Strict Scrutiny - A Win for Multiracial Democracy

Episode Date: June 12, 2023

Finally, some good news! The Supreme Court's ruling in Allen v. Milligan preserves section 2 of the Voting Rights Act. Janai Nelson, President and Director-Counsel of the NAACP Legal Defense Fund, joi...ns Kate, Melissa, and Leah to break down the opinion for a live show at Howard University School of Law.Listen to this past episode where the hosts recap the oral arguments for Allen v. MilliganRead Melissa Murray's op ed with Steve Vladeck in The Washington PostListen to argument recaps for Jack Daniel’s Properties, Inc. v. VIP Products LLC in this episodeFollow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events. Follow us on Instagram, Twitter, Threads, and Bluesky

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Starting point is 00:00:00 The Supreme Court was designed to be above the fray, but right now, are the nine justices living up to that promise? On More Perfect, host Julia Longoria brings the highest court in the land down to earth. You'll meet people on all sides of crucial cases and explore history that explains how we got here. More Perfect from WNYC Studios. Listen wherever you get your podcasts. Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity.
Starting point is 00:00:42 She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello, and welcome to a very special live show of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And some guy named Donald Trump was supposed to be here, but he busy. Then as a backup, Crooked put us in touch with this guy, Jack Smith. But he's also going through some things because, yes, the twice impeached former president is now a twice indicted former president. So Donald Trump was indicted once again, this time in federal court on charges related to classified documents that he improperly retained. We haven't yet seen the indictment, but it's been reported that the charges include conspiracy to obstruct justice, violation of the Espionage Act.
Starting point is 00:01:53 Basically, area man has run into some trouble with the law. We're not going to spend a lot of time on Donald Trump because, frankly, he's exhausting and he doesn't really deserve our time. And also because it's been a really big week for the rule of law and we really want to dig into it. So, first of all, we are coming to you live today from Howard University Law School in Washington, D.C. And I will say, when we decided to have our first DC live show, there were so many choices, because let's face it, DC is lousy with lawyers and lousy with law schools. But we knew immediately that our first DC show had to be here at Howard Law School, the Mecca, the Hilltop, the place that has spawned so many amazing civil rights pioneers. And we are so
Starting point is 00:02:46 grateful to the Howard University Law School community and Dean Danielle Holly Walker for their kind hospitality and for welcoming us here today. Thank you so much. So as listeners will know, normally on this podcast, we spend a lot of time talking about the Supreme Court, but we are typically doing it at a relatively safe distance from the place. Though perhaps speaking only for myself, I would personally be willing to take one for the team and follow the justices abroad when they go to Italy for their cozy vacations styled as academic junkets, just to do a fantastico live show in, say, Italy? Honestly, it would depend which justices we are talking about, at least to my mind. Now, Girls Trip with Sonia, Elena, and Katonji, that I think we would do. I don't think I would follow
Starting point is 00:03:36 Neil Gorsuch anywhere, even on Harlan Crowe's really luxe private jet. But so back to DC for the moment. We actually don't know what the justice's plans are because frankly, those nine still have some work to do here. There are around 23 opinions left to announce this term and probably only about two weeks in which to do it. So you better work, bitch. Over at 1 First Street, they are certainly polishing up those drafts and we want to be clear, it's probably not going to be good. The question to our minds is just how bad. Well, it's not just us saying that it's going to be bad. I mean, Mother Nature is literally saying it's going to be bad.
Starting point is 00:04:16 There is a literal toxic cloud hanging over the East Coast, which feels like Mother Nature's way of saying it's a metaphor, right? Am I right? Yeah. So the toxic cloud, in our view, is likely the Supreme Court and what they're going to do over the next two weeks. And the East Coast is basically all of democracy. So buckle up, folks. It's going to be great. The literal toxic cloud is especially appropriate because we're almost one year from the Supreme Court's decision that kneecapped the Clean Air Act in June in West Virginia versus EPA. So a week after the court overruled Roe, the court made it harder to address climate change and made it easier for polluters to pollute the atmosphere. And the Clean Air Act, the statute that the court hobbled in that case, was literally enacted on the heels of smog overwhelming New York City. So it's almost like Mother Nature is both protesting the court and crying out that we still need the Clean Air Act. So in light of all of this, this literal physical toxic cloud, as well
Starting point is 00:05:17 as the toxic cloud of the court, there's an understandable instinct to stay far, far away from SCOTUS, but not us. We don't run from danger, no. We walk right up and say, hey, danger, we're here, and that's what we've done. We took this opportunity to come directly to the courts, play in their faces in their backyards, and we decided to do that here at Howard Law School, again, because of the incredible work that Howard has done over the years supporting and bolstering civil rights in this country. So we had previously done an episode with the incomparable Tiffany Wright and talked about the launch of the Civil and Human Rights Clinic here at Howard. That clinic filed a powerful brief in Dobbs about the history of abortion restrictions and the burdens that abortion bans disproportionately impose on Black women. And we have been seeing
Starting point is 00:06:02 those enormous burdens on people, women's lives every day since the court overruled Roe. And of course, most people in this room do not need reminding of this. But for our listeners at home, it does bear emphasizing that Howard has long been in the business of training leaders who have been at the forefront of using the law to seek racial justice, to build a functioning and inclusive democracy, who understand the fundamental linkage between those two projects. So it is a real thrill for us to be here. We have been fangirling out on the class portraits in the hallways. We've been taking pictures of ourselves prepping in the Pauli Murray conference room. It is an absolute delight for us to be here. We also want to give a real shout out to Dean Danielle Holly Walker, who made this possible.
Starting point is 00:06:43 And we should note, this is something of a swan song for Dean Holly Walker, who is going to be leaving Howard Law this June to assume the presidency of Mount Holyoke College, the first Black woman in the history of that college to have the post. She's been an early and avid supporter of this podcast and all of us, and we commend her remarkable tenure here at Howard Law School and we wish her well in her new post. Mount Holyoke is so lucky to have her and again we are so grateful for her hospitality and we're so grateful for the work that she and her team and our team at Crooked did to bring all of this together. So thank you. We are also delighted to be joined on stage here at Howard by Janae Nelson.
Starting point is 00:07:34 Janae is the President and Director-Counsel of the NAACP Legal Defense Fund. Prior to assuming her current position, Nelson was LDF's Associate Director-Counsel and a member of LDF's litigation and policy teams, where she was a lead counsel in a successful federal challenge to Texas's voter ID law, among other cases. And prior to joining LDF, she was a law professor and associate dean at St. John's University School of Law. And she is also a repeat strict scrutiny guest. So welcome back to the show, Janae. I am so delighted to be here. Thank you.
Starting point is 00:08:13 All right, so here is a quick overview of today's show. We are going to start with the court's latest batch of opinions. We are then going to highlight some cases out of the federal trial courts, and we will end with some court culture. But first up, opinions. And boy, did we get a banger from the court on Thursday in Allen versus Milligan. And of course, that was the huge case involving Section 2 of the Voting Rights Act. The question in this case was whether an Alabama congressional map that created just one majority Black district out of seven in a state that is 27% black, violated Section 2 of the Voting Rights Act, which prohibits voting standards or practices or procedures that result in, quote, a denial or abridgment of the right of any citizen of the United
Starting point is 00:08:55 States to vote on account of race or color, end quote. Now, in a move that surprised a lot of people, including me. And me. Lots of surprises. Not me. Not me. We're going to get to that. But for some of us who don't give him the benefit of the doubt, Chief Justice John Roberts, who we know as a longtime fan of the Voting Rights Act and voting rights more generally, wrote the majority opinion in this case for five justices, himself, the three Democratic appointees, and perhaps inexplicably, Justice Kavanaugh. So the majority agreed that the map violated Section 2 of the VRA,
Starting point is 00:09:38 and Roberts described the effort by Alabama in the case as an attempt to, quote, remake our Section 2 jurisprudence anew. Meow, bowl of milk, table two. And Roberts strongly rejected that effort, writing, we see no reason to disturb the district court's careful factual findings, nor is there a basis to upset the district court's legal conclusion. The court faithfully applied our precedents and correctly determined that under existing law, HB1, that's the previous map, violated section two. Okay, so that's the bottom line. There is a lot more to say, so let's get right to it. And just to frame things, you know, a unanimous three-judge panel where two of the judges were Trump appointees found that Alabama's maps illegally diluted the votes of black Alabamians in violation of the Voting Rights Act
Starting point is 00:10:26 because Alabama drew one district where black voters could elect the candidate of their choice rather than keeping black voters in the black belt together in a second district where they could also elect the candidate of their choice. And faced with a judicial order directing them to engage in the project of multiracial democracy, Alabama went up to the Supreme Court asking for a pass from that whole multiracial democracy thing. We're going to get back to that hall pass in a minute. Hall pass from democracy could be a tagline for this court, but we will talk about what the court did here and also react to it. Okay, so Janae, can we ask you to start with what are,
Starting point is 00:11:05 in your view, the most important takeaways from the opinion? And we'd love to hear about why you actually weren't surprised the way a lot of us were. Absolutely. But first, I just have to say that I can't think of a better place to be in conversation about this victory and three people to be in conversation with about it than the Strict Scrutiny Podcast hosts, Leah, Kate, and Melissa. So I'm just delighted to be here at Howard University School of Law, where Thurgood Marshall, the founder of the Legal Defense Fund, graduated in 1933. So this feels like a wonderful homecoming and the appropriate place to celebrate what I think is a landmark civil rights decision by the Supreme Court. So the key takeaways, and then we'll get to the idea of a
Starting point is 00:11:55 surprise. So this case, in so many ways, first and foremost, is a vindication of the voting rights of black voters, not only in Alabama, but across the country, because this holding reverberates in cases that are currently pending before the court, cases that are pending in district courts that LDF and other civil rights groups are litigating, and cases yet to be brought where there are potential majority minority districts to be drawn. So the potential reverberations are vast. So that's number one. Number two, this is a validation of Section 2 of the Voting Rights Act. And Section 2, as many of you may know, has been the only tool that has done any really robust work in the past decade since Section 5 of the Voting Rights Act was struck down in an opinion authored by Chief Justice Roberts 10 years ago this month, Shelby County v. Holder. And that case invalidated a provision that would have prevented this map in Alabama from going into effect in the first place. It was a preclearance provision which required the federal government to review voting changes in states with a history of discrimination.
Starting point is 00:13:18 And we know Alabama has a very robust history of racial discrimination. And this congressional map would have never gotten through Section 5 preclearance. So here we are enforcing Section 2. But Section 2 has been withered in many ways over the past decade as well. And there was great concern about whether it would be enforced robustly in this, what I consider a very slam dunk textbook case of racial gerrymandering. And so the court validated section two, said it was still a robust tool, that it is completely constitutional, which I think is a real win given the number of questions swirling around it. And it also validated, it swept away the doubts around whether you can bring a private action
Starting point is 00:14:05 under the Voting Rights Act and resolved a number of issues around the technical application of the jingles requirements, et cetera. I would say the final thing is that this opens up the door to re-examine the possibilities of equal electoral opportunity as we see a changing demographic in our electorate. The U.S. is on track to be a majority people of color nation by as early as 2040. And this decision could not come any sooner to encourage more fair maps to allow our democracy to function as it should. So there are many wins, and I'm happy to dissect the opinion further and get into the surprise element. Great. So in terms of reaffirming existing doctrine, making clear that if faithfully applied, this does suggest that Section 2 will be a potent tool for combating discrimination in map drawing and
Starting point is 00:15:06 in other aspects of the voting process. It also, just to make quite concrete, in terms of the on the ground impact of this decision, it seems quite clear Alabama has to create a second majority black district. That is very likely going to be true in the immediate aftermath of this case of several other states, Georgia, Louisiana. There's possibility of impact in the immediate aftermath of this case, of several other states, Georgia, Louisiana. There's possibility of impact in the maps in North Carolina, possibly Texas. So the on-the-ground consequences will be immediate in terms of including black voters in democracy and fully in the political process.
Starting point is 00:15:38 In terms of the team at LDF that litigated this case, we cannot miss the opportunity to pile on some praise, right, to other previous strict scrutiny guests, Duell Ross and LDF in general, right, for lawyering the heck out of this case. I have to say, it feels like if you come on strict scrutiny, you win in the Supreme Court. Causation or correlation, I don't know. Definitely one of the two. Yeah. So we also wanted to extend congratulations to the ACLU, who was also very involved in mounting this challenge. You know, this team, I think, truly saved this part of the Voting Rights Act and in doing so safeguarded multiracial democracy and the ability of voters of color to receive representation
Starting point is 00:16:23 going forward. We should also shout out other lawyers involved in the case. Abakana of the Elias Law Group also argued, as did Solicitor General Elizabeth Prelogar. Both were terrific, arguing on behalf of plaintiffs and the federal government in support of the lower court's opinion. So, Janae, one of the things that I think was really important in this decision is that the court gives some much-needed guidance in how to litigate and how judges should review claims of vote delusion. So vote delusion, again, are instances where legislatures have drawn districts in ways that reduce the minority voters' ability to obtain political power and to elect the candidates of their choice. So in what ways has the court
Starting point is 00:17:10 signaled how these cases should be litigated and how reviewing courts should address these claims of vote dilution? Well, I think the court did a lot of work by saying what not to do and by rejecting a number of the arguments that the state of Alabama put forth, very specious arguments. And in fact, Chief Justice Roberts said quite clearly that to the extent that the state of Alabama was suggesting that you need a race conscious approach to, or race neutral approach, I should say, to redistricting, that that is fully rejected by Section 2. And I really want to credit Justice Katonji Brown-Jackson for dissecting that issue during oral argument and I think laying the foundation for that part of the opinion. But the court also said that when we're thinking about simulations, which is a real challenge as
Starting point is 00:18:01 we start to continue to use more technology in the process of redistricting. The process of simulations allows you to produce thousands of maps on a computer. And the state of Alabama wanted to use evidence of simulations to suggest that there are many configurations for districts. And therefore, the 11 maps that we put forward in the case that showed that a majority-minority district could be drawn were somehow diluted by the fact that there were so many other permutations. And the court really rejected the reliance on simulations, which is very important as we move forward in thinking about redistricting other areas. The court also made very clear that proportionality is, as the Voting Rights Act
Starting point is 00:18:48 says in its text, not a requirement. It's not required that just because 27% of Alabama's population is black, one in four people, that you necessarily have to have a proportionate representation in your congressional delegation. But what you do have to have a proportionate representation in your congressional delegation. But what you do have to have under the Voting Rights Act is an opportunity, an equal opportunity to elect. And that is what the court reinforced in Section 2. So in many ways, it clarified existing law. It really reaffirmed principles that we already knew, and it rejected those that the state of Alabama attempted to use to sully the Voting Rights Act and to make Section 2 inoperable. Another important clarification the court offered was that in circumstances where legislatures adhere to earlier drawn maps, that adherence does not necessarily insulate them from future Section 2 claims. And again, I think that speaks to the dynamism of the landscape. Like the population is changing and the state has to also adapt and update its maps to reflect
Starting point is 00:19:54 that. So again, the court made that really clear too. We are in a dynamic environment. With all of that in mind, let's step back a little and maybe think about what this decision, which, as everyone has said, was incredibly surprising, especially for people who follow the court closely. What does this surprise victory for voting rights from noted liberal squish John Roberts tell us about this court and the moment it's in and its relationship with the public? I think it tells you that the court has not fully abandoned stare decisis, as many of us might have thought at the end. I feel targeted.
Starting point is 00:20:35 As many of us may have thought at the end of last term. It creates a floor, right? It's a very low bar. The bar is in hell. It is a bar. It's a very low bar, but it is a bar. The bar is in hell. It is a bar. It's a bar nonetheless. And I think it really is a recognition of at least some members of the court, namely Chief Justice Roberts and Justice Kavanaugh, recognizing that our democracy simply could not withstand a blow to Section 2 of the Voting Rights Act that A, is not supported by 40 years of precedent and law,
Starting point is 00:21:12 and B, would wreak havoc on our increasingly multiracial, multiethnic democracy. If you continue to isolate political power in the way that the state of Alabama was attempting to do. And as you point out, Kate, the state of Louisiana, we've got Florida, we've got South Carolina, we've got so many states we can name, Arkansas as well, and others, North Carolina. You really have no electoral process through which to hear the voices of this increasingly diverse electorate. And then you force people into other, more dystopian choices that I don't think the court wants to be the author of that story. Speaking of dystopian choices, I think one of the reasons why I found this decision so surprising is because it's not the
Starting point is 00:22:02 first time the court had dealt with this challenge. And in fact, in February 2022, this case came before the court on the shadow docket. As many people will recall, Black voters in Alabama, represented by LDF and the ACLU, challenged the maps under Section 2 of the Voting Rights Act. The three-judge panel agreed with them that the maps were unlawful. Then Alabama appealed that to the United States Supreme Court on the shadow docket, and it requested a stay of the lower court decision that had instructed Alabama to redraw the map in advance of the 2022 midterm election. And a five to four majority of the court in an unexplained shadow docket decision,
Starting point is 00:22:48 a five to four majority that included now liberal squish Brett Kavanaugh, stayed the lower court's decision. And it allowed that map to be used in the 2022 midterm election. They followed that banger up with a similar decision involving a Louisiana districting map.
Starting point is 00:23:06 And there was also a lower court in Georgia that allowed maps to be unlawful maps to be used on the ground that they were following guidance from the Supreme Court. shadow docket in 2022 completely distorted the electoral landscape in the midterm election and possibly gave the Republicans control of the House of Representatives. So a couple of things. One, you are 100% correct about the impact of the shadow. Melissa is going to make this our new intro for the show. This is going to be on a loop on the Internet. Just get ready. Now my husband's going to wake up every morning. But you are 100 percent correct that these decisions on the shadow docket, the decision to stay these lower court decisions, one in Louisiana involving three Republican appointees to the court and two Trump appointees in the Alabama case. And I only note that we are a nonpartisan organization. I note that just to emphasize that this is actually not political, that this has everything to do
Starting point is 00:24:20 with a fair application, an objective application of the law, regardless of any political affiliation. And so, yes, our current Congress is actually there. The composition is a result of racially discriminatory maps. That means the entire country is affected by the racial discrimination that happened in these states. So this is not an Alabama issue. It's not a Louisiana issue. This is a national concern. So you're right. So the question I think that you're teasing here is why did Chief Justice Roberts grant the stay along with Kavanaugh and then do this? It was Kavanaugh who changed, right? The chief wouldn't have granted the stay. He wrote this weird opinion that was like,
Starting point is 00:25:06 well, I wouldn't grant the stay because granting the stay would require me to change the law, but I am changing the law curious. So I'm open to the possibility of doing it after an argument. But then he said, no, I'm not going to do it. And then Justice Kavanaugh,
Starting point is 00:25:20 who had granted the stay, then walked back and said, nope, nope, nope, nope. We are going to keep the law as it is, reaffirm these existing principles. And say full-throatedly, these maps are unlawful today. Yeah. June 8th. Right. If that was the case, why weren't they similarly unlawful in February 2022?
Starting point is 00:25:42 So I do think that going into this case, the fact that the court had previously allowed the map to be used, obviously John Roberts' history, both as a young lawyer in the Justice Department and as a justice, as the author of Shelby County, and as someone who has seemed to demonstrate real hostility to the Voting Rights Act and to voting rights more broadly, that he would author this opinion and that Kavanaugh would come over for most of it. I think we're all still trying to puzzle our way through. So you talked about some of the reasons that you think might explain all this. But so in you were going in, you were expecting this. So let me say one word, because I do think it's important for people to understand
Starting point is 00:26:19 the difference between what was at play in this day and what happened on the merit. So during the stay, the reason for granting the stay was a particular principle called Purcell. The suggestion that if a voting change is going to happen too close in time to an election, it shouldn't happen. We should just let everything ride out, lawful or not, just let it ride out and then deal with the after effects later. So that is what happened. That's
Starting point is 00:26:45 the principle that drove this. Fully disagree with the application here. We filed that lawsuit as soon as one could possibly file a lawsuit after the districting plans were passed by the Alabama state legislature. We got a decision in January of 2022. And nonetheless, the court said that this was too close in time to the November election. So fully disagree. Math time. That's nine months.
Starting point is 00:27:12 A full gestation period. If you can have a baby. Yes, correct. If you can have a baby because you can't have an abortion, why can't you figure this out in nine months? The math is not math. You're supposed to put the challenge in a drop box and then wait for it to materialize
Starting point is 00:27:29 two years later. Ladies save Haven votes. So I say this only to say that there was ostensibly some legal cover to that decision, whereas there's no legal cover for the decision that the state of Alabama wanted in the Merritt's case. Right. So so there's a distinction there. But to the element of surprise. So, OK, did I think that we were absolutely going to win? Of course not. There's no way that anyone could be sober minded before this court and think that you have any chance of a guaranteed win. But did I believe that if there was any case to push this court to do the right thing, that it would be this case? Because the facts were so egregious, because our record was so strong, because our advocates were so on point? Absolutely. And that's what made me believe that there was a possibility for this to happen. And I'm very thankful that it turned out to be correct. So are we. Yeah. So I wanted to kind of add two additional, I think, semi-related
Starting point is 00:28:34 explanations for why it's not totally surprising or what may have happened here. One is that, I guess, my intuition is another thing that happened in between the stay and the merits decision is there has been a lot of criticism and public pressure on the court and the court's plummeting approval ratings and these things matter in my view like public outcry about the court's radicalism right in granting the stay and what was at stake in this case with the legal theories, that matters. And the court knows, I think, they're going to be spending down some capital in future cases this term. And when Kate says, you know, LDF, ACLU, other groups lawyered the heck out of this case, like, that's part of what I think is involved in lawyering the
Starting point is 00:29:22 heck out of cases right now now is speaking to the public about what the arguments in a case mean and how there was a risk that the court would embrace them and what would happen if they did. You know, the justices and their clerks, they read this stuff, they can tell how people react to them and their decisions. And I don't frankly think the chief wanted op-eds that said a decade after Shelby County, the chief justice kills like the other section of the Voting Rights Act. Especially not when in Shelby County, Chief Justice Roberts said, but you have Section 2. So in many ways, and also, I mean, you can point to Dobbs as well. If you say, well, if you want a right to abortion, if you want to weigh in on reproductive rights, you can vote that way. But we're taking away your ability to elect candidates in Congress who can represent your interests. It's so thoroughly hypocritical that I think this was part of validating some of the offerings that he made, whether they be legitimate and truly, you know, truly heartfelt or not.
Starting point is 00:30:27 But it really would undermine every other argument he makes if he limited the right to vote in this way. I also think there's something about the particular psychology of Brett Kavanaugh here. And something you said, Janae, reminded me of an earlier decision, I think from 2019 Flowers versus Mississippi, which is a Batson challenge. And again, that was a case where Brett Kavanaugh and the majority ruled that the prosecutors had violated a black defendant's right to a fair jury trial. And again, the facts were so egregious. I mean, really, really egregious. be the case that for Brett Kavanaugh, a father of daughters and the first man to have an all-female chambers, really egregious racism is in fact racist. Civil rights icon, Brett Kavanaugh. The strongest black woman on the court. That's Sam Alito, come on. You're right. But I do also want to emphasize something you were also saying, Jene, which is like this decision to me is also a reaffirmation of the idea that I truly believe in the darkest of times that law and lawyers can sometimes matter.
Starting point is 00:31:39 Like we've said, right? I mean, right. I know. I know. Right. Like sometimes it's not right? I know, I know, right? Like, it's not just, you know, it's not just the fact that like LDF and ACLU and, you know, the SG and the Elias Group, like lawyers were great.
Starting point is 00:31:55 It's also how aggressive and outlandish and absurd Alabama's arguments were. Like they were sloppy and they were slapdash. Like this was the oral argument when the justices were pressing Alabama. Like what exactly is your theory? And in what universe does it possibly make sense? There was one lawyer here who did an A plus job.
Starting point is 00:32:14 In addition to Dewelle Ross, she doesn't get the billing that she deserves for being a top lawyer here. But that lawyer was actually the court's newest justice, Justice Jackson, who started... Justice Jackson started her maiden term on this court. She came out with just a banger of a term. She was not like sitting back as a wallflower. She came to play and she started out in this case by reaching into her purse and pulling out a CVS style receipt, which she read out loud to her colleagues about the origins of the Voting Rights Act and the Reconstruction Congress's efforts to try and include newly freed African-Americans in the project of democracy. And the fact that on the heels of slavery, these people understood that race conscious measures might, in fact, be necessary to include these individuals in the project of democracy.
Starting point is 00:33:15 And her participation in this oral argument, I think, was absolutely transformative. So let's hear a clip of that. I am so, so glad for Justice Barrett's clarification, because I had the same thought about what you were arguing. And I'm glad that you clarified that your core point is that the jingles test has to have a race neutral baseline or that the first step has to be race neutral. And what I guess I'm a little confused about in light of that argument is why, given our normal assessment of the Constitution, why is it that you think that there's a 14th Amendment problem? And let me just clarify what I mean by that. I don't think we can assume that just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution,
Starting point is 00:34:17 at what the framers and the founders thought about. And when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the Equal Protection Clause, the 14th Amendment, the 15th Amendment, in a race-conscious way, that they were, in fact, trying to ensure that people who had been discriminated against, the freedmen, during the Reconstruction period, were actually brought equal to everyone else in the society. So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the 14th Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves. The legislator who introduced that amendment
Starting point is 00:35:13 said that, quote, unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen. That's not a race neutral or race blind idea. And also think about how Justice Jackson and Justice Keegan were hammering the Alabama lawyer on how Alabama was trying to make the Voting Rights Act, of all things race blind, like the famously race neutral Voting Rights Act, and transform vote dilution into an intense standard, which it most certainly is not. And to our minds, it really is important to be able to recognize that, you know, all of this together evaded the immediate destruction of what remains of the Voting Rights Act and the tools it provides to facilitate multiracial democracy. And there were some really important principles embedded
Starting point is 00:36:06 within this Roberts opinion. Roberts says voting is fundamental. I am not sure Roberts in his own voice has ever written that sentence in a judicial opinion before. He's probably at home right now in the fetal position. But he can't take it back, it's there. And that's what I mean when I say this is a Section 2 vote delusion case. But the principles should transcend this particular context.
Starting point is 00:36:30 He talks about the importance of deferring to Congress's choices here. Not subpoena choices, but other choices. You take what you can get with this court. But Congress made a choice when it passed the Voting Rights Act and when it amended the Voting Rights Act to correct the court's earlier crabbed vision of Section 2, which would have only prohibited intentional discrimination. Congress corrected that, said no. The importance, back to stare decisis, which, Janae, you mentioned earlier, the importance of not just junking tons of precedents, that too is an important through line in this case. And then again,
Starting point is 00:37:05 I can't believe I'm saying this sentence, but John Roberts says we can't blind ourselves to the consideration of race. I think he wrote that. If the US reports are to be believed, it's still up on the Supreme Court's website. And so both for this case and for hopefully the court's future encounters with cases involving democracy, all of this should really matter. And this is from the man who said that efforts to bring greater diversity and integration to schools and in the area of redistricting in a case, what, back in 2006 or 2007, said that this is assorted business, this divvying up by race. And this man is now recognizing, especially now in a climate where the truth of the history and the ongoing effects of racial discrimination is being so contested in the very states that we're talking about. And I'd be remiss if I didn't
Starting point is 00:38:05 mention something that he wrote about the black belt. You know, we all know the history of the black belt and Chief Justice Roberts actually identified the black belt as a community with a high proportion of similarly situated black voters who share a lineal connection to, quote, the many enslaved people who were brought there to work in the antebellum period. He recognizes that history. I mean, it's a little bit sanitized, I would say. I mean, they weren't just brought here to work. The immigrating. Yeah, employment opportunities. It was a little bit different than that. But just that recognition and the rejection of this idea that there is some community of interest of white folks who share some French colonial ancestry is actually important. Fantastique, I think is what you want to say.
Starting point is 00:38:58 Yes. So if that's right, that has to mean that it's not just law that's doing the work here, because those principles, they all sound right to me. They don't necessarily sound like the principles that Justice Kavanaugh and the Chief Justice have always followed in other cases. And I guess I think no one should let this court's opinion and the fact that they ruled for the black voters here by reaffirming existing law undercut the work of the people who put themselves out there to draw attention to this case and the risks that it posed. And in the process, I think, helped to make this case happen.
Starting point is 00:39:35 Like, we shouldn't make the mistake of thinking that this result was inevitable or that that kind of work won't be necessary the next time around. So we should definitely shout out folks like Evan Milligan, who was at the forefront of this. And again, Dewell Ross, who had such a masterful command of this case at oral argument. But as is my want, I have been a bit of a turd in the punch bowl on this case for the last couple of days. And mostly it's about the media's coverage of this case and the way it has been presented as a cause for celebration or victory. And I just want to take a beat on this. And again, I do think this is a victory for civil rights and for voting rights. And yes, voters and multiracial democracy won here, but I don't think we can let up on this court. And I don't think that we can give this court credit for issuing a victory that was ours in the first place.
Starting point is 00:40:27 Steve Waddick and I wrote a piece in the Washington Post this morning that was really two tweet threads that we brought together. When two tweet threads meet cute, they make it up. And the point is, like, there's context here. There's Shelby County versus Holder when the court eviscerated preclearance, which would have stopped this map from going into effect in the first instance. There's Brnovich in 2021, where this court hobbled section two. There's the shadow docket decisions that allowed these maps to go into effect and may have actually affected electoral outcomes in this country. And so, yes, this is a victory, but I don't think that we should celebrate
Starting point is 00:41:06 this court finally doing the right thing when they could have done the right thing in February 2022 or in July of 2021 or in June of 2013. And we have to stay on their necks and we can do both. And, you know, Sherilyn Ifill came at me a little bit and that's fine. Like, I love Sherilyn Ifill. If Sherilyn Ifill told me to go to hell, I'd put on flame retarded pajamas and I would go. I would go. Like, it is a victory and we should celebrate LDF, Jewel, the ACLU, but we need to stay on this court's neck. If anything is proven by this, it's staying on their necks may have helped us get here. I couldn't agree more. And what I will say is, if I had a dollar for everyone who said we should not have brought this case, that this case was dead on arrival. I'd be a rich woman.
Starting point is 00:42:07 And I think that is staying on the court's neck. So there's no question that that is happening. And there's no question that this case did that. What I take issue with is the idea that people can feign surprise over this and say, oh my God, this was shocking. This was so unexpected, but yet this wasn't a win. That is thoroughly inconsistent to say in one breath, you were surprised, but this is somehow not a win. If we did not think that the court would produce this justified result when they actually produced it, how is that not a win for our democracy? And let me say this, I distinguish wins from progress. Yes, this validated the status quo. This reinforced critical principles for our democracy. This was a reaffirmation of stare decisis. We talked about
Starting point is 00:42:59 the many ways that this clarified a number of issues. And importantly, which we haven't really teased out, this was a clear validation of disparate impact and effects tests that will have implications well beyond Section 2 of the Voting Rights Act, into Title VII, into the Fair Housing Act, into so many other civil rights laws. So to suggest that this is not a win is something that I think fails to take into account the full context in which this decision was made and also the real world impact that it has the potential to have. So we are in an agreement that this is not progress. This is not a radical transformation of the Voting Rights Act, but it is an absolute unequivocal win for democracy in countless ways. And we could have other victories for democracy. This is a victory for democracy, and it would be even better if it were complemented by maybe a court that was more expansive in its understanding of voting rights, but more importantly,
Starting point is 00:44:10 if it were complemented by a Congress that could do more to bolster the VRA as it had done in the past. That's right. And fortunately, what will complement this decision are the state VRAs that are being passed, one that the Connecticut State Legislature just passed earlier this week as the sixth state to enact the John R. Lewis Voting Rights Act at a state level. And it now, you now have a Supreme Court decision that makes racial gerrymandering like what happened in Alabama crystal clear for purposes of preclearance in those states. And as more states begin to enact these votingoting Rights Acts, then we will see greater progress on the state level. But we should, again, not forget the fact that this decision itself may enable a new Congress, a newly composed Congress, to actually enact the federal legislation that we need, like the John R. Lewis Voting Rights Act
Starting point is 00:45:04 and the Freedom to Vote Act. Yeah, and the state, the state Voting Rights Act, I think, acts are a very important development, but I think conspicuously haven't been enacted in any of the states in which they're the most needed. And that, I think, is why a federal solution is so critical. So, you know, we've talked about Roberts, and we, you know, talked a little bit about Kavanaugh. Kavanaugh's switch, of course, from the shadow docket decision, which, as Janae pointed out, was, you know, dealing with some different legal questions. But it's still a very conspicuous shift. And I'm really curious about how to understand Kavanaugh's vote here. So the influence of Chief Justice Roberts is one possibility. The influence of the newest justice,
Starting point is 00:45:39 Katonji Brown Jackson, who's, you know, doesn't write separately in this case, but whose fingerprints really feel from the way she shaped the oral argument as though they are all over this opinion? Was Kagan advocating? I mean, again, Kavanaugh is the critical switch here. So I'm curious if folks have theories about what explains his move. I mean, one is he really wants those cocktail party invites
Starting point is 00:45:59 and his, I'm a good guy, I'm just unleashing terror on women concurrences weren't doing the trick. So, you know, he had to actually back it up with some actions. And you know what? I'll do this. In light of his vote here, I will not call him dumb for at least one week. Having said that, I do need to point out some things about his concurrence. So he wrote a concurrence saying that stare decisis is really important in statutory cases, trying to distinguish, of course, Dobbs
Starting point is 00:46:30 overruling Roe and maybe preserving a basis for the affirmative action cases coming up. This is something he's been on for a while, dating back to Ramos versus Louisiana. But in this voting rights case, he and the court relied on constitutional law precedent about what Congress can do under the Reconstruction Amendment, specifically in providing race conscious remedies. And I did want to highlight some troubling passages at the end of his concurrence. There's this ominous passage where he suggests that the constitutionality of Voting
Starting point is 00:46:59 Rights Act Section 2 safeguards against vote dilution might have an expiration point, similar to what Justice O'Connor had written about affirmative action and similar to what the Chief Justice had written in the opinion striking down Section 5 of the Voting Rights Act in Shelby County. So Justice Kavanaugh approvingly cites Justice Thomas's claim that, quote, the authority to conduct race-based redistricting cannot extend indefinitely into the future, but then says Alabama did not raise that temporal argument in this court, and I therefore would not consider it at this time. And I just worry this is giving me like Robert's fanboy energy, like the McKay-Coppins profile of him. Should we take a beat on Thomas' dissent? Yeah. Yeah, I definitely want to talk about that.
Starting point is 00:47:42 Okay. I just want to make one point about it, and then I will hand you the mic, Melissa, which is that he keeps referring Thomas and his dissent to Robert's opinion as a plurality opinion, which is just so petty. Like, Kavanaugh joins nearly the entire opinion. A plurality means you don't have five votes. That's not what this is, but Thomas insists on calling it that. I don't know if it reflects there was actually a vote shift at some point along the way, and the dissent wasn't updated to reflect that, but that was the one thing I wanted to flag. But Melissa, the floor is yours.
Starting point is 00:48:10 I do want to say more about Justice Thomas and his dissent because it was really something. So just again, for context, this is literally the second black person to sit on the United States Supreme Court. He's sitting in the seat formerly occupied by Thurgood Marshall, a graduate of this law school, and he wrote a 50, almost 50 page screed. It's almost twice the length of the majority opinion in which he contests a decision
Starting point is 00:48:37 that vindicates the rights of black people to vote. Let that sit for a moment. It is a love letter to the fiction of colorblind constitutionalism and a love letter to the prospect of showing intent to make out any kind of claim of race discrimination. And if you don't think this is just him limbering up and getting hydrated for his majority opinion in the affirmative action cases, you need Jesus. Like, it's just a warm-up. Yeah? Well, yeah. You know, but let's see what side of the decision he'll be on. You know, the other thing that struck me... This is like hope we're feeling right now. No, but what struck me was also the resurrection of the deeply offensive term by
Starting point is 00:49:33 the deceased Justice Antonin Scalia, that section two is somehow a racial entitlement. Yeah. So it's just more evidence of a distancing from civil rights principles, from a full understanding of the Reconstruction Amendments and what they were purposed for. And just an attack on, as you say, the voting rights of black people in this country by this justice. Yeah. If you haven't seen the Frontline documentary, watch it. It's, oh, my God, so much popcorn, so much tea. I was riveted. Like, I mean, it's not often that Kate gives recommendations for TV. And so this was a banger. Good job. And actually the second episode of the current slow burn season about Justice Thomas dropped a couple of days ago. And if you haven't listened to that one yet, get the popcorn ready. It's wild. All right. But on that hopeful note that maybe Justice Thomas will be a liberal squish in the affirmative action cases. Thank you for that, Janine.
Starting point is 00:50:31 I'm not sure that's exactly what I said. I love your interpretation. But thank you for joining us. Thank you so much for your leadership of LDF and the great work that you all did in conjunction with the ACLU in Merrill versus Milligan, Allen versus Milligan. Such an amazing victory. Congratulations to you all and thank you so much for joining us today. Thank you. For those of you who weren't here at the live show, Janae Nelson just left the stage to a standing ovation, which I imagine is exactly what happens when Justice Jackson comes into conference.
Starting point is 00:51:18 It should be. It should be. That's my president. So we got another surprising decision this week in Health and Hospital Corporation of Marion County versus Tulefsky. This decision was authored by Justice Jackson. So we talked up Justice Jackson's loan dissent in the labor case, Glacier Northwest, last week as a tour de force. And this one is two. She is making a play for the Taylor Swift of the Supreme Court in the face of challenges, namely
Starting point is 00:51:45 all of the men's around her. She is just writing banger after banger. And I'm guessing she will have a lot of material in the next couple of weeks to continue this era. All right. So but back to Zalewski. So in this case, the state's argument basically sought to limit private plaintiffs' ability to sue to enforce laws if those laws were enacted under Congress's power under the Constitution's spending clause. So the state and some amici were basically saying here, yes, so Section 1983, which is the general federal civil rights statute, says that you can enforce laws, but when laws are passed under the spending power of Congress, those aren't laws, those are
Starting point is 00:52:25 contracts. And if this sounds like it makes no sense, it really doesn't. But that was the theory. The statute makes no distinction between spending clause statutes and other statutes. But again, not making a ton of sense doesn't always stop this court. And so we were really nervous going into this case. We're nervous for a lot of reasons. Congress passes a lot of laws. Apparently, they are also erstwhile contracts under the spending clause, which means that if the state's argument had been accepted here that these laws were actually contracts, it would have had huge consequences across a swath of different federal spending programs. And it would mean that the federal government could not bring cases for
Starting point is 00:53:05 every violation of those programs and how they are carried out. It means that many of those laws would have basically gone unenforced or under-enforced. So again, this theory had enormous implications. Right. And the decision was somewhat surprising, or we were at least bracing for a potentially terrible result because over a series of earlier cases, the court had cut back on the enforcement of some spending clause statutes and some individual justices, although not the court, had floated the question that maybe spending clause statutes could never be enforced via the general civil rights statute. Which brings us back to Justice Jackson and her transformative participation in the oral argument in Tlefsky.
Starting point is 00:53:46 Just to be really clear here, she gave a read, honey, about the history of Section 1983. She made clear that Section 1983 was intended to address the inadequacy of state common law remedies and the inadequacy of state courts as venues for the protection of federal rights. So let's hear a snippet from her at Oral Argument. I don't understand your suggestion that an express cause of action, which I think we can all agree is what 1983 is, that says that you can sue to vindicate individual rights that are created by the Constitution or laws of the United States, I don't understand why that carries with it common law that preceded it under circumstances in which you couldn't sue. So you seem to be suggesting that there isn't a, this isn't a situation in which Congress was actually providing a cause of action where there wasn't one before. Right.
Starting point is 00:54:57 Which when you look at the actual history of 1983, that was precisely what Congress was doing. It was a part in 1983 of the Ku Klux Klan Act, where Congress had looked at the situation of states not giving forum, not giving a cause of action to people who were being terrorized. And instead of adopting and incorporating those principles and saying, here's this new law, and we're going to incorporate the common law of excluding you from the court, in fact, Congress created the right in order to allow people to go to court. in which we carry old soil into our interpretation, I don't understand how you can interpret an express grant of authority to go to court to enforce rights created by law consistent with the opposite situation at common law and say we have to limit the current right because in common law you didn't have that right. I just realized that the through line in both this case and the Voting Rights Act
Starting point is 00:56:11 case is that in both cases, one party was asking the court to treat, you know, spending clause statutes and the Voting Rights Act as law-ish, right, rather than laws. And the court rejected that. It's weird. Anyway, so this spending clause argument was also the oral argument where Justice Kagan had mocked the lawyer who suggested that the court should narrow the ability to sue under the general civil rights statute by incorporating, of all things, the Supreme Court's Armed Career Criminal Act jurisprudence. Nice try, some geniuses. So this decision preserves the protections and rights contained in spending clause statutes, Medicaid, you know, health care, education, child care, elderly care, nursing,
Starting point is 00:56:50 you know, this particular case involved the Federal Nursing Home Reform Act. And as such, you know, I think this is a huge civil rights and disability rights win. So in addition to Tlefsky, we also got an opinion in Dubin versus the United States. Now, this decision narrows the federal identity theft statute and says that the use of another person's identity has to be integral to the crime in order to constitute identity theft. In this case, the defendant overcharged Medicare by something like $100. And in doing so, he misdescribed the services that were provided to another person. And that other person's name wasn't a key part of the crime. So that's the setup.
Starting point is 00:57:29 And this decision is really part of a trend of the court narrowing the reach of federal criminal law. This was a unanimous opinion by Justice Sotomayor. Just a side note, like how embarrassing is it for the federal government that they lost Sam Alito in a criminal case? If that doesn't prompt some soul searching in U.S. attorney's offices, it's hard to know what will. So Neil Gorsuch, who we like to refer to as our little stopped clock, very occasionally correct about something, had some righteous anger and ridicule directed at the government's theory in this case. And he couldn't help himself from really just this fantastico formulation of it. So he wrote, whoever among you is not an aggravated identity thief, let him cast the first stone.
Starting point is 00:58:20 Who thought it was a good idea to give this guy a Bible? He's got to prove he learned some things on those trips to Italy, Melissa. So he listed a bunch of things that would be identity theft under the government's theory, like overcharging someone on Venmo. And he concludes with what I think he sort of intended as a mic drop moment. And that was, 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. Fantastico! Yeah, that's it. We call that fantastico. We also got an opinion in one of our favorite cases, Jack Daniels versus VIP products.
Starting point is 00:59:06 Yes. Everyone clap for Dogfuel. Fan favorite. We spent a lot of time discussing this case after the oral argument because both the facts and the oral argument were actually incredibly entertaining. Now, again, the bar is low for Supreme Court oral arguments, but if you like your dog jokes intermingled with scatological humor, this was the oral argument for you. So this case involved a line of dog toys called Bad Spaniels, and they look like a bottle of Jack Daniels, or made to look like Jack Daniels bottles, but rather than saying old number seven brand Tennessee sour mash whiskey, they say instead,
Starting point is 00:59:47 the old number two on your Tennessee carpet. Get it? It's because dogs poop on your carpet. Okay. The Ninth Circuit found for the dog toy company, and this was pretty hruff going for Jack Daniels. I'm not above a pun. Unfortunately, the opinion itself was way less funny than the facts of the case or the
Starting point is 01:00:10 oral argument. So we will summarize it briefly. The court vacates and remands, directs the courts, the lower courts to use a different legal test to assess the claims on infringement. The court concludes that the only relevant question is whether consumers are likely to be confused, which, you know, I have a view on that, but you know, the lower courts are supposed to take a look. No one is gonna try to drink this dog toy. It's just not gonna happen. But on delusion, which is separate from infringement,
Starting point is 01:00:35 the court found the lower court was wrong to basically conclude that every parody is necessarily non-commercial. Something can be a parody but still be commercial, especially because here, bad Spaniels allegedly misused the mark that is the source identifier, right, like who made the product, rather than just say a reference to or a use of the name. And the opinion was written by Justice Kagan, pop culture maven, who included a reference to Aqua's Barbie girl in the opinion announcement, including reciting the lyrics, quote, I'm a blonde bimbo girl in a fantasy world. You know, I like the idea that she can have a little fun and that she and Justice Jackson and Justice Sotomayor get to smile and have something of a reprieve for a second. But that's all the opinions. As we said at the outset, we have 23 opinions for the court to crank out in a little more than two weeks.
Starting point is 01:01:27 So rest up and hydrate because it will be a wild sprint. We also wanted to highlight some lower court opinions and other developments that seem to coincide with Pride Month. So happy Pride to all of you. And we're going to talk a little bit about some of the Pride landscape. So in a rare piece of good news, a Trump-appointed district court judge in Tennessee struck down that state's unprecedented laws banning drag shows in public or any place where children might see them. The court found the law was unconstitutional on First Amendment grounds, concluding that the law was unconstitutionally vague, Neil Gorsuch might have had a hand in that, overbroad and had been passed, quote, for the impermissible purpose of chilling constitutionally
Starting point is 01:02:11 protected speech, end quote. So this was a good, important win, but, you know, I don't think it should obscure the fact that the legal landscape this Pride Month is incredibly alarming, right? Even though the law at issue in this case, Melissa just talking about was the first of its kind. The Washington Post reports that 26 other similar laws have been introduced already this year targeting drag performance and performers. That same analysis counted 400 anti-transgender bills already introduced this year, up from 150 bills last year. So this attack is fierce and widespread and the legal victories are really important, but there is much, much more work to be done. And just because we are doing this at this live show, I'd like to note that as we were getting ready for the show to pump ourselves up,
Starting point is 01:02:57 we watched the video of Anitra's and Marsha Marsha Marsha's lip sync to Boss Bitch because it's invigorating and filled with joy. And do not fuck with drag queens. Like, just don't do it. Don't be thieves of joy. And I wanted to shout out strict scrutiny listener Melissa Stewart, a recent law school graduate. She is on this case, and we love hearing about and being able to celebrate the best listeners in the world doing incredible things. As we noted in our interview with Professor Joanna Schwartz a few months ago, there's a real need for civil rights lawyers, especially in places outside of D.C., New York, California, and there are so many opportunities to do this work because there is so much work to be done, and don't wait to do it. You can do it now.
Starting point is 01:03:46 We should also note, since we're at Howard, that the NAACP Legal Defense Fund launched in 2021 its Marshall Motley Scholarship Program with the goal of training and seeding the next generation of civil rights lawyers doing work in the South. And we often think about the South as being a place where civil rights work focuses on race discrimination and voting, and it does. But there's also a lot of issues around LGBTQ rights that are going on in the South as well. And according to the Williams Institute at UCLA, a significant portion of the LGBTQ plus population are people of color. And even among that group, many reside in the South and are deeply, deeply impacted by the wave of anti-trans, anti-gay actions that's going on in this region. So it's terribly important work.
Starting point is 01:04:30 And the NAACP Legal Defense Fund is doing really important work that we should support in seeding that cohort of civil rights lawyers. And to highlight another recent and successful challenge to one of these laws, last week we got a decision from a Florida district court in validating one of the provisions in Florida's anti-trans law, specifically the restrictions on providing affirming health care to transgender kids. The district court judge in that case noted the elephant in the room should be noted at the outset. Gender identity is real. The judge went on to say that, quote, the defendants say in effect that organizations were dominated by individuals who pursued good politics, not good medicine. If ever a pot called pursued good politics, not good medicine.
Starting point is 01:05:10 If ever a pot called the kettle black, it is here. The statute and the rules were an exercise in politics, not good medicine, end quote. So these cases and the laws undergirding them are going to keep coming. If you want to stay up to date on what's going on, we wanted to highlight the work of Chris Geidner, who's doing a lot of the compiling and documenting of all of these attacks. He does it at a substat called Lawdork. You know you are one. It's OK. He does amazing independent news and analysis.
Starting point is 01:05:35 And it's always timely, always in depth. Please follow him. He's doing great work. And because it's Pride, one final thing to highlight, which is an exchange that happened in a recent Fifth Circuit oral argument in a challenge to book banning and library restrictions. I'm not going to go into depth about the law or legal challenge in the case. I did want to highlight some comments from a friend of the show, Stanford Stormtrooper Kyle Duncan, who is a judge on the Fifth Circuit and was on the panel that heard the
Starting point is 01:06:02 oral argument in this case. It is Pride, and I'm going to use this as an excuse to twirl on Kyle Duncan. So again, some of the issues are just about the lawfulness of book restrictions, and Judge Duncan decided to offer his perspective on the kinds of books that libraries can obviously restrict. Lawn boy and genderqueer, if they don't meet the definition of pornography, I don't know what does. Your Honor, with all due respect, the definition for First Amendment purposes is not pornography. Of those books? It's obscenity. Okay, obscenity. Sorry, I misspoke. What were these obviously bannable books? One is called Lawn Boy. It's a semi-autobiographical coming-of-age story by Jonathan Everson that received the
Starting point is 01:06:43 American Library Association's Alex Award for adult books that appeal to teen audiences. The other was Gender Queer, a graphic novel by Maya Kobaib about Kobaib's journey to adulthood and identification as non-binary. Okay, so why are these books banned? Well, first, Judge Duncan says it's because they're pornography. And then he says, I misspoke. It's because they're obscene and therefore not protected by the First Amendment. Like, what? Yeah. So does he not know what porn is? Or the difference between pornography and obscenity? You know, putting aside the pettiness for a second, you know, the pettiness of expecting that a judge would know something like the law. The fact that, you know, he thinks that these books code as porn and obscene to him
Starting point is 01:07:30 is significant because it's almost like the existence of queer people, bisexual people, non-binary people is itself like obscene to him. And this relates to the argument in the 303 creative case from this term, which is still pending, we'll get a decision any day. There, one of the arguments that the lawyers representing the website designer are saying, or seem to be making, was that the very existence of queer people is expressive and threatening and justified service providers refusing
Starting point is 01:08:00 to offer their services to same-sex persons. But more generally, like from listening to the clip, I just wonder, why are straight cis people so weird? Queer people are not running around trying to ban young adult books about straight relationships. When is the last time queer people tried to ban a book because a boy and a girl kissed and a boy was like, yeah, I'm into it?
Starting point is 01:08:20 In Twilight, a teenage girl has sex and a whole ass baby with a vampire and is literally dying and nobody said anything. And in Beauty and the Beast, a woman gets together with an actual beast and the gays are not coming for Twilight or Beauty and the Beast. I mean, the Barbie girl song that Justice Kagan quoted has lyrics like, you can brush my hair, undress me everywhere, kiss me here, touch me there, hanky panky, right? Hanky panky, not triggering to Kyle Duncan for some reason. It feels like we need to declare a national emergency on straight people until we can figure out what the fuck is going on.
Starting point is 01:09:00 And that's why I'm always posting. That was a reference to the Swifties in the room. Sometimes we just let her go on. And that's why I'm always posting. That was a reference to the Swifties in the room. Sometimes we just let her go on. It was the best. All right. So some quick court culture before we end. I just want to note, and my bishpoo Cole would also like you to note, that Clarence Thomas got an extension on filing his financial disclosure form. Insert meaningful look here. I don't know. I guess you got to categorize that private jet travel, super yacht travel, Galapagos trip, and private school tuition really accurately. Now you do it. It takes time. It takes time. It takes time. And his requesting and obtaining an extension is, of course,
Starting point is 01:09:42 another occasion to think about the harshness of his jurisprudence when it comes to deadlines, you know, including in capital cases. We previously mentioned, you know, Bowles versus Russell, where an out-of-time filing meant, you know, a challenge could not proceed. Or Coleman versus Thompson, where an out-of-time appeal meant, again, someone who was sentenced to death could not proceed with their case. Or same thing with Maples versus Thomas. It seems that Alito has also gotten an extension on his filing. And here we are not sure why. Like one theory, solidarity.
Starting point is 01:10:13 He's like auditioning. He wants a billionaire to notice that he's out there too. And he's open for business. Maybe just a, I really don't care. Do you kind of message? He's communicating, we're not really sure. Like the nosy bitch I am, I went through everyone's disclosure form. I did. So much tea in that. I found out where they all traveled. I found out whose kids are
Starting point is 01:10:36 going to college. I also found out that Justice Jackson received a $1,200 congratulatory flower arrangement from Oprah Winfrey. And hashtag goals. Melissa is also open for flower deliveries. But also, how on brand the KBJ, of course. I bet you got hers in early. Oh, obviously. I mean, like, how big are those flowers? That's a lot.
Starting point is 01:11:02 1,200 is a lot of flowers. Like, oh, my God. I mean, that's like a Kanye and Kim level floral arrangement. Like just like bathing her chambers in rose petals. I hope that's what happened. That's what I hope happened. I'd love to see those pictures. Okay. All right. Now we're moving into some uncharted waters. We've always said that our strict scrutiny listeners are the most creative, awesome, inventive audiences in the podcast biz. And you all keep proving it to us.
Starting point is 01:11:29 Not only are you here at a live show in the middle of a workday, you also send us the best homemade internet memes and other court-inspired GIFs. But we never imagined that you would branch out into songwriting, but here we are. One of our faithful listeners, who I believe might be here today, Neil Johnson, sent us a little take that he did of Marvin Gaye's Sexual Healing. He's very clear to underscore that he loves sexual healing. It's a great song. He just wanted to write a little parody inspired by Neil Gorsuch's love of textualism. So I will not read the whole thing to you, but let me write a little parody inspired by Neil Gorsuch's love of textualism. So I will not read the whole thing to you, but let me put a little flavor in your ear. Textual Healing by Neil Johnson.
Starting point is 01:12:15 Oh, baby, now let's make law tonight. Ooh, baby, I'm hot just like an oven. I need some standing. Work with us. Whenever precedents are falling and my emotional stability is leaving me, there is something I can do. I can get on the phone and call you up, baby. And honey, I know you'll be there to relieve me.
Starting point is 01:12:42 The footnotes you give to me will free me. If you don't know the thing you're dealing, oh, I can tell you, darling, that it's textual healing. Get up, get up, get up, get up. Let's make law tonight. Oh my God, Neil, that was first rate. And great for educating the public about so many court adjacent issues, including textualism, rewriting statutes from the bench,
Starting point is 01:13:15 legislating from the bench, standing ethics. It really was all in there. And so I commend you. And I also recommend to the whole audience the Marvin Gaye sexual healing, which again is a great song and might make you pregnant. Textual healing almost certainly will not. It will not. I think that's where we're going to have to leave it.
Starting point is 01:13:37 We got some thank yous. So thank you first to the great Janae Nelson for joining us. It was such a pleasure to have her here. And enormous thanks to everyone at Howard Law for the incredible hospitality. The students that we met were incredible. Good luck to the bar studiers. Shout out to the Howard Law class of 2023. And Antoinette Oroco, who started law school in the pandemic, along with our classmates. You all are amazing. You did it. And we can't wait to see what you do next. We also wanted to thank the many folks at Crooked for their hard work organizing this live show.
Starting point is 01:14:17 We also have a couple notes before we go. Crooked is raising money for Vote Safe America's Fuck Bans, Leave Queer Kids Alone funds, supporting organizations on the ground in states that are banning care and targeting trans youth. Our original goal was $50,000, but because you all are so amazing and have crushed that already, we're now doubling it to $100,000. You can donate to either political impact organizations or tax deductible nonprofits or both. Head to votesaveamerica.com slash fuckbans to learn more and donate today. And you can gear up for a summer of trials and tribulations with strict scrutiny merch for... I'm wearing some at the live show. For your closet, desk, and morning coffee, we have some brand new strict scrutiny merch featuring our very own, very classic logo. The new line includes crewnecks, t-shirts, a mug,
Starting point is 01:15:05 and a nice notebook where you can jot down some novel legal theories. Or doodle Justice Alito in the tank he gets driven around in. I'm definitely going to be drinking my coffee out of this mug, especially with the nonstop news from the court we've had lately. A huge coffee mug is crucial.
Starting point is 01:15:22 Check it all out at crooked.com slash store. And don't forget to follow us at Crooked Media on Instagram and Twitter for more original content, post takeovers, and other community events. And if you're new to Strict Scrutiny or you just really loved this episode because it was awesome, make sure you rate and review us on Apple Podcasts and subscribe wherever you listen so you never miss an episode. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by the one and only Melody Rowell. Melody,
Starting point is 01:15:52 are you in this room? Yes. Will you stand up for a second? Melody deserves all of that and more. Ashley Mizzuo is our associate producer. Audio support from Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez and Ari Schwartz. And digital support from Amelia Montooth.

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