Strict Scrutiny - Born Tired

Episode Date: August 2, 2021

In collaboration with The Appellate Project, Leah, Kate, and Melissa talk to Debo Adegbile and Bruce Spiva about voting rights and diversity in the appellate bar. Follow us on Instagram, Twitter, Threads, and Bluesky

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. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. Today, we are delighted to be bringing you a special episode in conjunction with the Appellate Project on voting rights. And we are delighted to have as special guests

two lawyers of color who recently argued two significant voting rights cases, Bruce Spiva and Debo Adegbile. Our first guest is Bruce Spiva, and he's a partner at the law firms of Perkins Coie and the managing partner of their DC office, where he is an active political law practice. He recently argued on behalf of Democratic National Committee in Brnovich versus DNC, which we have discussed extensively on the show, and in particular, in a few of our end of term deep dives. So Bruce, welcome to the pod. Thank you. Glad to be here. And let me introduce our other guest, Debo Adegbele, who's a partner at the firm WilmerHale, where he's part of the Government and Regulatory Litigation Group

and also chair of the Anti-Discrimination Practice Group. He also currently serves as a commissioner on the U.S. Commission on Civil Rights. He was previously at the NAACP Legal Defense Fund, where he served as acting president and director counsel, and in that capacity argued Shelby County v. Holder. Debo, welcome to Strict Scrutiny. It is great to have you on with us. Great to be with you. So this episode is the brainchild of the wonderful organization, The Appellate Project, with whom we partnered to do an episode last April. The Appellate Project is an organization devoted to increasing the diversity and inclusion of appellate practice.

They partnered with the Civil Rights Clinic at Howard University School of Law to incorporate appellate advocacy into the clinic's practice. They also run regular programming designed to help students of color learn more about and succeed in the field of appellate mentors and provides students with appellate-focused resources like clerkship support, networking opportunities with the appellate bar, skill-building workshops, guidance on appellate job opportunities, and more. So if you are a law student of color interested in appellate practice, be sure to apply for this year's mentorship program by September 6th. You can learn more on their website, theappellateproject.org, and you can also sign up there if you're an appellate attorney interested in serving as a mentor. So this episode really brings together key parts of the Appellate Project's mission. First, we're going to highlight the importance of appellate litigation in our everyday lives.

And in particular, we're going to highlight how appellate litigation often has a disproportionate impact on communities of color. We'll also highlight and uplift the role of lawyers of color in appellate litigation. And that's a big part of the Appellate Project's mission to empower and to diversify the next generation of appellate attorneys and judges. And so we are delighted to bring all of these themes together in this episode, which is going to be focused specifically on voting rights. And as you know, we think voting rights are incredibly important. There's actually nothing that's as important as enforcing the Voting Rights Act. But that's part of the reason why we're here today. It's part of the reason why Leah has done two plus episodes on

Brnovich, not just so she can dunk on Justice Alito, but because these really go to the landscape of how we're going to construct a multiracial society and democracy. So Leah, I'll let you set the stage. So we will set the scene a little bit before we bring in Bruce and Debo, just to give our listeners a sense of some of the cases you both have recently been involved in in the lower courts. We don't always highlight this sort of work on the show, but it is super important. So Bruce submitted a brief on behalf of Black Lives Matter protesters in BLM versus Trump. He argued on behalf of the League of Women Voters of New Hampshire in a matter related to a New Hampshire law requiring newly registered voters to provide proof of residency.

He successfully challenged Missouri's voter ID law on state constitutional grounds. He argued on behalf of the League of United Latin American Citizens of Iowa. I could go on and on, but for the sake of timing, I will just say he's also been involved in voting rights litigation in Wisconsin, Ohio, Virginia, North Carolina, and elsewhere. Debo has also been very active in the space, serving as counsel for plaintiffs at the African Methodist Episcopal Church in the New Georgia Project versus Ravensburger litigation. That's one of the challenges to Georgia's recently enacted restrictions on voting. Also served as counsel for doctors and professors as amicus in Tennessee voting rights litigation related to the coronavirus pandemic in the case Fisher versus Hargett,

and also as counsel to Common Cause as amicus in Fish versus Kobach, a challenge to a Kansas law that required proof of citizenship before registering to vote. I too could go on and on, but we want to move ahead to some of the recent Supreme Court litigation that's going to be the focus of our discussion today. Suffice it to say that both Bruce and Devo have been in the trenches fighting for voting rights in the lower federal courts. And today we're going to focus mostly on the Supreme Court litigation in which they've been involved. And so one of the first cases that we should highlight is Shelby County v. Holder, which was a 2013 5-4 decision that essentially eviscerated the preclearance requirements of the VRA. So just for background, under the preclearance regime of the VRA, states that had a history of disenfranchising minority voters were required

to first preclear any changes to their voting laws, even minor changes, with the Department of Justice or a panel of judges. And in Shelby County, the court held that the preclearance provisions violated principles of equal sovereignty between the states, and so the court struck those down. It's hard to overstate the impact of that decision on our current landscape, but Justice Kagan has done a pretty good job of making the case. As she observed in her dissent in Brnovich, once Section 5 strictures came off, states and localities put in place new restrictive voting laws with foreseeably adverse effects on minority voters. On the very day Shelby County issued, Texas announced that it would implement a strict voter identification

requirement that had failed to clear Section 5. Other states, Alabama, Virginia, Mississippi, fell like dominoes, adopting measures similarly vulnerable to preclearance reviews. State and localities redistricted, drawing new boundary lines or replacing neighborhood-based seats with at-large seats in ways guaranteed to reduce minority representation. And that's just what immediately happened. More recently, we've seen a spate of restrictive voting laws that have been passed throughout the country, and it's reached a fever pitch in recent months. And again, Justice Kagan highlighted this and its connection to that earlier case, Shelby County, in her dissent in Brnovich. She noted that state after state has taken up or enacted legislation erecting new barriers to voting. Some of those restrictions may be lawful

under the Voting Rights Act, but chances are that some have had the kind of impact that the act was designed to prevent and that they make the political process less open to minority voters than to others. And I don't want to belabor the Brnovich either facts or decisions because we have spent quite a bit of time on this show talking about the case. But basically at issue in Brnovich were two Arizona voting restrictions, one of which required the discarding of votes cast in the wrong precinct, and the other of which prohibited, with few exceptions, the collection and return of ballots by third parties. The Supreme Court found that those restrictions did not violate Section 2 of the Voting Rights Act, an opinion

by Justice Alito paired by a passionate dissent by Justice Kagan, from which Melissa has just read. Maybe we can start by asking either of you to kind of talk a little bit about what the majorities in those cases did not get. Before I begin, I should emphasize that I am speaking today only on behalf of myself and not on behalf of my firm or any of my firm's clients. I think in Brnovich, which was the case that I argued, basically, I mean, there were many things, but the overarching thing is kind of undermining Section 2's purpose to reach both new ways of discriminating, which was the very essence of the reason for the original 1965 Voting Rights Act and animated the 1982 amendments as well, but also, ironically, had the effect of making it more difficult to challenge old ways that are already on the book,

such as the out-of-precinct voting law that we challenged in Arizona, which had the effect of disenfranchising minorities in Arizona by two to one, and which had over the years disenfranchised tens of thousands of people, far more than any other state that had a similar rule. And I guess from the perspective of Shelby County, I think there were two big things that the court got wrong. The first is to underappreciate the lessons of history and to underappreciate our democracy's fragility, that the whole purpose of the Voting Rights Act is that for many, many, many years, we did not deliver on the promise of the Constitution. And for the first time, the Voting Rights Act represented a commitment to a minority inclusion principle

that allowed the country to begin to deliver on its founding promises and the promises that were embraced in the Reconstruction after the Civil War. And to understate and underappreciate the road that was walked, the blood that was shed, to have these protections in federal law was a colossal mistake that I think will not be treated kindly by history. The other thing that I would say is that Shelby County also represented, in a sense, a warning or a signal that the old practices of trying to win through subtraction rather than winning through addition in elections were going to be okay. And that the federal government was going to be in retreat from its longstanding effort to stand as a guardian of our democracy. And that signaling effect, as we now know after Bruce's case, may have been as important or even more important than the elimination of the protections themselves, which, of course, were tremendously important.

Well, can we go back to Shelby County and sort of the idea that it was signaling something? Because the court seemed to understand, at least that majority seemed to understand that there was a lot at stake in dismantling the preclearance requirements. And indeed, Chief Justice Roberts, who wrote that opinion, noted that not all was lost because Section 2 still lived and you could still bring litigation-based challenges to voting laws through that avenue. How come the court didn't refer back to that in now hobbling those litigation-based approaches to challenges under the Voting Rights Act in Brnovich? I think it's fair to say that what we have seen is a march away from the court as a guardian of voting protections under the Roberts court. And they didn't refer back to it, I take it, because they

probably didn't mean it terribly seriously. If you read the Brnovich decision, it's hard to imagine that such a cramped view of the reach of Section 2 could be consistent with the robustness that we sort of understood Section 2 to provide in terms of minority voter protections in the briefs and certainly in the context of the argument at the time of Shelby County. Essentially, what we were told is that the preclearance protections were too much and the court was, in a sense, elevating perceived harms that state and localities were facing and diminishing the visible and demonstrated harms that individual voters had faced and would face. Along those same lines, I mean, in my, you know, minute of closing remarks at the court in Brnovich, I quoted from Justice Roberts' statement in Shelby saying that Section 2 still exists as a nationwide ban on discrimination.

And nobody doubts that voting discrimination still exists, which was prophetic, because as you noted earlier, there were a slew in North Carolina and many other places, a slew of vote suppression measures that followed immediately after Shelby County. And more to the point that Debo made, there's this view, I think, that kind of comes out of the Alito majority opinion in Brnovich that, well, it's kind of too easy to prove these Section 2 claims. I mean, Shelby was kind of like, well, the federal government is getting in the way of kind of ordinary election regulation and they ought to they ought to have to meet a higher standard. And but, you know, private litigants can can prove out a Section 2 claim, which is no no easy well, but we think this standard that the circuit courts have been using actually will result in too many of these laws being struck down, which of course is

counterfactual. And so we're going to announce some guidelines that will make it harder to bring these cases in successfully. For a court that is so expressly interested in history and originalism, it seems to have not only forgotten what it said in Shelby County, but in Shelby County, forgotten what happened in our country's history for the 200 years that preceded Shelby County. This wasn't a multiracial democracy and didn't attempt to be before the Voting Rights Act. It didn't appreciate how the Voting Rights Act sought to change the way things are, including the 1982 amendments at issue know, at issue in Brnovich. So, you know, that is definitely part of what I think the court missed. And then, you know, something that really struck me in Brnovich was a line from Justice Kagan's dissent,

and it was about the ballot collection provision in which she said that except in a pair of footnotes, the term Native American appears once, count it, once, in the majority's five-page discussion of Arizona's ballot collection ban. So of course, that community's strikingly limited access to mail service is not addressed. And I think that really captures the point, Debo and Bruce, you were making, which is the court is so obsessed with this theoretical risk to elections from voter fraud and completely oblivious to the very real and actual harms that voters are experiencing as a result of this law that it can't even bring itself to mention them in an opinion. It spends more time talking about voting fraud and the threat of voter fraud in a case about voting rights and the threat of voting discrimination.

And it's ironic. I totally agree. It's ironic because voter fraud is statistically almost non-existent. completely disenfranchised by the out-of-precinct policy, and although we don't have a precise number, the thousands of people who relied upon ballot collection, particularly on the Native American lands. And the concern of the court, though, the majority, though, is with the almost statistically non-existent voter fraud and the attempt to try to prevent kind of phantom voter fraud over actually very real and documented and demonstrated instances of disenfranchisement or burdening of the vote. Can I ask a quick follow-up to something that Debo said, which is this kind of the signaling function of Shelby County? I'm curious whether you at LDF and in kind of voting rights litigation world more broadly, like, were you surprised at the speed and intensity of the moves in a number of states to restrict voting

within hours, in some cases, of Shelby County coming down? So that's one question. And sort of a related question is, you know, so signaling essentially basically inviting states to kind of shift or inviting one of our major political coalitions to shift to a strategy of subtraction, right, to restricting access to the vote, rather than trying to kind of grow the number of voters drawn to their policy platform and message. I'm curious if you have a sense of how causation works here, right? So like Shelby County obviously doesn't bring about that moment. Does it just sort of accelerate a trend that is already underway? Is it responsive to a trend and just kind of removes an obstacle? I'm curious about sort of

how causation runs and also just, yeah, the degree to which you all were taken aback by what we saw in the immediate aftermath of Shelby County. The way I look at it is that we don't really think that Shelby County caused the commitment to subtraction rather than addition and winning with policy and winning with persuasion, winning with expanding the electorate. We don't think that Shelby County caused that. But what we knew as students of history and of voting rights is that there are two equally effective ways to win elections. One is by doing that, is the mobilization. But demobilization is a longstanding tried and true path of winning elections in America. It's part of our history. And the Voting Rights Act was an interrupter of that low road in American democracy.

And we saw the Voting Rights Act as a commitment to a high road in American democracy. It was an embrace of what was aspirational in the Constitution and in the Reconstruction Amendments. And so what we understood, because history taught us this, is that if you take away the protections, as Justice Ginsburg noted in her dissent, if you take away and put down your umbrella in a rainstorm, you will get wet. So when you look at the congressional record that was before the court, before Congress, and then before the court, nobody is surprised that bad things are going to happen if you take away the prophylaxis of preclearance in Shelby County. We know that's going to happen because there's a historical record.

There are 16,000 pages of congressional record telling us that it's going to happen because there's a historical record. There are 16,000 pages of congressional record telling us that it's going to happen. And if you think about it in contrast to Bruce's case and to Brnovich, it's extraordinary that all of that overproof in Shelby County and in the Voting Rights Act reauthorization record of this pattern of persistent and adaptive discrimination is not enough to sustain Congress's use of its expressly granted remedial powers. But in the case of Brnovich, the court elevates legislative justification for a non-existent harm. And those things are somehow parallel in the space of voting. So I wouldn't say, Kate, that it's so much a causation effect. It is a taking down of the guard of the protections that will have a foreseeable effect.

That's the way I look at it. Can I ask a question and maybe invite you to help us make some connections for our listeners between cases that I think are doctrinally siloed from one another? So you have, on the one hand, cases like Shelby County and Brnovich that are strictly about the scope and reach of the Voting Rights Act. Then you have cases like Ruscio versus Common Cause, which are about gerrymandering and partisan gerrymandering in particular. Then you have the census case, which is about how you will actually construct the census and ask questions of individuals, and in this particular case, to include on the census a question about citizenship. How do all of these things work

together for the purpose of changing the landscape of the law of democracy? Because I think people understand them in isolation, but don't understand that they're actually working in concert to affect a really grand change in the way that we think about how individuals are counted and what that impact might mean for voting rights going forward. Maybe I'll take a first pass and I'm sure Bruce will amplify. So one way to think about the different cases that you pointed to is that they are all channels and pathways to participate in the democracy, either through the census of having the population counted so we can figure out what needs to happen during reapportionment, how the vast resources that governments, federal and local governments spend are going to be allocated, one person, one vote,

how are we going to share and distribute political power? That's what's going on in the census case. And figuring out who counts, literally who counts in America, is what the census cases are about. Do you count or do you not count? Vernon Dahmer, one of the civil rights martyrs, has on his tombstone, if you don't vote, you don't count. He was killed by the Klan because of his efforts registering voters in Mississippi. So the census cases are literally about who counts. And then the redistricting cases are in a sense about how much you count, how much do your votes count? Is there a way through machinations and manipulation to lessen the power of minority votes, to diminish the power of voters? Can you set the rules in a way

to weaken those voices, dilute those voices, as we say in the law? And so again, in a sense, it's about who counts. And then the protections in the cases that Bruce and I have been speaking about are about the guardrails to make sure that we can stem the longstanding historical efforts to narrow the electorate and to reduce the ways in which people participate. So I think the through line, Melissa, is that all of these cases are about who counts in a democracy and the reconstruction amendments and the Civil War were about who counts in the United States and who has the rights of citizenship.

So you said at the beginning that these cases come to the core of what's important in constitutional litigation. And I think the who counts question is fundamental to any democracy. That's a brilliant recitation. I want to just like put that on the shelf and send it out to my students. It's just a great encapsulation of how all of these things link up together, even though we are used to talking about them as sort of siloed events. I agree. The one thing that I find disturbing in terms of a thread that may be developing between them is, you know, in the redistricting context, I think it's always been kind of given that some political considerations are acceptable. And the reason the Supreme Court for finding it non-justiciable is you couldn't measure how much partisanship is too much. It wasn't that the court was saying that partisanship in redistricting is a great thing or that it's OK,

but it's just that their position was that the courts couldn't reliably measure it, even though there were lots of measures that were were proposed. And that's starting to seep into the vote denial context, where until Judge Easterbrook's decision in the Frank case, there wasn't really anybody who suggested that partisan considerations should have anything to do with who can vote. It's one thing to say how much your vote counts or whether your vote is being diluted, but whether your vote can be burdened or denied shouldn't be acceptable to say, well, it's not about race, it's about party. I'm just trying to keep Democrats from voting. That ought to be an independent constitutional violation. And that's starting to seep into the vote denial context. And hopefully that won't go much further. So we've been talking a lot about the opinions themselves. I hate to ask you both to reflect back on these oral arguments, but I'm going to do it anyways. So what perspective or perspectives do you think the court, again, on during oral argument. For instance, some of the

more extreme points of view of the proper standard for Section 2 that was set forth by the Republican interveners. And nobody seemed to bite on the notion that Section 2 itself was unconstitutional or would be if the prevailing standard were implemented. In fact, even in the opinion, although I think it accomplishes some of that through indirection, the court didn't really grasp onto any of those points of views explicitly. It simply laid out guidelines and even recognized that many of the Senate factors that the case we were arguing about actually still had some place in the analysis, although they discounted some that we think are quite significant and should play a more robust role in the analysis. I wasn't naive, but coming out of the oral argument, I actually felt a little more optimistic about the prospects of what would come out than I had before the oral argument. And I guess from the perspective of the Shelby County argument, I think the part that was

hardest to grapple with is the extent to which the court barely grapples with the very substantial congressional record that was assembled in support of the legislation. It looked past many of its own decisions. If you were to say to your appellate students, I'm going to give you a case to argue that has four Supreme Court cases on point and a 16,000-page congressional record in support of the statute that was passed by the Senate, 98-0, I think folks would think in the abstract that that would be a pretty easy day at the office. Instead, the court, in a sense, was sitting almost as if it was a court of first impression. It was sitting almost like the Katzenbach court in 1966. That is the precedent case that initially upheld the challenge to the preclearance provision of the Voting Rights Act.

And the court looked past, I think, the congressional record. And if you read the opinion, you will strain yourself to see the court grappling with the 16,000-page congressional record. And if you want to really prove that up, look at the opinion that David Tatel wrote in the earlier case, Northwest Austin, talking about how detailed the congressional record supporting the statute was. And so in a sense, what I think the court was missing is that it was standing almost as a super legislature deciding whether or not this was good policy rather than asking the question, did Congress appropriately use its expressly granted power under a constitution that was amended after the Civil War to give that power to Congress in part because earlier Supreme Courts got it wrong?

There were definitely several moments of oral argument in which that impression came through from the justices. Maybe we'll just play one clip here, which is my former boss, Justice Kennedy, just throwing out an analogy. The Marshall Plan was very good, too, the Morale Act of the Northwest Ordinance, but times change. Those examples, I think, just, again, underscore that they weren't actually looking at the congressional record or any of the previous cases that engaged with congressional findings or the history behind the Voting Rights Act.

It also evinces, I think, a kind of, I don't know, racial exhaustion, to borrow a term from Darren Hutchinson, who is a professor at the University of Florida and will be a professor at Emory Law School. He'll be the inaugural John Lewis Chair in Civil Rights. But he's argued that there is a kind of tipping point where the public, and maybe even the court specifically as part of the public, just becomes tired of having to do things to help minorities. This goes back to some of the earlier civil rights cases, like the civil rights cases and Cruikshank, where the court just seems to think that newly freed slaves are just the special favorites of this particular Congress. And we really have to stop doing this kind of legislation for them. And it feels like a similar kind of moment. Haven't we gotten to the point where race

doesn't matter, whether it's an education or voting or whatnot? Like, how as advocates, do you make the case that race continues to matter over and over and over again? Melissa, if I may, just to come back to the article that you mentioned in racial exhaustion, I think it's actually a very important article. And it's not only because of the conception that the country grows tired of trying to right the wrongs that we have built into the Constitution and into our democracy. I actually took a different point from Darren's article, which was that the civil rights cases and that line in particular, the special favorites, there comes a time when a man must cease to be the special favorites, there comes a time when a man must cease to be the special favorites of the laws. As you note, that line is written by the Supreme Court at the time where freed slaves are

walking around with the scars of bondage on their body. And so what that tells me is that it revealed that the country was born tired, in a sense, of equality, not that it grew tired of equality, that there was resistance all along. And if there was resistance in enforcing the reconstruction amendments where the identifiable victims of slavery are walking among us, if there was resistance in the court at that point, it makes me think differently of the resistance you're talking about today. Because instead, I ask the question, is the notion of resistance offered as an excuse for delivering on the promise of the constitution of equality?

Is it being offered as an excuse rather than a bona fide justification of some long-lived and carefully learned experience? And so I think Darren's article is really an essential read in many respects, because this idea of being tired of too much justice is something that runs through the cases. And the way that it manifested in the Section 5 cases was that everybody asked the question, well, don't we have Barack Obama? If you read our adversaries' briefs, we have a black president, for crying out loud. Why do you need a civil rights voting briefs, we have a black president for crying out loud. Why do you need a civil rights voting statute? We have elected a black man. And of course, that does not answer the very substantial question about what the facts are on the ground in counties and parishes all over the country. And it doesn't answer the discrimination that

continues and, as we have learned, becomes intensified as a response and a backlash to that event? It doesn't answer that question, but it does provide a veneer of being post-racial so that we no longer have to do the work of recognizing that America is aspirational. We're never supposed to be satisfied with today because we invite ourselves to make a more inclusive democracy tomorrow. And that requires work. For those who are frantically Googling to try and find this article, it is called Racial Exhaustion by Professor Darren Leonard Hutchinson. And it appears in the 86th volume of the Washington University Law Review. And that was a terrific point, bringing that all together.

Debo, Thank you. Can I pose one question that I think piggybacks on something, Debo, you were talking about with respect to the court's disregard for the congressional findings in Shelby County, and maybe we'll serve as a bridge to a conversation just about appellate work kind of more broadly. And that is, you know, for all the reasons that we've been talking about, there is clearly a through line between Shelby County and Brnovich substantively. And there's also this linkage, it seems to me, in terms of what the court does with facts, right, in both of the cases. So we talk about appellate work, which you're both obviously extremely accomplished appellate lawyers. Most of the time, at least in theory, appellate lawyers are arguing about law, right, as opposed to facts. And so as a

general matter, right, appellate courts and the Supreme Court in particular are not supposed to be deciding de novo factual questions. And yet in both of these cases, the Supreme Court really feels like it is disregarding that basic principle of appellate review and deciding for itself these incredibly consequential factual questions and deciding them differently than either how Congress decided them or, you know, trial courts that actually took a close look at conditions on the ground and made factual findings. And so I guess a kind of general question about appellate practice, I guess, A, is that generally kind of a through line between these two cases? But also, what does it mean in terms of how you think about litigating a case like this? Do you remind courts that, in fact, it is not their job to disregard these factual findings

made by other bodies that are better situated to make factual findings? Do you end up arguing on the terrain of facts? I mean, I guess just what does it do strategically? And then I think maybe we'll pivot to some general questions about appellate practice? Well, I think the facts are enormously important in appellate cases. The judge I clerked for in the Ninth Circuit, the late Jerome Ferris, used to always say cases turn on narrow issues, factual issues, and in a lot of ways, I think he was right. In Brnovich, we, of course, had a trial finding. I'm also a trial lawyer, so I tried the case and we had a trial judge finding against us and the en banc Ninth Circuit reversed, although accepting many of the factual findings that the district court had found, it just had drawn the wrong conclusions from many of those fact findings. And then the Supreme Court kind of waved that away.

But I don't mean to be cynical at all. An appellate court is not supposed to review factual findings de novo unless they want to, in which case, you know, they will mouth the right words. And, you know, I mean, here the Supreme Court said, well, on the question of intent, the circuit court, they just weren't really applying clear error, even though they said they were applying clear error. But they just weren't, because we disagree with the way they came out, ultimately. Now, one could, I guess, from the other side, say, well, the Ninth Circuit was undoing the fact findings of the district court. But again,

I think the difference is that it accepted many of the factual findings of the district court. But again, I think that the difference is that it accepted many of the factual findings relating to intent of the district court. It's just that the district court kind of looked away from the obvious implications of a lot of its findings. And Kate, I'd say just briefly that the facts, of course, are important and they form the backdrop and certainly one would think support the lower court rulings and or the congressional decision to act in some substantial way. But what I have found is that when you're preparing to argue an appellate case, especially a case in the Supreme Court, you really need to be distilling what you consider to be the

most salient facts that are in service of your legal pathway to winning the case. And so, you know, in a 16,000-page congressional record, there are many, many facts. But there are a couple of core facts that will animate the discussion and that you want to try and weave in to the legal arguments and the touchstone issues that you're going to be forced to grapple with. And so you're essentially trying to marshal facts as tiebreakers or things that can help persuade a persuadable justice. And sadly, it seems that not every justice is persuadable in every case in some respects. We know some of their jurisprudence, and so we have a pretty good indication about whether or not certain justices are persuadable. But you're trying to marshal facts in service of being able to count to five in a Supreme Court case and thinking about those facts

that may make a difference. And it's hard to know exactly what those facts are. But I think that's probably the appellate lawyers best and highest use of their time. And it's a difference between being a trial lawyer and an appellate lawyer, as Bruce sort of is suggesting that you have to know the facts, but you have to think about them in a different way and deploy them in a different way in an appellate argument. Bruce, you mentioned that you are also a trial lawyer in addition to doing appellate litigation. Is that typical? My judge, Justice Sotomayor, was very much of the view that the best appellate lawyers also had trial court experience because it was so critical

to understand how the record was constructed when you were doing appellate litigation. But a lot of the litigators that we hear about, and certainly that we talk about on the show, are strictly appellate litigators, not necessarily trial lawyers. What's the best sort of trajectory in your view? Well, I think the profession has changed over, you know, I got almost 30 years, I guess, that I've been practicing now. It was already kind of becoming more and more specialized, even when I first got out of law school. And it has, that trend has only accelerated. And so I don't know if it's typical. I do know of others who have done both or do both. But I think now, especially in high stakes cases like the ones we're talking about, and even in the business realm, oftentimes, either companies or organizations will look to someone who specializes only in appellate litigation. I think either way can be a fine path. I agree with Justice Sotomayor that it is important to at least have had some experience at the trial level,

even if one is focusing at a given time on one or the other, but to be, you know, to kind of hone your skill as an appellate lawyer. But I guess I would say that kind of a direct response to your question is that it's probably not that typical these days, I think, for people to do both. Do you think that contributes to the perception that the appellate bar is relatively undiverse relative to the profession? And this is not to say that the profession is sort of ideal in terms of how it is composed. But it is notable that what we consider the appellate bar really is far less diverse than the rest of the profession, certainly the way law schools are constituted. Is part of that because of the emphasis on actually just doing appellate work as opposed

to trial work where you may find more lawyers of color? Well, I guess I would answer that in two ways. I mean, one, I sometimes joke that I don't know where all my classmates, my African-American classmates have gone. It's mainly a joke, but, but, you know, I look at so many realms and you can say, well, in the government there, you know, high levels of the government, there are so few African-American attorneys and at the trial level, I mean, you know, the American Association of Trial Lawyers or rather the College of Trial Lawyers, you know, not not diverse. And so, you know, big firms there is a particular challenge at the appellate level, you know, it is more so than maybe some other areas of practice. It is a club and there are barriers to entry. I mean, you know, you have to have been with the solicitor general's office or through some other means of entry. And so, and I think that, you know, that club has historically been and still trends, you know,

predominantly, overwhelmingly white, white and male, by the way. But I think the problem is even more acute with respect to minorities and probably more acute with respect to African-Americans and Latino attorneys. And so I think that that may be part of the explanation. Melissa, I would just add that I think Bruce is right. There are certain pathways, natural pathways to being an appellate lawyer, appellate clerkships. And I think appellate clerks are not as diverse as we might like, which gives people access and understanding to how judges think about appellate cases, what good briefing and bad briefing looks like, and how you form your career to be on the right side of briefing and thinking about advocacy in that way.

But the other point I want to make here is that there are ways to learn this, and it's not rocket science. It is a craft that is learned. Nobody is born a great appellate lawyer. I never had, not only did I not have an appellate clerkship, I never had any clerkship. The first case I argued in the Supreme Court was Northwest Austin, but I worked and was trained by a group of lawyers that knew how to do it. I read the cases, I grappled with the doctrine, I studied the statute, I studied the record, and I tried to

bring some attributes to the podium with me that I had forged as a litigator over some long period of time. And so Bruce is quite right. There are some natural feeding paths to a successful career in appellate advocacy. But I'm here to say that there are many different paths to do it. And if you want to do it, you can do it. And some of the great advocates are not people that clerked for the Supreme Court, but are instead people that really put their nose to the grindstone, thought hard about the law and the facts and spent some late nights grappling with the tough pieces of their cases and then stood up and have brought voice and sometimes in civil rights cases have been a voice for the voiceless. Yeah, I really want to second that. I mean, because I don't want my earlier remarks to be taken as being kind of negative about the possibilities of diversifying the appellate bar. I mean, that's, you know, after all, that's, I think, you know, one of the big reasons why we're here. I mean, I totally agree it is not rocket science. There are things I think we can encourage to those who are interested in becoming an appellate lawyer that will help the pathway. I mean, I think an appellate clerkship

is a good thing. A clerkship of any kind is helpful. And oftentimes, I find that African American students don't have kind of the advisory group that suggests that they apply for those. A lot of people just don't, you know, don't think to apply for them. That's going into a solicitor general's office, not necessarily, it doesn't have to be the U.S. solicitor general's office. I mean, a lot of great appellate lawyers have gone into state solicitor general's offices, not necessarily, it doesn't have to be the U.S. solicitor general's office. I mean, a lot of great appellate lawyers have gone into state solicitor general's offices and gotten training that way. And Dave was absolutely right. There are people who, you know, have done it just by interest and study. And there are mechanisms like the D.C. Circuit, for instance, often will appoint pro bono counsel for like a pro se litigant.

And that was how I got my first D.C. Circuit argument was many, many associate attorneys at the firm I was at at the time did the same thing was to take one of those on. I don't want to overstate it to say that because I just got done saying it's a club, but there are paths and it isn't rocket science. And so nobody should be deterred or discouraged, I think, by the lack of current diversity. And now I just have to add, we also have the app and 10 years, this effort will help to mint a whole bunch of new appellate advocates that we will be proud of and that will carry the mantle forward. Absolutely. Honestly, maybe part of the problem is what courts, commentators, scholars, journalists mean when they say the appellate bar, right? We use that phrase to mean the group of attorneys that regularly appears at the Supreme Court and the Court of Appeals alone. But the reality is you have a bunch of fantastic civil rights lawyers and trial litigators who do stupendous appellate

work and do it on behalf of wonderful causes. And we should consider those lawyers part of the appellate bar and also experts on appellate practice and like turn to them for their views on the Supreme Court and appellate practice as well. Couldn't agree more. Let me ask a slightly distinct question, which is, can either of you share any advice for lawyers or law students or people earlier in their careers interested specifically in voting rights? And then what do you see as the future of voting rights litigation? And actually, maybe, Bruce, this is an opportunity for you to weigh in on what you see as the kind of window that remains open post-Bernovich. Obviously, there's a range of views in terms of the continuing viability of Section 2 post-Bernovich, and I gather that you have some optimism. So we'd love to hear that take. Sure. On the kind of broader question of what you should do or think about if you're interested in voting rights. There are many

ways to engage. I was always interested in civil rights broadly, and I first got involved in those types of cases. Initially, it wasn't voting rights, but housing discrimination through pro bono work at the first firm that I worked at. And I also did redistricting litigation there. That's kind of what started me on the voting rights path. One could work for a public interest organization. There are many excellent public interest organizations that do voting rights litigation. There's the government, the DOJ Civil Rights Division has a voting section. Many states actually have their own kind of mini civil rights division. So there are ways to engage. I don't want to understate it and say it's easy or that the

opportunities are just all over the place, you know, but I do think there are ways of doing it, even if you are actually practicing in another area of law, at the very least through pro bono work. I think in terms of the future of voting rights litigation, I feel very strongly that, A, we have no option but to continue to fight these cases. We can't just give up because the court is a 6-3 conservative court. It was 50 some years between Plessy and Brown. I hope it doesn't take as long to turn around some of the, and I don't mean to suggest that it's as bad as Plessy v. Ferguson, but, you know, I hope it doesn't take as long until Justice Kagan's and Justice Ginsburg's dissents in these cases become the majority.

But in the meantime, there are state courts the day after a couple of days after we got the reversal in Brnovich, we got an affirmance in New Hampshire of a victory we had at the trial court level, challenging a law that made it harder for students to vote. And there are many other state courts that have progressive or at least neutral state Supreme Courts where these kinds of challenges can be brought. Section 2 is not over. I mean, it's been narrowed. It's been made more difficult, but claims can still be brought and I believe can still be won under section two. There are other causes of action, even at the federal level, such as the so-called Anderson Burdick test that balances the burdens of these regulations against the state's interests. Not an easy claim either, but it is still a very viable claim. And then, of course, my hope is that we will see federal legislation that restores what has been narrowed in the Section 2 context and perhaps in other contexts as well,

which will provide another path for, A, preventing these kinds of vote suppression laws from getting enacted in the first place and providing a renewed means of challenging them. And I guess I would just add, I think all of Bruce's suggestions are very good, but I just want to sort of piggyback on that and sort of broaden the thinking a little bit to say that he's absolutely right. We have got to fight these cases with every tool that we have and come up with new ways to fight them. between the court and Congress in our system about how important these rights are and the different institutional actors that are going to have a voice about our democracy. And I think about two lessons of a book from Alex Kassar about the history of the right to vote in America

called The Right to Vote. First, he tells us that the right to vote in America is contested. It's a series of contestation. And that continues today in very pronounced ways. And so that is frightening and scary in some ways. But it's also an invitation to those of us who are willing to join the contest and the fight for American democracy because the system itself matters more than the outcome in any particular election. And so in a sense, what we are seeing right now is an invitation to a whole new generation

of people that want to fight for the soul of our democracy to come forward and join the fight. The other thing he tells us is that progress is not, as people assume, unidirectional, that the history of democracy in America is characterized by ebbs and flows. So if we are in an ebb right now, it's only the shoulder to the wheel that's gonna make democracy flow.

And for that same reason, we need to invite more people to the party to take the place of Bruce and I in a few short years and or join us in the meantime to keep fighting for the soul of our democracy. So maybe one final question, also ending on an optimistic note. What advice do you have to lawyers or to law students who are earlier in their careers who are interested in appellate litigation and maybe to give them a boost or something to look forward to? What's been your proudest or your best moment as a lawyer?

Well, it's terrifying. I say of arguing a case in the Supreme Court, which not everybody may aspire to. In fact, I'm not sure that it was something I aspire to. I was more interested in having argued a case than I was interested in arguing a case. It was terrifying, exhilarating, and humbling all at once. And so, you know, trying to manage those emotions is tricky. But the core point is, for a long time, long before I argued, I would go and see arguments at the Supreme Court and other courts. I would watch and observe advocates doing their thing. I very carefully read briefs that were filed in cases, and I read the opinions of the court in areas that were of particular interest to me. And so in some sense, my arguments were a culmination of a very long

period of study about what it takes to stand there one day at the podium. And I was trying to prepare myself in the event that I would have the opportunity or misfortune, depending on one's perspective, to be standing at that podium one day. And I think that everybody is capable of doing that and figuring out what it would take for you to do it by watching some of the people who do it and making judgments about how you might do it the same way or differently. Yeah, again, I've got a second, everything Devo said. I mean, Brnovich was my very first, I'm 55 years old. That was my very first Supreme Court argument. Hopefully not my last. But I had also, you know,

kind of done a number of circuit court arguments, many of which I did, you know, in the latter part of my career. I mean, you know, it's not like I started doing this when I was right out of law school. I worked on briefs and, you know, helped others prepare. And so I think for folks who are interested or think they might be interested in doing this, you know, there's somebody out there who needs your help. I mean, I don't want to sugarcoat it and suggest that it's easy to, you know, to, to, to do this, but it, but it is possible and you can do it. And, you know, jump in if it, if it has to be pro bono. I mean, great. I mean, I don't mean to make that sound like it's a, you know, a bad thing. It's a good thing. But there, there are lots of organizations and lots of people who people who need your help.

And so you can enter at some point, either through pro bono or otherwise, and just kind of get in the game in terms of reading the briefs and helping to write the briefs and preparing others for argument. And then ultimately, hopefully taking that that shot of your own. And I guess that leads me to my my proudest moment, which was not a public moment. And it wasn't actually an appellate case. It never. Well, I actually did go up the D.C. circuit on one element and back down. I just remember that I had my own firm. I worked at another big firm for about 10 and a half years. I had my own firm for about 11 years. And then I've been at Perkins Coie for about six years. And during the period that I had my own firm, I took on the representation of a sexual

assault advisor who had been badly, you know, mistreated by the police and, uh, and other institutions. And, um, you know, in truth, I was a little over my head, you know, and that it involved a lot of subject areas that weren't, uh, in my expertise. Um, and, uh, and I felt like, God, I just am not doing all I could do or the best for this family. And it really was a family. It wasn't just the survivor. I just remember I always have trouble getting through this story without choking up. So I'm going to try. I would send the mother and my client and her sister a Christmas card every year. And I remember sitting in my office alone shortly after New Year's, and I got an email from the mom thanking me for the card that year. The case was not over

at that point. And she said to me, I sometimes think that God must have sent you to us for a reason. And I realized that it was right to take that on, whether win or lose, because those people knew that they had somebody in their corner who was fighting for them. And that's where you can enter. Like I said, somebody out there needs your help and will take your help. And you can get the experience by helping somebody. Thank you so much for sharing that moving story. Hopefully that inspires other students and lawyers to follow in your footsteps. Thanks to the Appellate Project for organizing this episode and to Bruce and Debo for their advocacy and for making time with that advocacy for the show. Thanks to our producer, Melody

Rowell. Thanks to Eddie Cooper for making our music and Liam Bendixson, our summer intern. Thank you to you all for listening. If you'd like to get involved with the Appellate Project, please check out their website, theappellateproject.org. And if you'd like to convey your enthusiasm for voting rights, you can get some great necessary to enforce the Voting Rights Act merchandise at our store, available at our website, strictscrutinypodcast.com.