Strict Scrutiny - What Would Chief Justice Roberts Do?

Episode Date: August 31, 2020

Leah, Kate, and Melissa are joined by Dale Ho, director of the Voting Rights Project at the ACLU and low-key star of The Fight. Follow us on Instagram, Twitter, Threads, and Bluesky

Hi, I'm Jon Favreau, host of Crooked Media's weekly interview series, Offline with Jon Favreau. Each week on Offline, I talk to someone from news, politics, entertainment, sports, or business about all the ways our extremely online existence is shaping the way we live, work, and interact with one another. Catch new episodes of Offline with Jon Favreau every Sunday, listen on Apple Podcasts, or 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. 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. I'm Kate Shaw. I'm Leah Littman. I'm Melissa Murray. And we are thrilled to be joined today by Dale Ho, director of the Voting Rights Project at the ACLU. Friend of the show, someone who spends his time enforcing the Voting Rights Act, defeating those who make spurious claims that they are enforcing the Voting Rights Act. For those of you who don't know,

Dale argued and won the census citizenship litigation in the Supreme Court. He is also one of the stars of the new documentary, The Fight, which all of our listeners should check out. We're going to be talking a lot more about the film on the show today. So Dale, welcome to Strict Scrutiny. Thanks so much for having me on. I'm really excited to be here. Dale is one of the few people that I just like gratuitously send enforcing the Voting Rights Act merchandise to, even though I've actually never met him in person. I think the first thing I sent you, Dale, was a dog bandana that had a little sheriff star that said Wilbur Ross lied on it. Yes.

So, you know, this is an extremely normal thing to do that I felt the need to disclose on the podcast. It is a very treasured item in this household amongst my family. So we are very grateful for it. So we wanted to start by talking about the film, which I just mentioned. So this film was just released and we're going to talk about it. And then I think we will pivot to talking more about the census case. So the decision itself, probably the case we have talked about, not just in the context of our merch, but sort of generally in the context of the themes that it surfaced, maybe more than any other case in the short history of the show. So we'll talk about both the decision, some of the post-Supreme Court developments that people might not have followed, and then the latest announcement by the White House on the census front. But let's start by talking about The Fight. Melissa, you want to kick us off on this?

Sure. So The Fight is a film made by the team that also made the probing documentary Wiener, which was about Anthony Wiener's stop, the New York congressman who ran into some Carlos Danger, Danger, if you will. It's a really good film, and it's almost too traumatic to actually think about that documentary right now, because as we know, a lot of the information that was recovered from Anthony Weiner's laptop actually fueled the investigation of Hillary Clinton's emails, which in turn gave us the last four years. So I'm leaving that to the side for the minute. Instead, this is just to say that this is a terrific documentary made by a very experienced team that has done a lot of these sort of political, legal documentaries over time. And the fight is no exception. It is really fantastic,

really great. And Leah, how did they follow up their amazing work in Wiener? Do you want to kick that off? Well, Jim Comey posted a picture of himself wearing a T-shirt that said elect more women in the epitome of irony. But the documentary filmmakers behind the fight followed up the film with the fight, which is perfect because the fight is basically about dealing with the aftermath of the 2016 election and the onslaught of the Trump administration. So the movie basically chronicles the ACLU's efforts to challenge Trump administration policies in court across a few different fronts. I should say, full disclosure, I have a consultant credit on the film, but I had a truly minimal role in it. So I think I can say, without being unduly immodest, that it's a really excellent film. And many people who are not involved agree. So basically, the four cases the film follows are actually, interestingly,

all cases that we have spent quite a bit of time talking about on this podcast. So let me jump in. One of the cases that's chronicled on the film is Hargan v. Garza, which was a case challenging the federal government's efforts to block a pregnant teenager, Jane Jo, who was being held in immigration detention from obtaining an abortion. It was litigated by attorney Bridget Amiri from the ACLU, and it really got a lot of coverage in 2018 during the confirmation hearings of then-judge Brett Kavanaugh. Brett Kavanaugh was one of the judges on the D.C. Circuit panel that heard that appeal and then went on bonk. But again, this was one of the cases that really formed the core of the criticism around then-Judge Kavanaugh

when his confirmation was first being aired and ventilated. Obviously, other things happened thereafter. But this was a case that occurred when Brett Kavanaugh was merely a twinkle in Donald Trump's eye. This was before he was even on the president's shortlist for the nominee. Like that case kind of got him on the president's list of nominees. Right. Yeah. He conspicuously was not on the publicly released list, which actually raised some eyebrows. And this case sort of then intervened.

And lo and behold, the next iteration of the list had him prominently displayed on it. And, of course, he then did get the nomination. Coincidence? I think not. Probably not. Okay, so the second case that the film follows features strict scrutiny guest and friend Chase Strangio and also Josh Block, two ACLU attorneys, in their challenges to the Trump administration's transgender military ban. The third case that the documentary features is Lee Glerns of the ACLU's challenge to the administration's monstrous family separation policies. Lee also argued DHS versus the Rice-Egium, which we have talked about on this show. And the last of these cases was a challenge to the Trump administration's efforts to add a citizenship question to the 2020 census. The administration announced that it was

doing so in order to better enforce the Voting Rights Act or to assist DOJ in its enforcement of the Voting Rights Act, a fairly facially questionable assertion, but one that fell apart very quickly in the litigation that was brought by Dale on behalf of the ACLU, representing a number of community organizations, the state of New York and a number of other states initially litigated in the Southern District of New York before Judge Jesse Furman, and then, of course, before the Supreme Court. Okay, so let us start by playing a clip from the film. So this is a terrific clip that's actually in the preview, and it features Dale's preparations the night before his argument before the Supreme Court. Hopefully I don't my first sentence.

Mr. Chief Justice, and may it please the court, the Secretary's decision rested on a single assertion that it was. Mr. Chief Justice, and may it please the court, the Secretary's decision rested on a single assertion that... Don't do this tomorrow. Mr. Chief Justice and may it please the court. Mr. Chief Justice and may it please the court. Mr. Chief Justice and may it please the court. The Secretary's decision rested on a single assertion that it would provide

more accurate citizenship data to the Department of Justice. But the administrative record revealed precisely the opposite, that it would result in less accurate data for the Department of Justice. And the secretary's explanation for his decision ran counter to the evidence and was thus arbitrary and capricious. So that's a really terrific scene, Dale. And I love the way you sort of explained your preparation for oral argument. I think you had your sort of first 12 minutes ready to go, and then you would actually interrupt yourself with these stack of flashcards that you would have a question on it. And so it was sort of like you were simulating a hot bench jumping in. And is that how you typically prepare for oral argument?

It was something that I had tried for the oral argument that I had preceding that one. So the most recent one I had had just a couple of months before in the 10th Circuit, I had read that actually the chief, when he was a lawyer preparing for argument in the Supreme Court, something that he had done, he would kind of write down his key points and then shuffle them up so that they'd be in random order to try to figure out how he could draw connections and mix eggs in between the sort of like key issues that he had to hit. So I had, you know, maybe half a dozen moods during the preceding three weeks. But I just kind of wanted to keep drilling myself.

And so I tried it. It worked well in my previous oral argument. So I just figured I'd try it again. What would Chief Justice Roberts do? W, W, C, J, J, D. Please, no listeners, live your life according to that. Well, I will say, whatever we think of his jurisprudence, he was a hell of an oral advocate. He really was.

So before we get to the Supreme Court, can you take us back to the trial? You've litigated a lot of cases. What was this process like as far as framing a challenge that you had to have at least sort of expected was going to make its way to the Supreme Court eventually throughout discovery and the trial? Yeah, it was a crazy, I mean, the whole case was kind of a crazy experience. The trial, certainly. So, I mean, we filed the case, I think, in June of 2018, and we got to trial in November. So that's a pretty fast process, much faster than I think our average case. And it was a really, really complicated case, really, really big factual questions about standing, what would be the effect of putting a citizenship question on the census, tremendous amounts of expert discovery on just that question, you know, separate and apart from,

you know, the process, the shady process by which they went about adding the citizenship question, whether or not it was in fact justified by the rationale that they put forward, and the legality of the question under a host of other federal statutory and constitutional requirements. So it was a really, really complicated case, very, very rapid discovery. We were fortunate to co-counsel with a terrific law firm in the case, Arnold and Porter, who helped us manage, you know, the thousands and thousands of pages of discovery and the really fast deposition schedule that we were under. And then the trial itself was, you know, about two weeks. It was this very bizarre procedure in which a lot of the testimony was taken on paper.

And then we would start with cross-examination with, you know, certain live witnesses. It made it really hard to kind of tell a narrative. Normally, you're using the direct examination to do that. We were jumping straight across. People in the audience and the press, you know, hadn't had the benefit of these people's direct testimony when they were seeing the cross. So they were kind of confused as to what was going on. It was it was it was a really it was it was unlike any other case that I'd ever taken a trial, I'd say. How atypical was the experience, not just in the speed with which

you proceeded from complaint to trial to opinion to the Supreme Court, which was pretty crazy, but the sort of the qualitative experience of litigating this case. How different was it from other cases, including in terms of the conduct of the Department of Justice, your adversary in the case? Yeah, it was very unusual in that regard. And I'll say that I've been up against some pretty shady adversaries before. So the case that I had immediately preceding the census case was a case in Kansas that I'd taken a trial earlier that year against then Secretary of State Chris Kobach, who I think needs no introduction for your audience. He did not. Does he have friends who own a boat? No comment.

Oh my God. I can't even, I don't, I just, you know, I did see a tweet from 2018, which I think Chris retweeted that this whole enterprise will end with some people in jail. I don't think he used the word people, but yeah, it's pretty remarkable. Yeah, he's on the, he's a general counsel

of We Build the Wall. I mean, and it, and I've sort of figured over time, you know, out that he's kind of a grifter, right? Like he would, you know, go to cities and towns and, you know, hawk these anti-immigrant ordinances, say they're perfectly constitutional, trust me, you know, I'm a constitutional law professor. They'd get sued by the ACLU and he'd say, well, for a low, low rate, I can represent you in those proceedings. He'd collect his full freight, lose the case, and then the town would also be stuck

not only with his legal fees, but also the ACLU's attorney's fees. I didn't know about this hustle. This is a thing he's done in multiple places? Oh, yeah. Samantha Bee did an amazing bit on it. You really should check out the Samantha Bee sketch on it. It's amazing.

And yeah, it was a racket, you know? So we just litigated against him because he represents himself in cases as a chief election official of the state. He got fined a thousand dollars for concealing documents. He got fined $26,000 for being held in contempt of court. He was ordered to take CLEs. This was not your actual question. No, no, no, no. But it does provide a useful comparator to the kind of litigation conduct you have experience. So I've dealt with crazy stuff before. And, you know, I'll say the DOJ attorneys who were litigating the case from federal programs, they never did anything that

was shady or not above board, but they were clearly not in the loop, right? Like they would make representations about, you know, what the case was about or, you know, what documents there were or weren't there, and then stuff would just kind of tumble out from their clients, right? The Department of Commerce, the Department of Justice, outside consultants to the Secretary of Commerce. And, you know, it was just kind of bad faith piled on top of bad faith, piled on top of bad faith in this case. Everything from documents that, you know, weren't originally disclosed to us as part of the administrative record appropriately,

documents that we had to get in discovery, which they said were not relevant, ended up being very, very highly relevant to documents that actually were discovered and produced after the Supreme Court issued its ruling in the case. I mean, it's pretty crazy stuff. And then there was that withdrawal issue with the DOJ attorneys after the Supreme Court decided, which was, I'd never seen anything like that before. And even before that, before there was a decision in the case, you had DOJ seeking to stay the district court from actually issuing a ruling in the case, insisting that the district court issuing an opinion after the trial would somehow irreparably harm the government, even though the proceedings had completely finished by that point and there was nothing for the government to do. Like all that was left was for the court to rule. And I remember reading

Judge Furman's opinion on that order, which just the TLDR was like, are you fucking kidding me? Like, this is the worst motion I've read in years. They tried to stay some aspect of the proceedings, I think at least half a dozen times during, you know, and then once we got the trial decision, you know, cert before judgment turbocharged us to the Supreme Court as quickly as possible. But I mean, it was, I mean, it did, I think, get to the cross the threshold of frivolity by the number of times that they filed motions that had been refiled motions that had been denied, if it had been a party other than the federal government, you know, it probably would have invited a sanctions motion. But I mean, I don't I don't I don't blame the line attorneys from federal programs again. I think they were just carrying out their instructions. So what was it like taking this up to the Supreme Court? And if

you could explain to those listeners who aren't quite as familiar with the procedural posture, you went from the district court to the Supreme Court, which isn't typical. So do you want to explain the circumvention of the Court of Appeals and what happened at the Supreme Court? Yeah. So after we got a trial ruling in January of 2019, the government filed what's called a petition for cert before judgment, which essentially allows a case to skip the normal course, which is review in the intermediate appellate courts, the courts of appeals, the circuit courts, and go straight to the Supreme Court. It's not granted very frequently, but it was here. So we went from trial judgment in January to oral argument in

April, you know, span of just three months, which is, I mean, just really, really, really fast. Well, and difficult for you as a lawyer, I mean, because it's really different to be a trial lawyer trying to assemble a record and then you sort of pivot on a dime to being the appellate lawyer. Yeah. And I'll be honest, my comfort zone really is in the trial court. That's sort of where I've spent the majority of my practice and where I just really feel in my comfort zone, putting witnesses on the stand. It's sort of where I live as a lawyer. Appellate arguments, not something that comes as naturally to me. And to have so little time to prepare and to not have the opportunity to sort of try things out in the Court of Appeals first before having to do it in the Supreme Court. That was pretty nerve wracking. It's also like a rather long period of time, even though it's short for the life cycle of a case, it's a long period of time to basically be going full throttle

on such an important case, right? Like when everything is moving that quickly from complaint to trial to the Supreme Court, right? Like you're basically going at it nonstop for that entire period of time. Yes. And I had rolled almost directly into this trial that I referenced earlier in Kansas into the census case. I had sort of planned on taking a little bit of a slowdown after that Kansas trial and sort of assured my family that I wouldn't be on the road as much. And fortunately, I wasn't on the road. The trial was in New York, but I didn't get that slowdown. And you talked about this in the documentary. You mentioned the toll that it took. All of you, actually, Bridget, Chase,

all of you talked about the toll that this kind of high-profile work really does take on your families. But you said, and I thought it was so inspiring, you know, if you're not going to be a public interest lawyer in this moment, when the stakes are so high, you know, what is the point of it at all? Yeah, that's sort of how I felt after. I mean, there's been periodic moments where I felt kind of exhausted and I don't want to, you know, hold myself out as some kind of, you know, like tireless, you know, warrior or something like that. There are a lot of people, a lot of people listening to this, I'm sure work extremely hard,

do not get to spend as much time with their families as they would like. But I just knew that I myself in 2016 was starting to hit a wall a little bit after having done this kind of work for at that point, about eight years. It's kind of nonstop. Election-related litigation goes pretty quickly compared to other kinds of civil litigation because we're always trying to get judgments before the next election. And I was sort of thinking, maybe I'll, I didn't have anything specific in mind, but maybe I'll think about other things that might be out there that I could do that might not be either as fast-paced or not require as much travel. And then after the results of the presidential election, that just became inconceivable for me. I mean, this is, I'm like, I went to law school to do this kind of work. It was sort of what I saw as a calling. And, and,

and I felt like this is kind of our moment, you know? Hopefully, hopefully we're not going to have more moments. Yes. I mean, for God's sake. I mean, I hope the last three and a half years ends up being, you know, aberrational. I mean, we won't know for a long time, but... The documentary kind of makes that point too. I mean, these are four cases that by themselves,

each could have been worthy of a documentary. And they're all part of this enormous documentary. So, you know, they're just sort of spliced been worthy of a documentary. And they're all part of this enormous documentary. So, you know, they're just sort of spliced into quarters of this documentary. And that's still only a fraction of the litigation that is currently pending, both by the ACLU and other public interest organizations against the administration. I mean, so, you know, say what you will about the Trump administration. You know. They've been great for lawyers and constitutional law professors. I mean, we really have gotten a workout. I don't know if it's been great for the rule of law or democracy, but I mean, they have just not stopped providing fodder to just either bring cases or to talk about cases that should be brought. It's definitely been the most interesting period of my career, I would say. But at this point, I would take boring. A low-key administration where you can sleep and not worry about, yes, children in cages. Agreed. Agreed. Okay. So Dale, we played the clip of you prepping for your argument before

the Supreme Court. Will you tell us a little bit about the experience of the actual argument today? Yeah. Like, how do you think it went? How do you feel about it? What surprised you? Well, you know, so I'd worked on a few cases in the Supreme Court before, and I'd sort of like periodically gotten closer to the front of the room. Like the first time I had like, you know, written part of a brief, but like wasn't important enough to get a ticket. So I like stood in line from like 4 a.m. to get in. Second time I got to sit at the council table and hold Paul Smith's briefcase. Right. So that I saw how, you know, but I'd been, you know, in this, you know, room before.

I'd seen kind of the procedure, watched it, you know, a bunch of arguments before. I'll never sort of get over how close the lectern is to the bench um it's so bizarre it's so it's so much closer than in any other courtroom so to be that close to all nine justices that was kind of a surreal experience um i had kind of like a little out-of-body moment like 45 seconds into it where I was sort of like, ah, they're all here and all looking at me right now. Don't fuck up. Keep going. Right. So snapped back into it and kept going. And I, you know, look, I thought I actually thought it went pretty well. Some of the press coverage afterwards kind of uniformly predicted that we were going to lose.

And at first I was kind of scratching my head about that. I was like, I don't know. But, you know, I think I understood why that was the assessment. You go in assuming we're the underdog, right? I mean, I assume we were the underdog, right? And you look to see if something happened during the argument that would change that assessment. And no, there wasn't anything. No obvious sign from one of the maybe gettable votes for us or the votes that they're sort of sympathetic to our position, that they don't buy what the administration's selling. The only thing, you know, the only comment was on standing, so we knew we had standing at least. So I understood why people thought we were likely to lose

after the argument. And then after the next two months, I think that kind of uniform drumbeat of the coverage seeped in, and you probably see it in the film that like the morning of the of the last, you cache of documents was reported in the media after oral argument. Like, did you think that that would be determinative or would play a role in how the court thought? We tell we explain to our listeners what those documents were and how they emerged for folks who don't know. I like calling it the Hofeller cache. Yeah. So about a month after the oral argument, our co-counsel from Arnold and Porter, in completely unrelated litigation challenging the North Carolina congressional districts as unconstitutional partisan gerrymanders under the state constitution, found a cache of documents from this man, Thomas Hoffler, who had died recently, he's like, he was like known as the, I didn't coin this. He was, he was known as the Michelangelo of gerrymandering, right? He was just like Republican operative. I mean,

that's just so, I can't even. If your, if your kids like the Ninja Turtles, that's such an image. Yes, yes. Right. The staff or the, what did he have? The staff or the nunchucks? I don't know. He had one of them. Yeah. And he was using them against democracy. Right. So he was like this longtime Republican operative. Any map that had been challenged as a gerrymander, racial, partisan or otherwise over the past few decades in like aprofile case, he had a finger in that. And there were these documents on his hard drive that his daughter, his estranged daughter, had come into possession of and had turned them over to our co-counsel, where he had mused about the possibility of just not counting non-citizens at all in the redistricting process. Right now, this is, sorry, so long, the districts,

districts in redistricting have to be drawn with equal numbers of people. Um, Hoffler was hypothesizing a scenario in which you didn't do that. Instead, you drew districts with equal numbers of citizens. You just excluded non-citizens from redistricting entirely. And what he concluded was that, um, it would be quote advantageous to, um, non-Hispanic whites and Republicans and disadvantageous to Hispanics to do that. And that if they wanted to do it, they needed a citizenship question on the census. That was document number one. Document number two was a draft letter from the Department of Justice requesting a citizenship question on the census, supposedly to help them enforce the Voting Rights Act, which almost verbatim appeared in the files of Secretary Ross's chief advisor on census issues, which we discovered, you know, in the

course of litigating the case at the trial level. So here now we finally had this smoking gun that connected, you know, what we all along thought was the case, that this was a scheme to dilute the representation of communities of color, but spelled it out in black and white, directly connecting it to the citizenship question effort. And, you know, we filed a motion with the Supreme Court that this required some new fact-finding. They should kick it back down to the district court to allow for some fact-finding on that. You know, I don't know if we believed they would do that or not, but we felt like these documents were explosive. We needed to surface them. We needed to make the court aware of them. We simultaneously filed a sanctions motion in the district court because these documents hadn't been produced to us in

the course of discovery. And clearly someone from whom we were seeking discovery during the case had them in their possession. So we were just taking every shot we could to try to bring these documents to light and explore the significance of them. So it's Hoffler, you say? Yeah. As opposed to Hoffler. Hoffler. Sometimes it's called Hoffler, you say? Yeah. As opposed to Hoffler. Hoffler. Sometimes it's called Hoffler, Hoffler, Hoffler.

I don't know. I'm not. I'm going to stick with Michelangelo or Michelangelo, whatever. I appreciate the background story. I mean, one of the things we mentioned on, I guess it was one of our first episodes when we covered the decision in the census case, as well as the decision in Ruscio versus Common Cause, is that the Hoffler documents actually really nicely connect them in ways that I don't know were fully appreciated, either by the media or by the public when both cases were being litigated. But

without that question on the census, you don't get the information that you need in order to redistrict in the way that would be advantageous to a particular political party. And so they're sort of interconnected, even though they seem like completely disconnected cases. This man's mission for his entire life was to stave off the burgeoning political power of voters of color to try to forestall the electoral consequences of the demographic changes that the country is undergoing. And that's, I think, the direct connection between the gerrymandering efforts after the 2010 census and, you know, the citizenship question, which was designed, I think, to try to preserve and expand upon those efforts post 2020.

And just to spell out like some of the connections between partisan gerrymandering and disenfranchising communities of color, which might not be as readily apparent to listeners, like one of the problems with the court saying that partisan gerrymanders are perfectly constitutional is oftentimes legislatures will defend against an accusation that they gerrymandered on the basis of race by saying, no, no, no, no, no, we actually gerrymandered on the basis of partisanship. And after Rucho said, well, that's a legitimate consideration, and those claims are not justiciable, you've basically given legislatures this extremely powerful defense to claims that they have gerrymandered

districts on the basis of race, because voting and partisan affiliation is so strongly racially polarized and racially correlated. You know, that happened in the North Carolina litigation and it's happened in other litigation as well. Anyways, brief side note. Decision day, because this is, as Kate was alluding to, I think earlier in the episode, one of the best parts of the film, because you knew you were going to get the decision on this particular day. You said, as you mentioned, that you thought you were walking up to the firing squad,

and when you first click on it, you think the firing shot actually went off, right? And then it turns out they did not. So let's play that clip. Yeah. Yeah, we lost. Wait a minute, what? Did I...

Did I read that too fast? What the f... I can't understand what's happening. Wait, wait, wait, wait, wait, wait. We... won on establishing that it was pretextual. Hey. Hey, hey, hey.

So, um, uh, uh, uh, it's confusing. They're agreeing with us that the agency wasn't truthful about why they added the citizenship question. Okay. The pretext point. They can't print the forms on Monday with the question on it. Okay. So, I mean, is it a voting rights victory? It's like a win. Okay, cool. Do you want me to send a win version?

We're still winning right now. We're winning right now. Yeah, I gotta get the... And I saw like a dissent from the four liberals and I just assumed that meant it's over. And every first part of the opinion was, it's not substantively invalid. I just feel like an idiot.

I forgot to send it to the printer. To who? Oh, Inga, hey, sorry, you're there. I forgot to send the opinion to the printer. I have to, I actually have to read the damn thing. Holy shit! Holy shit! What the fuck? What the fuck? Look, it's not over. Holy shit! Holy shit! What?

Look, it's not over. I mean, they're going to come back and try again. I have to say this. It made me feel so much better to watch this clip because the same exact thing was happening in the press room on that decision day. So I, because I have a contributor contract with ABC, I am sometimes in non-pandemic times in the press room in the Supreme Court on decision days when the opinions come down. And usually there's like, you know, tweets are firing out like within 10 or 30 seconds or something of actually getting the physical, the slip opinions. Right. So you get those first and they upload a couple minutes later on the court's website. But the press that's physically there has a very slight advantage in terms of breaking the news first. But everyone was completely flummoxed for a few minutes.

And I think it's so interesting because you say in the clip, I saw the dissents and I assumed we lost. And it took me back to, I remember when I was sort of at the beginning of doing this kind of media commentary, the Obergefell decision came down and it was like, you opened it and it was like, okay, it's Kennedy, like, of course. And then you see there are separate dissents from each of the conservatives and you're like, okay, okay. And then you're like, and there's no separate concurrence from any of the liberals. And it's sort of like, you actually don't even need to read a word of the opinion, at least to get the bottom line. It's something so reductive about the ordinary voting breakdown, right, of this really polarized

Supreme Court, obviously with some important exceptions as the last couple of terms have taught us. But it is the case that sometimes you just sort of like scan votes and sort of understand how the case has come down. But of course, this is a case in which like the devil in the details, you actually have to read the somewhat internally inconsistent sections of the opinion to understand that there is. So we should just say for people who haven't spent all this time wrestling with the opinion, that the court sort of in this kind of gratuitous, I think, finding does hold that Congress and by extension, maybe the executive branch of it, if Congress delegated the authority, would have the constitutional ability to include a citizenship question on a census, even though it's not at all required to resolve the case. The court does say that,

and then does reject a couple of statutory challenges, right, to the addition of the question, and then seems to find that it actually, in theory, was not arbitrary and capricious under the Administrative Procedure Act to have included the question, but that on this sort of, you know, maybe somewhat novel, maybe sort of with deep roots in administrative law sort of theory that the existence of – that the pretextual explanation offered by the Commerce Secretary was fatal to the decision, invalidates it and sends it back to the lower court. Or invalidates – sets aside the agency action and sends it back to commerce to potentially take another look at it. But it is this sort of the fact that simultaneously the court says it is not arbitrary and capricious to add a question, but here it was the pretextual explanation offered doomed it. Even just like describing these holdings, like I think illustrates that they're just really difficult to reconcile and they're not written in a clear and accessible way. And

I'm still not totally sure how they work in tandem. And yet the bottom line was you won, like you won the case. So can I jump in here? Like, Dale, I have a conspiracy theory that I would like you to either discredit or validate. You ready? Okay. Do you think that you actually, when they were in conference and they're voting, that you actually might have lost. And then this opinion was being drafted. And then the Hofler cache of documents comes to light. And the majority realizes, or at least one person in the majority realizes that this looks like a bag of dicks and they have to do something about it. And then the majority sort of changes and becomes a different majority. Is that possible?

I think it's possible. I think, you know, you read it and it is written as if, you know, we're going to lose, right? That the, you know, the chief's opinion is written as if to sort of justify why it might be okay to put a citizenship question on the census, notwithstanding the enormous damage that it would do to the accuracy of the count. Remember, we don't have standing unless we prove that putting the question on there damages the count of the population. And we can unanimous, you know, the court's 9-0 for that, right? So they're all agreeing that this is going to wreck the count, right? So they're all agreeing that this is going

to wreck the camp, right? It's going to result in a change in how political power is allocated. It's going to misallocate federal resources. But notwithstanding that, the opinion starts to, you know, goes on for pages about how that's okay. So I think it is reasonable to assume it's drafted initially with the idea in mind that we're going to lose. Something at some point along the way changes the chief's mind. Was it the Hoffler documents? That I don't know, right? It's the only kind of major intervening event that happened. It's also not mentioned in the opinion anywhere. I mean, not that it really could or should be since we didn't have any further proceedings on it. But it's it's it's ultimately hard to know, I think. it was only a conspiracy theorist who could think that this question, the citizenship question was

added not to enforce the Voting Rights Act. So the four dissenters say, look, you know, you, majority and all of you people questioning this, like, you know, you've got to like squint your eyes and like rearrange all the pieces on this like total board out of, you know, a beautiful mind in order to get there. And it was actually really surprising to me that they kept that and like rearrange all the pieces on this like total board out of, you know, a beautiful mind in order to get there. And it was actually really surprising to me that they kept that in in light of the Hoffler documents, even if they ultimately stuck with their bottom line conclusion, because by that point, it was at least plausible that, you know, the citizenship question was not done to enforce the Voting Rights Act.

And today we have, now we have the president admitting it. Yeah. You know, I couldn't put on a citizenship question, you know, but I'm still going to collect citizenship information to affect congressional apportionment. And now I'm just going to exclude undocumented immigrants altogether from the apportionment, which he announced in the, you know, memo that came out last month. So, you know, it's just kind of amazing to me the way that Judge Furman was kind of portrayed by a few members of the Supreme Court as some, you know, Mulder from the X-Files. Yeah, with like, with like, exactly, literally, like, that's the image

that they conjured, right? That like, he's got a bulletin board and he's like connecting, you know, pushpins on it with crazy, you know, crazy string or something like that. But the president's come out and admitted it. So it's just it's kind of amazing. So I had a kind of unpopular take on Decision Day. And I'm, again, always a little pessimistic about everything, always looking like, you know, what's the other shoe to drop? And it was a stunning victory for you all. But in some ways, the damage had already been done, right? I mean, the fact that this litigation was pending, sowed more distrust among communities that are already distrustful of the government and federal intervention. And this didn't help. And so, I mean, and of the government and federal intervention. And

this didn't help. And so, I mean, and this is also before the pandemic. And so if the real issue is under counting on the census for purposes of congressional representation or the allocation of federal dollars, the damage might have been done already, even though you actually pulled out this amazing victory and, you know, got the administration on its heels, if people don't answer the census, that's the point. Yeah, yeah. that believe it or not, DOJ made at trial, right? When, you know, that like, are injuries not redressable? Because we've already fucked them over enough. Basically, I know, I mean, seriously.

I mean, it's like, you know, their argument is if adding this question is going to deter census participation, well, where's the evidence that removing it will encourage census participation? You don't have that, do you, plaintiffs, right? And we're sort of like, are you fucking kidding me? Like, this is insane.

But... Well, you actually had a great rejoinder in the film where you know that they will live to fight another day, that there will be more to come. And you say, and this is my favorite moment of the film, you were like,

and we will fuck them up. Oh, God. Oh, boy. So, like, and we will fuck them up. Oh boy. So like, maybe that's a good segue. Can we, can we talk about more recent developments? I mean, after the decision came out, which, you know, hell look, you can add this question, just don't lie about why you're going to do it. There's all the speculation that the administration is going to now come up

with some other reason and say, okay, you got us. Here's the real reason why we did it. And that we were going to have to fight this all over again on some kind of crazy expedited timeframe. And, you know, the common, the conventional wisdom was, this was just a temporary win, right? The administration is going to come back and put this question back on there. And, you know, I sort of thought about that and I was like, wow, that's a bummer, right? Like, I mean, we won the case, but shit, we're still going to be in this. We're going to. And then I started thinking about a little bit more and I was like, wait a minute, we're back in the trial court now. And as I said

before, that's like my comfort zone. Right. And, you know, the opinion said that discovery was proper. Right. And I was like, oh, OK, I got some of my tools now. Right. I mean, if they tried it again, you know, we were all we had we immediately like normally you want a case in the Supreme Court and like everyone goes out drinking. You have a good time. Right. But like literally that night, we all went back to our offices in our homes and whatever and started jotting down on legal pads or on computers. Like, what's our next move when they try to put this question back on? And we had a lot of good ideas. I thought we had a lot of ideas, you know? And I felt pretty good just thinking about it for like 90 minutes that we were going to be able to throw enough sand in the gears to prevent a new effort to add the question. And do you think DOJ lawyers successfully prevailed upon the White House that that was, in fact, the most likely outcome if they did try to take another run at it under this extremely expedited timeline?

Because on DOJ's own representations, like, they really needed to start getting going, printing the census, like, even before the opinion came out. And they would have a very difficult time returning to court and explaining that they actually, you know, could take a couple more months while they tried to add this question again and defend it against your challenges again. Well, they had represented about a dozen times to courts at different levels, the district court, the court of appeals, when they were trying to get expedited review of discovery rulings, and then the Supreme Court multiple times that this case, this dispute could not drag out past July 1st, right? We got the decision on a Thursday, July 1st was Monday. So I was like, you know, they can't print the forms on Monday, right? With the question on it, they're blocked from doing that right now. And if they're going to try again, well, we're going to hold their feet to the fire. We're going to use their

words against them. You know, and I think that is what triggered when the administration said, well, we're going to look at it, maybe come up with a new reason, which itself would have was like sort of signaling that's protectual, right? We're going to come up with a new reason for this thing that we already decided. I think that is what triggered the en masse motion to withdraw from the case from the DOJ line lawyers who had been litigating up until then. I mean, they had, as officers of the court, made multiple representations to the court that this dispute could not go past July 1st. The court had relied on that. The Supreme Court had relied on that. How can they go back now to the same courts and sub in a whole new legal team, right? This was one of the moments of drama post-argument when they were still trying to re-add the question. And I think one of the things that I was most proud of post-argument that we pulled on them was we opposed their motion to withdraw.

Josh Block, actually, from the fight, from the trans-military ban case, is the one who gave me the idea. He noticed that under the local rules in the Southern District of New York, you can't withdraw from a case without providing a written sworn statement explaining why you're withdrawing from the case. And the motions, unsurprisingly, were unaccompanied by any such statements. We were sort of like, nope, you can't get away. You can't get away unless you tell us why. And Furman agreed with you. Furman said, yeah, that's right. Read the local rules, people. But the, you know, you can't get away with this unless you tell us why takes us back to whether they could have re-added the citizenship question, even if they had an additional week or

two or month to do that, which is like the court's decision said, okay, you can't lie about your reasons for adding the citizenship question. Well, what do we know based on what has happened over the past year, including what you alluded to, namely the president directing the Secretary of Commerce not to include undocumented citizens in a report that would form the basis of appropriations? We know they want that in order to encourage districts to be drawn based on citizens and voters and to exclude non-citizens. Why do they want to do that? Well, the Hoffler documents give one very plausible reason why, which again is not that difficult to impute to the administration given all of their subsequent actions and words. They want to do that in order to enhance white political power

and disadvantage voters of color. And that's not something you can do. Like, that's not a permissible reason. So even if they had come back and said, yeah, we want the citizenship question in order to dilute the voting power and political power of voters of color, like, that wouldn't have flown. And so what they would have had to do is come up with another pretextual reason. And that probably wouldn't slash shouldn't have worked either. This might take a long time, right? But it's like where – I'm no chess player, but what I imagine chess grandmasters are like, they look at the board and they're like, it's over, right? Like it may take another 30 moves, but it's checkmate. Yeah. I think Leah's point is such a good one. A lot of the commentary right after the opinion suggested that all the chief was saying to commerce was, you know, come back to us and just lie better.

But Leah's point is that, you know, a lie is still going to be a lie. And the sort of pretext analysis the court lays out in the opinion would presumably smoke out a different kind of lie. And the real reasons are just not legally or constitutionally permissible ones. And so there actually isn't a way to lie better. You know, the weakness of the justification was not just kind of like a superficial or cosmetic one, like it was a deep substantive one. And so lie better actually wasn't what the, couldn't have been what the chief justice was saying. And that's why they lied in the first place. Right. Right. Because they didn't have a legitimate reason to add the question. And that's why it matters that they lied.

Right. And it connects up to sort of the more recent developments that you sort of alluded to a couple of minutes ago. So will you talk a little bit about what this executive order that the administration, you know, issued, purported to issue? I mean, I guess they did issue it, but what does this executive order purport to do? And what are you guys doing about it? Yeah. So it's like Groundhog Day. Last month, the president issued a memo that declares that it's the policy of the United States, despite never having done this one time before in any census in our nation's history, to exclude undocumented immigrants from the census count that's used to apportion the House of Representatives. And, you know, I got like some like, it was like a Friday, I was like,

trying to get away for the, you know, for the in this horrible time that we're in right now with like my family, and then like, my phone started blowing started blowing up and i was like this has got to be one of those bullshit trial balloons where they like say crazy shit and then like don't do it right because it's like the most blatantly unconstitutional thing that i've ever encountered as a voting rights lawyer and you've litigated against chris kobach so yeah yeah it's saying something saying something um tuesday um after that friday they did it he issued a memo. He's like, we're not, we're not going to count undocumented immigrants for the apportionment. Never happened once in the census ever, right? Section two of the 14th amendment's pretty frigging clear. It's

like the whole, the, the, the, the all persons, right? Persons in, in, in, in the States, right? That's what apportionment is based on. So unless you're willing to say that undocumented immigrants aren't people, right? It's really hard to defend this. But we filed suit three days later, we're back in front of Judge Furman and two other judges. It is a case that requires a three judge panel. Any decision they render, I almost gagged saying this, any decision they render has direct appeal to the Supreme Court, which I'm like, please, God, no, I don't want to do this again. I'm like, really not eager to go through this crap again. Our reply brief on our motion for relief is actually due tomorrow. Thanks for recording with us. I know that there are a lot of interlocking schedules

to coordinate here. So I didn't write you asking to move it. But yeah, so we're doing it again. So maybe just back to the film with some concluding thoughts and a quick round robin of our favorite moments. So as we noted at the outset, the film covers a bunch of legal challenges

and a small fraction of the cases that the ACLU is litigating, but it also gives a really cool insider view about what it is like to work at a major public interest litigation organization. So we got a walking tour of the offices and all of your office neighbors and some funny comparisons between the ACLU

and DOJ. You are definitely winning the body art and tattoo ratio here versus DOJ. And some frank discussion of aspects of the ACLU's caseload that might not always resonate with everyone, even those who work at the ACLU, like the litigation involving Charlottesville, as well as, you know, what we were alluding to earlier, discussions about the toll that your professional lives can take on your personal lives as well. So, you know, those are just some of the reasons to check out the film, which I really enjoyed. I live tweeted my watching of it and would recommend it to everyone. I think my favorite moment of the film, besides like non-Dale moment, you definitely stole the show Dale in it. And I strongly suspect that

you will be nominated for best supporting actor in the next go round. But my favorite moment was when Rachel, they had the clip of Rachel Maddow reporting for the first time that the family separation announcement and the fact that children were being separated from their parents. And this is now, it just seems like it's 150 years ago. And we've become almost anesthetized to the idea of it, which to me, watching it this morning was probably the most shocking. I mean, Rachel Maddow breaks down and cries and has to go and have her producers show footage from one of the detention centers so they're not on her face crying.

I didn't cry this time. I remember crying when I first saw it, but I didn't cry this time. I remember crying when I first saw it, but I didn't cry at all. And it made me think like, you know, have we just become so anesthetized and inured to the cruelty that, you know, it's only been three years and that policy hasn't been three years. I mean, it's been less than that, but it just feels like it's the longest three years of our lives. And, you know, we've just become sort of numb to the cruelty. I sort of feel like, you know, people have to, we have to survive, right? If you go around feeling everything all the time, it might be hard. Um, but I do think it's important to resist the

urge to let ourselves get hardened to this, as difficult as it is to kind of re-experience the pain of, you know, what has happened over the last few years. If, you know, I mean, everyone's got to do what they have to remind myself to kind of remain sense-y to what's happening around me, not let my senses get dulled. Because if that happens, then we're like that proverbial frog in the boiling water, right? Just slowly the heat gets turned up until it's too late. So I feel I feel like I just this was like a total Debbie Downer move on my part. So my other my second non Dale moment is when you all read the vile emails that people send to you out loud. And it was basically like Jimmy, like mean tweets.

And I thought that was hilarious. I will jump in and say my favorite non-dale moment from the film is Bridget Amiri's cross-examination of Scott Lloyd, which I'm sorry, Leah, if that was also yours. But oh my God, I mean, she just like got an amazing, understated, but deadly sort of style. And, you know, there's just like this, it's sort of like the drama is inherent in the exchange. And so the filmmakers just start, you know, playing the deposition. But, you know, he is this official who is clearly using his authority to attempt to the fullest extent possible under and maybe even outside of the law to deny abortion access to individuals in ORR. That's the head of that's the office that he headed, custody. And it's just,

it's a chilling exchange. And she is just so fierce deposing him. So that exchange was definitely going to make one of my favorite lists, because it just enraged me all over again about the entire litigation, Judge Kavanaugh's participation in it. And I think most egregiously, in some ways, the Department of Justice's attempt to sanction Bridget Amiri for her participation in the case. They actually filed, I'm going to put this in air quotes, a petition for certiorari in the Supreme Court, not actually seeking cert, but seeking a vacatur of the decision and then a request to refer her to her local bar organization for sanctions because she assisted her client in obtaining an abortion after the Court of Appeals

had said, we are upholding, leaving in place the district court TRO slash injunction requiring ORR to get out of this women's way so she can get an abortion. And DOJ sought to sanction her for doing what the Court of Appeals decision allowed her to do and engaging in advocacy for her client. And that is just not something I can forget. It makes me livid every time I think about it. Sorry to take us back to Debbie Downer mode. I will confess that that was on my brain when I had to shake Noel Francisco's hand before the argument? You know, it is always on my mind, because even though I think that in public, Supreme Court commentariat was pretty united in the view that that motion and petition was out of bounds and should not have been filed. In private, you will still hear people saying,

well, you know, all of these like great people and like good guys who are at DOJ and were on that brief. And, you know, to my mind, I just think that that is like really problematic when you allow your assessment of someone's, you know, who they are to just be divorced from what they tried to do to someone who was, again, like defending the civil rights of their client in a completely permissible way. So I think we need to let Dale go finish his reply brief. So can we just really quickly ask you, Dale, before you go? We are very focused on kind of voting rights litigation, the way the Supreme Court may or may not intercede

in some of those cases in the next couple of months. What should we be watching between now and November 3rd? What can people do to help? And after that, I think we want to play one final clip from the film before we actually let you go. I imagine most of the people listening to this are lawyers. Lawyers are needed to do election protection work. The Lawyers Committee for Civil Rights runs an election protection program, plugs in volunteers

from around the country to field calls to help voters deal with problems that they're seeing on election day. Sometimes it's just as simple as talking those voters through problems. Other times it's knowing which problems to escalate to the litigators who can try to do something on the ground in those places. They're always looking for folks. That's a big thing. There's going to be more last-minute election-related litigation in this presidential election than I think any in our lifetimes. It's going to be a little crazy. The pandemic has turbocharged everything because rules that under normal circumstances are maybe irksome, maybe stop some people from voting, are now like a matter of life and death for some people, right? Whether or not you have to go to a

crowd and stand there for hours to vote, or if you can vote by mail, if you can vote by mail without having to interact with another human being to witness your ballot, things like that. It's it's it's going to be chaotic and everyone should know what the voting rules are in their state as soon as possible and monitor for, you know, up until the time that they cast their ballot, monitor for changes because the rules are, you know, going to be in flux. All right. Well, I think we'll play one more clip from the film. But at this point, maybe we'll let you go. Dale, thank you so much for taking the time to join us and for your vigorous work actually enforcing the Voting Rights Act. Thanks a lot. It's a real pleasure. A lot of people have been running up to us saying things like, you know, you're our hope against the forces that have put Trump in power and you're going to be what's going to stop this thing. And I think that's wrong. Like, we're not going to be able to stop this thing

ourselves. I mean, we're like two and a half floors of a building in New York, right? I mean, we're not against the power of the federal government and this massive political movement. We're not going to solve it. I think if anyone expects us to, they need to take a look in the mirror and ask themselves, what are they going to do? It's not going to be lawyers in courts. It's going to be people who turn the ship around. That was another fantastic clip from The Fight. The Fight is available on Amazon Prime, Vudu, Fandango Now, and other streaming platforms. We'd like to thank once again, Dale, let's F them up for joining us. The Fight is streaming on most platforms, including Amazon Prime, Vudu, and Fandango Now.

We are grateful to Catherine Fink, who is subbing in for Melody this week to produce the show. And as always, Eddie Cooper, who does our music. We are also really grateful to you, dear listeners.