Callais Is Worse Than You Think. No, Even More Worse. Nope, STILL WORSE THAN THAT.

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: Thank you.

0:00:03 Thomas: No matter how racist and outwardly racist it was how would you correct any math under under this logic no

0:00:17 Jenessa: You ever try to correct racism and so doing are thinking about race we have to invoke strict scrutiny which will almost always stop you you from doing what you're you're trying trying to do

0:00:40 Thomas: And welcome to Opening Arguments. This is episode 1260. I'm Thomas. That over there is Jenessa. How are you doing? Not great. Not good.

0:00:46 Jenessa: Great nope pretty bad oh

0:00:53 Thomas: To timing and everything, I guess it's been a minute. Why are we not good for now in this timeline?

0:00:59 Jenessa: Uh decision in louisiana v calais is um arguably one of the worst out of this court it might be the most racist thing I've ever read out of the supreme court ever you

0:01:13 Thomas: Well, that's a tough one.

0:01:16 Jenessa: Know here's the thing is at least in plessy v ferguson they they didn't say, actually, the 14th Amendment requires segregation. That's what equal protection really looks like. And that's basically what this does. You're going to read worse explicit racism. You will find judges being like, I think black people are inferior. But in terms of impact, systemic and implicit racism, this is right up there with the worst. This is as bad as it gets.

0:01:46 Thomas: And obviously, nakedly political, there's no justification for it. Has been Roberts' goal but I can't say enough bad things about it, but I feel like you're uniquely qualified to cover this, and I'm glad you're going to give us the full breakdown. We've also covered this in the past. I think it was a you and Matt one where you might have covered the original arguments on this.

0:02:10 Jenessa: We covered the oral arguments ago. It was episode 1199. If you want to go back and hear me try really hard to be be optimistic and then call it.

0:02:24 Jenessa: Yeah, I had mentioned that my concern was the justices probably couldn't agree on any one reason this map was bad unless they all came to a like students for fair admissions type reasoning that like the real racism is trying to fix racism. And that's pretty much what happened. So we did a good job covering what happened in the oral arguments and be a little depressing to re -listen, but I think it's pretty educational on the facts of it. We will go back over that today.

0:03:00 Thomas: It's uh bound to be a pretty downer episode because this is really bad news but it's important to understand it and you know the least we can offer is a little bit of well a really good news item on the personal level uh which we'll we'll We'll save for the end, you know, when we're all at the edge of the cliff, we'll try to pull us back. So that's about as much as we can offer with this one. So because it's just it's such a terrible decision. All right. We'll take our usual first break. Avoid the ads. Patreon .com slash law, et cetera. And then we'll get to it. Where do you want to start us here?

0:03:36 Jenessa: To make this really make sense and to get the full impact of it we gotta go back to the 1800s and really wrap our heads around what's going on here um the 13th 14th and 15th amendments the reconstruction amendments they get passed shortly after the the Civil War. The 13th bans slavery. The 14th has a whole bunch of different provisions. The most important that we'll talk about today is the Equal Protection Clause, that everyone is entitled to equal protection under the law. The 15th Amendment ensures the right to vote will not be denied on the basis of race or previous status of enslavement. Critically, all of those at the very end have a piece that says, Congress shall have the power to enforce this article by appropriate legislation. Should get us around concerns that, oh, you know, when they pass laws to try to do X, Y, Z, we're always asking, like, does Congress really have the authority to do that? Yes. Yes, they do. They have the ability to do that. They do have the right to do it. The Voting Rights Act. Will not be surprised to hear that gets challenged early and often, but it's in the Constitution that they have this authority. Issues we will run into with the 14th Amendment. As currently understood, if we're looking at just the 14TH Amendment and we don't have any statutes coming in, you just want to say my constitutional rights under equal protection are being violated. You have to prove intentional discrimination. So what we'd call disparate impacts or like effects tests, that would not be enough. You could use that disparate impact as evidence of somebody's intent. But essentially, you would just be saying, look, look at the difference in how these groups are treated. And that's evidence of the fact that secretly. They meant to treat these groups different. You're still going to have extra steps to get there, basically. Intentional discrimination will be obvious. You know, if they explicitly say they're doing it, then that's easy. But people don't usually do that, right? Will only apply to the government, not private actors. They have over time extended this to like if you're taking federal funding, that's going to apply. But for the most part, this would not get to just old private business or two private people interacting. So there's a really great case on this that started to inject it into private life. This is Shelly v. Kramer in 1948. 1948. was about a neighborhood, not unlike many neighborhoods at that time, where the homes had in their deed what's called a racially restricted covenant. Can't sell to a black person. That we have the Fair Housing Act, which will especially apply to renting, but I think also to sales, that you can't discriminate in housing. Problem solved. We don't have that yet. So right now we're just relying on the 14th Amendment and only the government can't discriminate. So what

0:07:07 Jenessa: Do I do? This is a private sale between two people, right? So my deed says says I can't sell to a Black person. Up happening, there were, I believe, two cases consolidated here where a Black family had bought the home, not even really knowing it was in there, and then somebody sued to try to kick them out. You were not validly able to buy that property. The court said is, okay, Amendment only applies to the government. People can contract for whatever they want a contract for, but you're trying to make the court use the police power of the state to enforce your contract. That's what would violate equal protection. It's not that like any two people can't just write slurs on a piece of paper. It's that I, I, the judge, and, you court system as a whole, we can't be involved in that kind of thing. Guess go ahead and write your completely unenforceable BS on your deed. I'm not going to help you do it. It feels like a little weird in some ways, but at the same time, like, you it totally fits. Like, yeah, of course judges should not be getting involved in this. So starts to inject into private life what was otherwise a hundred percent just about the government there are certain things that the government will not enforce it and so you're kind of stuck just being privately racist one

0:07:05 Thomas: Gotcha yeah want to be publicly racist though weird

0:08:46 Jenessa: Yeah, that's going to be a little harder. Other issue with the 14th is groups are going to be equally protected under equal protection. Yeah. It's a little weird, right? York has actually tried to solve this issue that has been forever. Like the federal equal protection clause just says like people get equal protection under the law this was passed before like women had the right to vote like obviously they didn't mean like it in some ways right um new york has an equal protection clause that lists who we meant and says like just because it says equal protection that doesn't mean like you can't have uh measures so like you You can in under New York law, you're allowed to take race and gender and everything into account in order to try to fix discrimination.

0:08:59 Thomas: That seems weird yeah you'd think that'd be like the only way you could possibly do it sorry it

0:09:49 Jenessa: It's almost like that's that's like necessary if you have any scientific understanding of how bias works in.

0:09:56 Thomas: Is I'm so sorry but really is just the monty python let us not bicker about who killed who you know it really that's john roberts like john robert's comes in and he's like look we can't we you said no more racism so that means we can'T just I can'T see any race there's no race nobody has a race there'S no such thing as race but it's like yeah but in order to unscrew over a bunch of people you have to know which ones you screwed over yeah I don't sorry that's already the whole jumping ahead a little bit but it'S just infuriating

0:10:16 Jenessa: It is. Yeah. I mean, I can't so true that it's just like, it's ridiculous. So explicitly put that provision in to try to get ahead of this. I guess, spoiler alert, I don't know. I think we're overridden supremacy clause at this point. We also named who we meant.

0:10:38 Thomas: John

0:10:45 Jenessa: So the issue you as like when you say like equal protection for everybody what they didn't mean is like I I run a car dealership and you can't tax me and not the bike dealership that's not equal okay we didn't it has to all right god damn it in new york we have chosen to name the groups and we actually recently amended our constitution to name more groups that we think should be considered um the federal level we have just used court case law to get there where okay obviously it must include race like they literally passed the 14th amendment right after the civil war like we all know what they meant when they did that um is clearly what they intended and it gets strict scrutiny so if you're going to discriminate on the basis of race, as the government, you're going to have to show that you have a compelling interest and what you're doing is narrowly tailored to serve that interest. So like, we're very sorry that this is ultimately discriminating on the basis of race, but like, hey, what can you do? We have this very important thing we got to do and there's really no other way to do it. Okay, well then every once in a while you are in fact allowed to do that. That. Will technically also get strict scrutiny here. Religious cases almost always rely on the First Amendment and the right to free exercise. So it's technically in here, but in practice, it'll almost never come up as an equal protection issue. Also national origin. So you're You're not supposed to discriminate the government on the basis of being a natural born citizen versus naturalized for residents and people who are undocumented. Will get varying levels of protection. But in general, national origin, that'll get strict scrutiny. Intermediate scrutiny. Just kind of how you're like sort of equal. Equal, you're equal -ish to other people. That'll be gender and illegitimacy. So,

0:10:45 Thomas: Robert no I'm just kidding yeah sweet yeah yeah okay

0:12:59 Jenessa: Get gender in there until the 70s. That's then rational basis is basically everything else. So like disability, class, pregnancy, age, every protection you have for discrimination on all that other stuff, it comes from statutes. It does not come from the Constitution. We lost the Americans with Disabilities Act and you tried to rely on the Equal Protection Clause, a it's rational basis test, which is super easy for the government to get away with. Pregnancy discrimination, famously, the Supreme Court said that's not gender discrimination. So Congress had to pass a law saying you can't be fired for being pregnant. That's really only protected in employment and kind of in housing, like indirectly. So of limitations on what the 14th Amendment all by itself alone could actually do. Okay. The past, Congress tries to pass laws pursuant to the 13th and 14th Amendments banning private discrimination. Hey, sections say Congress can pass laws trying to enforce the fact that we banned slavery and involuntary servitude and all this stuff, And we tried to get equal protection for everybody. And it said we can pass laws to make that happen. And they created the Civil Rights Act of 1866 and the Civil Rights Act Of 1870. And the Supreme Court struck it down. They said, you don't have a right to regulate private action under this. We go for like 100 years of those amendments just not being fulfilled. Bill. Jim Crow takes over.

0:14:49 Jenessa: Not really getting equal protection. You'RE NOT REALLY getting voting rights if you're at risk of being beaten to death trying to vote, right? Get the Civil Rights Act of 1964. And that says, in addition to all the usual stuff, it already says in the Constitution the government can't discriminate. On the basis of race. We've held that's what the Equal Protection Clause means. Also, we're going to say places of public accommodation, you can't discriminate on the basis of grace either. Immediately there's a lawsuit. Of Atlanta Motel, Inc., be United States, 1964, same year. They say, well, Congress has no authority to tell us what to do. They don't have authority under the Commerce Clause. The Fifth Amendment, they are taking our liberty and property without due process by trying to force us to have Black clients. This is not allowing our free practice of business. And also under the 13th Amendment, this is involuntary servitude. You're forcing me to work. So day one they have slavery is making me continue to run the business I already run but let a black person walk in the door.

0:16:00 Thomas: I who's I know the real slavery is jesus yeah

0:16:14 Jenessa: Clearly.

0:16:14 Thomas: That's yeah slavery I'd say it's even worse

0:16:19 Jenessa: God, it always been this way. And it's not new to have people try to claim that these amendments are meant to not only protect white people, but protect racism. Were passed after the Civil War to stop racism. And that's that's never stopped racist people from trying to use it. This hotel, 75 % of the clients are transient interstate travelers. They solicit out -of -state patronage. Court basically says, we're not even going to talk about the 14th Amendment and this Section 5 authorization for Congress to pass laws to enforce it. We're just going to talk About the Commerce Clause. This affects interstate commerce. And those old laws where you tried to pass a civil rights act that did exactly this and then the supreme court struck it down because they said you couldn't do exactly this well that's not exactly the same because and then they work their way around it and weave all over the place the big thing they said is like well the those ones weren't super restricted to interstate commerce. Neither is this one, by the way. Know why they didn't just say we're overturning it. They felt really married to this case that was 100 years old to not just say it's wrong. Do not know. But do not say anything about the 14th. They just say under the commerce clause, they are regulating interstate commerce. Clearly weren't trying to regulate interstate commerce. They were trying to regulate a morality thing, but we don't have to inquire into their motives if they are entitled under interstate commerceto do the thing. It doesn't really matter if that's, like, why they did it. It matters that they have the authority, and they do, so good enough. Enough claim that it's like violating due process they say no there's 32 states that have similar statutes and we have upheld them before the fact that somebody might suffer an economic loss first of all the court says we don't believe you but let's say you did god forbid a black person walks in and your whole business falls apart one individual losing money because because of a statute, does not make the statute an unconstitutional taking. Like, over yourself. And then for the 13th Amendment, I can't believe they didn't just say, what are you doing? Please leave my office. There's this thing called the common innkeeper rule. It's like a common law thing that existed even before the 13TH Amendment, that innkeepers are required to to just take in anybody who presents themselves unless you have a reasonable grounds to refuse them. Guess it makes sense if you're like, we don't want people who are, I don't know, wandering the countryside to get turned away. I don'T know. This is old timey stuff. Was already a rule innkeepers were following, and you didn't call it slavery when you had to let the stinky guy in. So pretty sure it's

0:19:35 Jenessa: Not slavery.

0:19:35 Thomas: We should have no yeah

0:19:39 Jenessa: Yeah, like excluding Black people was already an exception to this common law thing. So like, no, my guy. Really important case that said, actually, this whole Civil Rights Act thing, not unconstitutional, not illegal, but weird that they don't go out of their way to say the 14th amendment authorized congress to pass laws to enforce all of this stuff about equal protection and making sure that recently freed formerly enslaved people are having an equal shake around here like why do we got to do all this other stuff what congress the power hour to do this that like know why they prioritize the commerce clause there there are later cases that start to give a more general authorization of referring to section 5 of the 14th and saying congress is authorized to pass the civil rights act and therefore it was okay in context xyz for somebody to sue under the civil So it starts to creep in. We also have that steady creep of interstate commerce slowly becomes all of the commerce forever. They uphold that for like a restaurant where 42 % of the food came to them by interstate So they were like, good enough, you can't be racist. Was another one that was like a rural amusement park, but they advertise in such a way that they would be attracting or could be attracting people from out of state. Good enough, you can't be racist. So essentially, for practical purposes, the Civil Rights Act is going to apply to any place of public accommodation, any that is generally open to the public. So will apply to federal, state, and local government. And then with the Civil Rights Act, you're going to Apply it to private businesses.

0:21:49 Jenessa: Rights Act of 1965 1965 comes out and that is similar. The Civil Rights Act had some stuff that was voting related, but this is going to be really targeted at the issues of Jim Crow. No more literacy tests, no more poll taxes, trying to make sure that people can safely and easily get to the polls. One the big things is section two is trying to make sure that people can get not definitively equal representation in the sense of like proportionality, but that they are equally represented in the instance of an equal opportunity to get out there and vote and be represented. There's a decision city of mobile the bold in 1980 this one says um purpose is required if you're gonna try to fight a racial gerrymandering claim and say my ability to be represented was taken away you're going to to have to show it was on purpose you need intent it's not enough to show disparate impact immediately 1982 congress amends the statute and says you are incorrect about what we meant to do so it says in the section that has been used to combat gerrymandering violation of this subsection is established based on the totality of the circumstances. It is shown that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a class of citizens protected by other subsections, in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. That part's critical because the point is not that they like have to elect Black Hispanic representatives,

0:23:58 Jenessa: They elect whoever is their personal preference. The extent to which members of protected class have been elected to office in the state or political subdivision is one circumstance which may be considered, provided that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

0:24:22 Thomas: So it's saying you can't have a quota of like you have to have this many like black representatives but it is saying it can be used as a factor potentially

0:24:31 Jenessa: Exactly. Either the representatives of their choice or representatives who are members of the a class, that could be evidence. It is a circumstance. And we look at the totality of the circumstances. You're not literally entitled to proportionality. Is a great example where this is on the partisan side of things, but proportionality is like literally not possible on the bipartisan end. Roughly 40 % of Massachusetts will continue to to vote for the Republican candidate for president. That's been pretty stable for a while now. Are no Republican House districts in Massachusetts, and that's not gerrymandering. The Republicans in the state are just spread too evenly. It's you have to draw a district that is contiguous, meaning like can't have a circle over here and a circle over there that aren't even touching and call it the same district. They have to have the same number of people in them. If you follow like that alone, it's not possible to draw a district that has a majority Republicans because they're just too evenly distributed across the state. So 40 % Republican state, zero Republican representatives, and nobody's doing anything nefarious or wrong on purpose. There are counter examples of the exact same thing going on on the the Republican side. And then we have the examples, of course, where it is partisan gerrymandering, where people have very intentionally drawn maps that could have been proportional or closer to proportional, or who cares if it's proportional, maps that could have had more Democrats or more Republicans, and they purposely got rid of them. So is just not a good metric. There are going to be places where proportionality is not possible but um it can be a way to notice that something might be wrong you'll need other factors okay court says you need discriminatory purpose intent not just impact congress immediately amends the statute and said that's not what we meant ever since then the supreme court has weakened the ability to prove this so if you could prove discriminatory intent that's it done you win um always illegal to have discriminatory intent even if you suck at discriminatory intend if you meant to be racist and then gave good proportional representation because you were bad at it you like could still challenge that map I you're trying to go for that disparate impact one of like, I'm not saying anybody did anything on purpose, but this still violates the Voting Rights Act because of that disparite impact. The Supreme Court has been making the test to win that case harder and harder and harder. In particular, they made it a lot harder when they said partisan gerrymandering is OK because partisanship and racial lines are always had a correlation and now they're just even more and more correlated. So it a lot easier for the other side to say, no, no. I wasn't doing a racial gerrymander. I was doing a partisan gerrymandering. Now you're trying to say no, they weren't. It's still possible. It was just hard. With all those challenges, in 2023, Alan V. Milligan, decision written by John Roberts, said, hey, everything, it is still possible to win one of these cases. Alabama needs to draw another black district. You have racially gerrymandered. One years ago john roberts was like on board it seemed I don't know what has happened it's really gotten out of control since then um

0:28:18 Jenessa: Come to today 2026 um on what happened in this case in louisiana uh drew a map a district court found at trial this map violated section two this was a racial gerrymander you need to draw a Black congressional district because the very large uh of their population is Black and you only have one district and it's it's pretty obvious like could have drawn a second black district and you just clearly did not on purpose. So court says that they are like, oh, we got to redraw our map. They start redrawing the map. And then a bunch of white people sue and say, actually, this is racist against me now, this new map that has two black districts out of like 13, God up for oral argument at the supreme court and initially it's on this like very modest kind of typical questioning of like well map does look a little funky and that's obviously like they were trying to preserve draw their districts to like, oh, we got to preserve Mike Johnson, Speaker of the House, can't get rid of his district. We got to make sure he's not just has a district, but he's safe. Tying to draw a second black district without making any of the incumbent Republicans at risk and like just doing their thing. Group suing is like, well, well, they didn't primarily have partisan issues in mind. They primarily had racial issues in mind, and that you can't, and mean, it wasn't good, but nobody thought it was going to be this wild thing until instead of issuing a decision, the Supreme Court ordered re -argument and said, hey, both sides, can you write us a briefing anything on how this interacts with the 14th and 15th amendment and land exploded everybody was like well we know what this means that they're going to try to say this actually violates the constitution and we're really hoping that wouldn't be what would happen but mean for what what other reason were they doing this? Oral argument, you you can go back and listen to that episode. I was saying like Barrett is making this argument and Gorsuch is making that argument and like everybody seems to have a different reason why they don't like what happened and they can't seem to agree. But the one thing they might be able to agree on is what happened. You might recall Students for Fair Admissions v. Harvard, where they racism istrying to fix racism. Is covered under the Civil Rights Act because they're federally funded. The Civil Rights Act is generally thought of as like co -extensive with equal protection. It largely repeats what happens with equal equal protection clause. So though Harvard's a private college, they're federally funded, they are going to get included here. They have to follow the equal production clause, yada yada. Re going to say that because Harvard considered race at all in applications, that violated the Equal Protection Clause. We were sometimes told, oh, but this will only apply to college admissions. And for the life of me, I couldn't figure out why that would be. Like, what possible reason should should I believe that? And sure enough, here we are.

0:31:50 Jenessa: What

0:31:50 Thomas: We're only going to withdraw the football and have you fall on your face when you try to kick it for this time. But for future times, we totally won't.

0:31:59 Jenessa: In mind that Alito says Dobbs totally only applies to abortion when Thomas wrote a concurrence that said it doesn't, it applies to all your privacy rights.

0:32:07 Thomas: We should apply the hell out of this

0:32:11 Jenessa: Yeah, like common. So enough Here we are. Alito is going to say is, well, clearly they took race into account because the judge told them to take race into account. And like, yeah, I mean, I don't disagree. The judge told him to draw a second black district because they racistly didn't do that. Like clearly should have had if they had just been unbiased, they would have had at least two black districts. That's just like way the geography and segregation in the state popular league, they would have had two black districts. Didn't because of racism. Racism so the judge was saying like you to have a second black district correct your racism like do what you would have done if you weren't a jerk like

0:32:33 Thomas: Sorry I didn't follow that say that again yeah it's not saying like go be nicer toward is that what you're saying like it's not like equivalent

0:33:16 Jenessa: Exactly

0:33:16 Thomas: To affirmative action and that it's not saying go give a handout to black people it's like no stop stop doing your racism. Stop taking something from black people. That's a pretty key distinction, right?

0:33:30 Jenessa: Redo your map but like do it as if you were me and not you a jerk oh my god think about what your blue -haired niece in college would do if she was drawing this map like what alita will say is so that means they took race into account when they did it and it's like I mean yeah technically that was in their brain I guess so anytime you have race in mind we have to apply strict scrutiny because otherwise it would violate the equal protection clause and if you apply strict scrutiny here well you're not going to pass. So this was racist to

0:33:37 Thomas: Take off your hood. This is why I keep getting confused because I see the headlines that like the Louisiana maps were struck down. And I was like, wait, isn't that usually like they try to do a racist one and then the court is like, no. So I was confused. So So this is why that is. So they had racist one. Then it got changed into a not racist one and that's what they challenged. And the Supreme Court is like, no, that's right. That's the real racism. Like for like literally not even making a joke. That'S the real racism. Maps, you have to say those are unconstitutional.

0:34:51 Thomas: Those maps that fix the racism problem. It's not even unbelievable. I don't even, yeah. How do you even, how do you even, okay.

0:35:02 Jenessa: Is why I think a lot of the headlines are kind of missing something here, because yes this absolutely guts the voting rights act this makes it like freaking impossible to ever win a racial gerrymandering case I'll explain why it's even hard like it's going to be even harder there's even more problems this guts equal protection this guts the constitution itself it is saying that it is unconstitutional to do a thing with race on your mind if you ever try to correct racism and so doing are thinking about race we have to invoke strict scrutiny which will almost always stop you you from doing what you're you're trying trying to do

0:35:53 Thomas: So many things that are wrong with that. First off, now I wonder if, if the Klan down in Louisiana were to literally just be like, we're being racist. Here's our map. And decision would have happened at the lower courts, right? Where they're like, well, no, don't do that. What would stop the Supreme Court from being like well that's also like if you am I missing something in how the mechanics of this work did it saying it was political I'm guessing right so like go back to the original one they do it saying its political the courts lower courts like strike it down I'm getting guessing sorry I'm bad with this uh the flow of the uh the the procedural flow of it but they

0:36:32 Jenessa: No you got it so far yeah

0:36:33 Thomas: Me the basis they struck Did we maybe glossed over that? I'm not sure. But partisan gerrymandering has been their thing that they're OK with for a long time. Right. But this still got struck down.

0:36:44 Jenessa: So it's very difficult but not impossible to win those especially at a trial court oh

0:36:51 Thomas: OK, it's it's not impossible to still be found to be like a racist gerrymandering. Guess And here's my question. Replace that whatever the lower court thing that the Supreme Court was overruling in this case, replace that with actually they opened the door and they found it was people in Klan hoods and they're like, we're racially doing it. What would have been different about that lower court decision what would have been different about what they had them correct the maps correct the districts and would that change this decision so like so again substitute that and pretend it was just all racially people racially saying I want to racially do this And then the court was like, whoa, whoa. No, you have to actually not do that and allow to just do normal stuff. And I'll have two black districts. Right. Was that what it was?

0:37:34 Thomas: Now, the Supreme Court, how would how would it be different? Because they'd be like, well, you had to take race into account in order. So there. So, yeah, this is what I didn't gather from any of the headlines of the coverage. I don't even understand. Like, I guess the thing I was thinking this was going to be based on just all the past crap with this because, you know, it's happened a lot is they tried to do a super racist map and it was partisan. In, but, and it got struck down initially at the lower courts. Yeah. And then the Supreme Court was like, nah, that's probably fine. That's like what I was braced for. But

0:37:33 Jenessa: Um would not yeah like hmm yeah

0:38:08 Thomas: Then this whole thing, this, of it where it was like well, no, actually the Supreme Court's the one saying the maps are unconstitutional. That I really feel like hasn't quite been covered well because that's so much worse because I really don't know how you would, would how correct any map that no matter how racist and outwardly racist it was how would you correct any math under this logic no

0:38:30 Jenessa: You have to try to somehow Somehow draw it without thinking about race and then be like, oh, look at that. I ended up with two black districts. How wonderful.

0:38:38 Thomas: But but how do you how does a judge tell tell you to do that I guess because that because that's the thing the supreme court's saying or

0:38:42 Jenessa: The judge would have to say, this is a racial gerrymander bad redraw.

0:38:49 Thomas: Empty their minds completely no one think about anything right now it's like the end of ghostbusters one no one thing of race race no one think of a pink elephant or whatever the thing is where it's like it makes you think of it right no one thinks about okay draw a cool map it had nothing to do with race at all but I'm ordering you to draw a super cool map right now in front of me it's

0:38:52 Jenessa: Yeah, they would have to give you. Ordering you to draw a new map. Know you drew a bad racist map while thinking about race. So my new order is to draw anew map without thinking about race. I put no preconditions on what that map will look like at the end.

0:39:11 Thomas: Just silly we're gonna use the the hot or cold system you're gonna start drawing and then we're all gonna make hotter hot cold cold cold cold freezing cold and then we use that to get to maps that are good we're not going to use any race terms that are that are fair for everybody and we never used race

0:39:46 Jenessa: It's going to get so much worse.

0:39:47 Thomas: How does it get worse than that

0:39:49 Jenessa: The new test okay so you might be familiar with we've talked about the jingles test for it's intentional discrimination and you can somehow prove that okay problem solved if you're trying to do this disparate impacts test you have to meet all these jinglez factors well says we're gonna we gotta adapt those in the modern era where partisan gerrymandering is allowed and race and partisanness are so correlated, here's the new jingles test. Of all, it rewrites it to require intentional discrimination. It that Congress rewrote the law to, after Supreme Court said it has to be intentional, Congress rewritten the law that said, no, it does not.

0:40:23 Thomas: But again even if even if I thought that's already what it was like

0:40:37 Jenessa: Was in 1982, they've been making it harder. They've made it nearly impossible, but not completely impossible to pass this disparate impacts test.

0:40:36 Thomas: When sorry oh no it's yeah but I'm talking about sorry the the recent decisions I thought the thing because like they've been ruining this. Yeah. Right. Right, right. Mm

0:40:53 Jenessa: They made the jingles test harder and harder and yada yada. He has now made it so the new jingling test just is intentional discrimination. They're out says it. There is no more disparate impacts, period. You must prove present -day discrimination in the area of voting is happening. That's how you're going to evidence that there's intentional discrimination that happened in the drawing of this map. I Congress amended this law to say it doesn't have to be intentional. Too bad. We've gotten rid of that completely. Wouldn't be enough to show present day discrimination on the basis of race in every other area of law. It has to be happening in the area of voting. That's how you're going to prove to me that is a racially gerrymandered map. Also because partisan gerrymandering is allowed um have to show me uh alternative maps are something that's really important it's not required under the jingles test just kidding now it is you're gonna have to Show Me an alternative map that preserves the current incumbents so really you need to show Me how you could draw a majority black district but all the current Republicans still win? How you would show me that they racially gerrymandered. They could have, they didn't partisan gerrymander, they could have drawn you a majority Black district while still partisan gerymandering, but they didn's.

0:42:05 Thomas: What? Wait, why? Oh, I gotcha.

0:42:29 Jenessa: You can only show alternative maps that don't have a racial gerrymanter, and that makes Democrats win, Well, that's, they just, of course, they partisan gerrymandered to avoid that happening.

0:42:42 Thomas: See. I See. So as a way of eliminating as a logical possibility, you're like, you have to prove the only way they could have done this is that leftover racial gerrymandering part because they could could have achieved the partisan stuff that apparently is fine, which already is insane, by the way.

0:42:58 Jenessa: Insane.

0:42:58 Thomas: But they've already said, we can't do it. We can't just dish that. There's nothing non -justiciable, can't -do -it for gerrymandering, which is insane. Now they're saying, okay, if you can show that other map, that's the only way you can prove that they could have still done the great partisan gerryandering that we so love and hold dear here in the Supreme Court, but they could've done it non -racistly. So

0:43:19 Jenessa: New test. You have to prove intentional discrimination. You have to show me an alternative map where there's a majority black district electing a Republican still, because that means they could have partisan citizen gerrymandered and still given you your majority black district. Well, then what the hell do I want my district for? That was the whole point is I'm not getting represented and I'm not electing the representative of my choice. What, if it was somehow physically possible, that means we don't change who gets elected. What, what are you even talking about.

0:43:55 Thomas: Mind's blown by the logic of this I'm to follow this through so yeah

0:44:01 Jenessa: Have to always, in your alternative maps, they say this whole thing about like, well, nowadays with computers, you could draw all the maps you want. So that's not really proof of anything that you could have drawn a not racist map and then it elected Democrats, of course. Go through the algorithm and try to to find me a majority Black district electing a Republican.

0:44:26 Thomas: So this is crazy I'm trying to think of a comparison because this is this is wow um one thing when they're like hey partisan gerrymandering that's that's it we can't we can'T rule on that essentially because that's what it was wasn't it wasn't even like they're like hey it's super cool it was just like well we canT really say anything thing about that because that's not our job apparently yeah

0:44:32 Jenessa: Yeah. To Alito. Yeah. Right. Here's traditional districting principles. Of course, we have the absolute rules of contiguousness and the number of people, and then there's the the general principles of like respect geography and neighborhoods and populations of interest they went from oh it's just non -justiciable we're just not going to say whether or not partisan gerrymandering is bad we have come full circle to partisan gerymandering is now a traditional districting principle we're going to endorse it and say it's good and and part of the process and of course yeah

0:45:21 Thomas: Well it I'm trying to put maybe a another wrinkle on it which is like one thing if you wanted to say that it's already stupid but you wantedto say partisan gerrymandering is okay now the thing you're saying though with this is not just that it is that if you can at all all possibly read the motives being partisan gerrymandering at all, then it is. And it's not racial and we don't care. But that's no part of that logic. Like, even if you embrace that first logic of we can't, it's non -justiciable, there's nothing that says, okay, and also we're going to just make sure that's what it is every time. Like there's, like why would that be true yeah

0:46:07 Jenessa: There is no reason you have to make that logical leap that is not a to b that is off the charts like makes it more difficult to prove racial gerymandering because they can now openly say out loud what they were afraid to say to us because I thought we'd say it was bad they can say out aloud we weren't doing a racial jerryminder we were doing a partisan gerrymandering And now you guys like fight it out about what really happened. This has now made the bar. We're going to presume it's a partisan gerrymander. No matter how much racial disparity you show, you actually have to prove that while the realm of partisan gerrymandering definitely always happening then there was also a racial gerryander on top of it like we have to subtract out partisan gerryandering every single time in its entirety it's impossible exactly

0:47:02 Thomas: It it doesn't make any sense it even if you want to say just conceptually okay partisan gerrymandering we can't do anything about but we still have all the like this law and the whole purpose like the law and as you went through the amendments and that that kind of constellation of those those things that was designed to give us the tools to stop racial gerrymandering you still then be able to say oh okay well even then if somebody's pretending it's a partisan gerrymander but it's actually a racial gerrymander yeah you'd be able to be like oh that's bullshit it's racial gerrymandering not well if anyone gerryminders at all you to mathematically prove it could only be racial in order to have any chance that doesn't follow there's not I what else in the law works like that? That's insane.

0:47:46 Jenessa: Nothing it's nonsense certainly not something that is your constitutionally guaranteed civil right and if you want to understand how nuts this is okay so the used to be the way we thought of this was racial discrimination if you could show that was happening strict strict scrutiny gets applied, right? He is now saying is that race, any race involvement, strict scrutiny, turning it around, that would mean that on the other hand, well, that was only rational basis. So now that would say the state could very aggressively, openly, intentionally discriminate against people who don't have a disability in order to correct disability discrimination, well, that would only get the rational basis test. And gender, that gets intermediate scrutiny. So I guess if you tried to intentionally, aggressively discriminate against men to try to fix gender discrimination for women, we would apply intermediate scrutiny against that. Because race, this racial discrimination that has been poisoning our country from day one this thing that we have decided is it's on the list as the worst discrimination we have for some reason decided that like gender is in the middle and disability is on the bottom race is the worst one it gets strict scrutiny we're going to protect against racial discrimination as hard as we can with with strict scrutiny, now when you try to correct for that worst discrimination, that correction also gets strict scrutiny. If it was a disability, like, ah, screw it. Rational basis, right?

0:48:00 Thomas: I'm trying. The hell?

0:49:34 Jenessa: Or is it any correction would get strict? Like, it doesn't make sense. You can't do that.

0:49:41 Thomas: That's a good point. Yeah. No.

0:49:44 Jenessa: Taking what was supposed to protect against racial discrimination and turning it on its face and saying, because you get so much protection, you also can't protect yourself.

0:49:56 Thomas: That makes makes no sense.

0:49:58 Jenessa: Nothing. It's nonsense.

0:50:04 Thomas: A big picture thing that I've been trying to understand is how could it be that something that was passed as a law, just broadly speaking, after enough time, because it feels like a lot of the justification I've seen just again, and just like little snippets here and there is idiot Alito saying like, and look, if you look at two of the past five elections, black people have been super great. Which two? The Obama ones.

0:50:26 Jenessa: Woo.

0:50:31 Thomas: Cool. So the furthest away, too. Yeah. So two out of the last five, and then go further back, I guess. It's kind of arbitrary that you're starting there. It feels weird that something that was a law passed by Congress in the 60s or whatever, And I forget if he said it was amended or whatever it was in 1982.

0:50:32 Jenessa: Precisely the last five. Yeah, yeah.

0:50:50 Thomas: Does that have like some sort of time limit that the Supreme Court decides like, well, things are good now because of Obama. So we're done. Like, where does that part come from? Really? So it wasn't like.

0:51:00 Jenessa: Nowhere. Where, I County v. Holder 2013, that was where Roberts said that, basically. There was a part of the Voting Rights Act, Section 5, said that southern states that had a, yeah, yeah. They had a long history of discrimination. When they were going to change their maps, they needed to get preclearance before they did that by the federal government. And the federal department would take a look at it. And roberts was like oh post-racial society we have a black president like don't still need that and the absolute second that decision came down and southern states could just redraw their maps hey guess what they did because the only thing that was stopping them was the pre-clearance like the reality is none of what he said is the real reason. The real reason is he wants to get rid of the Voting Rights Act. It's his personal project. So is their excuse, because it appeals to a colorblind middle America.

0:51:12 Thomas: The consent decree stuff and all that. Yeah

0:51:59 Jenessa: Can't we all just hold hands like I love MLK, except I don't know anything he said. That's what that's for. That's not a legal reasoning at all. All there's nothing that makes laws expire unless you put an expiration date on them

0:52:09 Thomas: That so there's nothing there there's no expiration there's nothing sunsets there's something that like you ongoing test huh it was it in any of the court decisions like early on or something I

0:52:20 Jenessa: Not at all that's yeah not unusual to say like times have changed let's update our understanding of the constitution I mean mean it's unusual for the conservatives but in terms of like literally in the statute no not that I'm aware of there's not any sun setting they are sun setting it like they got rid of section 5 and shelby v holder section 5 preclearance had no time limit

0:52:49 Thomas: Is sunsetting a law, just saying, well, it's about time for this to be done. Not how it's supposed to work.

0:52:56 Jenessa: No congress should look around and make their own independent decision that the law they passed I I understand it's not the same people, they passed it way back when and they think things are better now and times have changed and they update it. By what right? Keeping in mind balance of powers. The Constitution said Congress has the right to pass laws to enforce these amendments. You know what it doesn't say? And the Supreme Court also gets a little say in this and gets some input. Put like at their highest authority when the constitution explicitly says they have a right to do this and still the court just cannot stop sticking their nose in it like thing alito says about what the Equal Protection Clause does, that trigger strict scrutiny if you are talking about race, thinking about race whatever, there are only two compelling interests, remember compelling state interest is an important part for strict scrutiny, that will ever satisfy this standard. He cites to students for fair admissions as like he'll just keep citing to that decision about, you is very hard to pass. Compelling interest, not relevant here, avoiding imminent and serious risks to human safety in prisons, such as a race riot. So the government is still entitled to discriminate on the basis of race in a prison race riot, congratulations everyone. Number two, the only other time you can discriminate on the basis of race, is remediating specific identified instances of past discrimination that violated the Constitution or a statute. Oh, isn't that interesting? Describes what you have to do to pass that test, and every case he cites is something that failed the test.

0:53:29 Thomas: Unreal. Hmm.

0:54:47 Jenessa: He is setting up for us is that you can't pass that text. For Fair Admissions said even trying trying to correct racial discrimination fails the test. He cites one thing after another. We're trying to Correct It failed the test." He gives us not one example of how you could pass it. Do not read this and think that he is saying you could Pass because he doesn't give you an example of how anyone could ever Pass it. It's a lie. Is so much more than voting. This This is every attempt to correct discrimination has to be race blind, gender blind, color blind. It made color blind politics the law.

0:55:32 Thomas: Killing me and what I think people don't understand is, And I didn't understand, I'm still grappling with like make sure we have this right. Not just that, because, again, if you had actual colorblind stuff, I don't agree with it. But like, I think that would be less bad than where we are, because it's it is colorblind, in quotes, to say, don't be a racist. Like that was the original intent of the 90s colorblind understood understanding of racism.

0:55:59 Thomas: Like it wasn't perfect, but it was at least like, well, you got to be colorblind so that you don't say like, hey, black people, you don't get any districts. Like if you could say anything for colorblind stuff, it was AT LEAST against that. Right. I mean, it WAS, that's what it WAS. I was there. That's what people thought colorblind whatever meant.

0:56:01 Jenessa: It was trying.

0:56:15 Thomas: Um, and so for this to twist this logic and be like, oh no, because racism is fine. That's apparently not, that is colorblind. Guess the first thing you did was colorblind because we're saying it was, we're saying it wasn't. It was partisan, just declaring it no matter what then.

0:56:11 Jenessa: Yeah. Mm -hmm. If you have any other explanation for your behavior, how you fix it while being color blind? No it was racist to begin with to be clear

0:56:33 Thomas: Yeah. And then if you want to fix that, not, you'd have to be racist to fix it.

0:56:42 Thomas: Yeah. So the key part is it was not colorblind to begin with, to just to be racially gerrymandering. Yeah, that's the key point. And so it's that it's sort of they have to do both things. They have to they had to find a way to make racial gerryandering not racial and then also say any attempt to fix anything has to be colorblind. And that the one two punch that just allows whatever.

0:57:08 Jenessa: And that reasoning to do this in students for fair admissions and here I don't see how any other area of law is protected from this reasoning it obviously applies everywhere no are you going to ever do dei or affirmative affirmative action or programs for racial or girls to do better in, you know, to get ahead in some area where they're underrepresented. How are you ever going to do that in a race blind, gender blind, whatever blind way? You can't. It's the definition of how you do it. Banning partisan gerrymandering is not going to fix this. Banning partisan gerrymandering would be great. I hope we do it. What this means is when your nonpartisan district drawing committee sits down to draw the map and they try to draw a district around a community of interest, they can't have race in their head. They cannot look at Little Italy or Chinatown or K-Town and say, well, that's obviously a group of people who have shared interests and a relationship to one another and familiarity and things that they care about that outsiders can't understand and that's okay and they should be represented. They're not going to be allowed to do that. They can draw a district for farmers and business people, but they can't draw a District for Chinatown anymore. More it

0:58:36 Thomas: Guess it's just time to redefine everything in nonracial terms. Well, that's actually not Chinese people. It's Chinatown enthusiasts. That's not racial. It's just a hobby, I guess. I don't know. This is just ridiculous. Well, we're out of time. Yeah. Is there anything else to I mean, I know there's a lot else, but anything else to leave listeners with?

0:58:46 Jenessa: Is it's total perversion pack the court there's no fixing it

0:59:07 Thomas: The court. We're leaving. No, I mean pack the actually pack pack up your courts, everyone. Let's get out of here. No. Yeah it's the only way it's know how it's going to happen, but it's the only to fix stuff. So we got to get there somehow short mean I mean, I guess if you want to say getting to the point where we have a five Supreme Court justice majority again without packing, I guess. I don't know how that's going to happen. You mean impeaching, I guess.

0:59:30 Jenessa: I mean is interpreting the constitution it is setting a maximum ability for what you can do in congress in your state legislature like it is telling us you can't fix it with a bill you're not allowed to fix this with a bill in your state or federal like the only fix is the court yeah

0:59:52 Thomas: Curious, then, wouldn't all maps everywhere in every state be subject to like a new challenge as they're to they're not colorblind?

1:00:01 Jenessa: That district that had to be drawn in alabama because of alan v milligan in 2023 that our supreme court said you have to draw a new black district they are petitioning to get rid of it because of this decision louisiana right now in the middle of their primary has already started they are undoing their primary and redrawing the map to get rid of this district the entire south is going to redraw oh

1:00:26 Thomas: That's the whole thing we didn't even get to talk about with the with the Justice Jackson and that kind of battle. I guess maybe we don't have time to get into that unless it's super fast. I don't. OK, so what happened with that? We got the we got the news that they're like also shortcutting the normal process to how fast this would go in effect or something.

1:00:31 Jenessa: It's pretty quick um yeah for some reason uh to me the supreme court has like a jurisdiction over a case for like an extra 30 days after they decide it that's just like always and Louisiana immediately petitioned to say release your jurisdiction over this call the case over so that we can redraw our map right now or we don't redraw it right now the primary will happen with the current map that you just said is racist and unconstitutional and like listen you know what they're not wrong why should you make them do a an election with With a racist unconstitutional map. That's what I'd be saying if I thought the court was right. And Jackson's like, hey, here's This is presenting a whole host of other arguments and problems we should hear about. Like, I don't know, the fact that they already mailed ballots to overseas and military voters for this primary, like candidates have already declared and started spending campaign money. Like not as simple as just go ahead and redraw your map and they did yeah they're just doing it anyway so in descent says that but they have released it so louisiana is going to redraw their map and cancel their primary and and try to rush rush a late like do a later primary than usual and redo everything so they can get rid of this district in the in the 2026 election not like some way in the future like now every state in the south is going to do this florida already redistricted and saw reporting that desantis said don't worry about the voting rights act when you draw this like like, Kalei's going to come out and we're going to be fine.

1:02:29 Thomas: Boy well in happy news

1:02:37 Jenessa: Yeah, okay, so some positive news. I got engaged, so that's

1:02:41 Thomas: Congratulations I got engaged that's nice at least good things that was like when trump got elected the first time and like you know we were having phoebe and doing this like stuff that was a lot of fun man this is all awesome but not great going on but our personal news was great and that's um But, you know, that's what we have, everybody.

1:02:48 Jenessa: Thanks. Yeah? Oh, yeah. Yeah... Life continues.

1:03:05 Thomas: Yeah.

1:03:06 Jenessa: Use.

1:03:07 Thomas: Congratulations. A heartfelt congratulations. Do you are any plans ironed out? Do you have any anything to any dates, any anything?

1:03:08 Jenessa: Thanks. No, we're starting to figure it out,

1:03:16 Thomas: There you go. All

1:03:16 Jenessa: But probably not for a while. So, you know, got time.

1:03:21 Thomas: Right. Well, we'll we'll keep an eye on that developing story. But congrats once again. And thanks for listening, everybody, this sucks. We have this we need political change. We got to do it. We what to say. It's just it's illegitimate. The court is illegitmate. This is not real. Is stupid. Just got to get rid of them.

1:03:26 Jenessa: Thanks, yeah, yeah. Kagan's dissent. It might make you feel better, maybe.

1:03:40 Thomas: Maybe. I do not know. They do not go. Nobody goes hard enough.

1:03:43 Jenessa: Oh, boy, she was mean, let me tell you. Well, she's mean, but she's pretty mean, so

1:03:46 Thomas: Well, maybe I will take a look at that. Yeah, court me. We need to get into regular mean.

1:03:51 Jenessa: Ya.

1:03:51 Thomas: Get into, yeah. All right. Well thanks so much, Jenessa. Thanks for listening, everybody, and supporting, and we will see you next time.

1:04:02 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments at gmail .com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.