Advisory Opinions - Voting Rights in Alabama

Episode Date: June 13, 2023

Did Alabama violate the Voting Rights Act? How do you pronounce Gingles? And what are the tea leaf predictions for the Harvard discrimination case? Join Sarah and David to answer these questions and: -Who’s the lucky dog in the Jack Daniels case -Is Justice Gorsuch overcharging his friends on Venmo? -What happens when David puts on his woke hat? -Will there be an emergency pod coming up? -Who the hell is Mupp? Show Notes: -Allen v Milligen Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was in Texas. He's in Nebraska. David, I feel like my fajitas are going to beat your, I don't know, corn. Are you eating corn? I don't know what I'm eating. I'm going to have dinner in like four hours or whatever. And it's got to have some steak. I mean, like you can't be in this part of the Midwest without some good steak. So, but yeah, no, no corn. I'm in an arboretum. There's just like a ton of trees. That, that's beautiful. I am podcasting from my childhood bedroom.

It pretty much looks like I ceased existing on the planet shortly after graduating college. So everything here is very 20 years old, let's say. Well, and I'm at a place called L.I.E.D. Lodge, and we literally talked in the green room for several minutes about how you pronounce L.I.E.D. And so maybe that can be one of the pronunciation disputes that listeners resolve. I'm thinking it's lead and not lied and not lead. David, we've learned on this podcast that whatever your instinct is,

that's probably the exact opposite direction. So I now think it's lied because you think it's lead. But we have more pronunciation things to discuss because we have several Supreme Court cases from last week to go to. But David, you've persuaded me that we're not gonna start with vegetables here. We're gonna start with the big honking, like, is it a T-bone?

I mean, this is a big steak. We're going to dive right in to the Alabama redistricting case. Yeah, this is like a porterhouse. You know, this is like one of those steaks that if you eat it all in one sitting, you don't eat steaks again. You don't have steaks again for, you don't have to pay for a steak for a year, that kind of steak.

Unlike the Supreme Court, which I think based on this opinion is going to be wading into a lot more voting rights cases. So I hope they like quarter house. All right, let me just set this up for everyone. Alabama in the 2020 census had a 5% growth in population, not enough to change the number of congressional districts that they have, but enough to change some of the balance of where population growth was. They have seven congressional districts. The black population in the state

is 27%. The voting age black population of the state, 25.9%. So not that big a difference. And the question was, does Alabama have one majority black congressional district, or does it need to have two majority black congressional districts under Section 2 of the Voting Rights Act? So let me just read you Section 2 of the Voting Rights Act. So let me just read you section two of the Voting Rights Act. No voting qualification or prerequisite to voting or standard practice or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.

A violation of that is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a class of citizens, are not equally open to participation by members of a class of citizens, in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the state or political subdivision is one circumstance which may be considered, colon, provided that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion

of the population. So I know that that's a little dense, but you've got a bit of a contradiction built in here. On the one hand, it's saying that you need to have equal opportunity to elect representatives of your choice. On the other hand, they're saying this is not a quota system or a proportionality test. So how do you know? Well, here we are. It's been a while since the Voting Rights Act was passed. And we don't have a great answer to that. Some of it is based on the jingles test. Now, that is spelled G-I-N-G-L-E-S. And speaking of pronunciation, David, there's disagreement even among the justices of whether

it's jingles or gingles. Justice Alito has been pronouncing it Gingles. But I want to say I'm very grateful to those at the Gaston Gazette of North Carolina when in fact, Chief District Court Judge Ralph Jingles Jr. died in 2015. They published a very lovely story on him. And this is one of the lines,

known to his friends and colleagues as Skip Jingles, parenthetical, pronounced Jingles with a J. Born and raised in Gaston County, he was the named plaintiff in that case who goes on to become a judge, et cetera. So done. We're done with this. It's Jingles.

So say goodbye to my preferred pronunciation of Ginglis. All right. Let me run through the Jingles standards. Ginglis. All right. A little punchy today. First, the minority group must be sufficiently large and geographically compact to constitute a majority

in a reasonably configured district. I.e., you know, if you have, I'm going to use Texas as an example here. If you have a large population in Houston and El Paso, but neither one is large enough to form its own district, you're not going to be able to do a district then because you can't connect Houston to El Paso. So that's the end of the ballgame. That's the first jingles test. Second, the minority group must be able to show that it is politically cohesive. I think this is actually a pretty interesting test in Texas, for instance, where in the Texas 23rd District, which is a majority Hispanic district by population, they elected, you know, Will Hurd, who's half black and half white for several terms. So that would be not politically cohesive in that sense,

but Alabama is kind of different on that front, which we'll get third. The minority must be able to demonstrate that the white majority votes sufficiently as a block to enable it to defeat the minority's preferred candidate. Finally, a plaintiff who demonstrates the three preconditions must also show under a totality of the circumstances test that the political process is not equally open to minority voters.

All right, David. So the question in this case was, is jingle still good law? Or are we tossing that out and instead moving to something more like a race neutral test, i.e. as long as Alabama wasn't preventing the creation of a second majority black congressional district because they wanted to prevent, you know, a black majority congressional district for race reasons, then maybe you're just fine. Like, it's sort of, it's going to be really reminiscent of the affirmative action conversation is race neutral enough or in fact are you supposed to be race conscious and race helpful um and we talked about this during the oral argument and david i never remember what we say or predict, but a listener sent us notes

and said that you had actually nailed it. You predicted that Brett Kavanaugh would side with the chief and the three liberals striking down Alabama's single black congressional district map in favor of a two majority black congressional district map i was like wait he did that was prescient because that's exactly what it ends up being kavanaugh does have his own separate concurrence we've got some dissents but this is kavanaugh the chief jackson sotomayor and kagan saying yep jingles is good. And this current iteration of only one black majority congressional district violates the Voting Rights Act. Yeah, I did not remember getting that right either.

I did not remember. But I did remember, because there's been a lot of podcasting water under the bridge since that oral argument. But I did definitely remember leaving the oral argument and remember talking about the oral argument. Like, I don't know that this is going to break out the way everyone was assuming this was going to break out after listening to the oral argument. And, you know, Sarah, there's some big picture stuff here before we dive into the details. And here are two big picture points I want to make that I think are going to be relevant to the rest of the discussion.

where Justice Roberts points out that for the first 115 years after Reconstruction, there was not a black federal representative elected out of the state of Alabama. So you have a situation that is, and so that fact bleeds into big point number two. You have a situation right off the bat here, Sarah, that starts to distinguish it from like the Harvard and UNC cases.

Because if you remember, the Harvard and UNC cases, the schools had not said, hey, we're doing affirmative action to address past racial discrimination. That is not the argument that has sustained affirmative action. It is, we are doing affirmative action and engaging in race conscience admissions decisions so that we can ensure diversity, which is not the same thing as saying we're correcting past

racist actions. You know, if you had a policy that said something along the lines of a person who can establish that they were a descendant of enslaved individuals, received some sort of tuition break or whatever, that would be something that's more directly related to past racial misconduct. So that fact, the 115 years, and let's think about this. It wasn't until the early 90s, the early 90s, that Alabama had elected a black representative. That's a remarkable statistic given the percentage of Alabamians who are black. And so this automatically and immediately takes us a little bit out of the Harvard, North Carolina paradigm, which I think is really important when we get to, say, the dissent,

for example. And so this is not a case like a Harvard or Yale where you're saying, hey, diversity, this is, look, there's historical injustice we're trying to correct, which gets to the purpose of the Voting Rights Act. So those are a couple of big observations before we dive in. Yeah, look, here's some big questions that I think come out of this. A, what does it mean for the Harvard case, if anything? And I sort of hate this game because, frankly, Harvard's going to come out in three weeks or less.

And, like, why sit here and guess? But we're going to do it.'t worry we'll do it um two what does this mean for future redistricting cases uh and in particular we know the court's already accepted another case out of south carolina for the fall and three i do want to talk about and I talked about this with the oral argument, right? The reality of redistricting fights. And let me actually start with that before we dive in a little bit more into the opinion, because I think it's going to inform my take on this and why I so strongly side with the dissent. While thinking, by the way, that Alabama's history here is pretty bonkers. For instance, the district court noted that on average, black voters supported their candidates of choice with 92% of the vote, while white voters supported black preferred candidates

with 15% of the vote. Yikes. The racial polarization voting in Alabama is intense is intense very strong and very clear um that's very different than my experience working in politics in texas i've never run a race in alabama so take all of that to understand where i'm coming from as a you know former political operative but here's how this looks on the ground and And I talked about this before, right? There's packing and cracking. Packing, both of which are not allowed under Section 2 of the Voting Rights Act. Packing is when you intentionally put a racial minority into as much of few of districts as possible, as in you pack them in to minimize their political impact in the state. So, you know, making sure that it's an 80% Black district instead of two 40% Black districts. That would be packing and that would violate Section 2. Cracking is when you intentionally

break up a minority group into smaller pieces to also minimize their political impact than in the district and the state. So there's a, you know, neighborhood, let's call it, that's 80% Black, rather than put them all in the same congressional district, you're going to break that up into five congressional districts that are going to be pie pieces, you know, so that the pie originates in the center of that neighborhood. And therefore, each congressional district only has, you know, a 20% of that neighborhood. So that community doesn't really get to pick anyone. Also violates section two. And so the result in a modern political sense is that you're going to have some people who want to strike down districts as

cracking and packing, and some who are going down districts as cracking and packing and some who are going to want more cracking and packing but the kind that's legally mandated instead of the kind that's legally prohibited under section two because of which of the types of preferred candidates within those factions within a political party are favored and it's a mess. And it's part of the mess when you intentionally insert race into a consideration instead of having or allowing even race neutral criteria. But David, this is where you sort of have two different legal philosophies hitting each other. On the one hand, you can argue, well, we should have race neutral criteria. And on the other hand, you read the text of section two of the Voting Rights Act,

and it clearly was not meant to be race neutral. And so are you a textualist or are you a race neutralist under the constitution? And that's where the dissents are going to get interesting for me. So those are my big picture questions heading into this. I've got one other big picture observation, and this is related to a very controversial previous ruling from the court. And this is the Shelby County v. Holder decision from 2013, which basically took the old preclearance, ejected the old preclearance requirements under the Voting Rights Act, where you had certain states, states in the old Confederacy, that they had preclearance requirements

for voting, for legal changes that would impact voting rights. And so the argument was essentially, wait a minute, okay, you can't forever hold these particular states apart from the rest of the union and apply heightened degrees of scrutiny to these particular states. Sarah, I have a thought here that this case essentially overrules Shelby County through the back door in an interesting way. Not in a preclearance, not the preclearance aspect, but what it does actually do

is because of the unique nature of the states that are likely to be implicated by this decision, you're going to end up with a situation where some states are going to have different kinds of scrutiny. So let's take your Texas example. Well, let's leave Texas aside. It's a little more complicated

because its demographics have changed a lot. If you're going to say, look at California, you don't have the kind of racial polarization and voting in California that you do in Alabama or Mississippi or even Tennessee. Your white voters are going to be much more democratic. Your black voters are also going to be quite democratic, but you're not going to see that sharp racial polarization. Even if you go to New York, your white voters are going to be more democratic than white voters in

Tennessee or Alabama. You're not going to have that racial polarization in voting. Where are you going to have that extreme racial polarization in voting? It's going to be disproportionately in the old preclearance states. So this isn't a preclearance, obviously, because we're, this isn't the same, this isn't the exact same situation where you have that kind of preclearance. But I think it's a practical matter when one of the big factors is going to be what is the racial polarization of the voting?

That's going to really only come to bear in a limited number of states. And hopefully, as America progresses through and hopefully as America progresses through in past centuries of racial polarization, fewer states will be in that category. But for right now, you're looking at a lot of the old preclearance states

that are gonna be the ones that are gonna be most impacted by this analysis because of the racial polarization of voting that is not universal in this country. All right, let me walk through a little because of the racial polarization of voting that is not universal in this country. All right, let me walk through a little bit of the opinion the Chief Justice wrote, the majority opinion. And then we have a Thomas dissent, which is fascinating, and an Alito dissent, which is actually quite restrained, I thought, given what we've come to expect. So in the majority opinion, you're going to have the plaintiffs on the provided several maps that did that.

They're politically cohesive, as we saw with that statistic, about 92% voting for their candidate of choice. They are also then being blocked by the white majority, as we saw where the white folks are only voting 15% for that candidate. And that under the totality of circumstances, the political process is not

equally open for lack of that second majority minority congressional district in Alabama. Alabama, the state on the other hand, was arguing that basically what section two of the Voting Rights Act prohibits is obstacles or burdens that block or seriously hinder voting on account of race, i.e. where a map that never took race into account is being proffered, it can't violate Section 2 of the Voting Rights Act. If you took race into account, maybe so, but Alabama says they didn't. And in fact, there were, I mean, there was just the battle of the computer algorithm experts with Alabama saying, look, we put together a million maps not using race, and none of them had a second majority Black

congressional district. Whereas the plaintiffs put together maps and all of their experts said, yes, of course we took race into account in order to make the second majority minority district. That's what section two both allows and requires. Okay. Alabama also argued that jingle should be overturned basically because it ends up requiring racial proportionality in districts. Those factors that we just talked about that basically where another majority black district could be drawn, it must be drawn. And that's a proportionality problem that Section 2 prohibits. And remember, you've got the text of Section 2, and then you've got those jingles factors. So if there's a gap between them, Alabama was trying to squeeze in

and say, you need to side with Section 2, not with Jingles. And that, you know, Section 2 is this compromise that Congress struck. The Chief Justice walks through the history of Section 2 in this opinion. I thought it was the best part of the opinion. It was fascinating to walk through some of that legislative history. But legislative history is a bit of a triggering word for conservatives. Here, however, though, that legislative history goes to the very text and informs the very text of how that came about,

how this log rolling and compromise happened. It was really fascinating. So basically the chief justice saying, look, jingles is still good law. The race neutral approach doesn't work because that's not what section two requires. The end. And then there's a part that is the plurality opinion for the court. There is a difference between being aware of racial considerations and being motivated by them. Why is this only the plurality? Because Brett Kavanaugh

did not join that part. And David, I'm going to say it one more time. There's a difference between being aware of racial considerations and being motivated by them. What? What does that mean? Huh? How are lower courts supposed to know the difference between- I don't know. I read that part of the opinion. Yeah. I read that part of the opinion three times. Me too. Couldn't do it. And I couldn't quite get it. Nope. Yeah. And remember, I wasn't even drinking on my vacation, so I was sober while trying to read that. So look, Brett Kavanaugh is not going to join that part, which is really fascinating for a lot of reasons. So then we're going to move to his concurrence, which is all about stare decisis. And this will have, I think, the biggest implications for future Kavanaugh watchers as he is the swing justice on the court.

Which is he says there is a difference between stare decisis for statutory precedent and constitutional precedent. So for instance, with constitutional precedent, nobody can overturn that. Once the court says, this is what the constitution says, like you're done. And so he says stare decisis then shouldn't have as much weight because if the decision was wrong about what the constitution said, the only people who can fix that are the supreme court justices and so precedent should be weighed against that truth about constitutional stare decisis statutory precedent on the other hand uh congress i'm reading now from his concurrence congress and the president may enact new legislation to alter statutory precedents such

as jingles. In the past 37 years, however, Congress and the president have not disturbed jingles, even as they have made other changes to the Voting Rights Act. Although statutory stare decisis is not absolute, the court has ordinarily left the updating or correction of erroneous statutory precedents to the legislative process. What say you, David, about the distinction? Look, okay, so let me just say this. I am becoming a real fan of both the Kavanaugh and Gorsuch concurrences. That's exactly what I was going to say. But for different reasons. Oh my gosh, yes, for different reasons.

But I'm so into both of them. It's like one of those teeny bopper movies where the two lead males are totally different and you're supposed to pick which one you have the crush on, like Hunger Games or Twilight or something. I know Hunger Games. I'm less sure about Twilight. But yeah, I'm so into both.

Okay, good. I'm glad you agree. Yes. Oh, the hive mind at work. But what I like about the both. Okay, good. I'm glad you agree. Yes. Oh, the hive mind at work. But what I like about the Kavanaugh, the Kavanaugh is always like, you know, this is a really big controversial thing, but here I am to sort of say,

it's a lot more simple and less controversial than you might think. And he kind of tries, you can tell he's kind of got this chilling out vibe about it. And the thing I liked about the concurrence was number one, like a lot of the Kavanaugh concurrences, he is, it's very readable and it's very direct. And it, and also it really lets you in on his thought process. So on the statutory precedent versus constitutional precedent, I found that pretty persuasive, honestly.

But then he goes on, and I don't want to get ahead of you too much, Sarah, but he talks about the reasoning here, the steps. He goes through the steps in a way that was simpler and easier to understand than the Roberts majority opinion and helps you kind of reconcile the racial element of it as well in a way that the Roberts majority opinion didn't really do it. And here's, I thought he made it much simpler. He said, Jingles requires the creation of a majority-minority district only when, among other things, although I love that phrase, only when, among other things, a state's redistricting map cracks or packs a large and geographically compact minority population,

and two, a plaintiff's proposed alternative map and proposed majority-minority district are reasonably configured, namely by respecting compactness principles and other traditional district criteria such as county, city, and town lines. So, that makes it a lot simpler in my mind, Sarah. Look, if there's a geographically compact minority population and you crack it or pack it, and then there's an alternative that creates or recreates a majority minority district that's reasonably configured, boom, we're in jingles territory. That I can understand. That makes a lot of sense because boom, we're in Jingles territory. That I can understand. That makes a lot of sense because what it is saying in essence is, okay, wait a minute, we're not going to come in and require proportional representation when say, for example, minority voters are sprinkled evenly around the

map and you have to do the crazy wild things that Roberts talked about. The dragon districts. Basically got a district that, yes, a hydra, a dragon, whatever you want to call it. And the way Kavanaugh did it, it just makes a lot of sense. Here's the simple two-step process. It provides litigators a roadmap. It doesn't get into the difference between race consciousness and race motivation, which I still don't know what that is. So I was a huge fan of the Kavanaugh concurrence, such a huge fan that really, I feel like you can read just the concurrence and almost have a better sense of what's going on than from the whole majority opinion. I agree with that.

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$30 off plus free shipping on their best selling frame. That's auraframes.com. Use code advisory at checkout to save. Terms and conditions apply. All right, let's move on to the dissents because we're going to circle back and talk about all of this and where we are. Thomas has a dissent that I'm going to split into two parts here because the first part is so fun. The first part of Thomas's dissent is, one, Section 2 doesn't cover redistricting.

Section 2 is about sort of the means of voting, moving polling places, literacy tests. Why did we ever think this was redistricting in the first place? It's the most Thomas-y Thomas dissent ever. As he says, this is supposed to be about ballot access, not vote dilution. All right, his second point is, also, it can't be about single-member districts, which is what congressional districts are.

It's supposed to be about multi-member districts. And third, stare decisis is no different for the Constitution than for statutes, which is sort of funny because, of course, Thomas doesn't think much of stare decisis to begin with. So when you say stare decisis is no different for the Constitution than statutes, he means what stare decisis. Stop with that Latin nonsense. Interestingly, on the stare decisis is no different for the Constitution than for statutes, only Gorsuch joins that part, which is why I said that part of the Brett Kavanaugh concurrence is going to be worth a reread later on down the road when something turns, especially for this court now, on revisiting precedent.

Because I feel like a whole bunch of people are running to the court being like, aha, I have my opportunity to overturn the thing that I don't like, whether it's an eminent domain or Chevron or whatever else. And it's like, da- it's like, wait a second. Hmm. Is it a statute? Because there's quite a vote, quite a few votes on the court, at least that look like they're going to see statutes different than the constitution.

All right. Then part two of Thomas's dissent. And this is the part that I found pretty persuasive, David. Vote dilution as- Really? I was the opposite. Look, I was more down with, well, no, I found it pretty persuasive. I'm going to stand by that.

Vote dilution as compared to what? So if you're going to talk about vote dilution, what you just said, David, which was the other part of Kavanaugh's concurrence, that where we find you cracking or packing, that's where you're going to then trigger jingles. Well, fair enough. But how do we know whether you're cracking or packing? There has to be a benchmark. And so either the benchmark is a race neutral benchmark, which is what the majority rejected, says Thomas, or it's race proportionality, which is what it's expressly prohibited

by section two. As he said, as a matter of mathematics, single member districting tends to deal out representation far short of proportionality to virtually all minorities, from environmentalists in Alaska

to Republicans in Massachusetts. He also has this line in the dissent that some might find sort of funny, where he's like, maybe minorities are meant to be in the minority. They're minorities after all. He's referring again, more like to environmentalists in Alaska than racial minorities, like the word minority is sort of in the capital sense. But nevertheless, he's like, so proportionality doesn't work. And then he says, which I also agree with, if the state made this plan, meaning the second majority black district, it would clearly be a racial gerrymander.

Race predominated the creation of the district to begin with. They had to pull in all these different neighborhoods and whatever in order to make this district. The map makers said that their first interest was in creating a second majority-minority district. Then they considered the other traditional redistricting considerations, compactness, not putting candidates against one another, etc. So if the plaintiffs have not shown that Alabama could create two majority black districts without resorting to a racial gerrymander, they cannot have shown that Alabama's one majority black district map

dilutes black Alabamians voting strength relative to any race neutral benchmark. And I very much agree with the benchmark point. You can't have dilution unless you know what you're diluting from. I thought that was unpersuasive because the benchmark, so the way I was looking at it is I was thinking that Thomas was making just a conceptual mistake right from the beginning by importing race neutrality into a standard that is explicitly not race neutral. Okay. And so section two is not asking for race neutrality. Section two is not requiring race neutrality. Section two is designed to look at the effect of gerrymandering on race specifically.

And then when you go back as to why Alabama is the way it is, there's no race neutrality there either. So you're talking about a situation where explicit racism has created a voting dynamic that is so racially polarized that you can also say, well, my goal wasn't to crack and pack and dilute black voters. My goal was to crack and pack

and dilute democratic voters, which is fine. Okay, got it. There's a lot of precedent that says that a political gerrymander is constitutionally fine. There is no issue with a political gerrymander. And look, when you have a 70-30 or 72-28 or whatever the percentage is, racial breakdown between white and black,

you could do a million, billion, trillion districting maps that are, where race is not taken into account and you're gonna come out with the similar kind of maps that Alabama created. Why? Why can you do that? Because all of the ideological factors

are baked into the racial distinction. And I feel like if you are saying, okay, wait a minute, all we're doing here is a race neutral, ideological party-based gerrymander, you're just not even talking about the elephant in the room, which is why that exists in the first place. And that racial polarization on ideology

did not spring from the soil spontaneously. And so it felt to me like the Thomas dissent was just missing the point that was made right at the beginning of the Roberts opinion, which points out the actual racial polarization and the result of that racial polarization for 115 years, and that there are, in fact, millions of permutations of, quote, race-neutral but ideologically or politically aware gerrymanders that would perpetuate that. Yeah, I get it. You can go race neutral with a computer algorithm and you can create a gerrymander that cuts out black voters, but that doesn't mean that it isn't in its origin, in the creation story of this whole thing

isn't steeped in race. And I just feel like Thomas's dissent alides over that. I mean, that's interesting. I do, here's what I find persuasive about what you just said. This opinion reads like all of a sudden we're gonna be tossing out a whole bunch of racial gerrymanders and all these redistricting cases

when the reality is looking back, what in the last, I'm going to get this slightly wrong, but in the last 20 years, only one set of maps has been thrown out as a racial gerrymander. So if you take this as a very narrow opinion, that it's about Alabama, about extreme racial voting polarization

that has been created by a history of just abject racial discrimination in voting? Fair enough. I am more persuaded by the textual and historical arguments around Section 2 of the Voting Rights Act. However, I find it really tough to say that a race-neutral map is a racial gerrymander. How can that be? And the argument that if a second majority minority district can be created, it must be created. Those two are not equivalent to me. And I feel like both of those were here. It was a race neutral map that was

rejected. And two, because they were able to create a second majority district while meeting all of these standards, they had to create a second majority minority district. I do not think that is what's required, but I will acknowledge to you, David, that this may just be such an outlier because of where it is. Yeah, I think it is an outlier, honestly,

and that's why I talked, went back and talked about the preclearance in the old states of the Confederacy. We're talking about a situation that I don't think holds in many states, at least not to this extent. And so I think that does matter quite a bit. And it's interesting, Sarah, if I can put on my woke hat for a minute and talk a bit about the whole concept of systemic injustice. So one of the arguments that we're in, one of the things that we're dealing with, let's go back to, remember our long discussion of the NFL and coaching, and that lit up our comments section. But remember, we're talking about the NFL coaches lawsuit. And we're talking about the concept of systemic racism within a discussion of nepotism. Okay, so you

could have a situation where nepotism is the rule and somebody could pass a lie detector test and say, I'm not hiring people, sons and daughters and nieces and nephews because they're white. I'm hiring them because they're nieces and nephews and sons and daughters. Well, if the older generation, though, was in place because they were white, then a rule that permits nepotism following the establishment of a white power superstructure and then allows for nepotism, much like legacy admissions, for example, that is going to maintain the structure that was created for racist reasons through non-racist means. So you have the racist situation where you had all white coaches, and then you

have nepotism, which on its face is non-racist, but it maintains the superstructure that was created through racism. Similarly here, you have a superstructure of political divisions that was created through racism, and the way it now manifests itself is through political partisanship so that the political partisans can say and pass a lie detector. I'm just trying to help Republicans and or I'm just trying to help Democrats with the shoes on the other foot. But they're maintaining exactly what was created through explicit racism, through non-racist means. explicit racism through non-racist means. And that really gets at how thorny and insidious all of those centuries of racism are because they put in place patterns and ways of life, including partisan divisions, including things like, you know, coaching superstructures, zoning rules, et cetera, that a lot of people have an interest in maintaining

for non-racist reasons. And I feel like this is quite similar to that situation because people can go and look at the Alabama gerrymander and say, no, this is just purely political. This is just a Republican legislature wanting to protect Republican seats. That's not racist. It's just political. But then when you look at the racial polarization in Alabama, you say, come on, don't, I'm not a fool. I know how and why this whole structure exists. All of that is why I very much agree. And it looked like most of the justices agree. It's why you can't simply use the 2010 map and say, oh, well, the 2010 map doesn't need to be changed. We didn't add any districts. The population, you know, grew by 5%. But we're just going to start with the 2010 map and then mess it around a little bit

from there. For all of those reasons, I agree with you that that cannot be the benchmark either, simply using the previous map, because then you've grandfathered in racism. All right, but let's move back a little big picture here. One, what, if anything, do you read in tea leaves here for the Harvard case? I'm gonna say not much. And I could be eating those words, but I'm gonna say not much for a couple of reasons.

I already talked about one of them for a bit, and that is Harvard and UNC, and this is an interesting conversation. I'm already seeing breakout in anticipation of Harvard losing the case. A lot of people are now, you know, are assuming Harvard's going to lose and UNC's going to lose.

I think that's most likely. But it really goes to what is it, what was the justification for the program? And the justification for the program was diversity. Okay, it was not correction of historical injustice. And if you go to this case, what do you have? The motivator for the Voting Rights Act is really linked to the 15th Amendment.

The 15th Amendment was specifically designed to eliminate racial barriers to voting. So you have something that is designed to correct a systemic racist denial of the franchise. So it is steeped right there in the beginning. It is designed to correct the previous racist denial of the franchise. Then the law requires, and the way the law is written, it's requiring that the courts take into account racial factors. So you're looking at a very different constitutional genesis, a factual situation.

It's all very different from a higher education situation where they are explicitly not correcting past injustice, where you have a different statutory framework. Title VI is prohibiting discrimination on the basis of race in a blanket fashion. And it's not a Section 2 of the Voting Rights Act. And so you've got a different statutory structure. You have a different motivation for the affirmative action program. And then super critically, Sarah, and I think we cannot overstate the importance of this, the equities of the case, the factual equities of the case, really run against Harvard in particular, and to a lesser degree, UNC. There's evidence in the

Harvard case in particular of actual invidious discrimination against Asian Americans. So you have invidious discrimination, not for the sake of correcting past injustice, but for a vague goal like diversity that runs in the, where it's a different constitutional amendment and a different statute hovering over it, strikes me as just a very different situation from this case. But look, I mean,

that speculation with a week or two weeks where that could be, that could sound really dumb in hindsight. What are your thoughts? I think I agree with everything you just said. It's just a different case. I'd be really wary about reading tea leaves into this. The only other thing I'd note is the Kavanaugh chief alignment, which is nothing new. We've seen it repeatedly. It's worth noting again, that if Harvard or North Carolina win their case, it will look like this alignment.

And the fact that they were able to get Justice Kavanaugh even over just for the decision part of this, even if he didn't agree with that one section of the majorities or the plurality, I guess, opinion, you know, yes, that's gonna be in part due to then the history of the 14th Amendment that Justice Jackson was making during the oral argument. That's their path to winning. And so in that sense, it will look a lot like this case. But I'm with you that I think the case is different

and like my tattoo says, different cases with different facts will have different results. All right, David, you ready to move on to some Jack Daniels and some very lucky dogs with their dog toys? Yeah, I find this case fun only because it's about dog toys and Jack Daniels

and not because of the substance much at all, which I'm straining to be interested in. It's mildly interesting. But hey, it's about dog toys, Jack Daniels. Let's go. All right, so to remind everyone, a dog toy company creates a series of dog toys that are, you know, puns on your favorite liquor. So for Jack Daniels, it's bad Spaniel.

And it's like doing number two on your Tennessee carpet. And it kind of looks like a Jack Daniels bottle. Jack Daniels sues on trademark infringement. That's the question before the court. 9-0, Kagan writing. I just want to read this one section because I think it was really fun. First of all, the main case at question here of whether they were going to overturn the Rogers case was actually Ginger Rogers.

So that's just a fun, famous person in that case. They declined to overturn Rogers and basically just hold that, yeah, Jack Daniels has a case here and they send it back, reading from the majority opinion. Over the decades, the lower courts adopting Rogers

have confined it to similar cases in which a trademark is used not to designate a work's source, but solely to perform some other expressive function. So for example, when the toy maker Mattel sued a band over the song Barbie Girl with the lyrics, life in plastic, it's fantastic, and I'm a blonde bimbo girl in a fantasy world,

the Ninth Circuit applied Rogers. That was because, the court reason, the band's use of the Barbie name was not as a source identifier. The use did not speak to the song's origin. A consumer would no more think that the song was produced by Mattel than would, upon hearing Janis Joplin croon, oh lord, won't you buy me a Mercedes Benz, suspect that she and the carmaker had entered into a joint venture. And when Louis Vuitton sued because a character in the film The Hangover Part II described his luggage as Louis Vuitton, a district court dismissed the complaint under Rogers. All parties agreed that the film was not using the Louis Vuitton mark as its own identifying trademark.

When that is so, the court reasoned confusion will usually be unlikely, and the interest in free expression counsels in favor of avoiding standard trademark infringement Lanamak test. We offer as one last example of that limitation a case with striking resemblance to this one. It, too, involved dog products, though perfumes, rather than toys. Yes, the defendant sold a line of pet perfumes whose names parody elegant brands sold for human consumption. Tommy Hilfiger versus Nature Labs LLC. The product at issue was named Timmy Hole Digger, which Tommy Hilfiger didn't much like. The majority basically ends by saying this. Whatever First Amendment rights you may have in calling the brew you make in your bathtub Pepsi

are outweighed by the buyer's interest in not being fooled into buying it. Or in less colorful terms, to the extent a trademark is confusing as to a product source, the law can protect consumers and trademark owners. Wait, sorry, there is one more. Just the Kagan chef's kiss line. In this court,

VIP, the dog toy maker, says the complaint was a mere form allegation, a matter of rote. But even if we knew what that meant, VIP has said and done more in the same direction. I also, upon reading that, I was like, what? That's not even a matter of rote. That's not how you use rote. That's so good. Yeah. As soon as we got into the Janis Joplin line, A, I loved it because it was evocative. I remember that song well. And B, it was a very clear way of explaining what was going on here. This was not the use of a name like Jack Daniels in a context where you're mocking the effect of, or you're critiquing the effect of bourbon on society,

or you're using it as a prop for a larger point that you're making or whatever. No, no, no, there was nothing like that going on. This was, they're selling something that a reasonable person would look at and say, oh, this is sort of Jack Daniels branded merchandise. I didn't know they'd branched into dog toys. And so it was, to me, it was not a close case. Glad Kagan wrote on it because she does such, she's such a good writer. But I don't have a lot to say about it, Sarah. I'm all out of interesting opinions.

Well, I have one more note, which is that the concurrence was another fun little couple. You know, we've been talking about the Gorsuch-Jackson bromance, except it's not a bromance because she's a woman. But here we have Justice Sotomayor and Alito joining together in a concurrence. And boy, I may like the Gorsuch-Jackson combo for any number of reasons, but Sotomayor and Alito are really capturing my heart with this concurrence. Because if you've ever heard me on any political podcast or any of my writing, you know that there is, I think, maybe nothing I hate more in the political context

than someone using as evidence for their point, a policy poll, an issue poll, where they're like, well, this says that 82% of people like puppies. Oh my God. And I'm not going to go through it all. Don't worry. Just know that I think issue polling is absolutely the dumbest thing ever, unless with very small exceptions, basically, if you're doing the exact same poll over time, then you can tell me about changes over time, perhaps. But even then, you're going to have to account for generational differences in the understanding of the poll or whatever but hate issue polls so here in this concurrence justice sotomayor with alito joining are throwing all sorts of shade on polls used to as evidence of confusion so they're asking basically these

survey respondents and using it as evidence of like, see how there is confusion or see how there isn't confusion. And here's Justice Sotomayor. When an alleged trademark infringement involves a parody, there is a particular risk in giving uncritical or undue weight to surveys. Survey answers may reflect a mistaken belief among some survey respondents that all parodies require permission from the owner of the parodied mark. Some of the answers to the survey in this case illustrate that potential. And she's quoting one of the survey respondents.

I'm sure the dog toy company that made this had to get Jack Daniels permission and legal rights to essentially copy their product in dog toy form. The bottle is mimicked after the Jack Daniels barbecue sauce, so they would hold the patent. Therefore, you would have to ask permission to use the image. Plaintiffs can point to this misunderstanding of the legal framework as evidence of consumer confusion. Cleverly designed surveys could also prompt such confusion by making consumers think about complex legal questions

around permission that would not have arisen organically out of the world. Thank you. That's all. Literally all. I'm just so pleased. We've got to get to the next concurrence, the next case for the next concurrence. For only. And then we can call it a day. I'm literally not going to talk about the majority opinion. This is the Dubin case, which I'm really only pronouncing as Dubin because of the Duby brothers. So if anyone thinks that it's Dubin, that's fine.

I just, as it turns out, don't care. This isn't me trying to pronounce it right. This is me just doing an homage to, as I said, the Duby brothers. So this is Dubin. We did talk about this beforehand during the oral argument because it was kind of interesting.

He's basically this doctor has a scheme to defraud the government because he's going to overbill Medicare for psychological treatment that his patients didn't actually get. Now, they're going to charge him with all sorts of actual fraud stuff, but some of the charges are aggravated identity theft because he had to use their names in order to do the overcharging. Is that identity theft? So Sotomayor writing for a unanimous court. But David, as you said, it's that Gorsuch concurrence that is just, it's so money and I don't even know if he knows it, but I think he does.

I am going to read what the statute requires before I read the Gorsuch concurrence. Aggravated identity theft stipulates that whoever during and in relation to any felony violation knowingly transfers, possesses, or uses without lawful authority, a means of identification or another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of two years.

So if that sounds really, just really open-ended to you, that's because it is. And that's going to be the whole Gorsuch concurrence is that can be whatever you want it to be. Or it can be a lot. It can be a little, how are we supposed to know? So here's his opening line. Whoever among you is not an aggravated identity thief, let him cast the first stone. The United States came to this court with a view of the statute that would have fixed that unfortunate label on almost every adult American.

Every bill splitter who has overcharged a friend using a mobile payment service like Venmo. Every contractor who has rounded up his bill time by even a few minutes. Every college hopeful who has overstated his involvement in the high school glee club. All of those individuals, the United States says, engage in conduct that can invite a mandatory two-year stint in federal prison. The court today rightly rejects that unserious position. First of all, David, don't go to dinner with Justice Gorsuch. I don't overcharge my friends when we split the bill on Venmo.

What the what? I had the exact same thought. I was like, no, I, that everybody knows you can't secretly overcharge a friend using Venmo. And if you try it, uh, the friendship might not last. It might not last, but yeah, I had the same thought, like who, who actually overcharges their friends on Venmo, but I get his point. and is gorsuch using venmo actually i mean that'd be curious or is this a clerk who put this in and explained it to him in which case the clerk is overcharging his friends i have all sorts of venmo related questions for the gorsuch chambers this did not reflect well on y'all as a chambers yeah that makes me want to somehow become

Justice Gorsuch's friend so that I can see what he's saying on Venmo. All right, I want to continue to the meat of it. He says, the court today rightly rejects that unserious position, but in so holding, I worry the court has stumbled upon a more fundamental problem with the statute. That provision is not much better than a Rorschach test. Depending on how you squint your eyes, you can stretch or shrink its meaning to convict or exonerate just about anyone.

Doubtless creative prosecutors and receptive judges can do the same. Truly, the statute fails to provide even rudimentary notice of what it does and does not criminalize. We have a term for laws like that. We call them vague. And in our constitutional order, a vague law is no law at all, David. Amen. I mean, amen.

You know, this concurrence is exhibit 2000 as to why I like to read Justice Gorsuch. I love the clarity and I love the clarity of the writing. I love the wit in the writing. And I also love the way that he's holding Congress feet to the fire on right as sensible statute. Please write a statute that people can understand. It's absolutely remarkable.

And as he explains it, the breadth of this statute. Yeah, it's sloppy writing, it's sloppy drafting. And look, a core due process concern of core 14th Amendment concern is, can an ordinary person understand the law and conform his behavior thereto? And Justice Gorsuch does a phenomenal job of just demolishing the idea that this is an easily understood

and a statute that's easy to comply with. So I thought it was fantastic. I loved it. I think this is my favorite Gorsuch concurrence of all time. I don't know how anything's going to replace it. It has humor. It has substance. It has rule of, I mean, it's not actually rule of lenity, though it's kind of baked in there a little, but frankly, the vagueness stuff, I want to read a little more of it because I think it's really, the way he explains this is going to be really helpful. The United States offers up a rapacious interpretation that would require only the use of the means of identification to facilitate or further the predicate offense in some way. Admittedly, this reading falls within the range

of plausible meanings the statute could support, but so too do other readings, ones that require a more demanding nexus between the means of identification and the underlying misconduct. For many of the reasons the court gives and more besides, I agree that we must adhere to those more restrained offerings. The United States maximalist approach has simplicity on its side, yes, and everybody is guilty standard is no challenge to administer. But the Constitution prohibits the judiciary from resolving reasonable doubts about a criminal statute's meaning by rounding up to the most putative interpretation its text and context can tolerate. And then he has this example, David,

about the flank stakes that I'm gonna read because I think it shows you just how hard even the court, the majority opinions then, where they land, why that doesn't work. So the majority opinion basically lands at, there's a violation whenever the use of the means of identification is at the crux of the underlying criminality. The means of identification specifically must be in some way a key mover in the criminality, or the means of identification must play a central role in the commission of the offense.

So Gorsuch is like, yeah, great. That's a little bit more narrow. So let me give you some examples. Take, for instance, the court's assurance that a waiter who serves flank steak but charges for filet mignon uses an electronic payment method has not committed aggravated identity theft. Why not exactly? In one sense, the means of identification, the credit card, lies at the crux of the fraud. The restaurant uses it to charge the customer for a product it never supplied. Maybe that feels less distasteful than a scenario in which an overseas hacker steals an individual's credit card information and deploys it to order luxury goods on Amazon. But the Constitution's promise of due process means that criminal statutes must provide rules knowable in advance, not intuitions discoverable only after a prosecutor

has issued an indictment. Not yet convinced? Let's consider some tweaks. Suppose that instead of misrepresenting the cut of its steak, a restaurant charged a customer for an appetizer he ordered that never arrived. What about an appetizer he never ordered? An additional entree? Three? Three plus a $5,000 bottle of Moet? Again, I'm now questioning what's going on in the Gorsuch Chambers. Just side note on the Moet there. How about a Boeing 737? Now suppose the restaurant ran the customer's credit card for the same steak twice. What if it waited an hour to do so, a day, a year? What if the waiter gave the credit card information

to a different employee at the same restaurant to run the charge? A different employee at a different restaurant? What if the restaurant sold the customer's credit card information on the dark web and another restaurant ran the credit card for filet mignon? On the courts telling the crux of the fraud in some of these examples lies merely

in how and when service is provided, while in others, the crux involves who receives the services. But how to tell which is which? I mean, just fantastic. Again, other than questions it raises about what's going on in the Gorsuch chambers between Venmo and their fine champagne taste,

brilliant, brilliant concurrence. Yeah, it's fantastic. So worth reading. And again, when we point out some of these concurrences, for those of you who are listening who are your young lawyers or your law students, these are just really good examples of good legal writing, how to make a case.

And, you know, it's very risky. It's very risky when you're the judge, you can be funny, but when you're the litigant, that's very dangerous. But they're also showing you how you can be witty in a serious subject without denigrating the seriousness of the subject. It's very well done. Well, fabulous.

That's going to wrap up the cases that we have from last week. And David, this week, boy, there's a bit of an unknown, unknown, unknown coming. So we have two hand-down days, but it's on Thursday and Friday. Now, for the court to announce that far in advance that they're doing two hand-down days this quote-unquote early in the term, here's the assumption that I'm making on behalf of this podcast. That the chief knows that there's just a lot of opinions that are ready to go and they don't want to do 12 opinions on one day.

And so instead, we're going to get six opinions on Thursday and six on Friday. That's my assumption. I could be wrong. It could be that they know that an opinion isn't ready on Thursday that will be ready on Friday. I just think that's a little too far in advance. But we'll see. Anyway, what we're going to do, assuming that I'm right about all of this, is we're going to wait to record until we get the Friday

opinion. So we're going to have the Thursday opinions and the Friday opinions. We're going to pick out the cream from the top, record that episode Friday, which means you may not get it until late Friday night. You might not even get it till Saturday morning. And then we're going to take the remainder of those opinions or, you know,

if we have to split up the cream, we may do that for a live advisory opinions recording on Tuesday of next week. But regardless, this is how June is going to go, AO loyal listeners. As you may remember from previous Junes, our recordings get a little tossed around on the rough seas of the Supreme Court opinion hand down days. So I'll try

to explain it in advance. But at some point, we're also going to get into emergency pod territory. If Harvard gets handed down on a Sunday morning, by God, we will be emergency podding. But you no need to tweet at us about, you know, emergency podting over, you know, not Harvard, frankly. I don't even think 303 Creative merits an emergency pod. Unless it says something wild. Yeah, unless it's crazy, unless it's crazy. But yeah, I think Harvard's our only emergency pod because who, boy, is that going to have implications that are going to echo beyond higher education. And the higher education implications are going to have implications that are going to echo beyond higher education.

And the higher education implications are going to be pretty consequential all on their own. So yeah, buckle up. Now, David, I am also looking at the, I don't know, a bulletin board that summarizes my life for the first 20 or so years that I lived with my parents. And I just, I'm looking at some highlights here. The Memorial Orchestra State Orchestra Champs bumper sticker is on that. So yeah, that's right, David. I was president of the orchestra and we were state champs. You may wonder how one competes in orchestra, and I'm not going to tell you because it doesn't matter. Just know that I was the champion

personally. Also, you probably wouldn't know this, David, but very few people who I went to high school with knew my name. What? My nickname was so prevalent that when I graduated and like they announced my name was Sarah, as I walked across the stage, most people had no idea that that was my first name. Nothing on this bulletin is actually addressed to Sarah. It's all under my nickname. Which was? So there was actually a nickname of my nickname.

So the name was Muppet, but the nickname of the nickname was Mup. Most people just knew me as Mup. Really? We've been podcasting hundreds of podcasts and I had no idea that you not only had a nickname, you had a nickname of your nickname. Yeah. So I'm looking at like various notes

that people wrote me and stuff and it'll just say like, hey Mup. Yeah. All my yearbook signing, stuff like that. So yeah, we can do this all day long of things on this bulletin board. It's only a little concerning.

You know what else is up there though, David? I have some Iraqi money from the invasion of Iraq. Oh, do you? I have some of that as well. Yeah, because this went through college because I was still coming home. Yeah, during college and putting things up. So yeah, a little time capsule.

Fun. Good times. All right. With that, thanks as always for joining us. Feel free to leave us a review wherever you're listening to this. It helps other people find the podcast. And if you want to hop into the comments section, which have been really fun lately, hop on in, become a member of the dispatch. David, we owe people some additional

episodes on our emergency series podcast on the indictment. We're going to try to squeeze that in where we can as well. So don't worry. We hear you on the Presidential Records Act. Judge Cannon, you want more. We'll get to it somehow. Bye.