Latest / rationally BASED / Episode 40 | Missouri’s Map Fight and the Gerrymandering Arms Race

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Episode 40 | Missouri’s Map Fight and the Gerrymandering Arms Race · rationally BASED

• 0:00
  SPEAKER_02: Welcome back to Rationally Based, a podcast about law and politics on the edge.
• 0:04
  SPEAKER_02: I'm your host, Elon Warman, a law professor at the University of Minnesota Law School.
• 0:08
  SPEAKER_00: I'm Catherine Johnson with Center of the American Experiment.
• 0:11
  SPEAKER_01: And I'm Josh Kleinfeld, Rouse Professor of Law at Scalia Law School.
• 0:14
  SPEAKER_01: Katherine, what's on deck?
• 0:16
  SPEAKER_00: Well, midterms are just around the corner, and it looks like Democrats have a chance at taking both the House and the Senate, and the courts have been very busy.
• 0:25
  SPEAKER_00: We'll first talk about gerrymandering in the courts.
• 0:28
  SPEAKER_00: Should the courts be refereeing election maps, or does that give too much power to potentially crazy judges who don't have to answer to the people at all?
• 0:37
  SPEAKER_00: Second, the Supreme Court just settled a crazy fight over Missouri's election maps.
• 0:42
  SPEAKER_00: Republicans in the Missouri legislature were trying to get a new map in place.
• 0:46
  SPEAKER_00: But after a back and forth legal battle, Missouri will be stuck with an old map, more favorable to the Democrats.
• 0:52
  SPEAKER_00: So we will get you up to speed on that one.
• 0:54
  SPEAKER_00: And third, we all know I love the Shadow Docket.
• 0:58
  SPEAKER_00: Well, this time they ruled against Republicans, so I'm rethinking my position.
• 1:03
  SPEAKER_02: Let's dive in.
• 1:18
  SPEAKER_02: All right, Josh, Catherine, where should we start?
• 1:20
  SPEAKER_00: Well, a quick celebration.
• 1:22
  SPEAKER_00: This is our 40th episode, and we just wanted to take a moment to thank everyone who has listened to the Rationally Based Podcast.
• 1:30
  SPEAKER_00: We here have had a fantastic time recording these episodes for you all.
• 1:34
  SPEAKER_00: And we are just so thankful that anyone takes time out of their day to uh listen to the podcast, subscribe to our Substack, subscribe on Apple Podcasts, Spotify, all the things you do to help support the show.
• 1:45
  SPEAKER_00: We seriously appreciate it.
• 1:47
  SPEAKER_02: Yeah, thank you to all of our listeners.
• 1:49
  SPEAKER_02: And just I'm so glad that uh Catherine and I linked up at first uh to do this.
• 1:54
  SPEAKER_02: And uh Josh was able to join after the administration.
• 1:57
  SPEAKER_02: Josh and I together had cooked up this idea of doing a podcast.
• 2:01
  SPEAKER_02: Uh, we decided that uh there was kind of a need for like a genuinely conservative, a genuinely right of center podcast.
• 2:08
  SPEAKER_02: Um those uh other ones that are on offer, you know, either are a little too squishy or they're have like sort of narrower focuses.
• 2:16
  SPEAKER_02: But we love all of our competitor podcasts, but we thought that there was definitely a need uh for this.
• 2:21
  SPEAKER_02: And so uh, Josh, would you agree that I uh described uh described it pretty well?
• 2:25
  SPEAKER_01: Why did you want to do this podcast?
• 2:27
  SPEAKER_01: I mean, that that's where it started was our conversations before I was in the administration.
• 2:32
  SPEAKER_01: Um, it really for me it started from my sense of what this moment in the country's political history calls for.
• 2:39
  SPEAKER_01: The way I thought of it, um, and I think you broadly will agree with this, Elon, though maybe not in all the particulars, uh the way I think of it is the new right is a populist movement.
• 2:51
  SPEAKER_01: Um, and that's not by chance.
• 2:53
  SPEAKER_01: The central problem of modern politics is that nominally democratic countries are functionally under elite control, including this one.
• 3:00
  SPEAKER_01: And that gives us this leftist tilt throughout the Western world.
• 3:04
  SPEAKER_01: It's a side effect of elite control.
• 3:06
  SPEAKER_01: And the response just has to be a conservative populist movement.
• 3:12
  SPEAKER_01: But there's a structural problem because it's almost in the nature of an anti-elite movement that the bulk of the chattering class will be on the other side.
• 3:19
  SPEAKER_01: The bulk of the sort of intellectuals, the university professors, that kind of thing will be on the other side.
• 3:24
  SPEAKER_01: And the political power of that group of people is exactly the thing this populist movement is criticizing.
• 3:30
  SPEAKER_01: At the same time, without intellectuals, the movement will run aground because politics needs more than will.
• 3:36
  SPEAKER_01: It needs refined political and legal ideas.
• 3:39
  SPEAKER_01: Uh, and if if you don't have them, you get stuck at some point.
• 3:43
  SPEAKER_01: You get stuck in the courts, you get stuck in public um discussion.
• 3:47
  SPEAKER_01: I saw this when I was in the administration, both when we succeeded and failed.
• 3:51
  SPEAKER_01: You need sophisticated intellectual ideas to go with the um with the will.
• 3:56
  SPEAKER_01: And so the way I thought of it from the jump was that's the goal, fill the gap.
• 4:02
  SPEAKER_01: Can we present new right legal and political ideas at a maximum level of intellectual sophistication, which is why the name is so perfect?
• 4:11
  SPEAKER_01: Rationally based, right?
• 4:12
  SPEAKER_01: We are both those things.
• 4:14
  SPEAKER_01: We're trying to put them together.
• 4:15
  SPEAKER_02: Basically, we're trying to give the rational basis of baseness.
• 4:19
  SPEAKER_02: So don't forget also that it is a play on the rational basis test to our listener.
• 4:23
  SPEAKER_02: But Josh, you're perfect, you know, of course, for this because I joke and I give you a hard time that you once described yourself as a philosopher statesman, but you kind of are.
• 4:32
  SPEAKER_02: So I'm not gonna, you know, I'm not gonna ride you too hard about that.
• 4:35
  SPEAKER_02: Um, but you were in the administration, so I had to link up uh with uh Catherine first, who was absolutely wonderful.
• 4:41
  SPEAKER_02: I did the Center of the American Experiment podcast with her, and the Center of the American Experiment has been a really, really terrific um partner um in this.
• 4:48
  SPEAKER_02: Uh, and I'm just glad that all three of us uh are here together.
• 4:52
  SPEAKER_02: So uh can we say one more time?
• 4:54
  SPEAKER_02: Catherine already said it, but to our listeners, thank you so much for that early support.
• 4:58
  SPEAKER_02: Please like and subscribe.
• 5:00
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• 5:03
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• 5:08
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• 5:11
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• 5:16
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• 5:17
  SPEAKER_02: Rationallybased.substack.com.
• 5:20
  SPEAKER_02: Josh, you agree people should subscribe and like and everything.
• 5:23
  SPEAKER_01: Yes, I want to join in the thanks to our listeners.
• 5:25
  SPEAKER_01: There's a lot of you.
• 5:26
  SPEAKER_01: We're so grateful to you.
• 5:28
  SPEAKER_01: Um, and while thanking you, it seems inappropriate to ask you to do something.
• 5:32
  SPEAKER_01: But if you haven't done it yet, please hit that like and subscribe button because that's what drives traffic to the site.
• 5:38
  SPEAKER_01: That's what brings us to the attention of new listeners, that's what helps us grow.
• 5:42
  SPEAKER_01: All right.
• 5:43
  SPEAKER_01: So let's actually dive in.
• 5:45
  SPEAKER_02: How about that?
• 5:45
  SPEAKER_02: Okay.
• 5:46
  SPEAKER_00: And it's gerrymandering, which is a topic I find so fascinating.
• 5:51
  SPEAKER_02: Actually, uh actually, Catherine, I'm sorry.
• 5:53
  SPEAKER_02: We didn't really talk about this in advance, but really, it's gerrymandering to our audience because it was after Elbridge Gary, and I am a stickler for textualism and language and etymology.
• 6:04
  SPEAKER_02: And so, can we call it gerrymandering or are people gonna look at us funny?
• 6:08
  SPEAKER_02: All right, they're gonna look at us funny.
• 6:10
  SPEAKER_02: It's it's gerrymandering.
• 6:11
  SPEAKER_01: Oh, language has a life of its own.
• 6:13
  SPEAKER_02: To our listeners, it's gerrymandering, but as of right now, we're gonna say gerrymandering for purposes of this episode.
• 6:19
  SPEAKER_02: Okay, Catherine, continue.
• 6:20
  SPEAKER_00: For purposes of not sounding like losers.
• 6:22
  SPEAKER_00: Okay, so we've covered this issue before.
• 6:25
  SPEAKER_00: It was in episode 17.
• 6:26
  SPEAKER_00: And the question was basically whether an intervening general election had occurred, if you remember this all in Virginia.
• 6:33
  SPEAKER_00: Uh, Virginia's constitution requires that a constitutional amendment be approved by one session of the legislature and then by another session after a general election had taken place.
• 6:43
  SPEAKER_00: Basically, so you can like vote based on how the uh candidates feel about the constitutional amendment.
• 6:51
  SPEAKER_00: But in Virginia, the Democrats voted on their partisan map well into the state's general election where there's lots of early voting, and 1.3 million people had already voted.
• 7:01
  SPEAKER_00: And so the state Supreme Court held that they would have to wait until the next general election, which would have been in 2027, I think.
• 7:10
  SPEAKER_00: So the Democrat effort basically failed.
• 7:13
  SPEAKER_00: Josh, you live in Virginia.
• 7:14
  SPEAKER_00: Do you have anything else to say on that?
• 7:16
  SPEAKER_00: Did I cover it correctly?
• 7:17
  SPEAKER_01: Yeah, yeah, you did.
• 7:19
  SPEAKER_01: Um basically just to give a little more kind of texture to it, after the Democrats won both houses and the governorship, they immediately tried to redistrict the state.
• 7:28
  SPEAKER_01: Uh the Virginia state constitution banned mid-cycle redistricting.
• 7:32
  SPEAKER_01: So the Democrats put a constitutional amendment on the ballot.
• 7:36
  SPEAKER_01: And the referendum on it, the wording to the Virginia voters was absurdly biased.
• 7:42
  SPEAKER_01: Here's what it said.
• 7:43
  SPEAKER_01: Should the Constitution of Virginia be amended to allow the General Assembly to temporarily adopt new congressional districts to restore fairness in the upcoming elections while ensuring Virginia's standard redistricting process resumes for all future redistricting after the 2030 census?
• 7:59
  SPEAKER_01: In other words, it's just a temporary measure to ensure fairness, right?
• 8:03
  SPEAKER_01: I just want to that is that is absurdly biased.
• 8:07
  SPEAKER_01: The map they put forth was even more biased.
• 8:10
  SPEAKER_01: It was designed to make sure Democrats win every single state uh seat possible.
• 8:14
  SPEAKER_01: So Virginia as a population is 51.4% Democrat.
• 8:20
  SPEAKER_01: They have a 1.4% advantage over Republicans and independents.
• 8:24
  SPEAKER_01: The map would have taken their seats from six to five, six Democrat, five Republican, to 10 to 1, 10 Democrat, one Republican.
• 8:33
  SPEAKER_01: And I just want to pause over that.
• 8:35
  SPEAKER_01: How screwed up does democracy have to be when Parti A has 51% of the population, but 10 out of 11 seats based on manipulating the rules of the game?
• 8:45
  SPEAKER_01: It's like, how is this even endurable?
• 8:47
  SPEAKER_01: It's not normal politics, it's an attack on the system itself.
• 8:51
  SPEAKER_00: And the And Josh, was this under Abigail Spanberger, who like ran into moderate?
• 8:56
  SPEAKER_01: And she said she'd never redistrict this way.
• 8:58
  SPEAKER_01: She said so.
• 8:59
  SPEAKER_01: But lo and behold, she was doing it the first year she got elected.
• 9:03
  SPEAKER_01: I'm so shocked.
• 9:04
  SPEAKER_01: I am shocked, shocked that gambling is taking place in this establishment, if you never caught the blogger line.
• 9:10
  SPEAKER_01: Anyway, the trick on the map was so Northern Virginia, where I live, is basically a for those who are not DCers, which I assume is most of our audience, Northern Virginia is basically functionally a suburb of DC.
• 9:23
  SPEAKER_01: It's where the civil service that works in DC, by and large, lives, right?
• 9:27
  SPEAKER_01: So you have all of these um progressive civil servants.
• 9:31
  SPEAKER_01: It's the like admit backbone of the administrative states.
• 9:34
  SPEAKER_01: And so what the map did was fold almost the entire state into one big neighborhood in Northern Virginia, Arlington, which functionally erased red rural areas and purple excerbs.
• 9:47
  SPEAKER_01: So they just got no political representation.
• 9:50
  SPEAKER_01: And you'd think that kind of shenanigans would just be illegal.
• 9:53
  SPEAKER_01: It ought to be illegal.
• 9:54
  SPEAKER_01: I specifically think it ought to be unconstitutional, though I don't know if uh Ilan agrees with that.
• 9:59
  SPEAKER_01: Um, because just making it illegal as a matter of statute, which it is to say ordinary law wouldn't work, because when the either party got the legislature, they could just change the law if it was just in statute.
• 10:10
  SPEAKER_01: So you'd think a court would say, this map is absurd.
• 10:13
  SPEAKER_01: It violates basic principles of democratic decency, didn't happen.
• 10:17
  SPEAKER_01: The state Supreme Court did overturn it, but on a technicality.
• 10:20
  SPEAKER_01: And it's what Catherine described.
• 10:22
  SPEAKER_01: The Virginia Constitution requires four steps.
• 10:25
  SPEAKER_01: Uh, the legislature votes on the redistricting plan, a full election takes place, the new legislature votes on it again, the people vote for it in a referendum.
• 10:33
  SPEAKER_01: And in this case, the first legislative uh vote occurred on October 31, 2025, in the middle of early voting in a general assembly, and the court held that a full election hadn't taken place.
• 10:43
  SPEAKER_01: So, right result, but on a technicality instead of on the principle.
• 10:47
  SPEAKER_02: By the way, one small intervention before we go on.
• 10:50
  SPEAKER_02: The point you made about Arlington, about how it's basically just the civil service central, it's where all the civil servants live, is precisely why Arlington never should have been retroceded back to Virginia.
• 11:01
  SPEAKER_02: It always should have been the District of Columbia, and it's why the District of Columbia should not have representation and does not have representation in Congress.
• 11:08
  SPEAKER_02: Because why would you possibly give unique political representation to the people running your running the government?
• 11:14
  SPEAKER_02: I mean, that's crazy.
• 11:15
  SPEAKER_02: It's like, well, anyway, that's not uh a topic for today, but simply illustrates the point.
• 11:20
  SPEAKER_02: All right, Catherine, what were you gonna say?
• 11:22
  SPEAKER_02: Sorry.
• 11:22
  SPEAKER_00: Well, I just wanted to point out that, you know, people will say that Texas did start this kind of arms race.
• 11:28
  SPEAKER_00: Uh the legislature in Texas approved a map that took them from 25 Republican seats to something like 28 or 30, and from 13 Democrat seats to something that could turn out as low as like eight.
• 11:40
  SPEAKER_00: Um, and California then responded with literally every Democrat basically voting to change the constitution to move their map, which was already insanely gerrymandered or gerrymandered or whatever to all heck.
• 11:53
  SPEAKER_00: It was like 39 D9 Republican, and now it's potentially 48 Democrats to four Republican seats.
• 12:01
  SPEAKER_00: So, yeah, in some ways, Texas kind of started it.
• 12:04
  SPEAKER_00: On the other hand, Texas was making its map slightly more like what California's already was, and then California made its map even worse.
• 12:13
  SPEAKER_00: So, you know, you can look at it either way.
• 12:16
  SPEAKER_00: Um, and for comparison, actually, I found this super interesting.
• 12:19
  SPEAKER_00: Both states went about 60-40 in the 2024 election in opposite directions, obviously, for Harris and Trump.
• 12:27
  SPEAKER_00: But despite the same sort of 60-40 split, California's map was previously 83% Democrat and now is a whopping 92% Democrat.
• 12:38
  SPEAKER_00: Whereas Texas at least still has some kind of semblance of plausibility, 78% Republican if everything goes their way.
• 12:47
  SPEAKER_02: So basically, just so our listeners are understanding, like these are both 60-40 states.
• 12:53
  SPEAKER_02: And Texas basically originally had a map that was like a little gerrymandered in their favor, like 65-35.
• 13:00
  SPEAKER_02: Like, okay, like you get a little something for being in the majority.
• 13:03
  SPEAKER_02: And then they gerrymandered it a little more to be closer to like 70 to 30, maybe a little 75, 25, depending on how it turns out.
• 13:11
  SPEAKER_02: California's map was already 8317, and they just made it 90 worse, right?
• 13:18
  SPEAKER_02: 90, what did you say?
• 13:20
  SPEAKER_02: Like 90% favorable in a state.
• 13:23
  SPEAKER_02: 92.
• 13:23
  SPEAKER_02: 92% favorable.
• 13:25
  SPEAKER_02: They get 92% of the political power, even though it's a same thing in Virginia, right, Josh?
• 13:29
  SPEAKER_02: Virginia is a 50-50 state, basically.
• 13:31
  SPEAKER_01: And they wanted to do 51.5 versus 40, what would that be?
• 13:37
  SPEAKER_01: 48.5.
• 13:39
  SPEAKER_02: 48.5.
• 13:40
  SPEAKER_02: And they make it 10 to 1.
• 13:42
  SPEAKER_02: Like, so even if Texas started this, even if Texas started this, actually, Texas was already just trying to do a little bit better what California already does and what New Hampshire already does.
• 13:53
  SPEAKER_02: And I think the, you know, the background of it was why are Democrats so good at playing this political gerrymandering game, which might go into something I know Josh wants to uh will have a lot of thoughts about.
• 14:04
  SPEAKER_02: But anyway, so like I don't, I agree with Catherine that the framing that Texas started in is kind of ridiculous.
• 14:10
  SPEAKER_02: And but uh anyway, so that's where we are.
• 14:12
  SPEAKER_02: Okay, we should talk about gerrymandering as a legal matter.
• 14:15
  SPEAKER_02: So I know we want to talk about the merits.
• 14:17
  SPEAKER_02: Is there a constitutional claim?
• 14:19
  SPEAKER_02: Is this what's called the political question doctrine?
• 14:21
  SPEAKER_02: I think Josh and I, based on our conversations before today's episode, disagree actually on the political question doctrine.
• 14:28
  SPEAKER_02: So, Josh, do you want to set up the political question doctrine as you understand it?
• 14:31
  SPEAKER_02: And what it has to do with gerrymandering?
• 14:32
  SPEAKER_02: Obviously, the court has said it's a political question doctrine, political gerrymandering.
• 14:37
  SPEAKER_02: So you want to give your big picture thoughts and explain this to our listeners, and then I'll tell everyone why I disagree with you.
• 14:42
  SPEAKER_01: I mean, all of this stuff as a populist who really believes in um, you know, we the people having control over our public life, uh, all of this stuff just grosses me out.
• 14:53
  SPEAKER_01: I'm not naive.
• 14:54
  SPEAKER_01: I know what the game is, and you gotta play the game with the hands you're dealt, but or whatever that metaphor is, but um it it's all so awful.
• 15:02
  SPEAKER_01: Um just for the sake of the a quick doctrinal summary, political question doctrine is a doctrine uh the Supreme Court invokes when it says that um uh the nature of a certain question being presented to it is not uh resolvable by ordinary legal means.
• 15:19
  SPEAKER_01: It's a question that should belong to the political branches.
• 15:22
  SPEAKER_01: And so they say we are essentially, in a sense, rejecting this case or we're resolving it with a status quo, because this is a political question that we cannot resolve as a court.
• 15:34
  SPEAKER_01: Um, and they've called partisan gerrymandering a political question.
• 15:38
  SPEAKER_01: I wish they had never done so.
• 15:40
  SPEAKER_01: I wish this whole line of cases had gone differently.
• 15:43
  SPEAKER_01: Because if there's anything the court should police, it's partisan gerrymandering.
• 15:47
  SPEAKER_01: And I should explain that because as my co-hosts know, as many listeners know, I am generally a critic of judicial power, and here I'm calling for judicial intervention.
• 15:56
  SPEAKER_01: But so let me kind of clarify the big picture thinking here.
• 15:59
  SPEAKER_01: What I object to is judges taking over contested value judgments in our politics and in our society.
• 16:06
  SPEAKER_01: You know, is abortion allowed?
• 16:08
  SPEAKER_01: Where are we on gay rights?
• 16:09
  SPEAKER_01: Where are we on healthcare?
• 16:11
  SPEAKER_01: Those are things we as a Democratic Republic with representatives ought to be resolving through the political process.
• 16:17
  SPEAKER_01: And the fact that on all of those issues I just named, the real answer, like abortion, gay rights, healthcare, it's like we are where at whatever SCODA says, the Supreme Court tells us where we are.
• 16:29
  SPEAKER_01: And that's a House of Lords situation where this court has ultimate say on everything in countries' politics, and nothing's ever really decided until the Supreme Court says so.
• 16:39
  SPEAKER_01: That said, I do think the Supreme Court, all the courts, judicial review have two proper functions.
• 16:45
  SPEAKER_01: One of them is to defend the conclusions our country reached democratically over the course of its history.
• 16:51
  SPEAKER_01: So, like, we tried chattel slavery, we discovered it was evil incarnate, we banned it with the 13th Amendment.
• 16:58
  SPEAKER_01: The courts can enforce that.
• 17:00
  SPEAKER_01: Just don't expand those rights to give the courts effective control of contemporary politics.
• 17:06
  SPEAKER_01: So I have a friend, actually, a colleague, who thinks that the 13th Amendment banning slavery also means no abortion, because if you prohibit abortion, uh also means a right to abortion, because if you prohibit abortion, you're effectively enslaving women.
• 17:20
  SPEAKER_01: Okay, I think that's crazy.
• 17:22
  SPEAKER_01: That's the kind of expansive reading of the Constitution I object to.
• 17:25
  SPEAKER_02: For those, for those nine months?
• 17:27
  SPEAKER_02: For those nine months, just so we're that's not a good thing.
• 17:29
  SPEAKER_02: Yeah, they're temporarily enslaved because they can't control their body is his theory.
• 17:33
  SPEAKER_01: Interesting.
• 17:34
  SPEAKER_01: They're doing some labor by producing the baby for something.
• 17:37
  SPEAKER_01: Fascinating.
• 17:38
  SPEAKER_01: Okay, not interesting.
• 17:39
  SPEAKER_01: It's not fascinating, it's bizarre and bananas and to be rejected and laughed at.
• 17:44
  SPEAKER_01: You know, unless an issue lands right in the center of a constitutional guarantee, leave it to the voters.
• 17:49
  SPEAKER_01: But the other, the second component of legitimate judicial review is to protect the machinery of democratic politics.
• 17:57
  SPEAKER_01: So incumbents in uh and in democracy as everywhere have a standing incentive to mess with the democratic system to lock in their power after winning, right?
• 18:06
  SPEAKER_01: So at the extreme, it's like, I won the election, let's cancel the next election, let's disband the other side's party, let's imprison the opposition leaders, which we got kind of close to.
• 18:14
  SPEAKER_01: Let's limit the freedom of speech to silence critics, which we also got kind of close to.
• 18:19
  SPEAKER_01: Partisan gerrymandering is just a version of this.
• 18:22
  SPEAKER_01: It's not as obvious or extreme as like canceling an election, but it distorts the vote to accomplish the same thing.
• 18:30
  SPEAKER_01: It doesn't cancel the election, it doesn't quite rig it, but it kind of sort of rings it, rigs it.
• 18:36
  SPEAKER_01: So in those kinds of situations, the court's role is to be an umpire, to keep the channels of democracy open.
• 18:43
  SPEAKER_01: And on that view, partisan gerrymandering is case number one for the courts to say no, for the courts to intervene.
• 18:49
  SPEAKER_01: So for people who are, you know, studying law professionally, what I'm invoking here is John Hart Ely's theory in democracy and distrust, which I think is one of the great works in the history of American law.
• 19:00
  SPEAKER_01: So that's the ideal.
• 19:02
  SPEAKER_01: The reality is the ship sailed long ago, and now we have to play by the same rules as everyone else.
• 19:07
  SPEAKER_01: I wish the rules were otherwise, but the reality is judges invade contested value judgments on constitutional grounds all the time.
• 19:15
  SPEAKER_01: You've heard us talk about it in the last 40 episodes, where, you know, there are constitutional arguments so convoluted, it takes 20 minutes to explain them.
• 19:23
  SPEAKER_01: And then the court rules on them and takes an issue over.
• 19:26
  SPEAKER_01: And then finally, there's an urgent issue of the democratic process where we as a country really need the courts to help.
• 19:32
  SPEAKER_01: And they say, political question, we're disappearing now.
• 19:35
  SPEAKER_01: And it just really exposes the truth about uh judicial review, which is that it is it is anti-Elian.
• 19:42
  SPEAKER_01: The court is not doing what John Hart Ely said.
• 19:44
  SPEAKER_01: It's a House of Lords.
• 19:46
  SPEAKER_02: So just so our listeners understand, uh, John Hart Ely, former Dean of Stanford Law School, retired to Miami.
• 19:53
  SPEAKER_02: Sounds like a great uh way to uh retire, uh basically to go scuba diving or whatever.
• 19:58
  SPEAKER_02: Um, but uh he had this theory, this theory which progressives also liked.
• 20:03
  SPEAKER_02: And so I kind of want to just set it up, Josh, uh, that you say you like John Hart Ealy, one of the most influential books in the 20th century, one of the most influential books on constitutional theory.
• 20:15
  SPEAKER_02: Progressives also like John Hart Ealy.
• 20:17
  SPEAKER_02: And let me suggest uh the reason why is John Hart Ely seems to give support to what's called Caroline Products Footnote 4.
• 20:24
  SPEAKER_02: This footnote in the case in which um the Supreme Court in the New Deal basically explain what the proper role of judicial review is.
• 20:31
  SPEAKER_02: And in one respect, they agree with everything Josh said, which really seizes on one part of the Ely theory, which is you can enhance representation, you can enforce uh the democratic process itself, right?
• 20:43
  SPEAKER_02: You should clear the channels of political change, I think is how he described it, or something like that.
• 20:47
  SPEAKER_02: You should make sure that democracy is actually functioning.
• 20:50
  SPEAKER_02: But then he had this other, or the Caroline products went before, had this other piece of that, which I think Ely seems to have uh agreed with, which is well, if you're a discriminated group, if you're a disfavored group, uh if you don't have enough political power, uh then the courts should enforce your rights, including your substantive rights, because you don't have the appropriate amount of power in the political process, because the political process can't actually help you.
• 21:14
  SPEAKER_02: So it's actually this alien theory that also allows for things like, well, you know, uh gay Americans don't have sufficient political power, therefore we need to protect their rights by making it unconstitutional to say you can't hire someone because of their sexual orientation or something like that.
• 21:31
  SPEAKER_02: You are not adopting that piece of it, right?
• 21:34
  SPEAKER_02: You're just adopting sort of the core of the John Hart Ely view uh that courts have a legitimate role in enforcing democratic processes because your whole point is as long as the democratic process is functioning, courts should then stay out of those moral decision making.
• 21:48
  SPEAKER_02: Do I have do I have that all correct?
• 21:49
  SPEAKER_02: Do you think that's a good thing?
• 21:50
  SPEAKER_01: You you have it totally right.
• 21:51
  SPEAKER_01: You know, podcast, I'm not doing like a deep dive review of John Hart Ely, but you're right.
• 21:56
  SPEAKER_01: I I do have some problems with the other part of his theory that has to do.
• 22:00
  SPEAKER_01: With uh giving the courts kind of a free hand to do potentially extreme things in defense of minority rights and based on a false premise, because it is not the case that uh the various minorities in American politics, like um uh like like LGBTQ plus whatever uh uh or black Americans or something like that have no political power.
• 22:22
  SPEAKER_01: Actually, all of the political science shows that these groups, you know, discrete and insular minorities often have outsized political power because they function so effectively as special interest groups.
• 22:33
  SPEAKER_01: So, you know, I don't agree with everything in Ely, but I do agree with that core idea of clearing the channels of the democratic process.
• 22:40
  SPEAKER_01: And then the other part of my theory, which is kind of a mashup of Ackerman and Rubinfeld and a few other people, where what we're doing is preserving the democratic achievements of the past.
• 22:51
  SPEAKER_01: I would also invoke McGuinness for that.
• 22:53
  SPEAKER_01: We're getting in the weeds of scholarship here.
• 22:55
  SPEAKER_01: Let's not do it.
• 22:56
  SPEAKER_00: Well, I have a practical question, if you don't mind, Josh.
• 22:59
  SPEAKER_00: Um, I was totally with you on um you called judges sort of like umpires.
• 23:05
  SPEAKER_00: They're there to protect the machinery of democratic politics, is what you said, right?
• 23:09
  SPEAKER_00: And in a vacuum.
• 23:10
  SPEAKER_01: As an ideal, not in a reality.
• 23:14
  SPEAKER_00: Oh, okay.
• 23:15
  SPEAKER_00: That's my question.
• 23:16
  SPEAKER_00: Because this sounds great in a vacuum.
• 23:18
  SPEAKER_00: Like I totally agree.
• 23:19
  SPEAKER_00: We should not have leaders who can just cancel the next election so they stay in power.
• 23:23
  SPEAKER_00: But this entire podcast, we talk about how radical some of these district judges are.
• 23:29
  SPEAKER_00: They're all totally partisan actors, and there's just no sense of any kind of impartiality in the courts anymore, as far as I can tell.
• 23:38
  SPEAKER_00: So, how does that change your perspective then on this issue if we have these judges who are clearly just political actors and can't reasonably act as non-partisan umpires?
• 23:50
  SPEAKER_01: You know, Catherine, that's um that's like the most important question in the world to me.
• 23:56
  SPEAKER_01: It's it's um it's the it's the profound kind of um question of our time.
• 24:04
  SPEAKER_01: It's like uh our courts, our legal system, our hopes for the Constitution.
• 24:11
  SPEAKER_01: It is the it is the dream that failed, right?
• 24:15
  SPEAKER_01: And what do we do in this very second best world in which we find ourselves, right?
• 24:19
  SPEAKER_01: So I like, for example, just right now, I laid out this vision of how judicial review should work, where they defend the we the people democratic settlements that we've historically achieved as a country, and they clear the channels for the democratic process and no more.
• 24:35
  SPEAKER_01: But what is the reality?
• 24:36
  SPEAKER_01: Judicial review here, and by the way, I study judicial review in Armenia, I study judicial review in the UK, in France, in South Africa, and New Zealand, in Canada, in Israel, and beyond.
• 24:47
  SPEAKER_01: Like I study it in India, and it's the same everywhere.
• 24:50
  SPEAKER_01: It there are no Alian courts, there are no courts defending, you know, the we the people democratic settlements of the past, everywhere.
• 24:58
  SPEAKER_01: Judges are acting like houses of lords that just, you know, represent elite control over democratic opinion.
• 25:04
  SPEAKER_01: So, what do we do in the second best situation in which we find ourselves?
• 25:07
  SPEAKER_01: And and I wish I had something profound to say at this point.
• 25:11
  SPEAKER_01: I think it's really hard.
• 25:12
  SPEAKER_01: What I would say as a practical political matter in 2026 America, we play by the same rules as best we possibly can and we do tit for tat politics and we savor ideals for a place where they won't lead to unilateral disarmament.
• 25:28
  SPEAKER_01: But I really, really wish that were otherwise.
• 25:30
  SPEAKER_02: Okay, but Josh, you to but to seize on what Catherine sort of was suggesting, you nevertheless think that despite the failings of these district judges, that they should, that it should not be a political question, uh, these political gerrymandering cases, right?
• 25:44
  SPEAKER_02: You think judges should be a good idea.
• 25:45
  SPEAKER_01: It's a constitutional question.
• 25:46
  SPEAKER_01: It should be it should be done under the constitution.
• 25:48
  SPEAKER_02: So explain how, like, what's the basis?
• 25:51
  SPEAKER_02: What would the constitutional basis be, or at least like why you think it's not a political question doctrine.
• 25:55
  SPEAKER_02: And then I have my whole spiel on the political question doctrine that I'd love to share with our readers.
• 25:59
  SPEAKER_01: I want to hear it, and I I don't want to monopolize, but I I guess um I'll monopolize in a moment.
• 26:06
  SPEAKER_01: You monopolize.
• 26:07
  SPEAKER_01: Okay.
• 26:07
  SPEAKER_01: All right.
• 26:08
  SPEAKER_01: So what I'll say about that is um um I think the the Constitution doesn't say a whole lot about elections, but it does have the Equal Protection Clause.
• 26:21
  SPEAKER_01: And um that can be it wielded already in response to racial gerrymandering, where it's like, oh, and that's not a political question, right?
• 26:31
  SPEAKER_01: We could judges have said that racial gerrymandering is justiciable.
• 26:35
  SPEAKER_01: Why isn't partisan gerrymandering justiciable?
• 26:38
  SPEAKER_01: Why can't you say, wait a minute, you've got 51% Democrats and your seats are 10 to emocrat on this map?
• 26:46
  SPEAKER_01: That's bizarre, and that isn't equal voting rights, that isn't equal protection.
• 26:52
  SPEAKER_01: The other thing I'd invoke, it's it's almost dead letter, uh, but it's the Republican form of government clause.
• 26:58
  SPEAKER_01: You know, what does it mean to have a Republican form of government?
• 27:02
  SPEAKER_01: If jurisprudence had gone in a very different direction than it went, you could imagine that clause being a really, really robust kind of alien clause where there's um um the Supreme Court uh and and other courts invoking the Republican form of government clause to make sure that the democratic process, including voting processes, are working appropriately.
• 27:24
  SPEAKER_01: That is a million miles from how American jurisprudence is actually developed.
• 27:28
  SPEAKER_01: But I, you know, again, wish it were otherwise.
• 27:31
  SPEAKER_02: So let me do my spiel.
• 27:32
  SPEAKER_02: I just, this is I hope our listeners are enjoying this blockbuster 40th episode, because progressives seize on the Republican form of government clause and want to get courts involved, you know, for their own ways of improving democracy, which to them, you know, means like, oh, no voter ID, because if you require voter ID, that violates the Republican form of government clause, which is crazy.
• 27:54
  SPEAKER_02: But just because progressives abuse things or want to abuse things doesn't mean there isn't a proper role for these clauses.
• 28:01
  SPEAKER_02: And I take it, Josh, that's what you're saying.
• 28:03
  SPEAKER_02: Just like, you know, I'm a fan of public nuisance laws.
• 28:06
  SPEAKER_02: I do not believe they apply to climate change or gun manufacturers, but they do apply to homeless encampments, okay?
• 28:11
  SPEAKER_02: Yeah.
• 28:11
  SPEAKER_02: Just because it can be abused doesn't mean it should not be used.
• 28:14
  SPEAKER_02: Okay, so let me give the list.
• 28:16
  SPEAKER_01: I mean, listen, the left abuses the the left abuses the due process clause to try to uh give a constitutional right to abortion.
• 28:24
  SPEAKER_01: Does that mean I think I'm against the due process clause?
• 28:27
  SPEAKER_01: No, of course not.
• 28:27
  SPEAKER_01: I want it to be used properly.
• 28:30
  SPEAKER_02: Okay, so let me dive into the political question and and the merits and why I think I I disagree with you 50% uh here.
• 28:37
  SPEAKER_02: And then let's jump to Missouri, because I know our listeners really want to hear about what's been going on in Missouri.
• 28:42
  SPEAKER_02: But the political question doctrine, I just want to be very clear.
• 28:46
  SPEAKER_02: It doesn't mean the issue is politically controversial.
• 28:49
  SPEAKER_02: That's not what it means.
• 28:50
  SPEAKER_02: Lots of issues are politically controversial that courts review.
• 28:53
  SPEAKER_02: Okay.
• 28:54
  SPEAKER_02: The best, and I'm and I want to be clear, another, you know, just upfront thing.
• 28:58
  SPEAKER_02: I am very skeptical of the political question doctrine.
• 29:00
  SPEAKER_02: I think I have found like one case where I'm like, okay, that really is political question doctrine, and I even I would apply it there, but generally otherwise I don't think uh it would apply.
• 29:09
  SPEAKER_02: The idea of the political question doctrine is sort of twofold.
• 29:12
  SPEAKER_02: One is that there's simply no judicially manageable standard, that there's no pre-existing law that can be applied here, so that when judges are deciding it, it would look like if judges decided the question, it would look like they're making law rather than applying law or discerning law or discerning custom.
• 29:29
  SPEAKER_02: Um, and the second sort of issue here is that, as far as I can gather, uh the political question doctrine means that the political branches have been assigned a question as an initial matter, and there is this unquestioning need uh to adhere to that decision because as I tell my students, all heck will break loose if they disagree.
• 29:49
  SPEAKER_02: So let me give you an example of this.
• 29:51
  SPEAKER_02: Um The only example that I can think of off the top of my head where I have thought the political question doctrine was legitimate was the Dore Rebellion case.
• 30:00
  SPEAKER_02: Did you know that there was a civil war?
• 30:01
  SPEAKER_02: I feel like we've talked about this on a prior episode, Catherine, but I think we did.
• 30:05
  SPEAKER_02: There was a rebellion in Rhode Island, a civil war in Rhode Island in the 1840s.
• 30:10
  SPEAKER_02: Uh, and what happened?
• 30:11
  SPEAKER_02: Rhode Island basically still had its charter government from like the 1600s, which was not very democratic, right?
• 30:16
  SPEAKER_02: I mean, very narrow slice of landowners, white male property owners could vote.
• 30:20
  SPEAKER_02: And so the people, or a certain number of people, purported to just gather in a constitutional convention, hold votes.
• 30:26
  SPEAKER_02: They actually had polling stations and everything not authorized by the charter government of Rhode Island, and they purported to establish their own competing government.
• 30:34
  SPEAKER_02: And the charter government called the militia.
• 30:37
  SPEAKER_02: And basically, what happened is uh a case arose where um Luther Borden, under orders from the charter government, see, you know, trespassed on Martin Luther.
• 30:47
  SPEAKER_02: So there are two Lutherans in here, Martin Luther and Luther Borden, uh, trespassed his property, rifled through his papers.
• 30:52
  SPEAKER_02: I think they arrested him on orders of the Charter government because he was involved in the rebellion.
• 30:56
  SPEAKER_02: And so Martin Luther sues Luther Borden for trespass and conversion of property and unlawful arrest.
• 31:02
  SPEAKER_02: This is a genuine private right.
• 31:04
  SPEAKER_02: You have an injury, you have standing.
• 31:06
  SPEAKER_02: There's no question that ordinarily whether a trespass is legally authorized would be the kind of thing that a court could hear.
• 31:13
  SPEAKER_02: But the court said, uh, under Chief Justice Tawney at the time, the court said, how can we possibly adjudicate this?
• 31:20
  SPEAKER_02: By what standard would we determine which is the valid government of Rhode Island?
• 31:23
  SPEAKER_02: Because that's the question, right?
• 31:25
  SPEAKER_02: If the tr if the charter government is valid, then Luther Borden had authority to go in and do the trespass.
• 31:31
  SPEAKER_02: If it wasn't valid, then it was unlawful.
• 31:33
  SPEAKER_02: How are we going to decide it?
• 31:34
  SPEAKER_02: So there was no judicially manageable standard to figure out what is a legitimate government when there's a contest as to that.
• 31:40
  SPEAKER_02: But moreover, the Constitution assigned the calling out of the militia to the political branches.
• 31:46
  SPEAKER_02: Congress and the president can call forth the militia to suppress insurrection.
• 31:52
  SPEAKER_02: And uh, I can't remember who was president, but the president called out the militia in support of the charter government.
• 31:58
  SPEAKER_02: Okay, so the political branches had determined that they were going to support the charter government.
• 32:02
  SPEAKER_02: If Chief Justice Tani several years later says, actually, no, the rebellious government was the real government or the new government was the real government.
• 32:12
  SPEAKER_02: How what does that possibly mean?
• 32:13
  SPEAKER_02: Does that mean all the taxes that were laid by the existing government over the last five years are invalid?
• 32:18
  SPEAKER_02: Are all the criminal convictions void?
• 32:20
  SPEAKER_02: I mean, there's sort of this textual commitment to the initial branch, to the political branches, and this unquestioning need to adhere to that.
• 32:26
  SPEAKER_02: Okay, so I have, I believe that was a legitimate political question doctrine case.
• 32:32
  SPEAKER_02: But most of the time, I don't think it's a problem at all, right?
• 32:37
  SPEAKER_02: I mean, the political branches decide all sorts of things.
• 32:40
  SPEAKER_02: Like, do I have power to do X, Y, or Z?
• 32:42
  SPEAKER_02: And the judges still have the judicial power to adjudicate cases when there's a private injury arising under those laws.
• 32:48
  SPEAKER_02: Most cases are judicially manageable.
• 32:50
  SPEAKER_02: There's standard, there's a law out there.
• 32:52
  SPEAKER_02: So let me suggest um how I would approach this.
• 32:56
  SPEAKER_02: Okay.
• 32:56
  SPEAKER_02: I am generally skeptical of the political question doctrine because I think it's a merits doctrine.
• 33:01
  SPEAKER_02: It's not jurisdictional.
• 33:02
  SPEAKER_02: It's not a jurisdictional bar.
• 33:04
  SPEAKER_02: Properly understood, the political question doctrine says Congress and the president legitimately have discretion to do the thing that they did.
• 33:11
  SPEAKER_02: And therefore, we're not going to get involved.
• 33:13
  SPEAKER_02: Congress and the president had the power to call forth the militia and to make that determination in support of the charter government, who are we to say otherwise?
• 33:20
  SPEAKER_02: Basically, they acted within the scope of their discretion.
• 33:23
  SPEAKER_02: And so I think it's ultimately a merits question.
• 33:26
  SPEAKER_02: Have the political branches acted within the scope of their discretion?
• 33:29
  SPEAKER_02: But if they exercise power in violation of Article 1, Section 8, if they violate the First Amendment, if they violate some anti-gerrymandering provision in the Constitution, then they haven't acted within the scope of their discretion.
• 33:41
  SPEAKER_02: And it's the classic thing that courts could review.
• 33:43
  SPEAKER_02: Okay, I've gone on a little long here, but let me explain now.
• 33:47
  SPEAKER_02: So basically I agree with Josh, okay?
• 33:49
  SPEAKER_02: That political question doctrine is not the right thing for this.
• 33:53
  SPEAKER_01: That's basically the just the But now, Elon, turn to gerrymandering.
• 33:57
  SPEAKER_01: Because okay, yes.
• 33:58
  SPEAKER_01: Um what's going on in this case is the court has said that partisan gerrymandering is a political question.
• 34:06
  SPEAKER_01: So it makes sense to talk about both, but I want to hear it land with gerrymandering.
• 34:10
  SPEAKER_02: Yes.
• 34:11
  SPEAKER_02: So I do not think partisan gerrymandering is a political question in the sense that there are no judicially manageable standards, in the sense that there is a textual commitment and an unquestioning need to adhere to that decision of the political branches.
• 34:24
  SPEAKER_02: I just think that there is no constitutional prohibition on partisan gerrymandering.
• 34:31
  SPEAKER_02: So I said I think the political question doctrine is a merits doctrine.
• 34:35
  SPEAKER_02: So I think Rushov versus common cause was correct, not because there's no judicially manageable standard.
• 34:40
  SPEAKER_02: Of course, you can figure out what is a partisan gerrymander.
• 34:43
  SPEAKER_02: 10 to 1 in a 51, 49 state is not, you know, clearly a partisan gerrymander.
• 34:49
  SPEAKER_02: Of course there are judicially manageable standards.
• 34:51
  SPEAKER_02: I think Rushov common cause was rightly decided because I don't think there's any standard according to which uh the court could declare it unlawful because there is no prohibition on it.
• 35:02
  SPEAKER_02: I think, as a merits question, there's no prohibition in the Constitution on partisan gerrymandering.
• 35:07
  SPEAKER_02: Like you can go to my very technical originalist view.
• 35:11
  SPEAKER_02: I don't even think the 14th Amendment protects political rights, it only protects civil rights.
• 35:16
  SPEAKER_02: I'm not gonna go into that here.
• 35:18
  SPEAKER_02: Catherine, I wrote a book about this.
• 35:21
  SPEAKER_02: Did you know I wrote a book?
• 35:22
  unknown: What?
• 35:23
  SPEAKER_00: No, I hadn't heard.
• 35:25
  SPEAKER_00: Tell us more.
• 35:26
  SPEAKER_02: To our new listeners, she trolls me all the time for always talking about my books.
• 35:30
  SPEAKER_02: But this is explained in the second founding and introduction to the 14th Amendment.
• 35:33
  SPEAKER_02: The privileges or immunities clause, the privileges or immunities of citizens, right?
• 35:37
  SPEAKER_02: The clause that says no state shall make or enforce any law which shall abridge the privileges and immunities of citizens.
• 35:41
  SPEAKER_02: It refers to natural rights or civil rights, which are just natural rights modified by the laws of civil society.
• 35:46
  SPEAKER_02: Political rights are different.
• 35:47
  SPEAKER_02: The right to vote, to hold office, to serve on jury, to serve on a militia, these things presuppose the existence of political society.
• 35:54
  SPEAKER_02: They do not exist in the state of nature.
• 35:55
  SPEAKER_02: How do we know that the 14th Amendment, by the way, does not guarantee um political rights?
• 36:01
  SPEAKER_02: Because we have the 15th Amendment and the 19th Amendment, right?
• 36:04
  SPEAKER_02: Granting the right to vote without discrimination on the basis of color, without discrimination on the basis of sex.
• 36:11
  SPEAKER_02: Now, uh, so that means the 14th Amendment doesn't cover it.
• 36:14
  SPEAKER_02: Equal protection doesn't cover it.
• 36:16
  SPEAKER_02: Can you make an argument that a uh a gerrymander uh that discriminates on the basis of race, where it's clearly made to box out uh all the political power of African Americans, violates the 15th Amendment?
• 36:32
  SPEAKER_02: Yes, I think you could make that argument, and it's under theorized, though, because the Supreme Court focuses on the Equal Protection Clause of the 14th Amendment.
• 36:40
  SPEAKER_02: Could you make the same thing about women if you try to box out women?
• 36:43
  SPEAKER_02: I mean, they're distributed throughout the state probably in normal proportions, so I don't know how you would even do that, right?
• 36:48
  SPEAKER_02: The question is, is there some um injunction in the Constitution uh that would allow you to do that kind of exercise generally based on just partisan affiliation?
• 36:59
  SPEAKER_02: I don't see that anywhere.
• 37:01
  SPEAKER_02: And I think it's telling that Josh had to rely on the Republican form of government clause.
• 37:05
  SPEAKER_02: That is the question of the thing.
• 37:05
  SPEAKER_01: And the equal protection clause, where I just disagree with you.
• 37:08
  SPEAKER_02: Okay, so so equal protection, fair enough.
• 37:11
  SPEAKER_02: You could say a 10 to 1 gerrymander, I guess Josh is your view, um, would uh give Democrats more power and therefore deny Republicans in Virginia equal protection of the laws.
• 37:22
  SPEAKER_02: Fair enough.
• 37:23
  SPEAKER_02: Under the modern doctrine, I agree with you then that you could make a plausible argument.
• 37:28
  SPEAKER_02: There should be a judicially manageable standard, there should be no political question doctrine.
• 37:31
  SPEAKER_02: Under my narrow view of the 14th Amendment, political rights aren't covered.
• 37:34
  SPEAKER_02: And that's why you would have, under a strict original meaning, you'd really have to rely on like the Republican form of government clause, which is tricky.
• 37:42
  SPEAKER_01: We could talk about so much here with respect to um political question doctrine and the reading of the 14th Amendment, but I think that the Catherine looks like she's keeling over, so no, yeah.
• 37:55
  SPEAKER_01: I I think the most important thing to say about this is the practical consequences, and then to move on to Missouri.
• 38:00
  SPEAKER_01: So, what are the practical consequences of saying this is partisan gerrymandering is a political question?
• 38:05
  SPEAKER_01: We the courts won't get involved, you know, you know, states do what you will.
• 38:08
  SPEAKER_01: The practical consequences, folks, is that parties get impregnable strongholds in states where they have numerically a small advantage.
• 38:18
  SPEAKER_01: So you have a you have a state where, you know, maybe it's 60-40, like roughly Texas was in favor of Trump, or 60-40 as roughly California was in favor of Harris.
• 38:32
  SPEAKER_01: And then this, you know, that's not extreme.
• 38:36
  SPEAKER_01: I I work in a university.
• 38:38
  SPEAKER_01: Universities are like like anywhere from 90-10 to more frequently 95-5 or even 98-2.
• 38:44
  SPEAKER_01: The numbers at like the Ivy League are something like 97% to 3% of the faculty being Democrat to Republican, or even 98 to 2%.
• 38:52
  SPEAKER_01: In a number of small liberal arts colleges, there are literally no Republicans on the entire faculty, right?
• 38:58
  SPEAKER_01: So we're talking about numbers that are way more extreme than that.
• 39:01
  SPEAKER_01: But states aren't like that.
• 39:03
  SPEAKER_01: States have populations that are pretty divided.
• 39:06
  SPEAKER_01: Um, and that means that you should see the government switching every once in a while.
• 39:11
  SPEAKER_01: And you should also see the two sides moderating each other, because you can't, you know, do the most extreme left-wing or right-wing stuff when you're in a 60-40 environment, let alone a 51-49 environment.
• 39:22
  SPEAKER_01: But what happens because of the court's rulings on partisan gerrymandering, very practical consequence.
• 39:27
  SPEAKER_01: You have a state that's pretty divided, but you have an elected class of that state that's all one party, that's really, really extreme.
• 39:37
  SPEAKER_01: And so you get a state that becomes, I said impregnable stronghold.
• 39:40
  SPEAKER_01: That means you can't break it, but also just a really extreme version of the politics that are even a little bit dominant in that state.
• 39:48
  SPEAKER_01: And so then what you get is what we're seeing, where the states sort into these, you know, left-wing, these red strongholds and these blue strongholds, and people have to vote with their feet.
• 39:58
  SPEAKER_01: And, you know, I'm I'm glad that people can vote with their feet, but what a bad way to do this thing we love and call democracy.
• 40:06
  SPEAKER_01: Okay.
• 40:07
  SPEAKER_00: Yeah.
• 40:07
  SPEAKER_00: It creates such like a it self-perpetuates because it creates something in people's heads to a perception that's not quite accurate, like California.
• 40:15
  SPEAKER_00: You talk to people all the time who live in California, Northern California, say, who are like, yeah, it doesn't represent me at all what you're what you see, the politics you see out of California.
• 40:23
  SPEAKER_00: And yet I wonder how many people, I wonder how many people don't vote because they think their state is just too far gone, or you know, these things that aren't really true.
• 40:31
  SPEAKER_00: It creates a mental issue too.
• 40:33
  SPEAKER_00: I think this perception that's completely false.
• 40:35
  SPEAKER_01: Well, do you know if you put the American people and the people of most states on like a bell curve and you say, uh, the most right wing is to the right and the most left wing are to the left, you get a normal distribution.
• 40:46
  SPEAKER_01: You get a bell curve that's kind of in the the big part is in the center, right?
• 40:49
  SPEAKER_01: If you put the elected leadership on the same bell curve, you get two separate humps on the right side and the left side, right?
• 40:57
  SPEAKER_01: So like they don't fit.
• 40:58
  SPEAKER_01: Our representatives don't represent us, they represent the most extreme elements of the party.
• 41:03
  SPEAKER_01: And it's because of bad Supreme Court decisions.
• 41:06
  SPEAKER_00: Well, let's get to the Missouri aspect of this all.
• 41:10
  SPEAKER_00: Uh, lots of states adopted new electoral maps for this midterm election cycle, including, as we've talked about, California, also Florida, and then Texas.
• 41:19
  SPEAKER_00: The Missouri legislature did the same thing, and the new map would likely have benefited Republicans, but only changing the delegation from six Republicans and two Democrats to seven Republicans and one Democrat.
• 41:32
  SPEAKER_00: Um, but there's a catch.
• 41:34
  SPEAKER_00: Missouri's constitution allows voters to approve or reject any quote act of general, act of the general assembly in a referendum.
• 41:43
  SPEAKER_00: Uh, Democrats organized a petition and got enough signatures to put the new map on the ballot in 2026.
• 41:49
  SPEAKER_00: That would leave the old map, the one that is better for Democrats, in place for the upcoming midterms.
• 41:56
  SPEAKER_00: So the Missouri Secretary of State has to certify a referendum to put it on the ballot.
• 42:01
  SPEAKER_00: He said it was inconsistent with the Missouri Constitution and left the new 2025 map in place.
• 42:08
  SPEAKER_00: This doesn't seem crazy to me because the Missouri Constitution says verbatim that, quote, no redistricting plan shall be subject to the referendum.
• 42:17
  SPEAKER_00: Okay, seems clear, but I guess there's another catch.
• 42:20
  SPEAKER_00: That provision comes in the part of the Missouri Constitution dealing with the independent redistricting commissions, which only redistricts the state Senate districts and state legislative districts.
• 42:32
  SPEAKER_00: So it sounds like their maps can't be subject to a referendum, but the map that we're talking about, uh, a state legislature's map of congressional districts, maybe can be.
• 42:43
  SPEAKER_00: But that's what we're kind of debating.
• 42:44
  SPEAKER_00: This set off a whole firestorm of litigation at both the state and federal levels.
• 42:49
  SPEAKER_00: Incredibly, this state election map issue ended up getting the Supreme Court, the US Supreme Court, involved three separate times.
• 42:56
  SPEAKER_00: Um, it's already convoluted and it kept getting more convoluted.
• 42:59
  SPEAKER_00: Elon, what what would you like to add to this?
• 43:02
  SPEAKER_02: And it got there on the shadow docket, the shadowy docket three times, which I know we used to love, but I guess maybe no longer.
• 43:08
  SPEAKER_02: But no, we still love the shadow docket.
• 43:10
  SPEAKER_02: We'll we'll get there at the very end.
• 43:12
  SPEAKER_02: Um but um okay.
• 43:14
  SPEAKER_02: So there was a bunch of parallel litigation in both Missouri and in federal court about this map.
• 43:19
  SPEAKER_02: Okay, so there are questions under state law, and then there's questions under federal law, right?
• 43:23
  SPEAKER_02: It's the federal law questions that get up to the Supreme Court.
• 43:26
  SPEAKER_02: Now, so what happened under state law?
• 43:28
  SPEAKER_02: So initially, this is far less important for our purposes, but this the maps were challenged under state law, and the Missouri Supreme Court upheld them, right?
• 43:37
  SPEAKER_02: Uh upheld the map, the new map.
• 43:38
  SPEAKER_02: So the the question, you know, was could the legislature redistrict mid decade?
• 43:43
  SPEAKER_02: And then there was a question about whether the map was sufficiently compact, which is a requirement.
• 43:47
  SPEAKER_02: So judicially manageable standard under the state uh constitution.
• 43:52
  SPEAKER_02: And the state supreme court said yes, the the state legislature can do a mid district, mid decade redistricting this the redistrict.
• 44:00
  SPEAKER_02: Provision says the legislature shall redistrict after a census, right?
• 44:04
  SPEAKER_02: It doesn't mean you can't also redistrict mid-decade.
• 44:08
  SPEAKER_02: Okay, totally plausible.
• 44:09
  SPEAKER_02: I totally agree with that.
• 44:10
  SPEAKER_02: Makes sense.
• 44:11
  SPEAKER_02: And then it turns out that the Republicans actually had a more compact map than the old map.
• 44:16
  SPEAKER_02: So that kind of makes you think.
• 44:17
  SPEAKER_02: Again, maybe there was some gerrymandering to uh help.
• 44:20
  SPEAKER_02: Well, again, we didn't even talk about this, but the whole pre-pretext, maybe not pretext, but pretense or justification to do the redistricting was the Voting Rights Act, the new Voting Rights Act litigation in the Supreme Court.
• 44:33
  SPEAKER_02: So basically the Missouri Republicans said this extra district was an unconstitutional racial gerrymandering in favor of an additional minority district.
• 44:41
  SPEAKER_02: And so hence the new district was more compact, because the old one necessarily was less compact because it was driven by race to get that extra minority district, right?
• 44:49
  SPEAKER_02: That's sort of the theory.
• 44:50
  SPEAKER_02: Okay, fine.
• 44:51
  SPEAKER_02: Let's put all that aside.
• 44:53
  SPEAKER_02: But there's another catch, as Catherine suggested.
• 44:55
  SPEAKER_02: There's a separate question under state law, which is that every act of the state legislature can be made subject to a referendum by the people if there's a sufficient number of signatures on a petition.
• 45:09
  SPEAKER_02: So this was the question.
• 45:12
  SPEAKER_02: The Democrats got enough signatures to put this on the ballot.
• 45:15
  SPEAKER_02: And if that's valid, that means this map can't take effect until after a referendum.
• 45:20
  SPEAKER_02: And that referendum would happen now.
• 45:22
  SPEAKER_02: So you can't use the map now.
• 45:23
  SPEAKER_02: You have to wait for the referendum and use it in the future.
• 45:26
  SPEAKER_02: And so the arguments on both sides, um, the the argument against it is the language you said, which is there's a provision, two provisions, kind of identical, I think, um, that says no redistricting plan shall be subject to the referendum.
• 45:40
  SPEAKER_02: Taken in isolation, yeah, okay, I guess this is a this is a redistricting plan.
• 45:45
  SPEAKER_02: And so it should not be subject to the referendum.
• 45:48
  SPEAKER_02: But when you look at it, you know, it both of these provisions come within the independent redistricting commissions for the state house or the state senate districts.
• 45:59
  SPEAKER_02: And in fact, the idea that this translates beyond those is defeated by the fact that uh that there are two provisions that say no redistricting plan shall be subject uh to the referendum.
• 46:10
  SPEAKER_02: One in the Senate independent redistricting commission and one in the House the way the House redistricts, which is a bit of a different process.
• 46:17
  SPEAKER_02: So obviously it can't mean all redistricting plans, because they specified separately for each of these.
• 46:22
  SPEAKER_02: And so the implication there is that it does not apply, as you said, Catherine, to a state legislature redrawing the map for congressional districts, which are not subject to this independent redistricting plan.
• 46:33
  SPEAKER_02: And look, I've got friends in the SG's office.
• 46:36
  SPEAKER_02: I they it was it was a good argument.
• 46:38
  SPEAKER_02: Um, you know, they were being good lawyers, but um, I think their argument about it, you know, is overly literalistic and wooden textualism.
• 46:45
  SPEAKER_02: Just taking this in isolate this phrase in isolation is just is not how we do law.
• 46:51
  SPEAKER_02: It just isn't how we do law.
• 46:52
  SPEAKER_02: There is law out there and and and that matters.
• 46:55
  SPEAKER_02: And um I think that was an overly wooden textualism.
• 46:57
  SPEAKER_01: I I'm completely with you.
• 46:59
  SPEAKER_01: I mean, there is a thin line between textualism and literalism.
• 47:03
  SPEAKER_01: And the line is based on context.
• 47:06
  SPEAKER_01: Language arises in context.
• 47:07
  SPEAKER_01: You know, if I say uh, you know, to my two daughters, if I say stop that, don't do anything to your daughter, I don't mean anything, anything.
• 47:17
  SPEAKER_01: I mean stop hitting or whatever the context is, right?
• 47:20
  SPEAKER_01: Um, it's not literal, it's context dependent.
• 47:24
  SPEAKER_01: And the line between textualism and literalism is all about whether you take context into account.
• 47:29
  SPEAKER_01: I'm I believe that every textualist should be a contextualist.
• 47:35
  SPEAKER_01: That should be the name of the theory.
• 47:37
  SPEAKER_01: We are contextualists.
• 47:38
  SPEAKER_01: Which contextualism.
• 47:41
  SPEAKER_01: Yeah, I'm working on it.
• 47:43
  SPEAKER_01: Yeah, I'm but it's textualism.
• 47:45
  SPEAKER_01: The words in there, it just includes the context part.
• 47:50
  SPEAKER_00: Yeah, I'm starting to think we just like gerrymandered too close to the sun and we need to blow up everything and start over.
• 47:56
  SPEAKER_00: Like, I don't know, there's too much I can't follow.
• 47:59
  SPEAKER_00: Because, okay, the next issue that was fascinating, and you, Elon, wrote about it on our rationally based Substack.
• 48:06
  SPEAKER_00: Feel free to go over there and subscribe.
• 48:09
  SPEAKER_00: Was this issue of a conflicting federal injunction.
• 48:12
  SPEAKER_00: So the Missouri Supreme Court said the map was okay under state law, but also that it couldn't be used until after this election.
• 48:21
  SPEAKER_00: But the problem is the primary election had already taken place.
• 48:25
  SPEAKER_00: So the Republicans argued in federal court that changing the map from the new map to the old map after primary voting had occurred violated federal law.
• 48:35
  SPEAKER_00: Uh, I'll let you, Elon and Josh, you can kind of handle the legal merits of all that.
• 48:39
  SPEAKER_00: Uh but in the meantime, the point is uh federal judge in Missouri ordered the Secretary of State to use the new map.
• 48:48
  SPEAKER_00: But the Missouri Supreme Court ordered the Secretary of State to use the old map.
• 48:53
  SPEAKER_00: There were conflicting, it was a conflicting injunction upon the same individual.
• 48:57
  SPEAKER_00: So how do they possibly, how does he comply with both of these and whatever happens in this situation?
• 49:02
  SPEAKER_01: Can can I just interject here?
• 49:04
  SPEAKER_01: Elon, I'm gonna let you take this one, but I just want to say, because it's so funny.
• 49:07
  SPEAKER_01: Can you imagine being that dude's lawyer?
• 49:11
  SPEAKER_01: And he's like, what do I do?
• 49:12
  SPEAKER_01: I remember actually when we were doing stuff at the Department of Education, and it seemed like no matter what we did, I mean, we could, we could try to change the paper towels in the bathrooms or something.
• 49:23
  SPEAKER_01: We were gonna get sued and there was gonna be an injunction.
• 49:26
  SPEAKER_01: And um, the injunction would get overturned by the circuit courts or by the Supreme Court.
• 49:32
  SPEAKER_01: But for a little while, you were sitting there with these crazy district court injunctions just stacking up.
• 49:37
  SPEAKER_01: And I remember sifting through them, being like, okay, under the law, what can we do?
• 49:41
  SPEAKER_01: What can we not do, given these three, four, five injunctions all happening at the same time?
• 49:46
  SPEAKER_01: And I would chart it out for myself, what can you do, what can you not do?
• 49:49
  SPEAKER_01: But I never had to deal with two directly conflicting injunctions on the same individual.
• 49:54
  SPEAKER_01: And I pity the lawyer.
• 49:55
  SPEAKER_01: Anyway, go ahead, Elon.
• 49:57
  SPEAKER_02: Yeah, I would have so I would have said, so that so to be clear, the Secretary of State said, Well, I've got to follow the federal court order because federal law is supreme.
• 50:06
  SPEAKER_02: Missouri Supreme Court did not see it that way and initiated contempt proceedings, right?
• 50:10
  SPEAKER_02: And so it's like, oh, well, like I would have, if you really believe it, go to go to jail.
• 50:15
  SPEAKER_02: Say, remand me into your custody and until the Supreme Court, you know, resolves it or something like this.
• 50:20
  SPEAKER_01: But at that point, do you just resign?
• 50:21
  SPEAKER_01: Are you just like, forget this?
• 50:22
  SPEAKER_01: I don't want any people that I don't want to go to jail.
• 50:25
  SPEAKER_01: I don't want to disobey a federal order.
• 50:27
  SPEAKER_01: I don't want to disobey a state order.
• 50:29
  SPEAKER_02: Well, okay, so as a matter of judicial discretion, like you could not send them to jail.
• 50:35
  SPEAKER_02: Just because it's contempt, like you could do a fine.
• 50:37
  SPEAKER_02: Okay.
• 50:38
  SPEAKER_02: So like this is uh Andrew Jackson imprisoned a federal judge and a state judge and a state prosecutor during the War of 1812.
• 50:44
  SPEAKER_02: And the federal judge was not too pleased with that.
• 50:47
  SPEAKER_02: And after the war ended, and the federal judge was released from military custody, he ordered Jackson in contempt, you know, did a notice to show cause.
• 50:54
  SPEAKER_02: And Jackson basically said it was an emergency.
• 50:57
  SPEAKER_02: I believed that I had to do it in the interest of the country.
• 50:59
  SPEAKER_02: I claimed no legal authority to do that.
• 51:01
  SPEAKER_02: I put myself at the mercy of the court.
• 51:03
  SPEAKER_02: And the federal judge showed uh good judgment and issued a fine that Jackson paid and did not order him imprisoned or anything like that.
• 51:11
  SPEAKER_02: So there are ways that you could manage this using judicial sort of comedy and good sense.
• 51:15
  SPEAKER_02: Um, but as a practical matter, I wanted to talk about this before we get into the merits of what the federal court held, because a lot of the conservatives were saying, oh, federal law is supreme.
• 51:24
  SPEAKER_02: You have to follow a federal district court order.
• 51:27
  SPEAKER_02: No, no, no, no, no.
• 51:29
  SPEAKER_02: Federal law is supreme.
• 51:31
  SPEAKER_02: A federal district court is not supreme.
• 51:33
  SPEAKER_02: A federal district court order does not bind state courts, they have no jurisdiction over state courts.
• 51:39
  SPEAKER_02: These are two independent sovereigns, okay?
• 51:42
  SPEAKER_02: I promise you, there will be times when you have liberal federal judges.
• 51:46
  SPEAKER_02: Okay.
• 51:46
  SPEAKER_02: Uh remember on this podcast, the AAP lawsuit in federal court in Illinois trying to enjoy the state proceedings in Florida over the WPATH standards of care.
• 51:58
  SPEAKER_02: Federal district judges have zero authority under state courts unless Congress expressly gives them that authority by law.
• 52:07
  SPEAKER_02: There's something called the anti-injunction.
• 52:08
  SPEAKER_01: And also, federal law is supreme where there's a direct conflict with state law.
• 52:13
  SPEAKER_01: But when there's valid state law that is not in direct conflict with federal law, the state supreme court is the supreme expositor of state law.
• 52:20
  SPEAKER_01: Correct.
• 52:21
  SPEAKER_02: But not only that, there could be cases in which state courts hear questions involving federal law.
• 52:26
  SPEAKER_02: They are not bound by what the federal district judges say about that federal law.
• 52:31
  SPEAKER_02: There is only one court with jurisdiction over both state courts and the federal courts in our legal system, and it is the U.S.
• 52:38
  SPEAKER_02: Supreme Court.
• 52:38
  SPEAKER_02: And you can take an appeal to the U.S.
• 52:40
  SPEAKER_02: Supreme Court, and they can resolve any conflict.
• 52:43
  SPEAKER_02: That's how you do it.
• 52:44
  SPEAKER_02: You do not give individual San Francisco federal district judges authority over, you know, state court proceedings, especially when the state court judiciary might be more conservative, right?
• 52:54
  SPEAKER_02: I mean, I'm confronting this issue a little bit in my public nuisance uh litigation, right?
• 52:58
  SPEAKER_02: And so I'm not gonna uh get into that now.
• 53:00
  SPEAKER_02: But the point is that's exactly what happened.
• 53:02
  SPEAKER_02: It was appealed, that the federal orders were appealed to the state supreme court.
• 53:06
  SPEAKER_02: The even the contempt proceeding could have been appealed because um the Secretary of State could have raised the federal order as a defense to the contempt proceeding, creating a federal issue that the Supreme Court could review.
• 53:17
  SPEAKER_02: So there are all sorts of ways that the conflicting injunction can get reviewed.
• 53:20
  SPEAKER_02: The answer is not we cede to the federal district court.
• 53:23
  SPEAKER_02: The answer is you take it up to the U.S.
• 53:24
  SPEAKER_02: Supreme Court, and the US Supreme Court, in this case, resolved it in favor of the Missouri Supreme Court and said that uh the federal uh district judge and the Eighth Circuit were wrong to say that switching maps violates um the Constitution.
• 53:38
  SPEAKER_02: So I'm happy to talk about the merits briefly.
• 53:41
  SPEAKER_02: I I don't know if people are gonna be bored with the merits of the um whether switching the maps, but what do you think?
• 53:47
  SPEAKER_02: Should I go into that?
• 53:48
  SPEAKER_00: Go briefly.
• 53:49
  SPEAKER_00: Yeah, we should we should know more, a little bit more about the merits.
• 53:52
  SPEAKER_02: Okay, and this really just sets up sort of the final thing we want to talk about, which is you know, three.
• 53:56
  SPEAKER_02: Shadow docket.
• 53:57
  SPEAKER_02: Yeah, three chairs for the shadow docket.
• 53:59
  SPEAKER_02: So let me just say that the federal district court order saying that switching the maps after the primaries uh to the to the old maps, and the Eighth Circuit that upheld that, it's pretty weak.
• 54:11
  SPEAKER_02: It's pretty weak.
• 54:12
  SPEAKER_02: What kind of federal constitutional claim says that the map you use in a primary must be the same as the general?
• 54:19
  SPEAKER_02: Now, the only real election from point of constitutional law is sort of like the election, election day.
• 54:26
  SPEAKER_02: Now it's tricky.
• 54:27
  SPEAKER_02: You know, historically, primary conventions, party conventions, which I support, just everyone I'm on the record, I support smoke-filled rooms.
• 54:36
  SPEAKER_02: Okay.
• 54:36
  SPEAKER_02: I it was the party bosses that would sort of decide, you know, who uh the candidates would be.
• 54:41
  SPEAKER_02: But look, because we have primary elections, the political parties are kind of part of the state now.
• 54:46
  SPEAKER_02: So it's it is tricky.
• 54:48
  SPEAKER_02: It is weird because basically you're saying that some voters have say in the primary candidate, right?
• 54:54
  SPEAKER_02: Which sometimes might be the only relevant election.
• 54:56
  SPEAKER_02: And other voters won't ever have voted on anybody in a primary election because of this map.
• 55:01
  SPEAKER_02: It's it's not crazy.
• 55:02
  SPEAKER_02: It's not a crazy argument, especially in a world in which primary elections are the norm and they're they're basically critical to getting your candidate of choice elected.
• 55:10
  SPEAKER_02: So it's not crazy to say there's some equal protection violation, but it's not at all clear.
• 55:15
  SPEAKER_02: It is not at all clear, and I don't think it's clear enough to justify interfering with sort of the Missouri Supreme Court, which brings us to this Purcell principle, which is a principle of federal law, um, which says you shouldn't change the election map or the election rules too close to an election.
• 55:32
  SPEAKER_02: Okay.
• 55:33
  SPEAKER_02: But the catch is, and this is what the Supreme Court ultimately said in this case on the shadow docket, the catch is the Purcell principle is really directed at federal courts.
• 55:43
  SPEAKER_02: Federal courts stop ordering ridiculous changes to election laws based on constitutional violations or whatever at the last minute.
• 55:50
  SPEAKER_02: But here it was the state Supreme Court that decided that the old map had to be used.
• 55:55
  SPEAKER_02: It was not a federal district court, so it was purely the state itself was saying uh that the old map had to be used.
• 56:02
  SPEAKER_02: So the Purcell principle doesn't really apply.
• 56:04
  SPEAKER_02: And in those earlier cases I mentioned where they talked about the mid-decade redistricting is okay, where they upheld the map, they warned that this might be subject to the referendum.
• 56:13
  SPEAKER_02: And so everybody was on notice.
• 56:15
  SPEAKER_02: It wasn't like a last-minute surprise, and it was ultimately the state courts that were driving everything.
• 56:19
  SPEAKER_02: And so the Purcell principle really should not have applied.
• 56:22
  SPEAKER_02: I will say friend of the pod.
• 56:23
  SPEAKER_02: I don't think he listens, but he's in Minneapolis.
• 56:25
  SPEAKER_02: David Strauss was on the panel of the Eighth Circuit that was reversed, but he had actually dissented, basically, saying there was no standing and should not have been decided.
• 56:33
  SPEAKER_02: Uh so just a little shout out uh to them.
• 56:36
  SPEAKER_02: Minneapolitan, is that what we say around here?
• 56:38
  SPEAKER_02: No.
• 56:40
  SPEAKER_02: No.
• 56:41
  SPEAKER_02: The Minnesotan judges then Strauss, who's uh they're actually all good judges, by the way, on the Eighth Circuit, which is interesting.
• 56:46
  SPEAKER_02: And they're not Trumpy judges, they're kind of Reaganite uh judges, um, a lot of them.
• 56:50
  SPEAKER_02: And uh uh so it's kind of interesting that they were reversed by the Supreme Court on the shadow docket.
• 56:54
  SPEAKER_02: So that's all I have to say.
• 56:56
  SPEAKER_02: I said I would sort of monopolize that doctrinal part of this episode.
• 57:00
  SPEAKER_02: I'll just add a couple of words here.
• 57:01
  SPEAKER_01: Yeah, um and one of them is you know, this is uh a great illustration of why we need the shadow docket, why it has an important function to perform.
• 57:10
  SPEAKER_01: I mean, listen, midterms are around the corner here.
• 57:14
  SPEAKER_01: If we had to wait for the usual Supreme Court processes to resolve these incredibly important legal issues that, as you pointed out, Elon, can only lawfully be settled by the Supreme Court.
• 57:25
  SPEAKER_01: If we had to wait for the usual, like scheduling it for the next October term, the election would be all over.
• 57:30
  SPEAKER_01: And it would just be almost like a might makes right situation with respect to the resolution of the issue.
• 57:35
  SPEAKER_01: We don't want that.
• 57:37
  SPEAKER_01: This is why we need, I mean, shadow docket makes it sound sinister, but all it really is is an emergency docket for things that need to be resolved more quickly than the usual process allows.
• 57:47
  SPEAKER_01: And I would just point out a little bit of um uh hypocrisy to note here.
• 57:53
  SPEAKER_01: It was the Supreme Court deciding an electoral map question on emergency appeal on the shadow docket that brought such a, you know, uh uh uh uh extremely strong, you know, uh histrionic dissent from Justice uh Kintaji Brown Jackson about the shadow docket and its threat to democracy.
• 58:16
  SPEAKER_01: And a lot of other left-leaning commentators and legal scholars made the same noises.
• 58:21
  SPEAKER_01: I don't see them complaining about this one.
• 58:23
  SPEAKER_01: We're the Dems won, right?
• 58:25
  SPEAKER_01: Because the Supreme Court intervened on the shadow docket at the last minute, right?
• 58:30
  SPEAKER_01: The bottom line is the American people deserve fair elections, and the Supreme Court helped preserve that here.
• 58:38
  SPEAKER_01: They could do it more across the board.
• 58:40
  SPEAKER_01: I again, I wish partisan gerrymandering was um considered justiciable and was resolved in a way that preserved fair representation.
• 58:49
  SPEAKER_01: But at least in this case, the Supreme Court got it right.
• 58:52
  SPEAKER_00: Yeah, I still think I haven't changed my mind.
• 58:54
  SPEAKER_00: I still like the Shadow Docket.
• 58:56
  SPEAKER_00: I think it's crazy that it has this kind of like insidious name, the Shadow Docket, because I think if you polled Americans, they would say that speedier uh legal processes are, you know, something they're in favor of.
• 59:08
  SPEAKER_00: In general, I think the legal process, most people would say, is so slow.
• 59:13
  SPEAKER_00: We just talked about that Lindsay Clancy trial.
• 59:15
  SPEAKER_00: Think of how long um it took to get justice for those kids and for that husband.
• 59:20
  SPEAKER_00: You know, people were like, oh, he's remarried.
• 59:22
  SPEAKER_00: Well, okay, it's been like three plus years, something like that.
• 59:25
  SPEAKER_00: So you think of all of these legal processes.
• 59:27
  SPEAKER_00: People hate how long they take.
• 59:29
  SPEAKER_00: We talk about caring about a speedy trial, yet there's never a speedy trial.
• 59:32
  SPEAKER_00: You look at the Supreme Court and how long it can take them to decide things.
• 59:35
  SPEAKER_00: What if you were that Secretary of State who's like, what am I supposed to do for half a year while I'm just waiting here for a resolution?
• 59:42
  SPEAKER_00: So instead we have something like the Shadow Docket where things can move quickly when they really need to, but it just has this kind of spooky name.
• 59:49
  SPEAKER_00: So that Democrats, I think, you know, even though people on their side, I think would agree that it's good to sometimes have a method where we can get things through the courts quicker.
• 59:58
  SPEAKER_01: I mean, I completely agree.
• 59:59
  SPEAKER_01: And actually, I think I'm not talking out of school when I say that the um the professor who coined the term Shadow Docket, uh, I think has stated publicly and shared with me at least that he regrets the name.
• 1:00:10
  SPEAKER_01: He thinks it made it sound sinister when it um it's catchy, but that doesn't mean good.
• 1:00:15
  SPEAKER_02: And this is uh frenemy of the pod, Will Bode.
• 1:00:18
  SPEAKER_02: And I only say frenemy because he has his own excellent competitor podcast divided argument.
• 1:00:24
  SPEAKER_02: Uh, but uh he's called it the interim docket now, I think is what it should be called.
• 1:00:28
  SPEAKER_02: Uh, not even the emergency doctor.
• 1:00:29
  SPEAKER_02: I think he calls it interim.
• 1:00:31
  SPEAKER_02: Uh, and uh that makes a lot of sense.
• 1:00:32
  SPEAKER_02: All I can say is from my personal experience litigating, and we can end here, you know, like on the public nuisance cases.
• 1:00:38
  SPEAKER_02: Remember, it took six years for the Supreme Court to reverse that initial Ninth Circuit decision, right?
• 1:00:44
  SPEAKER_02: Forget when the litigation started in Boise and Grant's past, where the cities wanted to clean up the homeless encampments, right?
• 1:00:50
  SPEAKER_02: But they couldn't because of this ridiculous new claim that the Ninth Circuit had made up.
• 1:00:53
  SPEAKER_02: It took six years, six years to get that overturned now.
• 1:00:56
  SPEAKER_02: Part of the reason it took six years was because Sergei Rorai was denied the first time around, because it was not as favorable as a court.
• 1:01:03
  SPEAKER_02: And I get it.
• 1:01:04
  SPEAKER_02: But dealing, let me tell you, with the shenanigans right now with the federal district judge in San Francisco over homeless encampments in Berkeley, it's been years and years and years.
• 1:01:13
  SPEAKER_02: There are all sorts of crazy new orders all the time.
• 1:01:15
  SPEAKER_02: There is a summary judgment, which should be a final order.
• 1:01:17
  SPEAKER_02: Then he said, just kidding, here's a final order.
• 1:01:19
  SPEAKER_02: And then he's like, Oh, but we're not done with the litigation yet.
• 1:01:21
  SPEAKER_02: So we're gonna have new orders.
• 1:01:23
  SPEAKER_02: And it's like, sometimes you just need the courts to say enough is enough.
• 1:01:27
  SPEAKER_02: And the emergency interim, shadow, whatever you want to call it, dock it, I think it'd be super helpful.
• 1:01:31
  SPEAKER_02: So how is that guy?
• 1:01:32
  SPEAKER_02: This is in bleak house.
• 1:01:34
  SPEAKER_01: I mean, if you read Charles Dickens' bleak house, uh, the whole idea is that um in England, um, given this just seems to be endemic to Anglo-American law or legal systems generally.
• 1:01:47
  SPEAKER_01: But in England, you know, this was a case where you were born into it and die out of it, right?
• 1:01:51
  SPEAKER_01: The case never ends.
• 1:01:52
  SPEAKER_01: It's yeah, it's a probate it too.
• 1:01:54
  SPEAKER_02: Yeah, it was a probate matter, and nobody could this is fiction, right?
• 1:01:57
  SPEAKER_02: It's fictional, but it was a probate matter and nobody could remember when it started or or why it was still going, and you know, just keep going.
• 1:02:03
  SPEAKER_01: It's like a blood feud, yeah.
• 1:02:05
  SPEAKER_02: So well, I thought that was pretty good for our 40th episode.
• 1:02:08
  SPEAKER_02: So again, hit that like and subscribe button.
• 1:02:11
  SPEAKER_02: We will see you next week for episode.