Advisory Opinions - The Onion Files an Amicus Brief

Episode Date: October 6, 2022

An Alabama redistricting case receives a contentious Supreme Court hearing, weighing race neutrality against a history of racial discrimination. Donald Trump files an emergency request with the Supreme Court and it’s… technical. Oh, and did we mention The Onion’s amicus brief? Also: stick to the end for a letter from the best compliance supervisor in America. Show Notes: -The Onion’s amicus brief -Merrill v. Milligan -Trump’s emergency request Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. We have so much to talk about. I feel a little overwhelmed. I really actually do, but why don't we... I'll just go ahead and run through the lineup real fast.

And starting with... Sarah, did the Onion file an amicus brief? I haven't heard about this. I don't know, David, I only got 75 emails, DMS tweets, a plane flying over my house with a banner streaming behind it.

To be clear, everyone are, are wonderful listeners. Truly love you all. The council for the Onion emailed us. We didn't need all the rest of it. We're going to talk about the Onion amicus brief for sure. We're going to start by talking about it,

but we also are going to talk about the Alabama redistricting case. And so I've understood, Sarah, that I'm not, I should not say lit anymore. Fire. The kids say fire. Yes. So the oral argument was fire. We're going to have a brief update on Yale. We've got a fabulous escheatment email and a correction about speech or debate. And oh, wait, did I skip over the Trump filing in the Supreme Court? I did. Yeah. I did skip over the Trump filing in the Supreme Court. We gotta go, David. I know. Okay, let's start, shall we? The Onion Brief. Sarah. Okay, so we talked about this case

quite a bit before. I think we've talked about it twice. This is the gentleman who had a beef with his local police department and creates a Facebook page that is supposed to resemble the police department Facebook page. It says such things as the police department is now accepting new applications for employees. Minorities are strongly encouraged not to apply. Or that pedophiles should come to the police department. If they can do well on some of these puzzles, they'll be taken off the sex offender registry. That they'll be offering abortions to teenagers in the back of a police van. Things like this. The police department keeps telling him to take it down. He keeps not taking it down.

Around and around they go. Eventually, they get a warrant for his arrest. Yep. And they do, in fact, arrest him. It is, of course, thrown out under First Amendment grounds. thrown out under first amendment grounds he sues though under 1983 to recover damages for a violation of his civil rights that's where this case gets interesting because the sixth circuit grants qualified immunity because at least in no small part not that it wasn't obvious that he was protected by the First Amendment, but that the police department got a warrant.

And so they had the city attorney go get the warrant, a neutral magistrate sign the warrant. And so whether or not you think that the law was clear at that point. All of those things have to sort of give immunity to the police department from violating someone's civil rights if all these other people not only agreed, but went through this warrant process. However, the case is up at the Supreme Court awaiting its certiorari time to be at conference.

And in the meantime, the onion has come barreling in. And I mentioned that counsel reached out, who's not one of the councils of record on the brief, but another counsel at Miller Johnson, the law firm in question. And I did go ahead and do some Googling on the two lawyers here, Stephen J. Van Stemvoort and D. Andrew Portinga. I'm sure I'm butchering both of your names. Bravo, guys. We'll go through this. I don't know how much they wrote this on their own slash had the help of their clients in this case but i kind of think this was written by lawyers because it was so such a good parody of lawyers that it would need

some real legal touch here david um i will say just from the legal side they do kind of miss the point. Now, it is their point, right? Amicus are not supposed to just do the same as the parties in their filing. They are supposed to be adding value of some other kind. Now, I know that might be hard to believe given some of the amici we've talked about in the past, which seem to just be making the argument again for either of the sides. in the past, which seem to just be making the argument again for either of the sides. But in this case, they do not address the underlying problem with the warrant issue and stuff like that. I don't think that'll surprise anyone who knows what the onion is. Instead, their brief is about the importance of protecting parity under the First Amendment and not requiring, for instance, a disclaimer, which of course would ruin the parody,

they make that point over 23 delightful pages. Yeah. I mean, this is a classic Amicus brief that, as you're saying, it's not trying to come in and replicate the party's arguments. Can I just, let's just read a little. I want to read the whole thing, but we don't have time. We don't have time. It's so well done. Every sentence is just incredibly well done. But yes, David, read some of your favorites. Well, I just, I thought, I can't wait to read this.

When it got to interest of, I'm going to just butcher this, amicus curiae, however you want to pronounce it. Okay. It just starts with a bang. The Onion is the world's leading news publication, offering highly acclaimed, universally revered coverage of breaking national, international, and local news events. of print newspaper in 1756, the Onion now enjoys a daily readership of 4.3 trillion and has grown into the single most powerful and influential organization in human history. And it keeps going. It just keeps going. And then sometimes it just out of nowhere will say something. The Onion's keen fact-driven reportage has been cited favorably by one or more local courts, as well as Iran and the Chinese state-run media. Which is not parody.

That's just true. That is just true. That is just true. My favorite is their argument section one, parody functions by tricking people into thinking that it is real. To Stoltus S., you are dumb. These three Latin words have been The Onion's motto and guiding light since it was founded in 1988 as America's finest news source, leading its writers toward the paper's singular purpose of pointing out that its readers are deeply gullible people. This is my favorite. The Onion's motto is central to this brief for two important reasons first it's latin and the onion knows that the federal judiciary is staffed entirely by total latin dorks they quote catalysts in the original latin and chambers they sweetly whisper starry decisis into their spouse's ears they mutter

cubono under their breath while picking up after their neighbor's dogs so the onion knew that unless it pointed to a suitably Latin rallying cry, its brief would be operating far outside the court's vernacular. I mean, perfect. Yeah. Yeah. It's fantastic. The other thing that's really interesting about this is that it actually sort of walks you through the process of creating parody. Yes. And the history of it, it's one of the few times that the humor itself is the argument, and that's why it's more effective than most of the briefs that try to be funny. We have pointed out funny footnotes before. I know Kato has tried in the past to

file amicus briefs that are funny, and the humor is supposed to get attention for the brief, And the humor is supposed to get attention for the brief. But a lot of the time, I think it's a little bit shticky. This is not shticky because it is the argument. That's exactly right. And it's funny. So they talk about how Paradis... So it says, Paradis can take apart an authoritarian's cult of personality, point out the rhetorical tricks that politicians use to mislead their constituents,

and even undercut a government institution's real-world attempts at propaganda. Time and again, that's what has occurred with The Onion's news story. In 2012, for example, The Onion proclaimed that Kim Jong-un was the sexiest man alive. China's state-run news agency republished The Onion's story as true alongside a slideshow of the dictator himself and all his glory. The Fars Iranian news agency uncritically picked up and ran with the Onion's headline, Gallup poll, rural whites prefer a big dinner job to Obama. And by the way, they're making an important point here, which is the reasonable person standard is not the lowest common denominator. As in, if anyone might fall for this, then it is not parody. It's not protected. Their point is no.

A reasonable person is most people or some people, because the whole point of parody is that some people are going to be fooled. And for instance, they have this just, again, charming paragraph. Assume that you were reading what appears to be a boring economics paper about the Irish overpopulation crisis of the 18th century. And yet, strangely enough, it seems to be advocating for solving the dilemma by cooking and eating babies. That seems a bit cruel until you realize that you, in fact, are reading a modest proposal to be clear the onion is not trying to compare itself to jonathan swift its writers are far more talented and their output will be read long after that hack swifts has been lost to the sands of time still the onion and its writers share with swift the common goal of replicating a form precisely in order to critique it from within.

And that's, again, like they're using the humor to actually make the point. They have this whole then thing where they follow the AP style, Supreme Court rules, Supreme Court rules. The Onion could push the joke even further by saying, while the U.S. Constitution guarantees equality of power among the executive, legislative, and judicial branches, it most definitely does not guarantee equality of coolness. The ability of the president and Congress to keep pace with us is not only separate, but most unequal. And their point is, the form matters. Yeah, exactly. Exactly. That's right. We would be totally remiss if we did not include this statement. The Onion's journalists have garnered

a sterling reputation for accurately forecasting future events. One such coup was the Onion's scoop, revealing that a former president kept nuclear secrets strewn around his beach home's basement three years before it even happened. Footnote two, Mar-a-Lago assistant manager wondering if anyone coming to collect nuclear briefcase from lost and found. The Onion, March 27th, 2017. 2017. It's just a delight, Sarah. It's just a delight. It it's just a delight it was and the delight had purpose and again i don't i 100 agree with their brief and don't think it changes the outcome of the case at all yeah yeah no i agree with you and the other thing about the delight had purpose it was also not a

disrespectful brief not at all quite the opposite the Delighthead purpose, it was also not a disrespectful brief. Not at all. Quite the opposite. The Supreme Court rules, Supreme Court rules was, if anything, a little bit of flattery. Yeah, exactly. It was not. That's the thing about if you're trying humor in a court context, A, it had better work, and B, it had better be respectful. And those are the two fundamental requirements. It has to work and it has to be respectful, and they pulled it off, which is one of the reasons why smart lawyers tend to defer to the judges to be funny and not necessarily reach for the humor themselves. and not necessarily reach for the humor themselves. But you're right. The issue here really isn't, is parity valuable? Is parity protected? Was that protected speech? All of

those answers are yes, yes, yes. Parity is valuable. It's protected. The particular parity in this case was protected. The issue is, can you sue an officer in their individual capacity when they have secured a warrant? Which, yeah, and we have talked about this case at length, and we'll return to it, I'm sure, when we get a final disposition. But that's the real issue. When every guardrail fails, who can be held liable? If anyone. And just again, to end the brief, just chef's kiss, Miller-Johnson attorneys. The Onion intends to continue its socially valuable role bringing the disinfectant of sunlight into the halls of power, and it would

vastly prefer that sunlight not to be measured out in its writers in 15 minute increments in an exercise yard. Just lovely. The conclusion, by the way, which normally is a form thing, David, like you don't even read it. This one, no, is not, of course. The petition for certiorari should be granted. The rights of the people vindicated and various historical wrongs remedied. The Onion would welcome any one of the three, particularly the first. I love it. Various historical wrongs remedied.

So yes, thank you everyone for sending it to us. And I do mean everyone. I'm pretty sure every single one of you sent it to us, which was almost a parody unto itself. Well, and there's such a wonderful silver lining to that, Sarah. The sheer volume of people sending it to us made me realize our listenership has grown more than I thought that we... We knew it was big big I just didn't know it was this big so and also I would have definitely put this at the end of our podcast but we were concerned that all of you would revolt and show up to our homes with pitchforks so we put it at the beginning of the

podcast even though nothing about this actually warrants the beginning of the podcast compared to, for instance, a Supreme Court oral argument on the Voting Rights Act. But you win, I lose, we put it up front. All right. Well, you said it first, Supreme Court oral argument, Voting Rights Act. This was fire. This was absolute fire. Sarah, you listened to it. I read it. Do you want to set this up for us? Yeah. So before we get into some of the law, we of course mentioned that there were two arguments earlier in the week on Monday that were less fire. Yes. And those were the first oral arguments for Justice Jackson. But this was the first

big hit parade case for Justice Jackson. And we definitely learned some things about Justice Jackson. She is going to be a hot bench, very much in the style of a Sotomayor in a lot of ways, debating the advocates, less questiony, more debate format. However, I will say, and I can't fully explain it to you about sort of the nuance of human language, but when she's talking, it sounds like she has a smile on her face. Yeah. Does that make sense? Like, I wasn't there.

It makes total sense. I can hear her smiling and looking very pleasant at advocates. Now, at times I actually thought that in some ways that almost could come across as sarcasm or patronizing. But again, this is just like my impressions of the first oral argument. Let's see where it goes from there. Number two, big picture, David. Justice Kennedy was in the room. And I just picture him, I guess he sat like in the front row,

mind you, he's a retired Supreme Court justice. He does get a law clerk. He shares that law clerk with Justice Kavanaugh. That's tradition. Justice Breyer has a law clerk, for instance. But I guess I'm just picturing him there with like a vat of popcorn, watching the argument. Not my problem.

But he came for that water case that we talked about, the WOTUS case. And he had written one of the main water decisions many, many years ago when he had first sort of joined the court. And so again, like all the justices are looking at Justice Kennedy, watching them as they potentially undermine, dismantle, overrule one of his big bonus cases. So that was good times. Let's see, last sort of big picture thing before we get to the facts, back to the Voting Rights Act case. The Alabama Solicitor General argued that Eddie LaCour, David, I know you'll be shocked to hear that. I know Eddie, consider him a friend, but importantly, his wife, Alice LaCour, following a long tradition, long meaning just this podcast and her, she has a

podcast. So she also has a husband of the pod and her husband of the pod is Alabama Solicitor General Eddie LaCour. She does a true crime podcast as an assistant United States attorney. So as a federal prosecutor, she goes back through old cases and walks through them in sort of this true crimey way. It's a fabulous podcast. So anyway, that's Alice and Eddie here arguing the case. I thought Eddie did a nice job in what was, David, this case was a mess. Wow. Yeah. Yeah. yeah yeah all right i'll try to get to the merits here so we've talked about this a little bit before but in 1986 there's a very big case called thornburg v jingles 99 of the united states pronounces it as jingles when they care to pronounce it at all.

However, it's worth noting that Justice Alito pronounced it gingles. Yes. And that caused me, and I'll tell you, husband of the pod, to go down a bit of a rabbit hole. And he found me the audio from the original jingles oral argument where Chief Justice Berger introduces the case. David, do you want to know what Chief Justice Berger said? Jingles. Yes, he did. Now, does that make him an authority on how to pronounce that? It absolutely does not. But as best I can tell, the word was not used by the advocate during the argument and therefore sort of the closest to history that we have is the chief justice saying Gingles Alito might be right which means all of us have been mispronouncing this I don't know anyone who pronounces it

as Gingles except one justice on the supreme court but um history may vindicate him yet. Okay. So this is about section two of the Voting Rights Act and about redistricting and how to draw these lines. So Congress creates all of these Senate factors. We don't need to go through those because in, and I'm still going to pronounce it jingles. I'm so sorry, but that's just the way it's going to pronounce it jingles i'm so sorry but that's just the way it's going to have to be um time has has worn its effect and it is i can't undo it now uh the supreme court in the 1986 decision creates that plaintiffs must show the existence of these three sort of preconditions to get in the courthouse door basically to challenge a district map so they have to come with their own map basically this is under the voting rights act yeah right and the map needs to show that um the racial or language minority group quote sufficiently is sufficiently large

and geographically compact to constitute a majority in a single-member district, that it's politically cohesive, meaning they tend to vote the same, and that the majority is also politically cohesive and votes against the minority. David, I don't want to get too far into the weeds in all this because there's some like big picture things here. Lots of big picture things. It is putting at tension the idea of race neutrality against a history of racial discrimination. congressional districts drawn in a non-race neutral way for the purpose of depriving just another way of depriving black people not of voting in this case but of their vote mattering that is simply factual no one disputes that and the question that we keep coming back to in a

variety of ways in a variety of cases whether whether it's affirmative action or these Voting Rights Act cases, is are we done remedying that? Are we past that sort of very blatant race discrimination? Or is there now just sort of insidious discrimination that's, yeah, they're not saying the purpose is to deprive Black people of a meaningful vote, but nevertheless, it is the effect. The result is that it is depriving black people of a meaningful vote. And the problem that you come up with in any redistricting scenario is cracking and packing. Right. So you can have an illegal district because you cracked or packed the minority vote. Cracking means you take a cohesive neighborhood, let's say, that would get to vote as one, and you crack it into multiple districts so that instead of being 50% of the

district, they're now 20% of three different districts or something like that. That's an illegal racial gerrymander because your purpose, or is it that the effect was to dilute the minority vote? At the same time, another way to have that same purpose and that same effect is to pack the district. That let's say they would be 40% of three different districts, but instead you make one 80% district so that they get one majority vote. And then in those other districts, they're now 20%. And so their vote doesn't matter. That also is an illegal racial gerrymander. The problem, David, is that the opposite is also an illegal non-racial gerrymander. So in this case, this has been pointed out a lot, 27% of Alabama's population

is black. But out of Alabama's seven congressional districts, only one is majority black. And it should be noted that white Alabamans and black Alabamans vote as a block. In other words, there's highly racially polarized voting in Alabama. There is. And so those second and third ones are very much met here, that both vote as blocks and not the same. But of course, David, the fact that 27% of the population is one thing, and 14% of the district has more than 50% of that population, actually, that math is fine in theory, right? Because if

that 27% were equally spread out through the state, in fact, it should be the case, in theory, that 27% of all seven districts should be black. But of course, that's not the reality on the ground. The population is not spread out equally through the state. There's something called the black belt, which is not actually named that necessarily because of the skin color of the people who live there, more about the soil, but then also the skin color because it happens to be both. And that Black Belt, by the way, runs throughout the South. It is not just in Alabama. But here, the whole argument turns around. And I feel for Eddie in this argument, whether he's being totally sincere about it or not, it's absolutely just the case.

He's like, we're not asking you to overturn jingles, gingles. I don't even know it anymore. It's all up in my head. We need clarification though, because if it's an illegal gerrymander when we make two majority black districts, because if it's an illegal gerrymander when we make two majority black districts, but then it's also an illegal gerrymander when we don't make two

majority black districts, we don't know what these factors are. We don't understand what compactness means. We don't understand where you're supposed to have race neutral categories, where intent matters, where only results matter. You tell us, we're happy to follow the rules, but thus far the rules make no sense because every time we go path A, you say no. So then we go path B and then someone else sues us from the other side. And in some ways, having this case come out of Alabama where you really are looking at sort of two racial groups, as you said, David, with racial polarization around voting, almost makes this case much easier than if you were doing it in a state like Texas, which has also had redistricting problems, in which it becomes a zero-sum game.

Like to say, well, you need to have one majority Black district, but in order to do that, you don't have a majority Latino district. Well, no, you need the majority black district, but in order to do that, you don't have a majority Latino district. Well, no, you need the majority Latino district and you end up having all these groups suing because they want more minimally majority districts to maximize the political power. And at the same time, for instance, take the Latino vote in Texas,

it's becoming less cohesive in its vote. At what point do you fail the cohesiveness test? Is it 66% vote Democrat? And there's so much, frankly, racial discrimination even built into that concept. It is hard to see how that meets with the 14th Amendment. And this is where Justice Jackson made her biggest headlines in saying that the 14th Amendment was not unconscious of race. It was a race-conscious amendment to the Constitution. The whole purpose was to remedy discrimination against freed men. But here's where I thought her argument fell apart a little, David.

Of course she's right. Yes, the 14th Amendment is race-conscious. fell apart a little, David. Of course she's right. Yes, the 14th Amendment is race conscious, but the remedy of the 14th Amendment was not that the freedmen should get more rights or different rights than everyone else. It's that they should actually enjoy the same rights, not on paper, not in theory, actually the same rights as everyone else, regardless of skin color. So that gets very very very messy when it comes to this redistricting case david because one of the criteria the race neutral criteria that alabama wants to use is previous district lines but if you go all the way back that's the very definition of a racially discriminatory policy.

And we've talked about this in sort of the systemic racism context, David. Yeah. You can't just say, like, well, we've been doing it my whole life, and that means it's race neutral. But what if it didn't start that way? Like, school districting lines, neighborhoods, and this is a mess. Yeah. So if you're talking old Confederacy plus Jim Crow saying, we've had these lines for a long time, isn't quite the defense that you might want. But here's the really conceptually difficult thing. So I think what was pretty clear from the oral argument was that everyone was on the same page, that if you had evidence of invidious discrimination, in other words,

intentional discrimination, Voting Rights Act was implicated, lines would have to be redrawn. But what if you don't have evidence of invidious discrimination, but what you do have evidence of is a disparate impact, a pretty big disparate impact to the point where, so for example, 14% of the Alabama congressional delegation is going to be black, 27% of the population is black. And this is sort of a permanent thing, the way these district lines are drawn to where black Alabamans are going to have about sort of half of the representatives that their numbers would indicate. So there's a definite disparate impact here with these lines. And then Alabama says, but wait a minute, disparate impact isn't enough to overcome the

equal protection argument that, in other words, if you're asking us to get race conscious to avoid disparate impact rather than invidious discrimination, we're going to violate the Constitution by not being race neutral in our calculus. And that's where, you know, you felt like the advocates were saying, tell us, tell us, because one of the answers that I can't remember if it was Kagan, but one of the three Democratic appointees said, wait, we've already identified a compelling governmental interest here in Section 2 of the Voting Rights Act. Doesn't that get us past the equal protection analysis? And that's going to be one of the really key questions here. And then to make this more complicated, Sarah, okay, let's suppose you say that if 14% of black Alabama, if 28% or 27% of Alabamans are consistently getting 14% representation, and it's because of their race, even in the absence of intentional racial discrimination.

And so, therefore, that disparity should be addressed and consistent with the Equal Protection Clause. Let's fast forward to the Harvard case. What does that mean when you're talking about, say, university admissions and percentages in university admissions? Now, I think Alabama might then respond or the plaintiffs in Alabama would respond and say, whoa, timeout, timeout. This is old Confederacy stuff that we're dealing with here. This is old Jim Crow stuff that we're dealing with here.

It's just kind of apples and oranges. Don't go too far down this road. Don't imply too much from it. Let's look at Alabama. And the bottom line is, you have patterns of life, residential segregation that exists in Alabama, that residential segregation is a legacy of a lot of de jure segregation that went before. And now under quote unquote race neutral principles, you're just consigning black Alabamans to half the representation of their white neighbors. The white neighbors are overrepresented, black Alabamans are underrepresented. And isn't that what the Voting Rights Act is all about? Huh.

And, okay. So a big problem here, and it got very into the weeds, about map drawing. Did the plaintiffs need to be able to draw a second majority black district using only race neutral criteria because they weren't able to do that and they even through their experts in various computer simulations you couldn't draw a second majority black district without factoring in race itself. And as factoring in race, you end up with a district that is basically grabbing people from two different metropolitan, you know, metro areas, and then a whole line in between. I forget exactly the number, but it was, you know, over 100 miles long, something like that, like 127 miles long. And this goes back and forth of,

do you have to have a race-neutral map that could be then majority-minority in order to satisfy that equal protection problem? Or as I actually thought Justice Jackson made this point quite well, you know, you're saying that there were 50 factors in your, you know, factors you gave the computer, and it didn't come up with the second district. But if you add in a 51st factor, which is race, yep, it comes up with this district quite easily. It doesn't mean that there was only one factor in that second iteration. It was just that you added in race as something else for the computer to create

from, not that it was the predominant factor. And then you have Justice Alito saying, but it is the but-for factor, isn't it? And how is that race neutral? How is that not violating the equal protection clause and treating races equally? And again, you get to this zero-sum problem that I thought Eddie, the Solicitor General of Alabama, Eddie LaCour, made quite well. So in his argument, he's saying, so if someone brings a challenge to an early voting period and say it's 10 days, but really should be 20, and they prevail and they get 10 more days, no one is harmed on account of race. The minority voters who prevailed and the majority voters can both take advantage of that. Similarly, if you challenge a multi-member district

and you replace them with neutral single-member districts, no one's worse off on account of race. But if you have a neutral plan and someone comes in and upsets it to racially gerrymander it in favor of one racial group, necessarily you're going to be harming some other group on account of race. And that's where I think my Texas example

becomes more meaningful because here in Alabama, where you're really dealing with two racial groups and one's white and they've been the majority and they frankly been the one doing the discriminating in the past, then I don't think we're feeling too bad about that zero sum game. But move to a state like Texas with a exploding Asian population, a large black population in cities like Houston and Dallas, and of course, a very large Latino population, plus a white population, and all of a sudden using race to draw these maps

becomes a very zero-sum game and very, very racially discriminatory. Maybe you can think it's discriminatory in a positive way. There's positive race discrimination. Affirmative action is considered positive race discrimination. But in that zero-sum game where there's different minority groups arguing about it, again, I actually think that was an under-argued part of this, that we're making a rule for Alabama, and Alabama is not the future of what the redistricting fights are going to be. No, that's a really, really good point. I mean, Alabama is an outlier state on this. It will

remain an outlier state on this for a while. And that's why I didn't find the argument, as applied to Alabama, that you're going to be harming the white population here to be compelling, because actually, no, if it's two out of seven, then 28% of the representatives are, 28.5, I guess, of the representatives are black with 27% of the population. It's very, actually kind of matches up. And again, let me just say when I say this, it all matches up. I would love it if we had an environment where

all of America's racial groups were kind of equally up for grabs, more or less, from a voting standpoint. I think that'd be a lot healthier for America. I think it's overall healthy, for example, that the Hispanic vote is now much more up for grabs so that we're not just in these racially defined identity groups for voting, which I think is very unhealthy for a country. But that's not where we are in Alabama. It is not. It's nowhere close to where we are. So, you know, it's interesting, you know, if you go back to original voting rights legislation, original voting rights legislation singled out problematic states and they had difference now that's all gone but we're back to sort of the blanket universal look at voting rights which

makes this an even more difficult kind of case to resolve because you're right alabama is different it's really theory versus reality in theory-neutral principles, and in reality, we're not living in a race-neutral world yet, and not in Alabama. And Solicitor General LaCour ended with this. We've got a real-life example with Louisiana's case that's pending before this court as well. Back in the 90s, they drew two majority Black districts. Twice, district courts said, that's racial gerrymandering and tossed them out. So then they drew one majority black districts. Twice district courts said that's racial gerrymandering and tossed them out. So then they drew one majority black district. And now this year, their map again was preliminary and joined for failure to draw two majority black districts.

I think it's a perfect example of just how states are caught in the middle. Because again, you can imagine the fight not between white voters and black voters in this case, but between different groups of black voters, one who want that one majority black district so that they can compete in three other districts with 30% of the vote, for instance, rather than having two very large majority black districts, but not being able to compete in any of the other districts with their candidates, for instance. And so you get into political strategy far more than you get into opportunity to vote for the candidate of your choice. And again, we've seen that happening more and more as white voters are clearly willing to vote for black candidates in some states,

not saying at all. And so then the strategy changes. Maybe you don't want 56% of the district to be black. You want about 30% to be black because you think you can pick up another 20% in white voters, in which case doing that in five districts is better than doing it in only two districts, if you see my point. Okay, so David, how does the case come out? Oh, I knew you were going to ask me that. This is one of those where I'm really at a loss, to be honest. As I was listening to Kavanaugh at points, I was thinking, I think he's with the three. I think he's with the three. And if Kavanaugh being the median justice is with the three, then the Roberts is going to be kind of moving towards that direction.

with the three, then the Roberts is going to be kind of moving towards that direction. So I'm going to say, I'm going to say a very narrow ruling that's sort of along the lines of, this is Alabama, y'all. And that's going to be very, it's going to be narrow for the, for the petitioners. No, wait, the petitioners, Alabama, narrow be narrow for the um for the petitioners no wait the petitioners alabama narrow narrow for the original you know plaintiffs in this case those who are seeking the redistricting um but i am so shaky on that prediction but if you're making me i'm saying a narrow ruling essentially under a compelling governmental interest standard applied to these facts worth noting that jingles couldn't get a majority and you wonder whether here you could end up with a um you know a 333 or 423 to your point david uh justice barrett actually asked a lot of questions

about the race neutral map drawing for that you, getting in the door factor one. But Justice Kavanaugh was a little bit inscrutable in his questions. Very hard to guess where he was. And Justice Alito asked some questions. Justice Gorsuch, not really. Justice Thomas, not really. Chief Justice Robertsberts no other than calling on other justices um yeah by the way this is i'm very curious to see how this term goes because and again this is just the first hit parade argument so i don't want to make over generalizations based on one argument but it was very much dominated by kagan and jackson withito there too. And they were kind of just debating, frankly, and it wasn't a whole lot of, hey, I'm trying to see clarity on this. And what would your test mean for this and hypothetical this? And if that's the case,

I wonder if some of the other justices are going to start adopting the pre-COVID Thomas stance of, I don't, clearly we're not here to ask questions, so I don't really need to participate in the food fight. And it will become more dominated by sort of the most strident voices in the argument, which frankly will be a lot less fun. And it's why I liked, I think, the Chief Justice Roberts going down the line

and asking anyone if they have any final questions. That was still here this time, but it was far less utilized. It was really only Justice Barrett who really used it with a little Justice Kavanaugh. There were, of course, four arguments here. It was a two-hour argument. So we didn't even get into a lot of these other very nitty-gritty pieces of it because we're afraid you would all fall asleep after how exciting the onion brief was. Yeah, I guess at the end of the day, I'm going

to find it difficult to believe that race neutrality in Alabama means that 27% of the population is essentially permanently consigned to 14% of the representation. Except for my theory, David, which is there's going to be another group of Black candidates who want to compete in those districts where they have 30% representation instead of 56% representation, which is what, by the way, that second Black district is. So it's 56%. It's barely a majority. Yeah. so it's 56 it's barely a majority yeah and again you just get to the strategic question of of which group thinks they can win where and the more you know this one black candidate thinks that

he can win by running a i'm a black candidate race so he wants 56 in the district but a different black candidate who wants who thinks he has a specific appeal to white voters wants a 30% district. And at some point, you're not talking about race. You're talking about political and party strategy that is not for the courts to be jumping in on. I'm not saying that we're there yet, and I'm not saying that's the case in Alabama. But it is where you end up. Well, and of course, the ultimate really solution to this is the end of highly racially polarized voting. Wouldn't that be nice?

So what we're dealing with is, as I've said many times before, vice often leaves virtue with few good options. And so... Oh, so true. Anyway, so if you have highly racially polarized voting, this is the predicament you're putting a country committed to equal protection. This is the predicament. If you do not have highly

racially polarized voting, the predicament starts to vanish. So we'll see. Well, that's the first of the hit parade cases. You know, we talked about this term being sort of a race term. This is certainly one of the biggest cases on that race card, but this is quickly becoming the tech term too. With many of those social media and tech cases coming up, it'll be interesting from a media narrative, a term narrative, which one kind of wins out at the end. Sort of old school media narrative, legal narrative is going to want to follow those race cases. But I actually think the social media cases are where the court is least equipped, least prepared to create new law and could make weird, large, accidental jumps that are unpredictable. So this, in some ways, is more predictable.

We had lots of Voting Rights Act cases, again, going back to jingles. And we did Brnovich last term, term before. We've done preclearance before that. So this follows a long line that we've already seen. And I think we'll expect, I think this will be a while till we see a decision. This could be definitely late spring, if not in the June bucket.

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.

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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. Okay, speaking of the Supreme Court, David, somebody has an emergency filing at the court.

Supreme Court, David, somebody has an emergency filing at the court. Yes, yes. The former president of the United States has filed an emergency filing at the Supreme Court that there's a lot less there than meets the eye. And just to back up, remember, so we have the special master request to the district judge that gets granted. It goes to the special master. They ask for clarity. DOJ asked for clarification from the district judge. Hey, you sir, surely don't mean the classified documents.

And the district judge says, yes, I do. DOJ goes to the 11th circuit and says, you've got to be kidding me with this classified document stuff. And the 11th circuit says she was kidding you. Nobody in their right mind could possibly think that the special master and the Trump team need to review the classified documents. And the DOJ can no longer review the classified documents as part of its investigation.

He has no interest in documents marked as classified. It then is hanging out with the special master. The district judge reviews the special master's plan and disagrees with various points of it doj in the meantime appeals to the 11th circuit on just having the special master at all at the same time that we're waiting for that donald trump appeals to the supreme court on the 11th circuit's classified document ruling, but not all of it. Yeah. So there's a good thread from Steve Vledek, former UT law professor. I'm sorry, UT Austin law professor. We all knew that, David, because you said UT.

David, because you said UT. Sorry, UT Austin. I misidentified the school. I apologize, UT. So former guest on the pod. And he has a really good short thread on this. And he makes kind of an interesting conclusion here that this is the kind of thing when you are a good lawyer and you have a pretty angry client who's kind of pressing you to do stuff. Sometimes you file something that's really narrow and technical and not super material to the case, and you go, look at this client. We have filed an emergency appeal to the Supreme Court because the appeal isn't really asking to vacate the whole 11th Circuit ruling. It's not even arguing, it's not arguing that the EOJ should be enjoined from using the classified documents. That's not what's happening at all. Arguing instead that those classified documents should be part of the collection of documents that the magistrate judge is reviewing.

That's it. That's the argument. It's not that big a deal, to be honest. And the argument is really super technical, sort of based on this idea that the injunction, you can appeal law students from an injunction as a preliminary matter. There's not, appellate jurisdiction is limited. You don't get to appeal very many preliminary rulings from a district court, from a trial court.

You just don't get to appeal those at all. You have to wait until a final adjudication on the merits to appeal the case, with some exceptions that are limited, and one of them is appealing an injunction. You can appeal an injunction. But if you appeal an injunction, how much other stuff can be part of the injunction appeal? That's what you call pendant appellate jurisdiction. appeal. That's what you called pendant appellate jurisdiction. So the essential argument was that some of the other stuff that the 11th Circuit considered some things that would be considered

other stuff when it considered the appeal of the injunction and that that was improper. That's it. That's the thing. Right. So if Trump wins, this would not affect DOJ's ongoing investigation, whether DOJ can continue to review the classified documents. That was core to the injunction. What was pendant or not pendant was what the special master can do with the classified documents, whether he can review them, and whether therefore the Trump team can review the classified documents. Steve Vladek thinks that it was pendant as in sufficiently tied up with the other. I'm less certain of that. I think it's a coin flip and maybe it wasn't all that pendant. What the special master is doing is entirely separate from what DOJ is asking to do,

which is to continue to investigate. That has nothing to do with whether the special master can see the classified documents. However, you have to show in order to get a stay, an emergency stay at the Supreme Court, that you will be irreparably injured in the meantime. There is no argument for irreparable injury here that the special master not getting to review the classified documents is going to irreparably injure Donald Trump. No, nothing. And Clarence Thomas seems not super concerned about this as an emergency because he's given the DOJ a week to respond on this. So I'm with you, Sarah. I am not convinced that everything else

aside from the injunction, the direct ruling regarding the injunction was properly pendant. I would put it as don't know, don't care. Don't care. Just think about this. A district judge gave something to a special master, and the Supreme Court is now going to oversee the special master's review of documents? If this weren't a former president, we would think these were the worst lawyers in the world. It would be hilarious that they were filing. Nine justices in the Supreme Court should take interest in their beef with the special master reviewing these documents

and not these documents. It would be actually insane. By the way, for those wondering why it's Justice Thomas asking for response, it's not because Justice Thomas is the one most interested in a response, but as we've talked about before, each circuit has a justice that oversees the circuit for emergency filings and all sorts of, you know, they usually speak to the circuit conference.

They're like godparents to the circuit or something. And Justice Thomas has the 11th Circuit. So when you file that emergency from the 11th Circuit, it goes to Justice Thomas regardless. Can we petition the court? Because I think this is entirely in their jurisdiction to rename sort of the presiding justice over the circuit as Circuit Godparent. Because I like that. I mean, it feels right. They are, right? They're like, they're fairy godmothers of a sort for the circuit. Cool. Cool. All right. We'll keep an eye on that, but we won't have anything for at least a week, if not more. So now time to go to some housekeeping. Oh, yay. I'm excited about the housekeeping. All right. Housekeeping item number one. Well, no, we have a quick other update. A dozen anonymous judges, Aaron, Aaron Sabarium is, I hope that's how you pronounce his name at, um,

it is now Aaron. So sorry if that's wrong, has reported. And by the way, Aaron's a good reporter. Uh, just want to say that, uh, followed his work. I think he does a really good job. So anyway, so Aaron reports that 12 judges, both circuit and district, are now saying anonymously, so we don't know who it is, that they're going to join in the Yale boycott, the Yale Law School boycott on clerks. Now, only to include not anyone currently at the school, only to include clerks, law students who are going to be joining Yale in the future. I guess giving people full warning and full notice that there are a dozen judges. You don't know who they are, but there are a dozen judges who aren't going to consider you if you are a

Yale law school grad. So we don't know who they are. We don't know what percentage or district or appellate. And so not a lot of guidance here, but Judge Ho's protest is expanding. So a couple of things on this one, David. Look, if it's anonymous, how is it a boycott? That's literally the opposite of a boycott. The point of a boycott is to let people know what you're doing. So that. B, the reason that we need to know is because for all I know, these judges never hired someone from Yale to begin with. So it's also not a boycott if you never went to the restaurant. Three, we don't know whether they're able to hire Yale students. There's very few of them. They tend to go for pretty prestigious clerkships. So I don't know,

depending on what judge you are, maybe you were never in contention for a Yale student, in which case, again, your boycott doesn't count if you can't afford the restaurant. Next thing, I think there's a few other unfortunate parts of this that we didn't talk about last time, and I just want to mention two of them. One, I think it would have been more effective if Judge Ho had then said that he has already hired, for instance, a current Yale student as a clerk to make the point that the current students are fine. My understanding is this has caused a bit of a problem with the Yale law students of not knowing which judges they can apply to and not. Yeah, that's deeply, to me, that's deeply unfair. They just don't know. There's a whole bunch of emails and calls flying around of who they're supposed to

apply to, who they can't apply to. And the anonymous boycott makes this much, much worse because now there's all these judges out there that they're going to waste their time applying to, but they don't know who they are. You know, clerkship applications are hard and time-consuming. And so you're punishing current Yale students, almost certainly. And you're definitely punishing the future ones who, again, may have gone to the school without even knowing this was going on.

Second point, David, and I did make this point last time, but I want to emphasize it. By not saying what Yale has to do in order to end the boycott also undermines the boycott. You don't boycott apartheid without saying you're boycotting apartheid itself. I don't like what South Africa is doing right now. Well, what are they doing? What specifically do you want them not to

do for you not to boycott? And because of that, I think it would be fair to say that to the extent that Yale law students, for instance, were making strides on campus with specific asks that they wanted remedied, this could very much undermine that effort that was going on quietly behind the scenes. And look, I get it. There is an age-old debate between incrementalism and absolutism. You and I have talked about it in the abolitionist context and in many others. Is John Brown the hero or the villain? Are there times to be John Brown? Are there times to be Frederick Douglass? What does that look like? When? How do you know? But but here i think it's blown incrementalism out of the water but without a um a measure a metric for victory yeah what happens if just yale calms

down how how long how long does yale have to calm down you know if if we go two three years four years five years without a disruptive you know without disrupting free speech or a scandal? Do you lift? I mean, what's the standard here? The person who is sort of in charge of all this is no longer there, Ellen Cosgrove. Second, the wall that was causing a bunch of the drama where students could just email and like name other students who they found problematic. That's been taken down. There's now literally a physical wall where you can post your feelings, but that's quite different than just emails flying back and

forth in the middle of the night. So again, I mean, I'm very sympathetic to all of this. And I think that Judge Ho, he's not anonymous and he was very clear on when this would take effect. So it's not that I'm an absolutist on like what Judge Ho did was wrong or stupid, but as this is now growing into anonymous other judges, now I don't understand what we think we're accomplishing here. Right, right. It seems like an own-the-libs effort that's going to end up maybe owning some really good folks who are quite conservative and have probably shown a lot of courage and perseverance in an adverse environment, but nope, no clerkship for you. Or just didn't know what they were doing going to law school like me. And like me as well. Now we have the fun part. Yes. So two things. One,

I got a correction. I said speech and debate clause when we were talking about that Lindsey Graham amicus brief and I got a fun little note from a friend mind you and it said it is speech or debate clause and I would just like to address this a little bit and read from article 1 section 6 clause 1 of the constitution uh senators and representatives shall in all cases except treason, felony, and breach of the peace be privileged from arrest during their attendance at the session of their respective houses and in going to and returning from the place. And for any speech or debate in either house, they shall not be questioned in any other place. So that is the speech or debate clause.

And I agree, it says speech or debate. There's really no debate over the speech or debate clause. However, I do think it's worth noting that it is called the speech and debate privilege. the speech and debate privilege. So the clause says or, but the privilege is and, and I absolutely think that I was saying speech and debate clause. That's wrong. I should have said speech and debate privilege. And we, Sarah, are nothing, we strive to be nothing if not precise on this podcast. That's right. And shall we now move on to why we have the absolute best listeners?

It never fails, David. Never fails. Never fails. We talked about a sheetment and the state of Delaware trying to hungry, hungry hippo up all the unclaimed money in the country and use it for their own budget, which sounds awesome, Delaware. You must just have golden bridges and lovely public restrooms that smell of Chanel. But in doing so, we also were talking about the pronunciation of a sheetment and having a fun time saying a sheetment as many times as possible. Many of you have weighed in to say that that is how you pronounce a sheetment at your law firms in your chambers. Good. I'm less embarrassed, but none of you match this email. David, can I read it? Yes, please. Go for it. Good afternoon, you two. I am a layman and a faithful

listener to AO. I was so excited when you discussed the money order case because I can hardly believe you're talking about this. I have served as the compliance supervisor in the Colorado unclaimed property division for the past 20 years. I work every day on the issue of a sheetment among the states. Nobody ever cares about what we're doing and there it was on my favorite podcast in the whole wide world. I thought Sarah's explanation of the background was just fine. Delaware does assert custodial rights over abandoned property that, in the opinion of many other states, would properly be distributed among the several states

in recognition of earlier Supreme Court precedent and the concept of mobilia sequentur personam. By the way, layman? Okay, that was a lot of Latin. That was good. That was a strong Latin debut right there. See Texas v. New Jersey by the Supreme Court in 1965 for a quick primer on unclaimed property law and the disputes among the states, if you're really bored. Again, I'm questioning your layman status. And then he says, a sheet has its roots in feudal times where

a lord would receive ownership of a tenant's property upon that tenant's desk. In modern American tradition, the state only assumes custody with no ownership rights over the undischargeable debt in the possession of a private company. I know you love it when your pronunciation of words is corrected, and it may have simply been a difference of accent between Sarah and myself, but I typically hear the word escheatment pronounced with a real punch on the middle syllable. Escheatment. People love calling us and over-pronouncing it that way as if they are very clever to have discovered that the middle syllable is cheat and that therefore we should all be in the penitentiary. Love the pod. More unclaimed property. More, more, more! With five exclamation points. That's fantastic. That's why these are the best listeners in America.

I mean, you talk about achievement and we've got, what was the exact title? Compliance supervisor of- The Colorado, yeah. Compliance supervisor in the Colorado unclaimed property division for 20 years. That is expertise right there. That is expertise. And just in case we questioned it, he did email us from his official account with his official

signature because otherwise you guys could be faking your expertise. But this is not a fake, sir. Yeah. To all you fake compliance supervisors out there. Getting excited about a sheetment. We're not buying it. We're not believing you unless you email from your actual account. But that was a fantastic email. Thank you for listening, Mr. Compliance Supervisor. That was fantastic. Really appreciate the background.

And get all your friends in the other 49 states on the advisory opinions train. We appreciate it so much. Oh, David, one last thing. You know our gnaw dog doctrine? Yes. For those who might be new listeners, it's a new Supreme Court term. I know it'll come up many times this term,

but this is where the Supreme Court, you make an argument, you stand up, you're making your best case. And the Supreme Court basically is like, gnaw dog, that's not it. So it turns out UVA Law School in a recent, they do like a musical where you take current songs and change the words to be legally nerdy. They have a new version of the nah, dog doctrine that if you have children listening in the car, now's a good time to probably... We're at the end of the podcast. You don't need to listen anymore. So

go ahead, turn it off. Okay. For the adults. So there is a song called WAP, David. W-A-P. Actually, even with the adults, I'm not going to say what that is. So do I need to turn off the podcast? No, no, no. But the point is that the song has the acronym WAP. Right. And UVA changed it to wrong ass precedent. WAP, WAP, WAP, WAP, wrong ass precedent. And I love it. And it's not the same as the nod dog doctrine. No. But when you stand up in court and you're arguing an orthogonal point or you don't know the case law, that's some wrong ass precedent. And I think that that's a pretty fun one and I'm going to borrow it, UVA. Thank you. Well, we've covered the gamut today from parody to completely serious thorny issues of historical race discrimination to the best compliance supervisor in America and those obscene UVA law students.

More parody. More parody. So if you enjoyed this podcast as much as I did, please rate us. Please subscribe. And as always, please check out thedispatch.com.