Advisory Opinions - Supreme Court Restores Alabama Voting Map

Episode Date: February 11, 2022

It's a day of disagreement! David and Sarah walk through a critical Supreme Court voting rights case, and come out in a different place. They walk through the Sarah Palin trial, and come out in a different place. But then, unity reigns when Sarah concludes the podcast by dunking on Russia and hanging on the rim.   Show Notes: -Merrill v. Milligan -Purcell v. Gonzalez -Section 2 of the Voting Rights Act: Vote Dilution and Vote Deprivation -Slate: “Sarah Palin Takes the Stand” -Washington Post: “Palin trial exposes the allure of ‘both sides’ journalism” Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. This is David French with Sarah Isger. And we're going to talk about a bunch of cool stuff today. We've got a Supreme Court decision about voting districts in Alabama. Okay, don't stop the podcast. This is going to be really interesting. It's a fascinating decision with some pretty dramatic consequences, actually, because as is pointed out in the opinion,

Alabama, about 27% of Alabama is, or about 27% of Alabama's voters are Black. If the case goes one way, or if the districting goes one way, the odds are overwhelming that only 14% of Alabama's congressional delegation will be represented by a black representative. If it goes the other way, it's 28% or 28.5%, so round up 29. Very interesting case. So we're going to dive into that. We're also going to talk about the ongoing Sarah Palin defamation case against the New York Times.

And it really is giving people who are paying attention and insight into how the sausage is made and how groupthink is created. It's really fascinating and interesting. So we're going to dive into that. And if we've got time, Sarah is going to dunk on the Russians. So we've got to dive into that. And if we've got time, Sarah's going to dunk on the Russians. So we've got a lot to cover. So Sarah, Supreme Court, right after we record our podcast on Thursday, I mean, record our podcast on Monday, Supreme Court comes out with an opinion shortly afterwards. This kind of thing tends to seem to happen.

But why don't you sort of set the stage for us on this thing? And we're going to we'll just dive in. Yeah. So first of all, I take it as a personal affront. The Supreme Court certainly by this point should know when we record. They normally release their opinions in the mornings. However, for reasons that I can't possibly fathom, they released this opinion relating to an order after we had finished recording on Monday afternoon. Just wildly inappropriate in my view. But nevertheless, it did give us more time to read it and think about how to explain it in a podcast. to explain it in a podcast that, um, cause, cause in some ways, to the extent you don't understand, um, this topic, it means you do understand this topic. It's one of those guys. So

when it comes to election law of any kind, you have something called the Purcell doctrine. And that's when federal courts get involved in state election procedures too close to an election. And Purcell is implicated very much in this, but it's like, oof, it's Purcell on the margin. So the Purcell case, by the way, is from 2006, and it involved voter ID in the state of Arizona. The district court was going to let the voter ID go forward. The Ninth Circuit then stayed, said you couldn't use voter ID in the upcoming election. And October 20th, the Supreme Court said that, in fact, they would let it go forward. This is a case called Purcell v. Gonzalez.

And they set out some standards. And they included the regular stay standards, which we've talked about plenty on here, likelihood of success on the merits, whether there would be irreparable harm to the parties and the public interest. But Purcell added an additional preliminary analysis, which is how close is this to the election? States are allowed to mess with their own elections, but federal courts shouldn't be creating chaos in the run up to an election. The problem is, of course, like, well, how close is too close? How much of chaos is an okay amount of chaos? How flagrant does the violation need to be?

And while the courts have purcelled around from 2006 to now, it hasn't been exactly delineated. And so this case is coming up, right? It's, uh, February of 2022. The primary elections in Alabama are not till May. That's really far off. Purcell wouldn't seem to apply, but the actual, uh, early voting and absentee voting starts March 30th. Oop. Right. Now that's pretty soon, like seven weeks away. And so we've got a whole lot of Purcell problems here, including does Purcell apply? In the dissent, Justice Kagan says the election's not till May. Sure, early voting starts in March, but frankly, the state could move that to which my answer is like, wait, wait, wait. We have all sorts of lawsuits about moving early voting and that those are illegal election restrictions. And you're just saying now you can move it because it's a per curiam opinion. This came in through the shadow docket that we'll get to that term as well because there's some side eye shots fired

over that that's a trigger term now it is a trigger term it's like yep it's an in you know you know what tribe you're with if you're using the term shadow docket but i am going to use it here uh for ease um justice kavanaugh with justice alito wrote a concurrence in the per curiam, basically saying, like, look, if you change, I mean, voter ID actually would be a lot easier to change or not change because really you need voters to like voters not bringing an ID isn't going to cause a lot of chaos. In terms of training staff, that's the thing you need to worry about. And frankly, October 20th, when you're talking about a November election, yeah, that's pretty close. But overall, voter ID is far less of a Purcell problem than redistricting because as Justice Kavanaugh points out, all sorts of problems. Candidates don't even know which district they live in. Let me run through some of the examples he gave. The state says that those individuals and entities now

do not know who will be running against whom in the primaries next month. Filing deadlines need to be met, but candidates cannot be sure what district they need to file for. Indeed, at this point, some potential candidates do not even know which district they live in, nor do incumbents know if they now might be running against other incumbents in the upcoming primaries. And that hasn't even mentioned the signature requirements, David. So in order to run in Alabama, you have to get a certain number of signatures. The candidates have already gotten their signatures for the districts that would have been thrown out. And the state would have needed to draw new districts, meaning these candidates have to, in seven weeks, figure out what district they're in,

figure out whether they're going to run, go get new signatures, and then people are supposed to start voting in seven weeks? How are you supposed to even print the ballots? And then Justice Kagan's point is delay early voting. Surely that's not what's required. And that's why Purcell exists in the first place. And so Justice Kavanaugh explaining Purcell and saying like, look, yeah, Purcell is a little bit vague. And it just says federal courts shouldn't mess with election rules in the roundup to an election. But he says, and again, Justice Alito joining, but I don't even read Purcell as being this strict must-do policy. There's a lesser version of Purcell, but even in that lesser

version, they don't need that, a relaxed version, he calls it. Justice Kavanaugh with Justice Alito joining says, look, Purcell doesn't need to be this hard and fast rule. I don't think it's a hard and fast rule. I see it, he says, best understood as a sensible refinement of ordinary stay principles in the election context. for a plaintiff to overcome the state's extraordinarily strong interest in avoiding late, judicially imposed changes to its election law and procedures. I would think the Purcell principle thus might be overcome even with respect to an injunction issued close to an election

if a plaintiff established the following. One, that the underlying merits are entirely clear cut in favor of the plaintiffs. So for instance, changing it from likelihood of success on the merits to lopsided success on the merits. Two, the plaintiff would suffer irreparable harm absent the injunction. The plaintiff has not unduly delayed bringing the complaint to court. Here, by the way, there's no real allegation that

the plaintiff's delayed. And in fact, I think Justice Kagan makes a strong case that quite the opposite. The state has been on notice for two years before the census numbers were out that they plan to sue if there weren't two majority black districts. before the election without significant cost, confusion, or hardship. And he says, look, even under those relaxed principles, this doesn't really come close for the obvious reasons. It's not entirely clear-cut that the plaintiffs win. We'll get to jingles in a minute and the actual merits of this case. But redistricting is hard, and the law around it is very unclear. And so the idea that it would be clear-cut who could win that you're almost never going to meet that on redistricting. And then he says they also don't meet number four, that the changes in question are even feasible without significant cost confusion or hardship. OK, so that's Kavanaugh and Alito writing on that. You then have the chief saying that he would take the case. He would hear it on the merits, but he wouldn't have issued the stay. He would make the state redraw the lines in advance of this primary election. Justice Kagan saying she wouldn't have done either. The state needs to redraw the lines and the Supreme Court doesn't need to take the case because the district court

properly applied the test for redistricting. So it kind of breaks out exactly as one might have imagined. Yeah. You know, when I when I was reading it, I was struck and we'll get to Kagan's concurrence. I mean, Kagan's dissent here in a minute. But what struck me was how much I was having that feeling of deja vu in reading the Kavanaugh opinion. Because if you are a longtime advisory listener, advisory opinions listener, and we know during the run-up to the 2020 election when the name Purcell was constantly on our lips because we were reviewing and looking at case after case that was flying up through the federal court system challenging state election law changes. And the court refers to a bunch of these. Kavanaugh refers to a bunch of these that were in 2020 Merrill versus People First of Alabama and Dino versus Middleton Merrill versus People First of Alabama. The sequel Clarno versus people, not politicians, little versus reclaim. I mean, it just goes on and on and on. And so what Kavanaugh is doing is he's saying, look, and he couldn't say it more often, but he was saying, we're not adjudicating on the merits here. This is not about whether there should be two majority black districts or one majority black district. This is

entirely about, is this too close to the election? This is what this is about. It is not about the underlying fundamental substance of the case. It's about, is this too close to the election? This is what this is about. It is not about the underlying fundamental substance of the case. It's about, is this too close to the election? Let's do this regular order. Let's not do this. Let's apply per cell, even though the election isn't until May, as you said, March 30th is the onset of absentee voting. It's just too soon. It's just too soon. Redistricting is hard. We're not making a decision on the merits. And Kagan's dissent is all about the merits. So it's a completely like reading two, it's just two ships passing in the night. Now she does sort of nod towards Purcell some, but it's just two ships passing in the night.

And I've got to be honest with you, Sarah, I found Kavanaugh's concurrence compelling on Purcell, and I found Kagan compelling on the merits. The bottom line is if you find the concurrence compelling on Purcell, you do stay the district court's ruling and you maintain the status quo. But that means you're very open to before the 2024 election requiring the redraw. So you're a reverse Chief Justice Roberts in some ways. I'm kind of a reverse Roberts, yes. So here's the problem with Purcell. That's always been the problem with Purcell. That's always been the problem with Purcell. And it was certainly the problem in 2020. What is the status quo and who decides the status quo?

Now, in this case, because Alabama's redistricting lines are actually quite similar to the lines that they had in 2018, 2020 pre-redistricting, the status quo is a little easier to determine. pre-redistricting, the status quo is a little easier to determine. But it's a problem with Purcell overall that it seems like often the court simply says that whatever the state wants is status quo, even if that itself is a change. Here I'm thinking of Purcell itself, which was the voter ID change. That was a change. So if the point is you want to keep in place election status quo in the run-up to an election, it's surprising to me that that's not in the Kavanaugh write-up of how you think about status quo, in part because in this case, the status quo very much agrees with the outcome that Justice Kavanaugh had here. The districts in place were the districts before after 2010. Now,

Kagan answers that and says, yes, but the actual numbers in the state and the population shifts have changed from 2010 to 2020. No doubt. But again, if the point of Purcell is to prevent election chaos and you've got one side or another wins for the purpose of the 2022 elections, right? That's the problem. It's either the plaintiffs win or the state wins for the purpose of the 2022 elections, right? That's the problem. It's either the plaintiffs win or the state wins for this election. For this election. And so Purcell is saying, well, avoid chaos. But I think Purcell also needs to take into account what the status quo was. If the state's the one introducing the chaos, maybe that should be part of the factor. A quick point on the shadow docket, Justice Kavanaugh writing

here, the principal dissent's catchy but worn out rhetoric about the shadow docket is similarly off target. The stay will allow this court to decide the merits in an orderly fashion after full briefing, oral argument, and our usual extensive internal deliberations and ensure that we do not have to decide the merits on the emergency docket. To reiterate, the court's stay order is not a decision on the merits. Again, the problem with that, David, I agree with it. He's right. Except that when it comes to elections, it's not that it's on the merits, but it's that one side wins for the purposes of this election.

And I think that neither Kagan nor Kavanaugh really spelled that truth out. And here's Kagan's shadow docket fun time. There may or may not be a basis for revising our Voting Rights Act precedent in light of the modern districting technology that Alabama's application highlights. But such a change can properly happen only after full briefing and argument, not based on the scanty review this court gives matters on its shadow docket. But that's exactly Justice Kavanaugh's point. We're not revisiting the districting technology or anything else about what Alabama did. We have to pick a winner for this election. And so we're applying Purcell to say that the winner goes to the one that will introduce the least for someone who's done this for a living for 20 years, I don't in any possible world. Uh, if you told me we didn't have the district lines for another, let's let's say Alabama could do it in a week. They have them pretty much ready. They just need to like finalize them and pass them through the Alabama legislature. Okay. So six weeks out from when absentee voting starts is when you're going to have the district lines. It is not

possible because absentee voting starts on the 30th. You have to already have the ballots printed to have the ballots printed. You have to already have the candidates names to have the candidate names. You have to already have all the filing deadlines met and checked by the way, any challenges to signature verification, all of that. And you're telling me you're going to do all of that and allow the candidates constitutionally enough time to get their names on the ballot? Do you want to know who that would benefit? Wealthy, incumbent candidates. A challenger would have almost no shot at getting that done unless they delayed the start of absentee voting.

But I think that raises a whole nother problem, which is if the state of Alabama thinks you need that much time to absentee vote in the state before the primary, well, then you're eating up that time or you move the primary. I mean, right. Like it just doesn't work. Right. You're you're sort of double violating Purcell. Right. At that point. Yeah. Right. You're sort of double violating Purcell. Right. At that point. Yeah. Let's get to the merits because this is what, you know, one of the things I think that is, I find the procedural aspect of this fascinating because it is directly relevant to this election.

Yes. But what Kagan is talking about is going to be relevant to 2024, 2026, 2028, 2030. So 80% of the elections in this decennial. So I'm much more interested in that because I think this is where, as has been made very clear, the court's precedent is kind of a mess here. It's just kind of a mess. Can I walk through the history of the Voting Rights Act a little? Please. And I just want to say one of the things that I'm very grateful to Sarah for is she consistently knows how to pronounce case names. Wait, which case name were you going to say wrong, Purcell or Jingles? You mean Gingles?

But you pronounce it Jif, don't you? Well, that's only because I lost a bet. Oh, okay. With my son. Because Gingles and Jif match. Yeah. So I called it Gif forever. And he said, no, it's Jif.

Everyone knows it's Jif. And it irritated him so much that I said Gif, that we had a Madden game. that I said GIF, that we had a Madden game and the stakes of the Madden game where the winner had to change their, that could dictate the pronunciation of GIF and I lost. So it's GIF now and forever. So I thought jingles. No, it's definitely not. This is the difference between someone who listens to the Supreme court arguments versus someone who reads the transcripts is I know how to pronounce jingles. True. True. Okay. So let's go in our way back machine to 1965.

The Voting Rights Act is passed, including Section 2. In 1980, the Supreme Court is asked to look at Section 2 in redistricting. Let me just read Section 2 real quick. Section two in redistricting, let me just read section two real quick, prohibits any state jurisdiction from implementing a, quote, voting qualification or prerequisite to voting or standard practice or procedure in a manner which results in a denial or abridgment of the right to vote on account of race. For our purposes, let's just say race. So in 1980, in a case called Mobile versus Bolden, the Supreme Court held that it the Section two simply restated really the 15th Amendment. It only prohibited intentional discrimination. And that's really hard to prove, obviously. So back when Congress used to actually do things after a Supreme Court decision they didn't like. When? What?

1982, Congress revisits Section 2 of the Voting Rights Act and creates a results test. creates a results test. So it now prohibits any voting change that has a discriminatory effect without regard to the intent. So you no longer have to prove intent. You can just prove discriminatory effect. The results. Does this remind you of our conversation about NFL? It should, because this is Section 2 now based on Congress, not the Supreme Court. And I think that's really important here, because I think if we were arguing over Supreme Court tests, it would be even messier than it is. So. The courts have relied on factors that were in the Senate Judiciary Committee report, not the law itself, but they're called the Senate factors. Official discrimination in the jurisdiction.

The degree that it's racially polarized in that jurisdiction. Majority vote requirements, right? Like, is it rank choice? Is it single member districts at large? Minority candidates are denied access to the jurisdiction's candidate slating process. Primaries, right? Overt or subtle racial appeals in campaigns.

I mean, there's nine of these, but I think you get the idea. Yeah. They're trying to get, to some extent, at racial appeals in campaigns. I mean, there's nine of these, but I think you get the idea. Yeah. They're trying to get to some extent at racial intent. Yeah. But the results matter. Okay.

So fast forward to 1986 and we get jingles. Fun fact, by the way, that I did not know, it was decided on the same day as Bowers v. Hardwick. Huh. Proving, well, maybe not proving. I'm not going to say that Bowers v. Hardwick doesn't have lasting effect in this country

in terms of some of the damage, perhaps. Bowers v. Hardwick, by the way, upholding sodomy laws in the country, criminal sodomy laws. But nobody, I don't think, really noticed jingles as being this major case at the time, even though jingles is now, I mean, used every single, I want to say almost every day. But if you're a state right now ever doing redistricting, you of course have to look at the jingles factors. So 1986, jingles factors. So 1986 jingles factors as created by the Supreme court, the minority group is sufficiently large and geographically compact to constitute a majority in a single member district. Some little notes on that, by the way, that haven't been decided definitively? Can you combine groups? Like as in, is it all Asians or is it

Chinese, Japanese, and Koreans added together? Or let me give a different version. Is it all people of color or is it just black? And that's separate from Latino, separate from other people of color. from Latino separate from other people of color? The number two test. Oh, sorry. Still on number one. Another question that hasn't well, that has been answered, I guess, is what if they're just the swing vote? So they don't make up a majority. They can't make up a majority of that district, but they would be of such a substantial plurality that they would still be the deciding voters in that election. Not sufficient, has said the Supreme Court. Right. Okay. Number two, the minority group is politically cohesive, meaning they vote similarly. This test, this factor has always really bothered me.

Like there's a whole bunch of that that just makes me really, makes my stomach hurt. This idea that like, what is politically cohesive? And what if you're not part of the politically cohesive group, but you're just lumped in because of your race? I mean, there's all sorts of reasons why you not may not be politically cohesive with other members of your race. And then the courts are like, doesn't matter. We will consider your race first and foremost, and not put you in a district with other people who have your life experience or think like you or vote like you or anything else. To me, it's the most racist of the factors, actually.

Number three, the majority votes sufficiently as a block to enable it to defeat the minority's preferred candidate. So this is the reverse test, right? Do the white people in the district all vote as a bloc so that they would never elect a black person? Right. And number three, in some ways, gets to why we have to do this in the first place.

Because without, well, I mean, Congress said what the law is, right? It's a results test. But without this test, without jingles, you end up with, you know, Mobile, Alabama, where you draw it like a pie. And so even though all of Mobile, Alabama, let's say, is 90 percent black voters, it's not. But just for these purposes, no problem.

Don't make Mobile, Alabama a congressional district. Make it a pie that radiates out into the rural white part of the state. And then you have no majority black voters in any given district. The rural parts of those districts that are white can elect all of the congressional candidates. And the black voters get to vote, right? They haven't violated the 15th amendment, but their votes are largely pointless if the white voters are racist. And this gets to, I think, I hope everyone listening understands both why this law was needed in 1965 and even 1982 and why it makes everyone why it's really hard to draw districts now because the supreme court has also said okay on the one hand if you don't use race to draw your district

lines to create majority minority districts you have violated section two of the voting rights act but if you use race to draw your districts, you have violated the equal protection rights of all of the voters in your district. And so states are left going, what the what? Where is that play in the joints that I'm supposed to draw the perfect districts that take into account race, but not too much. And thus, we are in Alabama in 2022, trying to draw districts. And the question here is, out of Alabama's seven congressional districts, one of them has been majority Black. The question for post-2020 census is, do those numbers and do the jingles tests require that two of the districts be majority Black? The state of Alabama says no, that in fact, in drawing the districts, if you use a computer

model, they all turn out with one majority Black district and six majority White districts. one majority black district and six majority white districts and the plaintiffs say yeah but you could draw it in a way where you have two majority black districts that meet the jingles test two two you could very easily very easily even very easily like there's a there's a map in the there's a map in kagan's uh so this is not and look know, gerrymandering is a universal bipartisan practice. And we're all familiar, those of us who are geeks enough to actually look at congressional districts, we're all familiar with the snaking, moving, you know, these sort of like really weird looking districts that are designed to engineer certain kinds of outcomes. like really weird looking districts that are designed to engineer certain kinds of outcomes. Not hard here to have a geographically, two geographically compact congressional districts that were majority minority. And man, Sarah, you know, it's interesting how we have such a similar theme going back to our last two podcasts, because, you know, the fact of the matter is that um you do have minority groups in alabama

who that are very politically cohesive and white majority in alabama that's very politically cohesive and they're politically cohesive in opposition to each other, right? So very Republican white majority, very Democratic black minority, overwhelming numbers in both directions, which would be very similar to sort of the oppositional way in which, you know, the way in which whites exercise control explicitly racially over black citizens in the Jim Crow era. But now if you put, you know, say a white citizen, not all of them, some of them are actually just flat out racist, but not, but you know, you put, uh, white citizens, like your average suburban white Republican under oath, or, you know, and somebody got after me in, in the comments for saying,

in a polygraph machine, oh, don't you know, David, that polygraphs are not reliable. I'm trying to make a point, like, if to the extent that you can peer inside somebody and see their true motivations, if you could peer, use some sort of machine, Sarah, to peer inside and see somebody's true motivations. It's not racist. It's because of taxes, et cetera, et cetera, et cetera. It's all non-racist reasons. But the end result of all of it starts, ends up looking very much like the end results of when the reasons were racist. You have, you begin to see why you sort of have this consistent sort of you have this consistent divisive problem, because if you're a black voter and you were losing X number of years ago and you're you're underrepresented X number of years ago and you're underrepresented, you know, X years afterwards, you're still underrepresented. And if somebody is telling you, well, then, then it used to be

because of race. Now you're underrepresented because of something else. Um, you're still underrepresented. And so you're still dealing with exactly the, the brass tacks sort of political outcome you had when it's explicitly racist. And so it gets very frustrating to people. It gets very frustrating to people to say, well, we're past that. We're past all that. That's all in the past. You're thinking, wait, is it really? So that's where it gets so, so, so difficult here. And frankly, the difficulty is reflected in the impossibility of deciphering something sensible out of the precedent. Yeah.

So here's my, I think you and I probably would come down differently on this case. And this case will get argued in the fall. We will watch it closely. We will listen to the arguments and we'll talk about it then. But just as a preliminary matter, I find the legal test actually itself to be racially problematic and impossible to match, to meet rather, without setting in a judge's personal preferences. So for instance, cracking and packing, that's the term of art that's used if you're ever either in this litigation or drawing the maps from a political standpoint in these states. And by the way, obviously, both the defendants and the

plaintiffs here are simply looking for political partisan advantage. They want to elect a Republican in that seventh district, and the plaintiffs want to elect a Republican in that seventh district and the plaintiffs want to elect a Democrat in that seventh district. And race is the means by which they will do this on both sides. And and it's just so pernicious. But OK, so cracking and packing. terms. They're the things you can't do. And what are cracking and packing? Packing is placing all the minorities into one district so that they can vote as the majority in that district to get their preferred candidate. But isn't that what I just said you had to do maybe? Like what the plaintiffs are saying you have to do in this district in Alabama? Oh, yes, it is. Yes, it is. But if you pack, then that's not lawful. Unless you're doing it to create a majority minority district, then it is required. Even though the definitions are the exact same. Cracking is when you break up minority groups,

leave them so that they are not the majority in any given district. My pie piece analogy coming out of Mobile, like radiating out, that's also not lawful. Oh, unless though it would create a large enough plurality of those voters and you are intentionally putting them all into one district so they can't have say in multiple districts. What? So just based on who's making the argument with the same

definitions, some of these are unlawful. Some of these are lawful. Some of them violate the equal protection clause. Some of them violate voting rights act section two. You're supposed to take race into account, but you can't take race too much into account. And now again, think back to 1965 and even 1982, we have computers do this. And so you can spit out, you know, put the inputs into the computer and have them spit out the hundred best districts. And the problem is then the plaintiffs say, well, look, five of those districts are what we want. And the state says, yeah, but 95 of them aren't. And so the computer's telling you that clearly it's not a violation of Section 2 if 95 of the districts that the computer spits out don't include your

preferred district. And so not only then are judges having to look at Section 2 of the Voting Rights Act, the Equal Protection Clause, they're now having to grapple with what algorithms are. And I just think the whole thing is a total, total mess on par with the affirmative action case. And I'll be curious, we still don't have the schedule yet to see whether the Harvard case is going to get argued at the very end of this term or at the beginning of next term. But if it's next term, now we basically have the two ends of the affirmative action spectrum, redistricting in regards to race and affirmative action and higher education admissions. Woof, that's going to be the race term.

Well, you know, it is, we're saying this in the green room. It is really, really, really, really hard to deal with the consequences of slavery in Jim Crow. It really is. What's interesting to me on this sort of the racial gerrymander aspect and the line between racial and partisan gerrymandering, you know, for example, the way the Hispanic vote is changing is going to scramble a lot of that. So the Hispanic vote is worse than that, David. Sorry, I want you to continue. But then I want to say why it's more pernicious to me. Well, I was going to say the Hispanic vote is becoming less politically cohesive. The Trump and the second Trump campaign made great inroads with Hispanic voters. Oh, for Bush, people forget. Oh, for Bush. Oh, for Bush, he made tremendous inroads with Hispanic voters. One of the reasons why he had the only Republican popular vote majority since his dad in 1998. I mean, 1988. And so the Hispanic votes scrambling that.

So is the Asian vote, the Asian vote, this sort of this is disrupting a lot of the emerging Democratic majority thesis that Rui Teixeira had years ago, was that the sort of rising majority minority country would ultimately swamp Republicans demographically because, in large part, because of the political cohesion of not just Black voters, but the rising minorities of Asian and Hispanic voters. And that's being all scrambled right now. That's being now it's not all redounding to the great benefit of Republicans because Republicans are start have been losing some of their core constituents. But but the the black and white disparity. And especially in the South is still giant. It is giant. Yeah, and that's why I think the Latino vote questions become really interesting to me

is because you are asking the courts, again, that second factor that I hate so much, the cohesive voting of one racial group. What is cohesive voting? What does that number need to be? And also, if you keep packing them all into one district so that there's not really, let's say, someone else, a plausible candidate on

the other side, they start to look cohesive even when they're not. And I think that there's a cause and effect problem. To some extent, the packing and cracking causes the very thing that then the courts say you have to do later, cohesive voting, judging people's voting by their race instead of, for instance, by the fact that they live in this district that you created arbitrarily. I agree on the black versus white districts. That has been less of a problem. It just is, which is sad. But in Texas, where a lot of it's been on Latino districts, it's a huge problem to argue that this is a cohesive voting bloc, but for you packing them all into one district and telling them that they're a cohesive voting bloc. Right. And Hispanic voters, depending on where you are and where

you're from, I mean, it was always artificial. It was always artificial to say everyone, whether you're from Cuba or Colombia or Venezuela or Honduras or Mexico or Argentina, that you're all in this, you're the same. You're Hispanic voters was kind of like news to Hispanic voters that they're all the same. And it's just sort of how our identity politics hasblack issue, particularly in the South, that's where things are different. Black voters and white voters in California are overwhelmingly Democratic. Black voters and white voters in Massachusetts, overwhelmingly Democratic. It is a big difference. Now, here's the other complicator. You know who were the racists when I was growing up in Kentucky? The white Democratic establishment. I mean, if you were growing up in the South

in my age or a little older, if you wanted to rebel against a local party establishment by not being racist, you'd head over to the Republican side. It was the white Democrats who ran the place that were the old school racist power structure. So scramble that one in your mind. It's a funny thing about Jeff Sessions because he started the Republican club at his school and in order to run against, not him personally, in order to help candidates run against George Wallace. Right. But if all you hear is Jeff Sessions started the Republican club in Alabama, you put on

your current Republican-ness onto Jeff Sessions and it's like, no, no, no, he did it to run against George Wallace. Like, oh, that does change the narrative a little. Look, I think we have a redistricting problem because if the courts have said they're not going to get involved at all in partisan redistricting, the courts have no role in partisan redistricting. But if you can show that there's race involved in the redistricting, then they absolutely get involved and will help one side or the other redraw the lines. What do you think people are going to do if they don't like the district lines in their state? They're not going to say that it's partisan. And we're seeing

now, I think in 2020 in particular, Republicans had controlled state legislatures in 2000 and 2010 to the point that they already did partisan redistrict as many districts as really they could at that point. Democrats, Republicans still control the majority of those states, by the way. But Democrats now, anytime they're doing any redistricting, it's always going to help Democrats a little bit because there's nowhere else for the Republicans to go. And so while all these states have done redistricting committees that are supposed to be bipartisan, nonpartisan, some of those are working out. Some of them, like in Virginia, aren't working out at all. And it's just resulting in the courts having to draw the lines, which I think is itself a huge problem. And then you have Democrats saying, look, y'all did it to us for 20 years. We're going to do it to you in states like New York, Maryland, where they're outrageous, partisan lines being drawn. And again, you can't sue because they're partisan.

But at some point, David, we're going to have lawsuits saying that the white voters are being deluded, etc. And it is not good, as you said, fixing the history of failed reconstruction in the Jim Crow era. Our legal system isn't up for it and our culture doesn't seem to want to. our legal system isn't up for it, and our culture doesn't seem to want to. 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. Code advisory at checkout to save. Terms and conditions apply. So, Sarah, let's talk. Sarah Palin, we're in the middle of the trial, and it is really an interesting trial. It is very interesting because we're seeing how the sausage is made here, and we're seeing how the editorial came together. The one that connected wrongly,

wrongly connected Sarah Palin's political action committee to the Gabby Giffords shooting. And so this was the part of the editorial that are at the heart of the case. Was this attack evidence talking about the baseball field shooting? This is an editorial in response to the baseball field shooting of congressional Republicans. Was this attack evidence of how vicious American politics has become? Probably. Now, here's where it gets problematic. In 2011, when Jared Lee Lochner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a nine-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs. and then goes on and says,

though there's no sign of incitement, again, in the congressional baseball field attack, as direct as in the Giffords attack, liberals should, of course, hold themselves to the same standard of decency they asked for in the right. All right. What the evidence is demonstrating and what the evidence is showing

is that the New York Times was in a position where it was kind of scrambling to draft an editorial in response to the baseball shooting. So while they're drafting the editorial, James Bennett gets involved, who is the editorial page editor, and he had a particular goal in mind. He wanted to make the important point that violent rhetoric used by both Democrats and Republicans about their political foes raises the temperature. That's a quote from a New York Times lawyer in the trial and creates an environment where a deranged person might be more likely to do something violent to a political opponent. And it turns out that the example that he thought of was a wrong example, and it was this example. And so this is put into, and during a kind of a deadline-intensive editorial and drafting

process, this is put and placed into the editorial and goes live, and it's just wrong. It's just wrong. And what's interesting about it is, and this is a point that some folks made in response to this evidence, is that, wait a minute, had there been maybe even a conservative in the editorial drafting process on the editorial board, they would have immediately, just immediately thought, wait a minute, no, hold on. That's's not correct that's just not correct that insertion is incorrect how do we know that a conservative might have spoken up in that moment because that's actually in what ended up happening is a ross douthat who has had nothing to do as a

conservative he's a times columnist he had nothing to do with the drafting of the editorial itself. He ends up emailing Bennett. And how do we know this? We have the email. And it contains, and I'll just read some of Ross's email. On that note, I feel I would be remiss if I didn't express my bafflement at the editorial we just ran on today's shooting and political violence. There was not, and continues to be so far as I can tell, no evidence that Gerald Lee Lochner was incited by Sarah Palin or anyone else, given his extreme mental illness and lack of any tangible connection to that crosshair map, the Tea Party, or other right-wing cause. Whereas the shooter today, as our editorial concedes, seems to have had a clear partisan anti-Trump purpose. That doesn't mean that liberals or quote the resistance weren't in

any way responsible for this horror. I don't buy those kinds of arguments at all in either case, but our editorial seems to essentially reverse the fact pattern as I understand it, making it sound like Lochner had the clear connection to partisan rhetoric when to the best of my knowledge, Lochner had the clear connection to partisan rhetoric, when to the best of my knowledge, he had none. I don't understand that claim at all, and I don't understand why we're making it. I don't normally raise issues with our editorials. I expect to disagree with them after all, which is an interesting aside in there, but I felt I should express my confusion in this case. And so the issue here is really, Sarah, comes right down to this. When Bennett and the editorial board inserted that additional sort of, oh, look, Republicans can incite too,

but in this very specific wrong circumstance, was that actual malice defined by intentional insertion of false information or reckless disregard for the truth? That's the core of what's going on. So that's the legal question. But before we deal with that legal question, there's a practical matter here. And that practical matter is, you know what? Ideological diversity can be good for an institution. It can be good for an institution. It can really help prevent you from making really embarrassing mistakes and serious mistakes. And Bennett, to be clear, and to his credit, is not saying that anything about that it was correct.

There's evidence he even tried to apologize to Palin. He's he says he thinks about it every day that it bothers him what happened. But, you know, just one or one or two conservatives sitting in the seat there. This doesn't happen. There's no case. There's no defamation. I just wanted to make that point before we get to the law. This will not result in the New York Times somehow hiring more ideological diversity for their newsroom. In fact, because of course, as is not relevant to this case really, but kind of, James Bennett is

fired slash forced to resign a few years later because he published an op-ed from Tom Cotton that advocated for deploying the military to quell violence over the summer in 2020 because that was considered beyond the pale of what the New York Times could publish. so yeah the new york times not big on suddenly hiring a bunch of conservatives i wouldn't think although in this case it could cost them a lot a lot of money and a lot more than money uh so okay some points that i wanted to make from the trial so far this from eric wimple as he reviewed some of the emails eric wimple is the media reporter at The Washington Post. The trail of emails and edits point to an odd divergence of journalistic effort. While staffers were digging for instances of left-wing incitement, their boss was busy propagating a bogus instance of right-wing incitement. There appeared to be universal oblivion to the editorial's gaping inaccuracy. One staffer messaged Williamson, who is basically Bennett's

deputy, after publication to applaud, quote, the superb piece. Now I want to skip over to a slate story about this. It's sort of ironic that Bennett's central argument in the editorial in question was that we should all lower the temperature of our rhetoric, because what Bennett in fact did was fan the flames. Whether he intended to or not, he accused Sarah Palin of helping cause a murder. As I've written before, I don't think he consciously meant to harm her, but I do wonder, was he thinking at all about her when he wrote those words? Not Sarah Palin the symbol, Sarah Palin the person. And David, this is where I think we can easily miss some of the ideological bent. It's not just that they wrote that incorrect line. The incitement was clear, although that is obviously the line that we're going to legally

focus on. But what had just happened was that a Bernie Sanders supporter had shot up a Republican congressional team because he supported Bernie Sanders. And so the New York Times decided that the editorial they wanted to write was saying, hey, both sides incite violence, so let's lower the temperature. And when you read the emails, they take for granted that Republicans incite violence, even though there's no evidence for it. And then they're struggling because they take for granted that Bernie Sanders never incited violence, that this person was just deranged, who happened to support Bernie Sanders. And so then they were trying to find an example of rhetoric from the left that could be seen as inciting violence. You see the problem here, right?

Right. Plenty of Republicans would say that when Bernie Sanders is telling his supporters, you know, that the world is going to end unless they defeat Republicans, that that could be seen as an incitement to violence. Well, if the world's going to end, if the only way to protect my children, if I'm not going to be able to vote, I'm not going to have clean water, I'm not, you know, they're taking all the money, they're buying, they're stealing elections.

That could be seen as an incitement to violence. And that's the political narrative problem. They wanted so badly to make it a both sides issue, but only after there was violence from someone on the left.

Right? When there's violence from someone on the right, I'd be interested to see if the New York Times was nearly so interested in making this sort of, hey guys, we need to lower the temperature argument from everyone. And then of course, we have the legal problem that you've mentioned, David, which is what is reckless disregard? There's knowingly lying, which, look, Bennett's been on the stand. He could be knowingly lying on the stand, but I'll take him at his word under oath, certainly, that no, he wasn't knowingly lying. And the email trails do not reveal. Nope. No, there's no evidence that it was knowingly lying. And the email trails do not reveal. Nope. No, there's no evidence that it was knowingly lying, but that's not the legal standard. The legal standard is reckless disregard.

And at the point that you assume that Sarah Palin, of course, incited violence and are so busy looking for an example on the left because you can't possibly think of one, are so busy looking for an example on the left because you can't possibly think of one, even though there was literally just a shooting from someone who was supporting Bernie Sanders, is that enough to meet the reckless disregard standard? And frankly, it's not clear. And the reason this is so interesting, and again, asterisk on my own bias here, my husband represents Fox News and the Fox News versus Dominion case, is that it will have huge implications for that Fox News case, which has a gazillion dollars on the line because Sarah Palin is in the same position as Dominion. And so it scrambles the politics, which I love, that if you're on the side of Fox News,

you're on the side of the New York Times. And if you're on the side of Fox News, you're on the side of the New York Times. And if you're on the side of Dominion, you're on the side of Sarah Palin. Sarah Palin. Yeah. That's the great thing about the law. And so when it comes to reckless disregard, you're going to have to apply the same standard to both. And I am happy that these cases are quasi running simultaneously. I thought it was

interesting because Slate is considered a pretty left-wing publication. And they thought that Bennett's testimony this week was bad, to put it lightly. So they said he had trouble expressing vulnerability to the jury. He spoke in monotone. He began sentences with phrases like, my supposition is. He was sort of bloodless. When talking about the apology, by the way, David, you know, he's being cross-examined, asked if he had apologized. Bennett replied, quote, my hope is that as a result of this process, I have.

Which to the jury, like they have no idea what he's saying or why. I don't even know what that sentence means reading it until you keep reading and it comes out through the rest of his testimony that right afterwards, CNN, a CNN reporter reached out in which Bennett sent a written apology in the context of his larger statement to CNN. CNN doesn't run the apology part. They just run other parts of the statement. He realizes a bit later that CNN wasn't going to run his apology and then found out that the New York Times had a policy of not apologizing for errors. So he couldn't then apologize, he said. But now that Sarah Palin has seen his email to CNN through the discovery process,

that's what he means by he now thinks he's apologized. No. Yeah. Sorry. That's not even in the ballpark to me. The other big problem, I think, is what happens when after the Ross Douthat email. So in some ways, Ross Douthat's testimony was really unimportant.

We had the email of Ross saying, hey, there's a mistake here. When he took the stand, he was like, yep, I sent an email because there was a mistake. He can't offer a whole lot more as to the reckless disregard point. After he reads Ross's email, James Bennett sends an email to his deputy saying, hey, we need to look into this. But at that point, his deputy has gone to sleep. And so what happens? Nothing.

Not until the next morning. They look into it. They issue a correction. And so the questions are, why didn't you pull the story down? Well, the New York Times has a policy of not pulling stories down. Okay, well, if the New York Times has a policy of not apologizing for errors and not pulling stories down, and you didn't think it was important enough

to like wake someone up and pick up the phone, you just sent an email and figured you'd deal with it the next day. I think that it has really fallen apart the whole, well, we corrected it really quickly afterward. Not as quickly as you could have. Yeah. And your enthusiasm for correcting it seems mixed. Again, as just someone who's sort of been in those types of positions, I can tell you, I wake people up. If you work for me and there's an error of that magnitude and it's 1030 at night or it's 230 in the morning and you're my deputy, your ringer's on. And let's be clear, this was of significant, obvious magnitude. This was not a small detail.

This was significant, obvious magnitude. And the interesting thing is, I mean, this was something where, and again, going to the bubble point, how deep do you have to be in your bubble if you are not immediately aware within 10 minutes after publication that the political commentariat is detonating over this? Because I remember it vividly. I remember it vividly. I remember when this thing came out, I saw this because this was a huge national conversation on civility that happened after the Gifford shooting where people, you know, remember Obama gave a speech about civility and and then a lot of us are saying, OK, I'm all for civility and and I like civility, and decency's great, but that has nothing to do with this shooting.

Because it became very clear, so this was burned in a lot of people's minds, that there was this wrongful, going back years, a sense of grievance that a lot of people had from a legitimately wrong rush to judgment on Sarah Palin. So this is not an unknown thing. And so when this thing pops, it's detonating. It is just detonating. And it's the kind of thing where it's hard for me to think. And it's one of the reasons why, quite frankly, Sarah, things like this are why when I follow people in our world of journalism and politics, I intentionally always follow both sides. And I actually tried to do it almost person by person in when I choose who I'm going to follow to avoid this kind of cocooning that allows you to write something like this. And then apparently go into the night and not even realize

what's happening um which is is real and and you you got to get an email from ross to sort of shake the tree you know like that that's pretty remarkable another thing i was i was just talking to some really um smart you know progressive folks interested in journalism a week or so ago, and they asked my thoughts on the Palin case. And I don't think they'd really looked at it. So I think they kind of thought, well, it's Sarah Palin. Sarah Palin's going to lose. And I said, I don't know how the trial is going to come out, but the way I try to

judge these things is I put on my old lawyer litigator hat and I ask myself, if I had to choose which side to take into trial, which side would I choose to represent? From a standpoint of I'm trying to win. Not I want to be the underdog that shocks the world kind of choice, but I just, I want the W I would, I would take her side. Doesn't mean she's going to win. It doesn't mean she's going to win, but I would feel more comfortable being a lawyer on her side with these facts. The biggest thing she has going against her is the highly is that high bar, the reckless disregard bar. But the facts here are bad. They're just bad. And two more notes for me. One, Sarah Palin did take the stand yesterday, but only for about 15 minutes. They basically got through the fact that she was

from Wasilla. So she really takes the stand today. There's not so much, though, that she can actually contribute to the case because it really turns on what was happening in that New York Times newsroom, you know, assessing damages, things like that. So I wouldn't expect a whole lot, except, as you said, David, this is in front of a jury and her looking sympathetic and likable matters a whole lot with that fuzzy legal standard. Yes. Second point I want to make is to make the New York Times point. Yep. This is not painting the New York Times in a good light in terms of how this sausage got made. And it just proves the point, right? Speed kills. And when you're in a rush, you're more liable to make mistakes. The biggest mistakes I've made have been under these exact same circumstances of I'm moving too quickly because there's a arbitrary deadline. And I think I'm smart enough to not have to do the homework that I normally would do if that deadline didn't exist.

The New York Times made a mistake. Maybe it was even a pretty reckless mistake. Maybe, you know, if they'd had conservatives in the room, like there's things they could have done to not make this mistake for sure. But the question for this jury and really for the appellate courts that are going to hear this, are newsrooms allowed to make big mistakes or not? Because set aside the reckless disregard standard for a minute, because as we've said, it's a high bar clearly, but it's a little fuzzy when you get close to it. Do we really want newsrooms with a no mistakes policy? Is that good for media, journalism, a free press dialogue in this country? Or do we want to set the bar so that, yeah, newsrooms can make mistakes, even if they're just sloppy, stupid, easily could have known mistakes

if they had had policies in place, like having intellectual diversity in the newsroom, or even smaller policies like, hey, your editorial board head should have to actually research something before putting a factual statement into an editorial. But I am a little uncomfortable with the idea of newsrooms can't make mistakes without being liable for millions of dollars. Oh, I think I think that would be an untenable standard. I mean, I think the issue here and why even with the New York Times v. Sullivan standard, which is that high but fuzzy bar, I would still want to be Sarah Palin's attorney going into this, just give me the facts and let me choose which one's most likely to lead to the win, is because this is the kind of mistake that even if you had like the policy was, it wasn't even a policy, maybe it was a slogan, Google is your friend, is the kind of, that's the kind of rigor we're talking about here.

We're not talking about a mistake in the fog of- Yeah, but David, assume for a moment, and I think it's a fair assumption to make, that James Bennett believed what he wrote when he wrote it. Yes. How does that factor into the reckless disregard standard? So is it that anytime you write something, you have to fact check it, even if it's like two plus two equals four? You know, two plus two equals four is right. Do you need to Google that in order to avoid liability in a defamation case down the road? No, you know it's true. And so if James Bennett believed what he wrote was true, could he possibly meet the standard

for reckless disregard? And by the way, this is going to become really important in the Fox News case, because what if the people, the hosts in question when they're saying bonkers stuff about election fraud, 100% gun to their head, polygraph, whatever David examples that y'all hate. Just they believe it's true. Can you hold someone liable for a statement of fact as recklessly disregarding the truth if they personally 100% believe it's true, regardless of what facts you think there are out there. So I think the answer to that is a big yes. And I think the answer to that, it goes to mens rea.

How can you have mens rea for recklessness? You know, yeah, absolutely. There is a, I believe something is true. I can reach the conclusion that something is true by a reckless disregard for the facts. The outcome, it's the reckless disregard that leads to the outcome of, I believe this is true. And just speaking from my own practice, Sarah, if there's something that's happened last week, if there's something that's happened five years ago, six years ago, seven years ago,

and I have a pretty darn good memory of it, you know what I still do? Double check. That's great, but it doesn't mean that that's the legal standard. And as I said, if you're about to write two plus two equals four, surely it's not recklessly disregarding the truth if you don't then Google that. If you're that sure of what it is. I mean, two plus two, yeah. I mean, that's not I mean of what it is I mean two plus two yeah I mean that that's different from what was the cause of a mass shooting six years ago uh maybe it is maybe it isn't but I think that the the mens rea goes in here quite a bit I mean I'm not sure it is different in the sense that if you can show at trial that you at that time you wrote that absolutely believed

it to be true I don't know that you can meet that reckless disregard standard and so to conclude for me at least um if david is taking sarah palin as trial counsel in terms of who is going to win on appeal set aside the jury okay so you think do you think she wins it that that's my, one of my key questions is. I don't know who wins at this trial because I don't know what went into jury selection. I don't know who's on that jury and juries are notoriously

weird in civil cases sometimes and criminal cases, but definitely civil cases like this where there's a legal standard that's sort of anything you want it to be once you're anywhere close to it. But I think in terms of who's going to pay money in the end, I think the New York Times wins. Interesting. Interesting. My thought on this is that if the jury rules for her, disturbing a jury verdict... True. You will have the wind in your sails if you get that jury verdict.

And even yet, I think that reckless disregard standard. If I'm Sarah's attorney, I'm more nervous while waiting for the jury to deliberate than I am while waiting to hear back from the court of appeals. But the great thing is when all this is decided, if, if, you know, if she wins at trial and we go to and have an appeal,

you know, and that thing, it might take more than two years. Um, by that point, when we have 2 million listeners, we can rehash the whole thing, remind the listeners of our,

our differing opinions on the ultimate outcome. And then we'll find out. We'll find out. All right. Do you want to dunk on the Russians? I do, but we got that amazing email. Oh, okay. Yeah.

Let's go through the email, and then you can dunk on the Russians pretty quickly. I can. I think. Yeah. I can. So per our thank you expert listeners who email us, we got an email from a former college football coach at a prestigious college. Is that a fair? I don't want to identify this person, obviously.

Okay. According to him, becoming an NFL head coach has basically two beginning entry level positions, a college or NFL player, or a college student coach. It's been suggested in the comments section that many NFL head coaches aren't former players and that it's a separate skill set entirely. While that may be partially true, NFL head coaches have an uncharacteristic lack of high level division one college or NFL playing experience when compared to the industry as a whole. They still almost all start their careers as college football players, which is very typical for the industry. By far the easiest way to get a foot in the door for a career in elite level

coaching is to play college or NFL football. While playing, guys develop strong relationships with their coaches through work ethic and commitment. It's similar to a law student with their professors, except even more salient because the typical entry level position into the elite realms of the industry is a support staff role at an elite college or in the NFL. So it would be as if the professors also chose who got clerkships, which by the way, they do largely. But I take his point. It's like even more, like they truly are the last ones to get to pick who gets the clerkship. There is no other judge. I think this is a huge barrier in and of itself. As a player, I was asked by three different coaches that I played for to take

support staff roles. While at the same time, very few of the support staff roles at those universities were held by former black players. As in it's white coaches asking a white student to be a mentee. And there aren't any black coaches or many of them. And so those black players maybe aren't getting those same mentorship opportunities. He actually wrote this really long, great email. He also took issue with the difference between baseball and football that is worth explaining really quickly because it was so smart and difficult for me to understand when I first read it. And then I was like, oh. So basically his point is, it is really physically hard to become an NFL player.

You have to have a lot going for you genetically. Whereas in baseball, it's not that hard. And so in the end, what you're going to see. Oh my goodness, I can't wait for the comments. Right? It's really funny. And he says his brother, by the way, was an elite baseball player. So, you know, he's throwing some shade at his brother, no doubt.

The football player must overcome physical limitations. If he's short, he must stay healthy. He has to be in the right scheme. He must play at high- right scheme. He must play at high level consistency. He must develop his skills in a short window of time to be NFL ready immediately after college. He has a narrow window for mistakes and development while in the NFL. So much of this relies on luck. The baseball player with the same passionate obsession will meet far fewer obstacles on his way to becoming a professional, thus creating a situation where people who are obsessed with cultivating their abilities in

baseball have a more direct route to their obsession and work ethic translating into becoming a professional athlete, while those obsessed with football encounter far more obstacles to becoming a player end up far less likely to become professional players. Both still have an obsession with the game and want to make a career of it when they're done playing, leading to a situation where more of these sports-obsessed people that become professional coaches have professional success in baseball than football. So well explained. And I was convinced. Interesting. Well, on my faith-related podcast I do with Curtis Chang, we had a pastor on who's a former NFL player. He is a former BYU Cougar and safety with the Colts and the Panthers.

And he said something interesting. He said Brian Flores has basically going he might have a career going forward after filing this lawsuit but he absolutely threw that into doubt oh yeah and well gretchen carlson too right yeah i mean if you're brave enough to bring one of these lawsuits you have to assume your career is over you're just lighting it on fire. And that's another factor here, I think, which is this, which is number one, you amongst all of the things that we've already talked about, you know, the, the networks, the relationships, the families, the, the preexisting culture that was created by an intentionally racist organization that that culture doesn't dissolve when the intentional

racism goes away, then part of that same culture is you don't rock the boat. I mean, you don't form relationships by raising a ruckus, right? That's not how you network. He also makes the point of how similar this is to clerkships. you network. He also makes the point of how similar this is to clerkships. I think the clerkship example and metaphor he's using is so spot on given what he's describing. It becomes incredibly hard for young coaches to go from support staff role to position job. It takes about five to 12 years before getting offered a position coaching job. And in the meantime, you're making basically no

money for those 10 years. He says, think about the argument Sarah made against needing multiple clerkships to clerk on the Supreme Court and how it hurts women specifically. Guys in these support staff roles scarcely compensated in an indefinite period of time. Many of these coaches that have to give up before getting that coaching offer are indeed black. I think it's often harder for minorities because of how long you sometimes have to go without making a significant income. White coaches are on average better able to work for an elongated period of time under these circumstances. That combined with the absurd work schedule, 100 hours genuinely is nothing. These men essentially guard their desk during the season, working 4 a.m. to midnight,

with maybe two-thirds of that being productive on a good day, is enough to push many people away. Now, the question, of course, David, is, is that legally cognizable racism? Right. Right. As opposed to a cultural condition that is almost impossible to find a legal remedy for, but still requires change. And that's, interestingly enough, why I think the cultural arguments we're having around race are the important arguments. They're the important arguments. The law often is a very blunt, imprecise, and often counterproductive or ineffective instrument. I mean, the Rooney rule is an example of a rule. It's a NFL law that is, as we've seen, just sort of at this point a box-checking exercise that hadn't accomplished its intended purpose. And that's one of the reasons why these cultural arguments are often far more important and consequential over time in the real world than some of the legal arguments.

And sometimes the laws themselves can have incredibly unintended consequences. I think that when people were talking about fashioning, for example, affirmative action in higher education, they were not thinking front of mind, you know who really needs to have it the hardest on getting in is an 18-year-old Asian immigrant. That's not front of mind what they're thinking. This is an unintended consequence of a really blunt, in many ways, very blunt legal instrument that just so happens to also violate the language

of the Equal Protection Clause and non-discrimination law. So yeah, these cultural arguments are very, very, very consequential and cultural change is very hard to generate. All right, last legal point. I want to dunk on the Russians. So 15-year-old female ice skater from the Russian Olympic Committee who can't play her anthem, can't fly her flag, is the first woman to land a quad in Olympic competition. She landed more than one. And then lo and behold, she tests positive for trimetazidine, which I'm sure I'm butchering how to pronounce that, but it's a heart medication. It increases blood flow, helps your blood vessels, I guess, relax, expand. I don't really know, but I'm sure it helps with skating because it has been used as a doping drug in the past. And also, if you're a 15-year-old woman landing quads from Russia, yeah, I mean,

nobody had any thought that maybe there was something to look into here. But here's the problem, David. They caught the Russians with a government-sponsored doping program, and their punishment under IOC law was that you can still compete, but not under your flag, but it's going to be called the Russian Olympic Committee. How is that? I mean, this is why you have laws that have real punishments, even if they're harsh against the individual athletes, because she's 15. She didn't decide to take this drug. She can't. She legally cannot be the one who decided this. And certainly during the rest of her training, again, like first woman to land a quad. And it's really depressing to me. It's a little like if Hillary Clinton had become the

first woman president, it was going to bother me because it would be the first woman president had been the wife of a male president. And it would have to me just it just undermines the whole thing right and i don't like it but i want to end on a good note david which is the u.s women's curling team beat the russian olympic committee curling team uh so miracle on ice 22 team usa usa curling we're to Team USA, USA Curling. We're with you all the way. Get to that medal stand. Woo! As I said in the dispatch pod, I am 100% for our athletes.

Now that we're there, we're going, we went. Beating, in particular, all authoritarian comers, the Russians, the Chinese. I'm all for that. I just can't watch it. I just can't watch it. I just can't watch it. Look, I really think you maybe should go back and watch Nathan Chen's gold medal skate

for the men's competition. It is the purpose of the Olympics for me is when you have someone who's worked hard their whole life, gets out there to do their best, worked hard their whole life, gets out there to do their best. And then through everything, the nerves, the moment, the timing, the luck, all of it, they do do their best. And those moments are magic. And Nathan Chen dancing to Elton John's Yellow Brick Road Rocket Man mashup over a huge orchestral arrangement. It was magic and it was perfection. And I don't understand how the human body can itself make itself spin that quickly that many times. I couldn't pass a sobriety test after one

of those jumps. I think in the green room, I said, if I did one of those spins and tried to skate away, I would immediately collapse and probably vomit. That's exactly what would happen. One time I tried to ride my bike. I'd gone to a bar in college and I'd parked my bike to go to the bar. So I tried to ride my bike back. It wasn't far. It was like 100 yards, but there were shrubs, like bushes lining the sidewalk. I went into the bushes. I just tipped right over. All right. We have covered some ground. Yes. Today we have covered some ground. My goodness. Weighty stuff. All right. We're going to be, we're, we're going to cover more ground on Monday. We'll be back.

But until then, please rate us on Apple Podcasts. Please subscribe on Apple Podcasts. And please check out thedispatch.com.