately decided by the Supreme Court. There was, you know, the Supreme Court rejected review in the 11th hour before January 6th, and so this issue has not, in the presidential context, been decided by the Supreme Court.

But that's the general contours. How really precise is the word manner? I mean, what does the word manner mean? Is it a word that means every aspect of the election has to be controlled by the legislature? Or is it a word that's a bit more general and it just sort of means, well, the general way in which these people are selected is defined by the legislature. So the Supreme Court got away with punting on that one. But if you move down to section four, it says the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but the Congress

may at any time by law make or alter such regulations except as to the place of choosing senators, asterisk C-17th amendment for that. But look, in this one, Manor clearly refers to the districts. And so everything that David just said, applying to electoral college, everything that David just said, applying to electoral college, makes perfect sense. What is really Manor? How detailed does it get? But Manor certainly would include what the districts are. And so now, fast forward two years, and we're in a bit of a SCOTUS pickle here. They're basically going to have to decide this sooner or later. And so, David, we're going to break this up into two things. One, we're going to keep talking about the independent state legislature problem in this North Carolina thing.

But don't worry if you're listening and saying, wait a second, y'all talked about Alabama two weeks ago and it was all about the Purcell principle. Don't worry. I'm going to get to to why um the purcelliness of north carolina as well but we're going to stick with independent state legislatures for a minute okay so let's start with alito's dissent before we get to kavanaugh so this remember is alito thomas and gorsuch alito writing says i would grant the application for a stay, meaning he would use the legislature drawn maps and not the state Supreme Court drawn maps. He continues, this case presents an exceptionally important and recurring question of constitutional law, namely the extent of a state's authority to reject rules adopted by a state legislature for use in conducting a federal question. We will have to resolve this question sooner or later,

and the sooner we do so, the better. This case presented a good opportunity to consider the issue, but unfortunately, the court has again found the occasion inopportune. And he talks about how he thinks that they have, you know, based on just the briefing that they have so far, met the standard he would need to dive into this. So the most relevant provision in the state constitution is simply that, quote, all elections shall be free. This guarantee of free elections dates all the way back to North Carolina Constitution of 1776. But for 246 years, that language was not found to prohibit partisan gerrymandering. In 2015, the state Supreme Court held that a partisan gerrymandering challenge failed because it was not based upon a justiciable

standard. Only this year did the state Supreme Court change course and discern in state constitution a judicially enforceable prohibition of partisan gerrymandering. Explaining the reasons for this new interpretation, the court noted that the state constitution is difficult to amend and that North Carolina is a state without a citizen referendum process. The court concluded that, quote, the only way the partisan gerrymandering can be addressed is through the courts. These explanations have the hallmark of legislation and there of course he's talking about the fact that section 4 says that that will be the state legislature not the supreme court legislating and he's kind of drawing in remember that arizona independent legend

independent redistricting commission case a little bit maybe even he's not mocking it at all, but that, you know, this idea that like everyone can legislate and as long as it's legislation, it's fine. His point is like, no, it says state legislature. Maybe you can argue that the people are forming a legislature of their own through a ballot process, but certainly the state Supreme court is not the state legislature. They already exist. The applicants who are members of the legislature contend the state Supreme Court took it upon itself to decide the, quote, manner in which the state's congressional elections will be held, whereas the elections clause confines to the, quote, legislature. The other side answers that state elections must be interpreted and applied by the state courts, that this is what the state Supreme Court did in this case when it interpreted and applied the state constitution, and that this court has no authority to overrule a state Supreme Court's interpretation of state law. Now, David, you and I are not going to do a Fed courts class today.

I was just getting worried about that, to be honest. We're not going to. We're not going to. We're not going to. But suffice it to say that when it comes to interpreting state law, for our purposes today at least, what the state Supreme Court says state law means is binding. Now, that doesn't mean it can't, of course, conflict with federal law. There's the supremacy clause, things like that. But federal courts don't get to decide what state law means. Is that fair, David, for our purposes, not in Fed courts? We're not doing eerie doctrine today? Yeah, yeah, yeah, yeah. Very fair. Very fair. So as Alito continues, both sides advance serious arguments. But based on the briefing we've

received, my judgment is that the applicant's argument is stronger. This question presented is one of federal, not state law, because the state legislature in promulgating rules for congressional elections acts pursuant to a constitutional mandate under the elections clause. If the elections clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures. I think it is likely that the applicants would succeed on the merits. The applicants will be irreparably harmed if a stay is not granted because they will be deprived of their constitutional prerogative to draw the congressional map in their state and the public

interest will be deserved if the 2022 congressional elections in North Carolina are held using districts that we eventually determine were unconstitutionally imposed. Now, David, that paragraph in particular has gotten some heat. Oh, and the next sentence, too. The matter came to us only seven days before the deadline for candidates to file on March 4th, but promptly granting a stay would have been only minimally disruptive in the circumstances here. That paragraph and the following sentence made some people really, really mad, Sarah.

All right, let's take a frolic and detour on just that part and why. Yeah, yeah. Because in the Alabama case a couple weeks earlier, first of all, they said that it was okay. Someone's status quo has to win. And even if those maps are later found to not be the maps for 2024, it's okay to use them for 2022 because someone's maps have to be used for 2022. But here, all of a sudden, it's a disservice if the 2022 maps are unconstitutional, but not in Alabama.

And then, of course, there's the Purcell problem. Only seven days before the deadline for candidates to file on March 4th, promptly granting a stay would have only been minimally disruptive in the circumstances here. Now, look, I'm going to defend it for a second, David, which is here we have two different maps already drawn. We're deciding between which maps to use. So as long as you like flip a switch, candidates would still have had five days to know which maps applied. I'm not saying it's great, but it is a little different than Alabama. I'm not saying it's great, but it is a little different than Alabama. Another big difference between this and Alabama is that here we're deciding between a state Supreme Court map and a state legislative map.

Interestingly, that actually does not implicate Purcell at all. Purcell is about federal courts stepping in on state elections too close to the election. So that's why you're not seeing Purcell cited. And that's what makes the difference. I understand that in a very practical sense, there shouldn't be any difference. But there's sort of a federal humility side. It kind of goes to what I was saying about state courts deciding state law. Federal courts coming in and messing with state elections, that implicates Purcell. You're not supposed to do it if it would mess with the election. But here, between state Supreme Court and state legislature, basically what Alito is saying, again, the most generous defense of Alito, is we don't get to apply Purcell.

Purcell rules don't count here because we're simply deciding between these two. Now, David, here's the problem. Justice Alito is a federal judge. Yes. So in that sense, it very much implicates Purcell. Yeah. As Kavanaugh notes in his concurrence that Purcell applies, And in fact, Purcell is the reason why he's holding fire here. And now let's add the partisan element here. This is what really got people upset. So Alabama, what was happening in Alabama was, there was a, a, there was a Republican effort to gerrymander that had succeeded and the Supreme court was not going to set aside the Republican gerrymander. Here, there was a Republican gerrymander that failed. The North Carolina Supreme Court had imposed its own gerrymander that was,

so we'll call it, although it might be imperfect to call it the Democratic gerrymander, but it was not the Republican gerrymander, and Alito was willing to set that aside. Okay, so in one circumstance where a Republican gerrymander is coming up to the court, then the majority of the court was saying Purcell principle, hands off, the Republicans get to win this round just because of Purcell. Alito is saying, well, you know, Democrats shouldn't win this round and we're not going to apply Purcell. And again, Democrats is a little imperfect because we're talking about a state Supreme Court, not exactly the same thing as a legislature.

And so it looked an awful lot, Sarah, like Purcell for thee, but not for me. Maybe, maybe. So let's get to Kavanaugh's concurrence. Yeah. Don't worry, we're gonna come back to some of this. Yeah. So Kavanaugh's concurrence. Yeah. Don't worry. We're going to come back to some of this. Yeah. So Kavanaugh's concurring, meaning he agrees that for 2022, they should use the state Supreme

Court maps. So disagreeing with Alito on that front. But he says, I agree with Alito that the underlying elections clause question raised in the emergency application is important and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the court definitively resolves it. Therefore, if the court receives petitions for certiorari raising the issue, I believe the court should grant certiorari in an appropriate case, either in this case from North Carolina or in a similar case from another state. Those are the two options, by the way, either here or elsewhere.

the two options, by the way, either here or elsewhere. Yeah, got it. If the court does so, the court can carefully consider and decide the issue next term after full briefing and oral argument, i.e., I'm sick of the emergency docket criticism, so we're going to take this in the regular course. So that's one reason why he doesn't want to take it in this way. Number two, in their emergency application, however, the applicants are asking this court for extraordinary interim relief. This court has repeatedly ruled that federal courts ordinarily

should not alter state election laws in the period close to an election. See Purcell. So that's number two. Number one, I want to take this in the regular course. Number two, Purcelliness. In light of Purcell and the particular circumstances and timing in North Carolina, it's too late for the federal courts to order that the district lines be changed for 2022, just as it was too late for

the federal courts to do so in Alabama. Okay, but here's what's important about Kavanaugh's concurrence. He's basically signaling that he is quite sympathetic to, if not more than sympathetic, to the independent state legislature doctrine. So that would mean that you have Alito, Gorsuch, Thomas, and Kavanaugh on independent state legislature doctrine, at least very, very open to it. And then you presumably would have Breyer, Kagan, and Sotomayor still along the Arizona Independent Redistricting Commission case, anti-independent state legislature doctrine. And that leaves you Roberts and Barrett. So remember, Roberts writes the dissent

in Arizona Independent Redistricting Commission. But David, ditto with Hellerstadt on abortion, if you remember. Roberts was in the dissent on the abortion case. It comes up two years later, almost the exact same law in June Medical, and Roberts flips and he says, stare decisis. Yes, I was in the dissent, but the doctrine of stare decisis compels that this court in such a similar case maintain its opinion. Would he do something like that to maintain the Arizona Redistricting Commission case? Let me give you the arguments for both, right? It's similar to Hellerstadt and June Medical in the sense that you certainly have the timing issue, 2015 to 2022, OT22, pretty close in

time, not as close as June Medical, which was 2015 to 2019, but still very close. Also, it's certainly the same doctrine, the independent state legislature doctrine. But let me give you the argument why the chief justice may not feel quite so stare decisis bound. Stare decisis says that you don't overturn basically on the exact same facts. But stare decisis does not say that you have to expand whatever the decision was or the doctrine. And certainly an independent redistricting commission and the argument that that was similar enough to a legislative function, it was simply the people acting as the state legislature, could be sort of cabined unto itself. The ballot measures fall in within the elections clause, but the state Supreme Court does not. And so in that sense, I think you could see the Chief Justice charting his own path. And then, of course, you have Barrett, nothing. But Barrett has, during her time as a law professor,

at least, thrown a little bit of shade on the state, the independent state legislature doctrine. So just very hard to say where she is as a judge. But David, here's my question to you. Again, you have to have, the state legislatures cannot exist on their own because they are a creation of the state constitution, which means that we know that they have to of the state constitution, which means that we know that they have to follow the state constitution, at least in some regards. And so is it worth dividing between substantive limits on the power of the state legislature versus procedural limits? And I'll give you a specific example. So today, the Louisiana governor, who's a Democrat,

example. So today, the Louisiana governor, who's a Democrat, vetoed the Republican state legislature's maps. Right. That veto is a procedural limit on the state legislature. This is how things become law in the state. On the other hand, the elections clause just says the state legislature. It doesn't say passed into law by whatever procedures the state says. And so where how do you divide that up, David? And do you agree with me that actually the Louisiana case is the best possible vehicle because it's so clean to be able to look at a state constitutional mandate versus North Carolina where three elections and the state Supreme Court? I think that gets very messy in terms of interpreting state law as well. Yeah, you know, boy, this is interesting stuff. So I go back and I think I was very convinced by the interpretation of Manor in the presidential contest out of Wisconsin. Yeah. Okay. I was very convinced to that because when you're thinking about original public meaning,

what we forget is that popular vote wasn't a given in any process involving selection of leaders in the United States of America. Senators were selected by state legislatures. Presidents were selected by or elected by an electoral college. The electoral college, remember, was supposed to be a deliberative body. It was supposed to be sort of a gathering of wise men who would deliberate over who would be the best leader in the country. The idea of sort of popular vote as the default way in which everything is decided was not

necessarily, was not a given. And so when I think of manner, I don't think of manner in the sense of, if you're talking about original public meaning, I don't think of it in the sense of dotting all the I's and crossing all the T's, all of the procedures and processes determined by the legislature. But I do say that what it means is the legislature has to decide the broad method of choosing legislators between uh that it's it's should be construed as a broad method not a procedural a rule that defines all of the processes and procedures and so my question is you know going back to the arizona case if the legislature wasn't involved at all in sort of this referendum yep you know i know, I'm with the Roberts dissent.

Wait a minute. It doesn't seem like the legislature was involved in this process at all. Yeah, I have to say, going back and rereading Arizona Redistricting Commission, it's crazy. Like, again, it reads like of a time

before originalism and textualism. I'm surprised that Kennedy joined it. And the dissent, I find very persuasive. But the problem is, David, like we've said so many times in this podcast, you know, bad facts make bad law. And in this case, when I say bad facts, what I mean is very sympathetic facts. The people of the state wanted an independent redistricting commission. Exactly. Exactly. No, exactly. But still, you know, there's if there's no involvement by the legislature. But then I'm I'm unsympathetic to the idea that sort of says that the legislature creates a no go zone for court and for judicial review. don't always speak clearly. And there are disputes that arise over the meaning of legislative enactments. And so in those circumstances, that's the classic, how is that going to be decided?

That's the classic role of the courts to decide disputes about the meaning of legislative enactments. And you're not overruling the legislature, you're interpreting the legislature in those circumstances. And so there was sort of an extreme reading of manner that dominated a lot of the discourse in the election contest that was, if you can pinpoint any sort of non-legislative involvement in the way in which the vote was cast or counted, then that's unconstitutional. And I think that's a flat-out no-go. But here's the other thing. If you can't find legislative involvement in the manner in which the senators, congressmen, or an elector has been decided, that's a no-go. But where do we meet in the middle is the real

key question. And I don't think it's, I think that what you're going to end up seeing is you're going to end up seeing the Supreme Court backing away from Arizona, backing away from Arizona, backing away from Arizona, but not going so far as to sort of say, well, unless I can trace an election procedure to specific words found in a legislative enactment, then it's going to be unconstitutional. I don't think it's going there either. I think if you're going to be able to find a legislative act at the root of the process, then the court's going to be fine with it. But in the absence of any legislative act at all, the court is going to reject.

That would be the way I think it's going to work out. So let me read you section two of article one. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. So this is just another use of state legislature in the U.S. Constitution, where you can't substitute a majority of the people of the state voting on a ballot measure. It doesn't make any sense. And so that's all to say that clearly

the founders, when they said state legislature, they meant state legislature. I just think it's messy when you're talking about the time, place and manner and redistricting maps, because, again, are they bound by the state constitution? Can the governor veto it? Do they you know, if it's in the state constitution, for instance, that there's an independent redistricting committee. Can the legislature just ignore that or anything else in the state constitution? That seems a little crazy to me. But look, we're going to put these two law review articles that disagree with the independent state legislative theory doctrine that I think, you know, I think the Akeelah Marwan is a little bit silly, frankly frankly but i'm going to put it in there because it disagrees so much with what we're saying and so that way you can

read the other side but i'm also going to put this one in that specifically tackles the originalism the um you know original public meaning argument uh where and i'm just going to read some of the executive summary here basically the evidence shows that to read some of the executive summary here. Basically, the evidence shows that the framers of the electoral appointment and elections clause, including in particular John Dickinson and James Madison, expected that state constitutions would impose substantive limitations on legislatures and goes on to discuss how that difference between substance and procedure isn't real. And a review of every state constitution adopted during the 1800s reveals that both explicit and non-explicit limitations on, quote, legislatures were widespread before, during, and after the Civil War.

So lots of good historical research there as well. Now, there's law of articles on the other side david that agree more with us but frankly i'm already putting uh the arizona redistricting dissent in the show notes by the chief justice and i don't think we need much more than that to to shore up our sort of instinct on this um but i you know what we get emails from time to time like you know why don't you guys have more people who disagree with you on these things? And I take that seriously.

So I want to do better at providing some alternate, um, opinions. But we're right, Sarah. We're right. I know. The problem is that my track record is so good at this point. And then when, in those rare occasions when we disagree, I'm right. I mean, this is, it's an easy formula to sort of figure out here. So I have two takeaways from this.

One is I imagine Justice Kavanaugh sitting in his office, and when a clerk walks in nowadays with an emergency docket application. When a clerk walks in with an itty-bitty docket and an emergency on their face, you say... Okay, go ahead. Okay, I didn't even know. Was that extemporaneously composed? Yes. Oh.

That's Baby Got Shadow Docket. Oh, okay. I thought I recognized the tune. Okay. Yeah. So I imagine a clerk walking in, sir, I have an emergency docket. And before they even finish the words, I was going to say Justice Kavanaugh is like giving the docket, giving the petition the middle finger. But he's probably way too polite for that.

Maybe just holding his hand up. Get out of here. No, get away. Get that emergency docket crap out of here, please. Thank you. Number one. So I think he's over it. I think he's over the emergency docket, just in the same way that I got the feeling that Justice Roberts was just over the Trump administration. He's over it. The second thing on this Manor issue, which is, I mean, this is the issue that's going to be litigated running up to 2024. I think if you're looking for the Supreme Court to say, yeah, we're going to make sure that state legislatures are on every jot and tittle, that the state legislature fingerprints are in every jot and tittle of

election law, from dropbox locations to early vote, everything, that's a vain hope. But if you're going to sit there and say, well, here's our voting procedure that the legislature had nothing to do with at all, then I just don't think Arizona stands in its present form over time. I just don't. It's just so hard to reconcile with the text. So those are my two bottom line takeaways. Well, we'll see.

I really hope that that Louisiana case goes up to the Supreme Court. We know that there's four votes for cert at this point. So it's just a matter of who gets to the courthouse first with a real cert petition that makes sense. It's going to be this redistricting term. It's going to be for 2022 maps, but it's going to be OT 2022, meaning it will be heard at this point in December, probably November, December. So I don't know, my money's on something like Louisiana, if not Louisiana in particular. All right. Are we ready?

Oh, we're ready. We finally are doing it. We're doing it. And you know, the thing is, we're going to do this. And the thing is, it's just so not living up to the hype. Y'all are going to be so unimpressed. Hey, you know what? Even before we do that. So her hearing, Judge Katonji Brown Jackson's hearing is going to start March 21st. And the biggest question, and David, we've already talked about this a little, but I'm shocked the White House hasn't already gotten this out of the way. Maybe they're going to do it with a letter the night before, which is actually somewhat common.

It's the Harvard case, the recusal issue. So remember, for the last five, six years, she has sat on the Harvard Board of Overseers. And in the fall, the Supreme Court is set to hear argument in the Harvard admissions case about affirmative action, race-based admissions criteria. And it's just sort of shocking that they don't want to get this out of the way, that they really want to spend all this time in the hearing at it. Now, let me give you the political strategic argument for why, in fact, they do. Because if every Republican senator is just going to ask her about recusal and she says she would follow the highest ethical standards when it comes to recusals, which is the set line that every nominee gives, then they waste their time on that. And she

doesn't have to answer questions about anything else. So there is an argument for doing it this way. I just think in the end, it's not a very good one. So the question in terms of, first of all, the Supreme Court isn't bound by any recusal rules. But, and in fact, we've talked about, David, in the Thomas context, that there is actually, you're not supposed to recuse if you can avoid it. A bias to sit, meaning you want the Supreme Court to have its full power and all the justices whenever possible. So you don't just recuse willy-nilly. But look, the question is, did she on the Harvard Board of Overseers have anything to do with the admissions policies or with the lawsuit itself? And while we don't know any of those things, it is very hard for me to believe that the Harvard Board of Overseers at no point was briefed on the litigation itself. And that briefing, if it included any information

about what was being turned over in discovery or anything else, would certainly, if she were on a lower court, qualify it for recusal. But there's also, David, the second part, which is the appearance of impartiality. And, you know, in this case, this is now, I'm going to quote a executive director for Fix the Court, a nonpartisan group that advocates for reform. Six years on the board is a long time. So to quote the federal recusal law, her impartiality in the case, that is in favor of Harvard, given her ties to the board, might be reasonably questioned here,

meaning disqualification is required. On the other hand, justices often ignore the recusal law in favor of what they call a duty to sit, that in close cases, the need to keep the court at full strength with nine justices outweighs any perceived bias. Balancing these factors, I believe it would be prudent for her to recuse. David, do you disagree with that

analysis? Oh, I think she should recuse. I don't think it's close. I don't think it's close. Yeah, I don't think it's close. I mean, you know, think of it, you aren't sitting on a corporate board. Just imagine you're on a corporate board of a corporation that has been sued, and it's the most high-profile litigation that the corporation is subject to. This is not, it's like you're on the Walmart board. Imagine you're on the Walmart board, and it's the most important case filed against Walmart in a decade. It's not a slip and fall in Peoria, Illinois that you've never heard of. It's the most important case

filed against Walmart. And then you're nominated and confirmed to serve as a judge in the very court that is hearing the case where you just served on the board. I don't think this is close. It would be profoundly disappointing to me if she didn't recuse in this case. I mean, but the duty to sit is real because no, it is. It is. It's real in this case because you if for, you know, for some reason, Harvard is able to convince Roberts and Kavanaugh that this isn't the case, you know, wait for the Thomas Jefferson High School case or something else that still would only give them four votes and it would be a 4-4 tie on the court. Yeah. Yeah, exactly. Exactly. So.

Okay. So that's one issue that's going to come up. I feel like you're running out the clock here. No, I'm not. Okay. That's one issue that's certainly going to come up at her confirmation hearing if the White House doesn't get it out of the way first. I think they should. if the White House doesn't get it out of the way first. I think they should. We'll see if they do. Okay. But the second one, after going through all of her sort of opinions that were overturned on appeal. And by the way, and David, I sent you these numbers, but an outside group has gone through KBJ by the numbers. And she actually falls just below the median on her reversal rate. So she was, over her time on the court, reversed 26.8% of the time. The median judge on the D.C. District Court was reversed 27.5. So just slightly lower than the median, which is all to say,

it's not like they can go at her and say, you know, you were reversed more than any other judge. That's not going to be the line. But it's going to be that in these big cases where you were reversed, you seem to go out of your way to reach, you know, a conclusion that might help you get on the Supreme Court. And David, we've certainly seen this on the Obamacare case, for instance. Several conservative judges had the Obamacare case coming up. Judge Sutton on the Sixth Circuit, people said he like ruined his chances for getting on the Supreme Court with his opinion on the Obamacare case. ruined his chances for getting on the Supreme Court with his opinion on the Obamacare case.

Interestingly, Judge Kavanaugh, when he was on the D.C. Circuit, had the Obamacare case, and he sort of found this in-between way, and people were talking about that a lot. So that's the criticism here, is that she was trying to keep alive her chances at the Supreme Court. keep alive her chances at the Supreme Court. So this is a 2020 case from the Department of Homeland Security on expedited removals. I'm going to read the explanation. Prior to July 23, 2019, DHS had authorized expedited removal with respect to undocumented non-citizens who arrived in the United States by land only if such person were encountered near the border and had been in the country for no longer than 14 days. In a notice the DHS published in the Federal Register on July 23, 2019, the agency instantly authorized line immigration enforcement agents to apply expedited

removal to non-citizens encountered anywhere in the United States for up to two years after the non-citizen arrived in the United States effective immediately. Okay, so this is the question. Can they do this without going through notice and comment, David? And a few issues that had to be gotten through. One, jurisdiction versus cause of action. David, you're going to be my expert on that. Two, does the APA apply if the statute says that it is under the sole and unreviewable discretion of the Secretary of Homeland Security at any time? And David, I want to also mention a footnote that I think is going to come up. The statute refers to aliens who are inadmissible. That's what, it doesn't say illegal aliens,

it says inadmissible aliens in the statute. But in a footnote, footnote one of her opinion, I'm going to read it to you. The court uses the term undocumented non-citizens throughout this memorandum opinion to refer to persons born abroad. The federal immigration statute calls them aliens who are deemed inadmissible under 8 U.S.C. 1182 because they have not received authorization to come into or remain in the United States. That's the entirety of the footnote. But throughout the opinion,

she refuses to use the statutory term and instead uses what I consider sort of the bulkier term, undocumented non-citizens. First of all, David, I think she's going to get asked about that at the hearing, which is why are you refusing to use the term in the statute? Because she never says why, right? She just says that's what she's going to do. And it feels unnecessary to me, just like use the statutory term. It feels unnecessary to me. Just like use the statutory term. And okay.

So David, jurisdiction versus cause of action. Because when it gets to the DC circuit, she gets reversed. The two in the majority, actually all three agree to reverse her. But the two in the majority on why to reverse her are two of the most liberal judges on the DC circuit. Patty Millett considered like the left wing flank of the DC circuit. And she reverses, uh, uh, judge Jackson in the descent. Well, it's not the descent, the concurrence, if you will. Um, judge Rao, a Trump appointee says that she doesn't even think there's jurisdiction, whereas the majority says there is jurisdiction, but there's no cause of action. So David, explain to us how you can have jurisdiction, but no cause of action in a way that does not make me, again, flash back to Fed courts.

Okay, I'll do it. I'll make it hyper simple. Okay. So a cause of action is essentially a violation of a legally protected interest. So if I steal your computer, Sarah, that creates a cause of action against me. So I violated your legally protected interest by stealing your computer or by taking a hammer and knocking a dent in your car. So because I've knocked a dent in your car, I have a cause of action against me for damages. So I violated your legally protected interest. Well, then how do you vindicate that? Well, one way you vindicate that is you go to court.

Well, where do you goicate that? Well, one way you vindicate that is you go to court. Well, where do you go to court? Well, you go to a court and once your legally protected interest has been violated, you have to find a court that has jurisdiction. So if I'm on vacation in California, or let's say you're on vacation in California when you notice the dent. I dinged the car in Virginia. You're on vacation in California where you notice the dent. So you go and you file a lawsuit against me in California for the damage I inflicted in Virginia. Well, you're going to have some jurisdictional problems. Does the California court have

personal jurisdiction over me? In other words, can I, David French, be hauled into that court? Does the court have subject matter jurisdiction? Can it even hear these particular kinds of cases? And so essentially it's a two-step process when you're thinking about filing a case. One, did I have a violation of a legally protected interest? That would be the cause of action. And then two, is there a court, which court, or is there a court that can vindicate my rights? And the jurisdiction rules get incredibly complicated. There's personal jurisdiction, which says, you know, essentially

that I have to have enough personal ties to a particular location to have a case heard in that location. There's subject matter jurisdiction, which says, is this even, so for example, federal courts don't generally hear matters of state law unless there's something called diversity, and we're not going to get into all of this, subject matter is that even a court that can hear this kind of case and so what you had here working through here they went i explained this cause of action jurisdiction they worked through it backwards jurisdiction cause of action because the argument was that the court had, that because the statute talked about unreviewable and sole discretion, that there was a jurisdictional bar. In other words, the federal courts did not have jurisdiction to hear the case. And the DC Circuit said, yes,

for reasons that are complicated, way too complicated to go into for in our limited time, but then said, but there's no cause of action, that this was, because this was an action committed to agency discretion, there wasn't a violation of a legally protected interest that would even really raise the question of where do I get that interest or that right vindicated? Clear as mud? All right, so that's the jurisdiction versus cause of action. And of course, Judge Jackson, when she's looking at it, finds that there is both jurisdiction and a cause of action. Okay. So Judge Rao disagrees with that. And then the, again, the liberal majority on the DC circuit reverses her under the cause of action part, because they're looking at that soul and unreviewable at any time language.

And I'm just going to go through the sort of, um, what judge Jackson says versus what the very liberal judges on the DC circuit say. So here's her distinction, Judge Jackson. It is more likely that Congress intended to confer to the agency the ultimate authority to make the decision of who will be subject to expedited removal under the statute, which is not the same thing as giving the agency sole discretion to determine the manner in which the decision is made. So her point there is that, yeah, you get to make any decision you want, but you have to go through the APA to do it. Eh.

Yeah. Eh. So the D.C. Circuit literally quotes that line and is like, look, federal law commits to the sole and unreviewable discretion of the Secretary of Homeland Security the decision whether to subject certain individuals present in the United States without documentation to expedited removal. The secretary decided to expand the reach of the expedited removal to its statutory limit.

The APA exception for actions committed to agency discretion by law is read quite narrowly, restricting it to those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion. Here, that is clearly met, they say, as in your make versus manner distinction would make sense if there were then anything by which to judge the make. And so if there's no reasonable language in the statute, a standard by which to say the exercise of discretion is arbitrary and capricious, then you don't have to go through the APA. There's an exception for APA agency actions that are committed to the sole discretion of the agency. And so they say that's one way in which her opinion was wrong. And then the anytime language, David, Judge Jackson, DHS gets no

additional traction from its observation that Congress has authorized the agency to modify the discretionary designation regarding who will be subject to expedited removal, quote, at any time. This language comes nowhere close to expressing clearly Congress's intention to override the presumptive applicability of the APA. Now here's the D.C. Circuit. There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal within statutory bounds to the secretary's independent judgment. So this is as close to a judicial bench slap as you really get at a circuit court to one

of its own district courts. And it comes on a topic that is politically sensitive, David, and it comes against the Trump administration. And she, in some of her biggest reversals, they were all her voting against the Trump administration's interest. And she's reversed on that with the DC circuit saying like, look, the law is actually pretty clear here. They are allowed to do this. And so I think you're going to get sort of a, can you put your political beliefs aside because it didn't look like you could do that as a D.C. district judge? Yeah, that's the bottom line.

These are the questions. It's not that I'm saying I agree with that. I think she's incredibly well qualified and I think she's going to sail through confirmation. But we said we would present you the best case scenario of the most controversial case that she had. And to the extent you're like, that didn't do much for me. Well, we did our best. Yeah. I mean, I think what's the short, like the two sentence version of why this would have any, any controversy attached to it, that there are markers of defiance, uh, towards the law here, uh, markers of, I, and, and not just defiance, but sort of ideological defiance. So you, you pegged one, which was the unwillingness to use the actual language in the statute.

Why would you do that? You know, Why would you do that? Why would you do that? And then the other one is you so thoroughly contradicted the language of the statute in the ruling that even some of the most theoretically sympathetic jurists to you, people who are anchoring the left side of the DC circuit, rebuked your reasoning. So does this mean, is this a warning sign as sort of eye-glazingly dull in many ways of the discussion of subject matter jurisdiction versus cause of action is, is this a warning sign of an ideological thumb on the scales? Now, everyone has a judicial philosophy, right? Everyone has a judicial philosophy, but is there a difference between

a judicial philosophy, which presumably the a difference between a judicial philosophy, which presumably the majority of the Supreme Court, I mean of the Ninth Circuit, shared with her even as it reversed her, a similar judicial philosophy, versus a completely outcome-oriented jurisprudence on hot-button issues? And that's where this criticism is going to focus here. And in some ways it's not dissimilar from the criticism we just addressed with Justice Alito, where, wait a minute, you're fully capable of waxing eloquent about Purcell or applying Purcell when it is advantageous to the Republican Party. But when Purcell is disadvantageous to the

Republican Party, it doesn't seem to be an issue. Now, again, as we noticed, there were factual distinctions between Alabama and North Carolina. So this is exactly the kind of, when you're talking about an ideological criticism of a judge, a lot of it, there's a difference between a criticism of their philosophy and a criticism of a critique that says, you know, they've even gone beyond their philosophy in a way that's advantageous to their perceived political side. And that's where I think you begin to get, that's why this might come up at the hearing, I think. And that was a heck of a lot more than two sentences. My goodness. There were two sentences in there

that were summarizing kind of. Yeah, yeah, there were. So how? Yeah. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. I do want to make sure that we get just a couple seconds on that UVA student you mentioned, because you made a good point about how while laws restricting free speech are worse than

norms restricting free speech, neither are good. Right, right. And yeah, I just want to get to this briefly because, you know, and this is something, and we're going to be out there doing live advisory opinions live at more schools coming up in this spring and the fall. And one of the things that we see consistently, and this is something I've seen off and on and depending on location for my entire legal career, is people who say, look, if I say what I believe, even in good faith and with the spirit of openness, then I face really an extreme and unacceptable level of social shaming and rejection. And this is a problem. And a young woman from University of Virginia named Emma

Camp, she's a senior at University of Virginia, wrote an op-ed describing, for example, how there were some specific instances, including, this is kind of an interesting one, during a feminist theory class in her sophomore year, she said that non-Indian women can criticize suti, a practice of ritual suicide by Indian widows. And this idea seemed acceptable for academic discussion, which it is, but to many classmates objectionable. And she talked about how the social dynamic really shifted just because she made this argument. And a lot of people kind of made fun of her online for saying, oh, you know, kind of grow

up snowflake. This is silly. This is ridiculous. You know, if you're going to say something controversial, as if it's really controversial as to whether non-Indian women can criticize sati, then you got to toughen up. But the bottom line is, an enormous amount, 80% of students self-censor at least some of the time. And again, people said, self-censorship, isn't that just called manners? No, we're not talking about just good manners.

We're talking about people who are reluctant to say things that they believe in good faith, not because they fear debate, but because they fear social sanction. And those are different things. And look, I can agree 100% that a formal state action of censorship against a person, such as some of these anti-CRT laws that are now moving into bills pending in state legislatures that would actually be flatly unconstitutional in restricting speech in colleges and universities,

as opposed to K-12. I can agree that is worse, but I also think the culture of free speech is important. And in fact, the culture of free speech over time tends to dictate the law of free speech. And if I am choosing to use my voice rather than to debate or discussion issue, to shout down or, well, shouting down is a heckler's veto issue, but well, it's to shame or try to intimidate or try to exclude or try to boycott somebody from public life because of the expression

of their good faith beliefs. Over time, that seriously degrades our culture of free speech and results in a degradation of the law of free speech. And if you want an example of that, I would say, look no further than what you're seeing in some of these Republican legislatures, I don't want to use the term conservative, Republican legislatures, where the culture in many of these states surrounding free speech is changing to where

people are much less hospitable towards it. And then therefore, these legislatures are attempting to pass laws that are including potential speech codes in colleges. And so I just wanted to throw this out there because we've talked about this a million times. I can believe that formal legal censorship is worse than social stigma. But if we continue to attach social stigma to the expression of good faith beliefs, you will not over time retain a culture or even a law of free inquiry in the U.S. Ted, talk over. Yeah, and just, I would just add that, like, and this seems really obvious given what we're seeing. The Florida legislature passing the, quote, don't say gay bill. Now they've changed it. It now says instruction, David, in the classroom. And it

bans instruction K through third grade, and then says that it would also ban any instruction on gender identity past that point if it's not age appropriate. And we've talked about why I think this will get challenged in court, etc. But the point is, if one side says that they will use their social power to stop certain conversations, like should we be talking about this with third graders, then the other side will use its power, whether socially or legally, to stop conversations that it doesn't like. And what we've seen is an escalation from both sides feeling like they are under attack from the other, and basically both sides saying, well, this is about

power. I've got power too. And that social stigma translates eventually into legal, um, sanction when both sides say that like, well, if we're just going to say ends justify the means, and this is all about who has more power, then I'm going to flex until I beat you. Um, and it doesn't end up well for speech. Speech loses in the end. But unfortunately, the people who are pro-free speech in these conversations, I think, get whacked too often as saying, well, then you want to unilaterally disarm against the other side, and because they're trying to exercise power. And unfortunately, David, like, yep, I will not arm myself against speech.

Right, right. Arm myself. I like that. I think that's a good phrase, arm myself against speech. And, you know. And that doesn't mean that I want those things taught in schools, by the way. I'm incredibly, I don't know why we would need to teach to instruct on gender identity K through three. No, right. Don't know why that would be needed. No, no. But that's not why the law got passed. And there's an interesting article out now also about the left's, you know,

the millions of dollars that the left has spent trying to change curriculum to have that indoctrination. Because, I mean, look, you do have just millions of future American citizens. I mean, they're American citizens now, but future voting citizens in a captive audience in these public schools.

And so, yeah, both sides are realizing now that curriculum has power in this very, like, Saul Alinsky thesis of, well, then we just need to take over the public schools. And now we see the results of that.

And again, who loses? Free speech. Yeah, yeah, yeah, that's exactly right. Any tool that one side learns to use to wield, the other side will learn to use to wield in its spaces. And the interesting irony- And let me use it, by the way, in the social media context, David,

that if liberals pressure social media companies to take off conservative speech, then yeah, conservatives' answer to that is then we will pass laws that say that social media companies can't take off that speech. That's how the escalation works. And it's both sides basically trying to control the conversation, trying to control speech. The left starts by saying censor conservative speech and the right answer is by saying let's make it illegal to do that. Right. Every tool you use will be used against you. And the interesting thing is in the state legislative context, what often ends up happening is that legislators on red states end up sort of defensively legislating against what's happening

in blue states. Sure. And not really happening in red states. And then blue states ends up defensively legislating against what's happening in red states and then end up doubling down on the very content that the red states are condemning and vice versa. And so this is a process of endless escalation, endless escalation. It's one of the reasons why we talk so much about a culture of free speech. There are circumstances which the law of free speech just doesn't even apply in any meaningful way,

such as to public school teachers. But a culture of free speech still matters a great deal. All right, Sarah, I think we said we had, we're going to, yeah, we did it. We did it. We said we're going to even do a shorter pod today, but we didn't do that. We didn't do that. But hey, look, if you become a member of the dispatch, you know, like pay for a membership, then you can go on the website to the podcast tab, like pay for a membership, then you can go on the website to the podcast tab, click on advisory opinions and hop in the comments section, ask us about something, uh, share some link to some case that you're curious about, or just disagree with us vehemently as, um, as many of you are want to

do, which I really find fun and appreciate. Uh, but that's the way to do it. You become a member. I think it's $10 a month, right, David? So for $10 a month, you can tell me and David the what for in the comment section or how much you liked my version of Baby Got Shadow Docket. You know, our listeners like you so much, Sarah,

that I'm going to predict that they'll have liked that rendition. But there, but, but make no mistake clerk walks in with a little bitty brief. Make no mistake. The fact they liked it is just coasting on pre-existing goodwill. That's what, yeah, that's what it is. Coasting on pre-existing goodwill. All right. Thank you guys for listening and please do go comment. We do lurk the comments. Absolutely we do. Thank you guys for listening and please do go comment. We do lurk the comments.

Absolutely. We do. And I, frankly, I enjoy reading some of the discussions in them. There's some really smart people in there. So please go to go check out the comments and please subscribe and positively rate us wherever you listen to podcasts and check us out at thedispatch.com.