Alexander v. South Carolina NAACP

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We will hear argument this morning in case 22807, Alexander versus the South Carolina State Conference of the NAACP.

Hey everyone, this is Leon from Prologue Projects.

On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Alexander v.

South Carolina State Conference of the NAACP.

This recent case hinges on the distinction between racial gerrymandering, which is illegal, and political gerrymandering, which is is fine.

Before the nation's highest court was this map, setting the new boundaries of South Carolina's congressional districts for the next decade.

Groups led by the NAACP sued Republican legislators over it, claiming they unlawfully bleached Charleston County in the competitive first district.

In the end, the court found that even though the effect of South Carolina's gerrymandering was to dilute the votes of thousands of black voters, the intent was only to dilute the votes of Democrats, making the action a-okay.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have wasted away our nation, like me wasting away my afternoons playing video games.

Yes.

I am Peter.

I'm here with Michael.

Hey, everybody.

And Rhiannon.

Hello.

The life of a podcaster.

Yeah.

I really meant to get a lot done today.

Yeah.

And then I started replaying The Last of Us.

Part two.

I want everyone to know that Rhiannon made me change the metaphor to be less problematic.

Yeah, it was going to be problematic.

It was funny.

I'll give it to you.

It was funny.

I laughed.

I gave a ha-ha, and it was genuine.

Can we say the concept?

Yeah.

It was about Hunter Biden smoking crack, okay?

Which I want to be clear, none of us judge him for.

Hunter Biden seems to be one of the coolest dudes on earth, from what I can tell.

People would be mad.

The people would be in our comments, and I don't want to deal with it.

So

I don't want to see their bullshit.

I don't want to think about it.

Right, right.

I'm upset just that they preemptively made me think about their bullshit.

Exactly.

Yeah.

We're doing one of those things where we cancel ourselves and then we just get mad at everyone for doing it.

Right, exactly.

Yeah.

The things you can't say.

Yeah.

No, but I did want to shout out my boy Hunter.

Yep.

Come on five to four.

Today's case is Alexander the South Carolina State Conference of the NAACP.

This is a case from just a few weeks ago about racial gerrymandering in South Carolina.

Yay.

Gerrymandering is, of course, the process of drawing the boundaries of legislative districts.

It is illegal to gerrymander based on race.

A federal district court found that the Republican Party engaged in racial gerrymandering in drawing the boundaries of a district in coastal South Carolina.

But the Supreme Court, in a six to three decision written by Justice Sam Alito, said maybe they didn't.

And in the process, made it nearly impossible to bring cases alleging racial gerrymandering in the future.

Sam Alito gets to say, like, racial gerrymandering, that sounds bad.

But

what if

nobody was doing racial gerrymandering?

You know,

good stuff.

So we've talked about gerrymandering before.

We did an episode quite early on.

I was looking back, y'all, at the archive or whatever, because I was looking at the transcript for the Ruscho v Common Cause episode.

And it's like in the 30s, like in terms of like the number, right?

Like we were just 30 something episodes in when we did Rucho.

Rusho is a case which kind of essentially legalized political gerrymandering, gave it the full green light from the Supreme Court.

And I recommend people go back and listen to that episode because we do kind of like a really full rundown of political gerrymandering and, as it turns out, racial gerrymandering.

What this case comes down to, what this case Alexander comes down to in the wake of Rouscho is the difference between political gerrymandering, which Ruscho said was okay, and racial gerrymandering, which is supposedly unconstitutional.

And now because of this case, racial gerrymandering, like Peter said, is a lot harder to prove.

So quick reminder on, in general, how gerrymandering works.

And again, I recommend people go back and listen to the Ruchau episode because we kind of go in depth on how both political parties do this.

But gerrymandering is the process by which voting districts are drawn in a given state with the purpose of consolidating voting power for one party in certain districts and then kind of diluting it in others.

You know, the basic idea is map makers in the various states, they draw these crazy shapes on the map to get certain voters in some districts and other voters spread out among other districts.

And all of a sudden, you can basically ensure that one party or the other is going to win certain districts, right?

So that's what South Carolina did in this case.

But the problem is that it's illegal to do that gerrymandering on the basis of race.

And just to sort of clarify what we mean when we say like gerrymandering on the basis of race, all it means is that when these guys are drawing these maps, they are taking race into express consideration.

So, for example, let's say there is a population of black voters, perhaps concentrated in a predominantly black city, right?

A map maker looking to do some racial manipulation might want to push them into one district or another to benefit their own party or perhaps the white race.

Right.

And that would be,

that would be unconstitutional racial gerrymandering.

Right.

And a federal court that looked very closely at how South Carolina drew its voting districts said that that's exactly what they did.

They used race as basically the primary factor in how they drew up their congressional districts.

So in 2022, the map makers in South Carolina, they moved hundreds of thousands of people to different congressional districts than they had been in before.

And they basically spread black voters across all but one of the seven districts so that black voters had less electoral influence.

As a result, black voters in South Carolina don't have a meaningful opportunity to elect their preferred candidates in six of seven districts.

So the federal court that was looking at this, that's the lower court that the NAACP in South Carolina first brought this case to,

that court found that the legislature in South Carolina had imposed a racial target of 17% in congressional district one.

Like literally, the map makers decided that the target was a racial quota, that black voters in congressional district one would not make up more than 17%.

And then they drew the map based on that, right?

Based on reaching that quota.

The court also found that the map makers had other redistricting options and principles and completely abandoned those in order to quote-unquote bleach black voters from the first district.

Bleach.

Visceral.

Yeah.

That is.

That's the court's words.

The court's saying.

Personally, I would have gone another direction with the terminology I used, but

so usually redistricting happens after a census, right?

There was a 2020 census, but the court found that this change in the congressional districts in South Carolina, those changes were not needed to respond to population shifts that were demonstrated in the 2020 census, right?

So the federal district finds that South Carolina has engaged in illegal racial gerrymandering.

South Carolina, the state, of course, appeals that decision.

That's how we make it to the Supreme Court.

So let's talk about the law.

The specific question in this case is about the constitutionality of the districts drawn in South Carolina.

Were they drawn to disenfranchise black voters or not?

But the broader question here is how to distinguish between racial gerrymandering and political gerrymandering.

Basically, it is illegal to gerrymander based on race, but thanks to the Roberts Court, it's not illegal to gerrymander for partisan reasons.

That was the holding of Rougeau v.

Common Cause from 2019, which Rhianna just mentioned.

So if you are drawing legislative districts, you cannot draw them with the intent of disenfranchising black voters, but you can draw them with the intent of disenfranchising Democrats.

Now, that presents a little bit of a dilemma, which is that in practice, those might look like the same thing, right?

And for map makers, it's very easy to use black people as a stand-in for Democratic Party voters.

So those things get completed.

Or vice versa.

Like it depends on where you are in the country, but in the South, partisan partisan identification is extremely racially polarized.

So black voters vote for Democrats at an incredibly high rate, and white voters vote for Republicans at an incredibly high rate.

And so race as a stand-in for partisan ID is very clean and easy, both for Democrats and Republicans.

Right.

So that's the question being posed here.

How does one differentiate between racial gerrymandering and partisan gerrymandering?

That's the fundamental question.

And what Sam Alito says is that in order to say that something is racial gerrymandering and therefore unconstitutional, you need something that basically looks like proof that the legislature's intent was to discriminate based on race.

He doesn't say exactly what that would be.

But he does seem to imply that you can't rely on numbers alone, right?

You can't just be like, well, this impacted black people very disproportionately.

So we believe it was racial gerrymandering.

That's not going to be enough.

Alito's primary justification for this approach, and really the heart of his reasoning, is that he says we should presume that legislatures are acting in good faith when they are drawing districts.

We should presume that they're not racist, right?

He says, quote, this presumption reflects the federal judiciary's due respect for the judgment of state legislators who are similarly bound by an oath to follow the Constitution.

So he's literally saying here, like, well, we have to trust state legislators.

They swore an oath to follow the Constitution.

So first of all.

like literally every government official takes an oath to follow the constitution so i don't really understand why this should matter like are courts just supposed to presume that everyone in the government is acting in good faith does anyone think that sam alito actually actually thinks that that's like a good presumption in reality?

Like it's so dumb.

If Joe Biden is involved in a case, is Sam Alito going to be like, well, first of all, he swore an oath to the Constitution.

He did take an oath.

That's our president you're talking about.

And also, like, sorry, but.

Are we eight years old?

Yeah.

Like, who gives a shit if someone took an oath to protect the Constitution?

It is ceremonial bullshit.

Right.

Oh, we've got to presume they're acting in good faith because every day before school, they pledged allegiance to the flag.

Shut the fuck up, dude.

You fucking loser.

Yeah.

And now let's make a stupid ass, formal, completely ceremonial oath like a legal presumption, like the basis for a legal burden, right?

Like he's saying, like, we're giving deference to these people because they took an oath to the Constitution.

Because they said the magic word.

It's a stupid fucking piece of paper.

Come on.

And these fuckers, they went and swore an oath to tell the truth and all that shit when they testified before Congress in their nomination hearings and then lied through their teeth about everything they believed and what they intended to do with power once they had it.

The justices themselves you're talking about, right?

Yeah, yeah, Sam Alito.

Sam Alito.

Like, who the fuck are we kidding?

These guys do not believe oaths

mean shit.

Like, so dumb.

They don't.

Like we know they don't.

We've seen their actions.

What it comes down to is Sam Alito thinks you're stupid, reader.

Right, right.

Like that's what it is.

Exactly.

I think it is time for a quick break.

And we're back.

So the second justification he provides is that when a federal court finds that race drove a legislature's districting decisions, it is declaring that the legislature engaged in offensive and demeaning conduct that bears an uncomfortable resemblance to political apartheid.

We should not be quick to hurl such accusations at the political branches.

Oh my God.

It's like on the one hand, saying like what the federal district court found was something incredibly weighty, right?

Like something very important,

something that is offensive to a democratic system, and then saying,

yes.

So we can't admit that.

You can't actually say that, though.

You can't say that that's what happened.

That's what they're doing.

What?

What the rule is so far is one, if someone took an oath, that's very important.

Two,

the real

racism is when you accuse me of racism.

Like, that's what this part is.

It's like, when you accuse someone of racism, that is so bad that we should just try not to do that.

That's what he's saying here.

Not that racism is so bad that we should try not to do it.

Like that's not, that's not how this is working.

It's when you accuse someone of racism, that is so serious that we should just generally try not to do it.

Right.

Madiba Denny wrote about this a week or two ago, basically saying that this is like literally building white fragility into the law.

The idea being that what he's saying is that the constitutional analysis should include protecting the feelings of legislators.

Like, well, let's not accuse them of racism.

Right.

Right.

That's now part of the constitutional framework that the Supreme Court has embraced.

Think about how bad it would feel to be a state legislator who got accused of engaging in apartheid by a district court.

Right.

You'd feel real bad.

And also just the pronouncement.

Yeah.

The pronouncement of this principle.

We should not be quick to hurl such accusations at the political branches.

Why not?

Why is that your rule, right?

Also, who's quick here?

Who's been quick?

Quick.

You have to bring a lawsuit.

It's taken years.

It's taken years.

I mean, this whole thing, like, we'll get to it, but they go through all these experts that the plaintiffs brought.

Like, there's nothing quick here.

They substantiated it, like, very thoroughly.

Right?

Oh, that's funny.

Oh, my God.

So.

He then says, third, we must be wary of plaintiffs who seek to transform federal courts into weapons of political warfare that will deliver victories that eluded them in the political arena.

Oh my God, this motherfucker.

This one's got me feeling silly, y'all.

Could you imagine using federal courts to deliver victories to a political movement that could not earn them through traditional politics?

I know that this gets overused, but like, this is just projection, right?

Like, this is like sit him down with a therapist and a therapist is like, Sam.

This is straight projection.

Bro, you wrote Dobbs.

You wrote Dobbs.

Like, what the fuck are you talking about?

The entire premise of gerrymandering, racial or political or whatever, is that the existing political arena is not favorable enough for you.

So you are trying to change the arena, right?

That's the whole idea.

The principle behind opposition to gerrymandering at its core is that this is unfair, that it is essentially cheating in the political process.

And Alito is like, no,

what's cheating is when you accuse us of cheating.

Yeah, it's political warfare to accuse us of cheating.

Like, just what are you talking about?

Yeah, it's not political warfare to disenfranchise black voters, right?

That's not warfare on citizens of the United States or the political process, right?

It's warfare to accuse us of doing we disenfranchise them fair and square.

Right.

And now you want to run to court and demand representation?

What?

So ridiculous.

Oh my God, dude.

The fucking balls on this guy.

One of just the all-time worst fucking reasoned opinions.

That's like all there is to it for the record.

This is really all he says.

I do want to be clear.

He doesn't actually say, here's the standard.

Here's like what you need to prove, to prove racial gerrymandering.

Nowhere to be found.

That way, the door is left open.

Whatever sort of cases someone wants to bring in the future, Alito can be dynamic and be like, no, we're going to reject that one too for this reason.

What he has done is basically ensure that no matter what case someone brings, courts now have to go through an analysis where they're like, first of all, we do want to make note that we assume that the legislators are acting in good faith

because they said an oath and it's mean to say that they're racist and gerrymandering is just generally cool.

That's like the analysis that courts are now forced to go through.

Yeah.

And I guess we should talk about...

What if there was an even crazier opinion buried within this case?

Yeah, Peter, you will never believe this, but

there is a concurrence written by pod favorite Clarence Thomas.

And that shit is crazy, man.

I read it.

I hope neither of you did because it made me very upset.

I did actually read it.

Yeah.

No, it's, look,

I love him.

Yeah.

Before we get into the substance, we should point out that Fix the Court just released a report that compiled all of the gift disclosures of the justices since 2004.

Clarence Thomas has received over $4 million worth of gifts.

God.

The nearest justice, by the way, not even close.

Who's number two?

Let's hear it.

Wait, let's guess.

Michael, who do you think number two is?

I think it's going to be Alito, and I think the total is going to be like $150,000.

It basically has to be Alito just from the one trip that we know about.

Right?

Yeah.

Hold on.

Oh, fuck.

Where's the chart?

Number two is actually Scalia.

Yes.

The numbers are too low because I can't find the actual chart.

I found a bar graph, which is very funny.

Oh, my God.

All right.

Okay.

I found the numbers.

Okay.

Posthumous runner-up.

Anton and Scalia coming in with 210,000.

Yes.

That's number two to Clarence Thomas's $4 million.

You know, Scalia might have been closer if he was still alive because that's just 2004 to when he keeled over in 2017.

That's right.

That's right.

He died on on one of those trips.

That's right.

Should have been counted.

Did he technically receive the full value of anything?

So, Sam Alito,

only $170,000, got him in third place.

Wow.

So, a distant third place

for Sam Alito.

Oh, man.

Thomas just writing this from under a pile of money.

Yeah.

Yeah.

So let's see what that money has done to his brain.

Yeah.

Nothing good, folks.

So he starts with a little quarrel he has with the majority, actually.

In addition to the stuff we described, Alito also goes through and sort of minutely dissects the testimony of several expert witnesses brought by the plaintiffs, which is just bizarre.

And Thomas is like, look, this is.

ridiculous.

Like, why are we doing this?

It's outside the scope of review here, which is when you're reviewing facts facts as an appellate court is a clear error.

Like, do we really want to say, you know, a judge or jury was in clear error in how they interpreted this expert testimony?

Like, that's not really our role, which I think is right from

like pretty obviously right from a jurisprudential standpoint.

I think the real answer to that is, well, you know, we're not here as Supreme Court justices talking to the lower courts.

We're here as conservative activists explaining to the lower court conservative activists how to handle expert witnesses in racial gerrymandering cases going forward.

We're modeling behavior here that we want them to follow.

And that's what the majority is doing.

So it is kind of weird that Thomas wasn't on board with that or didn't get that that's what's happening.

That is the most sane part of his opinion.

It just gets weirder from there.

There's a lot of faux judicial humility where he's like,

We're just simple judges.

And what do we, how are we supposed to, yeah, how are we supposed to disentangle these complicated questions of when and something's a racial gerrymander versus a partisan gerrymander?

This is given to the expertise of the political branches.

Humility markedly absent when the political branches are discussing the best way to keep the waters of the United States free of pollution.

Just about to say, they'll fucking dive into figuring out what's a tributary versus a river versus a creek, you know.

But this is just so complicated.

Unbelievable.

Like, he has a quote here that I was just like marveling at.

He said, when an institution strays from its competencies, one does not expect good results.

I agree.

Telling on yourself.

Yeah.

I want to highlight one of the opening sentences of his concurrence.

He says, I write separately to address whether our voting rights precedents are faithful to the Constitution.

And when he says some shit like that, you know it's about to get fucking crazy.

You're like, oh shit, where's he going?

Yeah, it is because this case wasn't brought under the Voting Rights Act.

It was brought as claims directly under the 14th and 15th Amendments, essentially.

It's like a pure constitutional challenge.

And he's he's like, oh, hell yeah.

I'm dusting off like all this shit I never get to talk about because we're always doing Voting Rights Act cases.

But here's my chance to be like, the Constitution doesn't protect shit.

Fuck you.

Like, very excited.

Very excited.

And that is like the heart of the concurrence is his absurdly reactionary view of the 14th and 15th Amendments.

And he offers this terrible history.

He claims that the Equal Protection Clause's focus on protection suggests that it imposes only a, quote, duty on each state to protect all persons and property within its jurisdiction from violence.

What?

So I just want to, I want to take a second to unpack this.

Thomas is saying, look, in the late 1800s, there's all this extrajudicial violence against black people, and the 14th Amendment was just supposed to protect it against that and let you sue in court to to vindicate your rights.

And that's that.

And like, that is such a narrow, ahistoric reading of the amendment.

Like, what the fuck are you talking about?

Yeah, it's a very, very idiosyncratic view specific to Thomas.

Other conservatives aren't saying this same thing.

Certainly not what the text says.

It's not at all how it was interpreted at the time.

Yeah.

What are you talking about?

Like, how is that

the same fucking people who passed the 14th Amendment passed the Ku Klux Klan Act to give it force?

And that was not limited to just protecting people from violence.

And it certainly was not devolving that responsibility onto the states.

Like, this is such a backwards, narrow reading of the Equal Protection Clause.

The Ku Klux Klan Act, by the way, this is language from it, protecting people from the deprivation of...

any rights, privileges, or immunities secured by the Constitution and laws.

Any rights, not just

free of violence.

It's really stupid.

Like, Equal Protection Clause says equal protection of the laws,

not protection from violence.

And this is also a very clear inversion of how Clarence Thomas thinks about the state's duty to protect people from violence in many other contexts.

Say the Second Amendment.

Right.

Like, what are you talking about?

You don't think that the state has a duty to protect people from violence.

You don't think that.

Yeah.

I think it's worth drilling down into like where Thomas concludes here, because he ends up saying that essentially he does not believe that gerrymandering cases are justiciable.

Right.

Meaning that courts can't hear them.

And that would be a reversal of a case from 1962 called Baker v.

Carr, which is where the court said those cases are justiciable.

And then it would also functionally reverse a case from a couple of years later called Reynolds v.

Sims.

And if you haven't heard of Reynolds v.

Sims, I assume you've still probably heard of the concept of one man, one vote, which is the principle that Reynolds established.

Before that case,

legislatures would have districts that did not have equal populations.

That was not a requirement under the Constitution as it was interpreted.

So there could theoretically be a district that has a congressman with like 100 people in it.

And then the district next door could have like 2,000 people in it and also get one congressman.

Shit like that was happening.

And what the court said in Reynolds was like, no, no, no, no.

Like you need to have equal districts by population.

So all of the gerrymandering that people do now is like, all right, we're going to shift people from this district into that district, and then you need to like reshuffle or whatever, right?

But without Reynolds v.

Sims, you could just pile all of the Democrats into one giant district and be like, all right, you get one congressman.

And then who will, like all the Republicans that remain, they get eight, you know, exactly.

No matter how many there are, just population aside, this would upend.

American democracy.

I mean, there's no way, there's no other way to put it.

No, yeah, exactly.

I mean, I think that's the point is like, he does this very pained history of the Reconstruction Amendments in his effort to prove that they are essentially toothless.

And what's so frustrating about the history is he's kind of like, well, look, why would the Equal Protection Clause be about voting rights if then they had to pass the 15th Amendment protecting your right to vote?

And it's like, no, motherfucker, it's because assholes like you, even after they passed the 14th Amendment, continued to disenfranchise and deny suffrage to black Americans.

So they passed the Ku Klux San Act.

And even then, they still try to do it.

So they passed the 15th Amendment.

And even then, we still got Jim Crow.

And so we had to do the Voting Rights Act and the fucking bakery car.

Fucking...

Yeah, Thomas is always on this bullshit with the Reconstruction amendments, right?

In Thomas's world, the Reconstruction amendments are annoying, and he would think it's better if they weren't ever passed.

Yeah.

I mean, I don't remember him being so skeptical of the Equal Protection Clause's applicability to voting during Bush v.

Gore.

No, right, right.

It's enraging to read.

This is what $4 million buys you at the Supreme Court.

That's exactly right.

Right.

Well, $4 million disclosed.

Right.

We should make it clear that that's only what he discloses.

Right.

Good point.

And he does have a history of not being great about that.

So

I think you can safely round up to five, and that would be very conservative.

I think that's right.

I think that's right.

Yes.

The majority opinion is Alito just spewing the stupidest platitudes you've ever heard in your life.

And then Thomas is out here with the fringiest of fringe, radical conservative ideas.

Let's bring back the three-fifths compromise.

Yeah, yeah.

I have one more thing that really fucking boils me about the majority and Thomas here, which is when it's affirmative action and it's like college using race as a subfactor of a subfactor of a factor in maybe being a tiebreaker between like two fringe candidates both qualified.

They're like, well, that is impermissible.

We can't allow that.

That is what they had in mind when they wrote the 14th Amendment forbidding that from happening.

Right.

But when these motherfuckers are like, well, let's just move 200,000 black people into a different district.

They're like, like are we sure they didn't mean to just move 200 000 democrats into a different district though are we positive exactly i think we have to presume they meant democrats yeah i mean not to get in the weeds but so much of the affirmative action jurisprudence is conservatives saying that racial quotas are unconstitutional, are completely, you know, unacceptable in our system.

And they used a racial quota.

They said 17% of this district needs to be black.

Like, that's what they said in South Carolina.

Anyways, good news.

Kagan is dissenting.

Did she bring the heat?

I really wish.

I really wish I could answer in the affirmative, Michael.

Kagan's talking about

clear error standard.

So the clear error standard is basically like a standard of review.

When the Supreme Court is reviewing a lower court's findings, those findings have to be in clear error for the reviewing court, the Supreme Court, to kind of like upend what the findings were in the lower court, right?

And so Kagan is saying that Alito in the majority is misusing this clear error standard, that there is no clear error.

Right.

You can disagree, but that's not the same thing as clear error.

Exactly.

On the facts, right?

She starts the dissent by saying this voting case, as the court acknowledges, turns on a quintessential factual dispute.

Did South Carolina rely on racial data to reconfigure the state's congressional district one?

Yes, you're right.

I actually appreciate that, like, honing in on like, this is actually a factual question.

Did they do this based on race, right?

And then Kagan explains how there's lots of evidence that they did, and therefore it should be found unconstitutional, what they did, right?

Kagan spends the dissent talking about how, you know, instead of deferring to federal court findings, now Alito is saying, actually, we need to defer to the state legislature when a court rules against that state when redistricting, right?

This like that good faith standard, that good faith deference that Alito talks about in the majority.

And then Kagan also takes issue that in the majority, Alito says that the plaintiffs, so in this case, the NAACP in South Carolina, that they should have submitted an alternative map and they didn't, right?

And so Alito is saying, well, actually, we make a negative inference against the plaintiffs here because they didn't submit an alternative map that was not racially gerrymandered, right?

Right.

Which was not, by the way, like there's no precedent saying that they had it's not a requirement.

And in fact, Kagan.

refers to precedent, a 2017 case called Cooper v.

Harris, where interestingly, Kagan wrote for the majority and Alito wrote for the dissent, so completely flipped here.

But in that case, which was about North Carolina's redistricting, that case found, again, Kagan writing for the majority, that North Carolina had used race too heavily in redrawing its congressional districts.

And in that case, Kagan is saying, we used the clear error standard correctly.

And in that case, we also rejected North Carolina's request that the plaintiffs submit an alternative map in that case, right?

The dissent in Cooper back in 2017, written by Alito, objected to all of those points.

And now Kagan is saying, so you're just flipping.

Now you have a majority in this case, but it's the same.

And you should have been using the standard as we used it in Cooper.

And you should have rejected the request for an alternative map requirement.

Got him.

Yeah.

So

we're having so much fun quibbling about this.

Dude, it's so frustrating.

I want her so bad to be a better thinker, right?

I want this dissent.

Alito in particular, Thomas, are going back and talking about the 14th and 15th Amendments, right?

And they're completely shitting on the history there.

And they're completely shitting on the purposes there.

And what Kagan doesn't ever say is like, no.

This case, you can talk about all the bullshit that is, well, political gerrymandering is fine.

And, well, they drew this crazy shape, and that was okay.

But no, no, actually, like when you disenfranchise black voters, that goes to the original sin of this stupid country.

It's the whole purpose of the 14th and 15th Amendments.

It's the whole purpose of the Voting Rights Act.

It's the whole purpose of the Civil Rights Act, right?

And you, conservatives, you want to undo all of it, and you are undoing all of it.

Kagan doesn't say that.

She never does.

Kagan says you're misapplying the clear error standard.

It's so frustrating.

You've already lost.

Yeah, exactly.

All you can do here is unmask for the public what the majority is doing.

Exactly.

You cannot trap them in a web of inescapable logic

about precedents and standards of review.

that will impress some fucking brainless law professor.

That's not what you can do here that's meaningful.

What you can do here that's meaningful is speak to politicians, activists, and regular citizens and law students about the ideological project the conservative majority is engaged in.

Like, that's it.

And it's not a short dissent.

It's not a short dissent.

She goes on and on.

No, she had the opportunity.

I mean, I have several complaints about Kagan.

One is like, she's acting like she's trying to peel off one vote.

Right.

Right.

Like, her approach here is one of judicial restraint, right?

The court is overstepping its boundaries, right?

That's an argument that maybe peels off a conservative.

Maybe.

But it's six to three.

You need to peel off two.

And that's just not going to fucking happen.

Right.

So instead of doing this, or maybe once you find out that you've lost, right?

Like there will come a point where you realize, oh, no one's joining my dissent.

Write something else.

Write something that has an affirmative vision of the Constitution.

We've talked in the past about Clarence Thomas doing this all the time, right?

He writes these like little solo concurrences, solo dissents, where he sort of like puts his vision of the law out there.

And sometimes that becomes more and more mainstream.

Now you have like Neil Gorsuch and Sam Alito tagging along with some of those, right?

That's something that the libs need to think about doing.

because you've lost this round.

You need to think about the next round.

And part of the problem with what Kagan's doing is she's like, this defies this precedent from 2017.

Okay.

That was seven years ago, right?

Where's that argument going to get you in 10 years?

Right.

Like now this is the precedent.

Yeah.

So you need to have put out an argument that this precedent is wrong, not just that it's not precedent, because eventually it will be precedent.

And then what's your fucking argument?

Right.

Now you've just lost.

Look at what Alito did.

Alito used his his dissent and made it a majority, right?

Like they're doing it.

Ugh.

And I think, you know, big picture, what the conservatives have always done with voting rights cases, whether it's in the context of the Voting Rights Act or not, is basically say

racism,

as it is understood by the Constitution and our laws, is that thing that existed in the South and then died with Jim Crow.

And any attempt to sort of imply that it is meaningfully ongoing will be rejected, right?

That is incorrect.

That is the sort of model they are working with here.

They've been pushing that model in discrimination cases of all types, includes voting discrimination under the Voting Rights Act or under the Constitution.

That is their understanding of the world, that like racism doesn't really exist anymore, at least not like it did.

And therefore, courts don't really need to do anything about it.

And in fact, should not do anything about it.

Yeah.

Yeah.

It's a laundering of how racism like actually operates, right?

Which is like it's racist.

We understand because we have brains.

It's racist to disenfranchise black voters.

It's racist to take away political power from people of a certain certain race, right?

Who have historically been harmed by structural racism, period, right?

But what conservatives are able to do and what they're able to put into law at the Supreme Court, what they're able to say is that, well, if you don't have explicit racist intent in the evidence, if somebody doesn't say, if you can't point to a quote that says, we're racist and we're taking away political power from black people on the basis of their race, right?

Then it's not racism that's actually happening.

It's gotten so preposterous that like, I'm actually not sure under this decision whether it would be illegal to be like, we are going to disenfranchise these black voters, but it's not because they're black.

It's because black people tend to be Democrats, right?

Exactly.

I don't know that that's illegal under Alito's reasoning here.

Yeah, because it's explicit.

There's a 17% racial quota that's imposed on a congressional district.

Like,

what more racist intent do you need demonstrated?

You know?

Yeah.

I mean, this was always the slippery slope of Rucho be common cause, where they said,

no, political gerrymandering is fine.

We talked about this during our Rucho episode, but like,

how do you know the difference?

And even if you think there are ways to tell the difference, it doesn't really matter because it allows the legislature to hide what it's doing, right?

They can just say, well, we're actually doing political gerrymandering, right?

Exactly.

Of course, like the great irony here is that even if you say that this is just like about partisanship, you have to keep in mind that like black people vote for Democrats in like the 90 plus percent range, right?

And black women vote at incredibly high rates too.

Right.

Like they are like some of the most reliable voters in the country.

Yeah.

These are some of the most regular, reliable voters, and they vote for one party in particular.

Exactly.

Yeah.

And the majority Alito is like, well, you need to disentangle partisan and racial gerrymandering.

And part of the reason you can't do that is because for black people, due to entrenched racism in this country, they are experiencing politics and policy similarly, right?

So you can't just separate the partisanship from the racism.

That's just not how it works in reality.

Even if you say that something is just partisan, there's still racism happening beneath the surface.

Yeah.

Right.

While we're on the topic of Ruchio, I do want to

take a moment to just like

think about how far we've come, how far we've fallen really in the last 10 years in regards to partisan gerrymandering, right?

Political gerrymandering, which is not what this case is about, but which is very linked to this case.

So like 10 years ago, the swing vote on the court was Anthony Kennedy, and he had written explicitly in some voting rights cases his belief that, at the very least, that partisan gerrymandering was essentially bad, that it's not democratic, that he had concerns about it.

He was not convinced whether it was justiciable or not.

He didn't feel like he had seen the right case to take it up and consider it.

But he was signaling very loudly that he was, at the very least, convincible on this question and concerned about it.

And there was a lot of belief around that time that maybe we could get the right case before the Supreme Court and get one of the five four Libs plus Kennedy victories saying this is unconstitutional.

Obviously, Hillary Clinton loses in 2016, Donald Trump wins, Kennedy retires.

We get Rucho, which is a step back from that, which says essentially, yeah, this stuff's all unseemly and pretty grimy, and we don't necessarily love it or extol it, but it's not justiciable.

It's not something courts are in any position to weigh in on.

And then in this case, you have a new rule that has been written into the majority opinion that the traditional principles of redistricting, such as compactness, contiguity, respect for political subdivisions, keeping communities of interest together, all the things you would expect drawing congressional districts to take into account.

Now also includes the legislature's partisan interests.

Now they are an affirmative part

of redistricting principles.

We've gone from this is really bad and maybe we should be considering it as unconstitutional to we can't really weigh in on it, but it does seem pretty bad to this is a traditional redistricting principle built in now.

Yeah, legitimate.

That they're going to be pursuing their partisan advantage to the helm, to the T, whatever.

Yeah, exactly.

Exactly.

It's very bad.

It's a serious degradation of our democratic institutions over a very short time period.

Right.

It feels like the court is going to keep rolling back the definition of what racism is while the expressly racist far right ascends.

Right.

You know what I mean?

And expanding the power of political actors to entrench themselves and expanding the power of the non-democratically accountable institutions, including the courts and especially the courts.

Yeah.

Right.

At the end of the day, we are still in some large part a democratic country.

Yes.

And that is a massive problem for the Republican Party, right?

Because they are deeply unpopular.

Their platform is deeply unpopular.

What do they do?

They need to limit the Democratic inputs to the best of their ability.

The existence of this Supreme Court is one of those limitations because they are in many ways a functional veto on the president and on Congress.

So they have this sort of like oversight position they have placed themselves into.

They also have at the micro level, things like gerrymandering, which remains one of the most powerful weapons against democracy in this country.

That's the end game for Republicans.

And it's not just about disenfranchising black people, although that is part of it.

It's about building a world where democratic input really doesn't matter, where the quote-unquote democratic systems are just designed to place Republicans in power and keep them there.

Right.

Yeah.

All right.

Well.

All right.

Next week, Garland v.

Cargill.

Fresh case, hot off the presses about bump stocks, guns, and textualism.

Coming at you next week, folks.

We apologize in advance.

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Y'all should see the transcripts, how racist it gets.

Like, the AI just cannot compute.

Like, inside the transcript, something we said, it put in the name Saddam Hussein.

And we had not, it wasn't even stating a name.

Like, hadn't said Hussein.

That's the AI racism we're all going to come to know and love as it were.

Like, you just say something in Arabic, and they're like, that's some Saddam Hussein shit right there.

Yeah, they're plotting another 9-11.

Yeah, exactly.

Exactly.

I've alerted the FBI, right?

So crazy.