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Supreme Court Mulls Limiting Race-Based Voting Maps & Reagan-Era Judges Push Back · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: It's a very complicated case involving a challenge to the
0:13
Speaker 2: drawing of a black majority district in Louisiana. But one
0:17
Speaker 2: thing was clear during the two and a half hours
0:19
Speaker 2: of oral arguments at the Supreme Court. The six conservative
0:24
Speaker 2: justices are ready to limit a key part of the
0:27
Speaker 2: Voting Rights Act that, for more than half a century
0:31
Speaker 2: has been a guardrail against racially gerrymandered maps that dilute
0:36
Speaker 2: the votes of minorities. The law was passed in response
0:39
Speaker 2: to rampant discrimination against black voters in the South, and
0:44
Speaker 2: Justice Brett Kavanaugh questioned whether it was still warranted sixty
0:48
Speaker 2: years later.
0:49
Speaker 3: Race based remedies are permissible for a period of time,
0:54
Speaker 3: sometimes for a long period of time decades in some cases,
1:00
Speaker 3: but that they should not be indefinite and should have
1:05
Speaker 3: an endpoint. And what exactly do you think the endpoint
1:09
Speaker 3: should be or how do we know for the intentional
1:12
Speaker 3: use of race to create districts.
1:15
Speaker 2: But liberal Justice Elena Kagan pointed out that the remedy
1:20
Speaker 2: of redrawing districts only happens in a case where a
1:23
Speaker 2: court has found a specific proved discrimination by the state.
1:28
Speaker 4: And what these Section two suits do is they ask
1:32
Speaker 4: about current conditions, and they ask whether those current conditions
1:38
Speaker 4: show vote dilution, which is violative of Section two. So
1:43
Speaker 4: they say, is there racial segregation, racial residential segregation now?
1:49
Speaker 4: Is there racially polarized voting now? And when the state
1:55
Speaker 4: fails with respect to those issues, when those conditions obtain now.
2:02
Speaker 2: However, other conservative justices like Neil Gorsuch, suggested that any
2:08
Speaker 2: use of race as a factor in redistricting, even to
2:11
Speaker 2: correct the state's discriminatory dilution of minority voters, is unconstitutional.
2:18
Speaker 5: I'm asking is it acceptable under Section two?
2:21
Speaker 3: Is you understand it? Given our precedents, for a court
2:25
Speaker 3: to intentionally discriminate in a remedial map on the basis of.
2:29
Speaker 2: Race, how quickly the court hands down its decision could
2:33
Speaker 2: determine whether or not states will have sufficient time to
2:37
Speaker 2: redraw maps, if permissible, before the midterms. My guest is
2:42
Speaker 2: elections law expert Richard breflt A professor at Columbia Law School.
2:46
Speaker 2: Rich Before we get to the facts of the case
2:49
Speaker 2: and the oral arguments, I want to ask you about
2:53
Speaker 2: the impact of this decision if the Justice is as
2:58
Speaker 2: expected limit or eliminate Section two of the Voting Rights Act.
3:03
Speaker 1: It's not clear they're going to do away with Section
3:05
Speaker 1: two tholthough they will clearly change how they interpret it.
3:09
Speaker 1: I think it's tricky because it's not clear how many
3:12
Speaker 1: districts it's going to effect. It clearly will affect some districts.
3:15
Speaker 1: It clearly will mean that certain lawsuits to improve minority
3:19
Speaker 1: representation won't be brought.
3:21
Speaker 6: Probably the harder thing to figure out is.
3:24
Speaker 1: To what extent certain districts that have already been created
3:28
Speaker 1: as minority opportunity districts, even if they weren't a result
3:32
Speaker 1: of litigation. But we're done either defensively as a way
3:36
Speaker 1: of a forestalling litigation or because the local legislatures thought
3:39
Speaker 1: it was the.
3:39
Speaker 6: Right thing to do.
3:40
Speaker 1: Whether those can now be attacked as reflecting an excessive
3:44
Speaker 1: attention to race. We don't know what the Court's going
3:46
Speaker 1: to say, and we don't know how far this will
3:49
Speaker 1: go in terms of unraveling pre existing districting practices, but certainly,
3:55
Speaker 1: whatever they do, it will definitely have an impact on
3:58
Speaker 1: minority representation and potentially on partisan representation as well.
4:03
Speaker 2: Tell us about what the issue is here.
4:06
Speaker 6: It's almost it's very hard to explain what the issues.
4:08
Speaker 6: Is a very complicated case.
4:10
Speaker 1: I mean, the underlying issue is to what extent can
4:14
Speaker 1: or must states take race into account in drawing their districts.
4:19
Speaker 1: This case grew out of an earlier case in Louisiana,
4:23
Speaker 1: where the plaintiffs argued under Section TOO with the Voting
4:26
Speaker 1: Rights Act that a minority, in this case, African American
4:29
Speaker 1: or black voter representation was illegally reduced. That the state
4:34
Speaker 1: is approximately a third block, but only one out of
4:37
Speaker 1: the six congressional districts had a majority minority population, and
4:42
Speaker 1: the plaintiffs were able to persuade a lower court that
4:45
Speaker 1: it was relatively easy to draw a second majority minority district,
4:49
Speaker 1: and that the state's failure to do so under the
4:51
Speaker 1: totality of the circumstances, including the nature of racial block
4:54
Speaker 1: voting in the state and historical factors in the state,
4:57
Speaker 1: constituted a denial of equal representa. The state went ahead
5:01
Speaker 1: and did that, but they did it in such a
5:03
Speaker 1: way that by taking certain partisan factors into account, they
5:06
Speaker 1: created a very strange looking district that kind of goes
5:09
Speaker 1: across much of the state. Even though the plaintiffs when
5:11
Speaker 1: they brought their case, had proposed a much more compact district. Well,
5:16
Speaker 1: now another set of voters in this new district have
5:19
Speaker 1: brought alot in saying that this district is drawn predominantly
5:22
Speaker 1: for racial reasons and drawing on older Supreme Court president,
5:26
Speaker 1: they argue that that's unconstitutional. The plaintiffs in the original
5:30
Speaker 1: case are trying to defend the district by saying that
5:33
Speaker 1: it's okay to use race, even in the significant way,
5:37
Speaker 1: when it's being used as a remedy for prior racial discrimination.
5:41
Speaker 1: And that's really the issue here is when is it
5:44
Speaker 1: okay to use race in drawing districts? And maybe to
5:48
Speaker 1: what extent is it permissible to use race in drawing districts?
5:52
Speaker 1: That becomes the big question.
5:54
Speaker 2: The Supreme Court originally heard oral arguments in the case
5:58
Speaker 2: in March and reach a decision and added sort of
6:03
Speaker 2: a new wrinkle for the current oral arguments.
6:06
Speaker 1: The Court asked for more briefing on the constitutional question
6:10
Speaker 1: of the constitutionality of using race in this context. Again
6:14
Speaker 1: to back up, the Court has said in the past
6:17
Speaker 1: nine leading case called Shaw, which was decided in nineteen
6:20
Speaker 1: ninety three, that the predominant use of race when race
6:24
Speaker 1: is the predominant factor on line drawing, that is subject
6:27
Speaker 1: to strict judicial scrutiny and can only be satisfied as
6:30
Speaker 1: there's a compelling state interest. And they assume, without actually deciding,
6:35
Speaker 1: that compliance with Section two of the Voting Right sec
6:38
Speaker 1: is a compelling state interest. In some sense, this case
6:41
Speaker 1: raises the question of whether a compliance with the Voting
6:43
Speaker 1: Rights Act is a compelling state interest or again, it
6:47
Speaker 1: could be turned out to what chem the Voting Rights
6:49
Speaker 1: Act permissively require? How is the court go interp of
6:52
Speaker 1: the Voting Rights Act. There are a lot of questions
6:55
Speaker 1: all sort of tied up in a not in this case,
6:58
Speaker 1: and it could come out and in many different ways.
7:00
Speaker 1: I mean, the one thing that seems pretty clear is
7:03
Speaker 1: that the original plaintiffs, the black voters who suit for change,
7:06
Speaker 1: are likely to lose. They did win in the lower
7:08
Speaker 1: court and the map was redrawn in their favor. But
7:11
Speaker 1: the challengers to that map, I think are likely to win.
7:15
Speaker 1: But on what theory it could be any from a
7:18
Speaker 1: relatively narrow theory to an extremely broad theory. And to
7:22
Speaker 1: some extent you heard that in the oral argument, where
7:25
Speaker 1: three different lawyers were making the case against the current district,
7:29
Speaker 1: the original plaintiffs challenging the current district, the state of Louisiana,
7:34
Speaker 1: which originally had defended the districts and then changed its
7:37
Speaker 1: position of Louisiana drew these districts but are now saying
7:40
Speaker 1: that they believe they're unconstitutional, and the US government, the
7:43
Speaker 1: Trump Justice Department, and they each presented slightly different theories
7:47
Speaker 1: as to why the districts are invalid and what would
7:51
Speaker 1: be the proper use of race in line drawing.
7:55
Speaker 2: Yeah, that's three against one. Seemed a little bit unbalanced.
7:58
Speaker 2: Now the conservative justices, would you say, they're sort of
8:02
Speaker 2: on a spectrum from a position of there should be
8:06
Speaker 2: no consideration of race at all in redistricting to something less.
8:13
Speaker 1: I think I would phrase in terms of how much
8:15
Speaker 1: how big a change do they want to make in
8:17
Speaker 1: the law, and when could race be used? And I
8:19
Speaker 1: do think in the sense that some didn't think race
8:22
Speaker 1: could be used at all. Others I think were open
8:24
Speaker 1: to the use of race, but only in a relatively
8:27
Speaker 1: narrow set of circumstances. And I think a lot of
8:30
Speaker 1: it had to do with how do they fit this
8:32
Speaker 1: decision with an earlier Supreme Court decision one that is
8:35
Speaker 1: now almost forty years old, in which they interpreted the
8:39
Speaker 1: Voting Rights Act. Section two of the Voting Rights Act
8:42
Speaker 1: laid down a case called Jingles, which set the pattern
8:45
Speaker 1: for Voting Rights Act enforcement for the last forty years,
8:48
Speaker 1: including just two years ago with the Supreme Court in
8:51
Speaker 1: a case coming out of Alabama which on fairly similar
8:55
Speaker 1: facts to this one, sustained the use of rais and
8:58
Speaker 1: drawing a remedial district. And so I think that what
9:01
Speaker 1: you saw what's called them the more moderate conservatives, Justice Barrett,
9:07
Speaker 1: maybe Justice Kavanaugh, maybe the Chief Justice, looking for ways
9:11
Speaker 1: of squaring this case with that Alabama case known as Milligan,
9:15
Speaker 1: or explaining why this case could come out differently, and
9:19
Speaker 1: maybe explaining how this case fits with the older president Jingles.
9:24
Speaker 1: And are they going to overturn Jingles? Are they going
9:26
Speaker 1: to say this as a clarification of Jingles, which would
9:30
Speaker 1: be a way of changing it without flat out changing it.
9:33
Speaker 1: So I do think my guess is less likely that
9:37
Speaker 1: you're going to see a majority striking down the Voting
9:41
Speaker 1: Right Staff, but you're going to definitely see a new
9:43
Speaker 1: interpretation of how it applies and what it requires, at
9:48
Speaker 1: least based on the oral argument, and it's always tricky
9:50
Speaker 1: to rely on the oral argument. I mean, we're not
9:52
Speaker 1: going to see a decision for quite some time, but
9:55
Speaker 1: you did see at least some of the justices trying
9:58
Speaker 1: to figure out how to square this with the decision
10:01
Speaker 1: that's just two years old and with the precedent that
10:04
Speaker 1: is forty years old.
10:05
Speaker 2: Chief Justice Roberts, who voted with Justice Kavanaugh and the
10:09
Speaker 2: liberals in that Alabama case, asked how the Court could
10:13
Speaker 2: differentiate the case. He said that case took the existing
10:17
Speaker 2: precedent as a given.
10:19
Speaker 1: I think that provides a basis for saying why they're
10:21
Speaker 1: not bound by the case. That the validity of Jingles
10:25
Speaker 1: and its interpretation were not really being challenged in the
10:29
Speaker 1: Alabama case. Then, as Think pointed out, the state in
10:32
Speaker 1: the Alabama case had certain very specific arguments and those
10:36
Speaker 1: specific arguments were rejected. The Court is now hinting that
10:40
Speaker 1: all they ruled on in the Alabama case were the
10:42
Speaker 1: specific objections that Alabama raised so at the lower court's
10:46
Speaker 1: order in that case, but that they had not definitively
10:50
Speaker 1: ruled on either the meaning of the Jingles decision or
10:53
Speaker 1: the meaning of Section two.
10:54
Speaker 6: The voting Rights aide.
10:56
Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue
10:58
Speaker 2: this conversation with profe Sir Richard Brafault of Columbia Law School.
11:03
Speaker 2: The timing of the court's decision is key. An early
11:06
Speaker 2: decision could effect the midterms and boost the Republicans' chance
11:11
Speaker 2: for electoral success. And later in the show, Reagan appointed
11:15
Speaker 2: judges are not afraid to criticize the president and his administration.
11:21
Speaker 2: I'm June Grosso and you're listening to Bloomberg.
11:27
Speaker 7: I think the results would be pretty catastrophic. If we
11:30
Speaker 7: take Louisiana as one example, every congressional member who is
11:35
Speaker 7: black was elected from a VRA opportunity district. We only
11:39
Speaker 7: have the diversity that we see across the South, for example,
11:43
Speaker 7: because of litigation that forced the creation of opportunity districts
11:48
Speaker 7: under the Voting Rights Act. Every justice in Louisiana has
11:53
Speaker 7: been elected through a VRA opportunity district and nearly all
11:58
Speaker 7: legislative representatives been elected on those same districts. So Louisiana
12:03
Speaker 7: alone is an example of how important it is to
12:06
Speaker 7: have Section two continue to be enforced to create these opportunities.
12:10
Speaker 2: That was civil rights attorney Janni Nelson describing what the
12:14
Speaker 2: results of ending section two of the Voting Rights Act
12:17
Speaker 2: would look like. Nelson was defending the creation of a
12:21
Speaker 2: second black majority congressional district in Louisiana. During the oral arguments,
12:27
Speaker 2: the Supreme Court's conservatives suggested they'll limit the use of
12:31
Speaker 2: race in drawing legislative maps, a move that could undermine
12:35
Speaker 2: the last major pillar of the Voting Rights Act. The
12:39
Speaker 2: Court already declared sections four and five of the Voting
12:42
Speaker 2: Rights Act unconstitutional in the Shelby County Versus Holder case
12:47
Speaker 2: in twenty thirteen. I've been talking to elections law expert
12:51
Speaker 2: Richard Rfault, a professor Columbia Law School. So, Rich, after
12:55
Speaker 2: hearing the oral arguments, do you think that the best
12:59
Speaker 2: possible out come here for voting rights advocates would be
13:03
Speaker 2: that the court sends the case back to the lower
13:06
Speaker 2: court to draw a new map. Of course, the worst
13:09
Speaker 2: case scenario is that the court just throws out Section two.
13:14
Speaker 1: It's complicated because this case is not an appeal of
13:18
Speaker 1: the earlier case that's struck down the old Louisiana map
13:22
Speaker 1: and said you need a second district. This case is
13:26
Speaker 1: an appeal of the new map which has the second
13:30
Speaker 1: district which clearly reflects attention to race.
13:34
Speaker 6: So it's a little.
13:35
Speaker 1: Unclear, but they might very well conclude that this is
13:38
Speaker 1: an illegal map or an unjustified map and strike it
13:42
Speaker 1: down and then yes, you know, have to send it
13:44
Speaker 1: back to the lower court, and then lower corpusm would
13:47
Speaker 1: then give it to Louisiana legislature, which would then probably
13:50
Speaker 1: go back to the original map because in the earlier case,
13:54
Speaker 1: in case we'll call it Robinson, as several of the
13:56
Speaker 1: justices and pointed out, there was no final judgment in
13:59
Speaker 1: that case, decision on a preliminary injunction, and the lower
14:02
Speaker 1: court didn't impose a map. The state basically decided that
14:07
Speaker 1: the legislature wanted to write its own map and not
14:09
Speaker 1: take the risk of a court imposed map, so they
14:11
Speaker 1: went and drew up a map before there was actually
14:14
Speaker 1: a final judgment by the district court in the Robinson case,
14:18
Speaker 1: which I say, that's a complicated case, and you may
14:21
Speaker 1: very well see that the court giving new instructions as
14:24
Speaker 1: to what the Section two of the Voting Rights Act
14:26
Speaker 1: require and what does vehicle projection Clause prohibit in terms
14:31
Speaker 1: of the use of race in drawing mine don't want
14:33
Speaker 1: to read because there are a number of different factors
14:37
Speaker 1: running around. In this case, there was an argument about
14:40
Speaker 1: one of the key elements in the voting rights litigation
14:43
Speaker 1: until now has been proving the presence of ratio. It's
14:46
Speaker 1: called racial block voting. That is, blacks and whites voting
14:49
Speaker 1: very differently from each other. The Justice Department of the
14:52
Speaker 1: Trump Justice Department basically has said that these days it's
14:55
Speaker 1: impossible to separate race from party, that this is really
14:58
Speaker 1: partisan jerrymandering, and the Supreme Court has given the green
15:00
Speaker 1: light to that, so that they would want to raise
15:03
Speaker 1: the burden very heavily on plaintiffs to separate race from party,
15:08
Speaker 1: and if they can't, then you don't have a win,
15:09
Speaker 1: then you don't have a voting rights That violation that
15:12
Speaker 1: I think is an argument that might draw some appeal
15:15
Speaker 1: in the Supreme Court. So the Trump administration basically said, yes,
15:19
Speaker 1: you might be able to use race as a remedy,
15:21
Speaker 1: but only if you could really prove that it was
15:24
Speaker 1: race that was driving the voting outcomes and not party
15:29
Speaker 1: and putting a very heavy burden on the plaintiffs. How
15:31
Speaker 1: much heavier burden on the plaintiffs to show that than
15:34
Speaker 1: had been the case until.
15:35
Speaker 2: Now, and what were the best arguments that the liberal
15:38
Speaker 2: justices made, Not that they'll have any persuasive effect on
15:43
Speaker 2: their conservative colleagues.
15:46
Speaker 1: The liberal justices, I think, primarily basically relying heavily on
15:49
Speaker 1: starry decisives. That is, we've decided this before, including two
15:53
Speaker 1: years ago, that this case is on all fours with
15:57
Speaker 1: the Alabama case.
15:58
Speaker 6: So that's one. Two.
16:00
Speaker 1: Another version of story decisis is there is a doctrine
16:03
Speaker 1: that says that court opinions interpreting statutes get super strong
16:08
Speaker 1: story decisives have super strong presidential effect because whereas court
16:13
Speaker 1: decisions interpreting the Constitution really can't be overturned except through
16:17
Speaker 1: an extraordinary process of constitutional amendment, court decisions interpreting a statute,
16:22
Speaker 1: Congress can always overturn them. And Congress has not tampered
16:26
Speaker 1: with the Bonia Rights Accents nineteen eighty two. So there's
16:29
Speaker 1: kind of two starry decisive arguments here, one based on
16:32
Speaker 1: the Milligan case, the other based on Jingles and saying
16:37
Speaker 1: Congress has has not bothered with that case for forty years.
16:40
Speaker 1: The other, I think was a third argument, and it
16:42
Speaker 1: didn't come up as much in this argument as people
16:45
Speaker 1: might have thought. If you go back to the Alabama case,
16:49
Speaker 1: you mentioned that Kavanaugh was in the majority, he wrote
16:52
Speaker 1: a concurrence. I'm not sure if he was in a
16:54
Speaker 1: majority or whether he just concurred. He echoed some of
16:57
Speaker 1: the language Justice of Connor had used many years earlier
17:00
Speaker 1: and dealing with affirmative action and saying there's got to
17:02
Speaker 1: be some time limit for this, that it's not clear
17:05
Speaker 1: how much longer you can keep taking effects into account
17:09
Speaker 1: in remedies. And much of the argument of the lawyer
17:13
Speaker 1: for the NAACP and the liberal justices is, well, actually
17:16
Speaker 1: there is a built in time limit in Section two.
17:19
Speaker 1: Plaintiffs have to show that there is current racial block voting,
17:24
Speaker 1: that there is a current disparate impact, and so therefore
17:27
Speaker 1: it's not something that goes on forever. Plaintiffs can't make
17:30
Speaker 1: that showing they lose. And they made the point that
17:33
Speaker 1: in much recent litigation, plaintiffs have lost a lot of
17:36
Speaker 1: voting rights cases, that they don't win a majority of
17:39
Speaker 1: their cases, and so the concern that this is going
17:42
Speaker 1: to lead to a kind of endless, kind of racialization
17:46
Speaker 1: of line drawing.
17:47
Speaker 6: They're saying is just very overdrawn.
17:48
Speaker 1: That was very much a response to Kavanaugh's position in
17:52
Speaker 1: the Alabama case.
17:54
Speaker 6: That didn't come up as much.
17:55
Speaker 1: In the argument this time as I think people might
17:58
Speaker 1: have expected. But that was one of the arguments that
18:01
Speaker 1: both the NAAC rebutted and the liberal justices also took
18:06
Speaker 1: into account.
18:07
Speaker 2: There are a lot of legal experts saying the death
18:10
Speaker 2: of the Voting Rights Act, and you know it's a
18:13
Speaker 2: sure thing that the conservators are gonna get rid of it.
18:15
Speaker 2: You don't think that it will go that far.
18:18
Speaker 1: No, I think they're going to make it much less effective.
18:22
Speaker 1: But I again I don't count myself a great prognosticator
18:26
Speaker 1: on this. I don't think there's a majority. Based on
18:30
Speaker 1: the questions in the oral argument, it seemed to me
18:34
Speaker 1: that it's more likely that they will reinterpret the Jingle's
18:39
Speaker 1: case and or the section of the Voting Rights Act
18:42
Speaker 1: in a way that places a much higher burden on
18:47
Speaker 1: plaintiffs to prove something that would entitle them to redrawing
18:54
Speaker 1: lines in order to enhance minority representation. I think that
18:59
Speaker 1: may have the effect of making sure that it'd be
19:02
Speaker 1: even fewer Voting Rights Act victories than there are now.
19:05
Speaker 1: But based on the kinds of questioning, it seemed to
19:09
Speaker 1: me that they're more likely to make the Voting Rights
19:13
Speaker 1: Act much less effective than to throw it out altogether.
19:17
Speaker 2: What do you think that timing looks like here? Do
19:20
Speaker 2: you think the court might try to rush this through
19:23
Speaker 2: to get around the procel principle, which is that courts
19:26
Speaker 2: shouldn't change election rules right before an election.
19:30
Speaker 1: I mean, that's a good question, and I don't know.
19:33
Speaker 1: I mean, you're right, I mean, one concern is that
19:35
Speaker 1: they come down soon. But maybe a lot of lawsuits
19:38
Speaker 1: challenging current plans that were done either as a result
19:42
Speaker 1: of litigation or as a way of forestalling litigation, that
19:46
Speaker 1: create either majority minority districts or what are cold opportunity
19:49
Speaker 1: districts districts without a block or Latino majority, but are
19:53
Speaker 1: designed in a way to make it easier for minority
19:55
Speaker 1: voters to elect for the candidates of choice. So if
20:00
Speaker 1: there's a decision between now and the spring, it's quite
20:04
Speaker 1: possible to see yet more re redistricting. If it's much
20:08
Speaker 1: later than that, I think it would be very hard
20:11
Speaker 1: for it to show up in the twenty six election,
20:14
Speaker 1: but it would surely show up in the twenty eight elections,
20:16
Speaker 1: so I don't know. I mean, it's now been argued twice.
20:20
Speaker 1: They set it up on the calendar early in the term.
20:22
Speaker 1: It's conceivable that they'll be an early decision, but it's
20:25
Speaker 1: really very hard to tell, and maybe that they need
20:28
Speaker 1: some time to figure out a theory that commands supporter
20:33
Speaker 1: could very well be that there's multiple opinions. This is
20:36
Speaker 1: a very hard case.
20:38
Speaker 2: Where do you think the Chief Justice stands? Because he
20:42
Speaker 2: did write the majority opinion in the Shelby County case,
20:46
Speaker 2: which got rid of sections four and five of the
20:50
Speaker 2: Voting Rights Act.
20:51
Speaker 1: A classic roberts move would be to effectively change everything
20:57
Speaker 1: without literally overturning it. You might see samas Alito and
21:00
Speaker 1: Gorsuch wanting to do more, possibly Kavanaugh, but my sense
21:05
Speaker 1: of robertson Barrett anyway is they want to change as little,
21:13
Speaker 1: formally as little as possible while making a big enough
21:17
Speaker 1: change to get rid of these kind of cases. And
21:20
Speaker 1: I think the Department of Justice gave them the argument
21:24
Speaker 1: that might allow them to do it. They seem very
21:25
Speaker 1: keen on that. Kavanaugh seemed particularly keen on that he
21:28
Speaker 1: kept citing to the the Department of Justice brief which
21:31
Speaker 1: really talked about the need to separate out race from party,
21:36
Speaker 1: to make a very high barrier for doing that, and
21:38
Speaker 1: to emphasize that partisan jerry mannering was just fine.
21:42
Speaker 2: Are there any other voting rights cases coming up to
21:45
Speaker 2: the court or percolating in the lower courts?
21:48
Speaker 1: There are some other issues percolating around in the lower courts.
21:52
Speaker 1: Maybe the most important one is whether there's a private
21:54
Speaker 1: right of action under Section two with a moony right
21:57
Speaker 1: sack with. Most courts have assumed that there is but
21:59
Speaker 1: one circuit as hell, there is not, So that issue
22:02
Speaker 1: is perking out there, but I don't think it's before
22:03
Speaker 1: the Servin Court this year.
22:05
Speaker 2: They do seem to have enough before them this term.
22:07
Speaker 2: Thanks so much, rich that's Professor Richard Brifald of Columbia
22:11
Speaker 2: Law School.
22:14
Speaker 5: It has become ever more apparent that to our president
22:18
Speaker 5: the rule of law is but an impediment to his
22:22
Speaker 5: policy goals.
22:24
Speaker 2: In February, Seattle federal Judge John Kuhnauer ruled against President
22:29
Speaker 2: Trump's attempt to end birthright citizenship. In doing so, he
22:33
Speaker 2: was blunt in his criticism of the President and in
22:36
Speaker 2: his own determination to protect the rule of law.
22:41
Speaker 5: There are moments in the world's history when people look
22:44
Speaker 5: back and ask where were the lawyers? Where were the judges?
22:49
Speaker 5: In these moments, the rule of law becomes especially vulnerable.
22:53
Speaker 5: I refuse to let that becon go dark today.
22:56
Speaker 2: Kunauer is just one of the judges appointed by President
23:00
Speaker 2: Ronald Reagan who've been vocal critics of the Trump administration's
23:05
Speaker 2: efforts to circumvent court orders and challenge the law in
23:09
Speaker 2: unprecedented ways. Most federal judges are more guarded, but the
23:13
Speaker 2: Reagan appointees, all in their eighties with decades of experience
23:18
Speaker 2: on the bench, are institutionalists who have no trouble being
23:23
Speaker 2: blunt about a party trying to subvert a court order
23:26
Speaker 2: or the rule of law. Joining me is Bloomberg Law
23:29
Speaker 2: reporter Jacqueline Thompson Jacqueline in general, how have Reagan appointees
23:36
Speaker 2: viewed Trump and this administration?
23:39
Speaker 8: Again speaking generally, because I'm sure not every Reagan appointee
23:43
Speaker 8: feels this way, but some of them really have sort
23:46
Speaker 8: of blanched at the way that the Trump administration has
23:49
Speaker 8: been approaching the law and then also been approaching the
23:52
Speaker 8: courts in general. You know, the arguments that they make
23:55
Speaker 8: in court We've had judges sort of bristle at how
23:59
Speaker 8: they've approached Firth thread right citizenship. We've had judges detail
24:03
Speaker 8: times where they feel like the administration isn't complying with
24:05
Speaker 8: their court orders, or at least not doing so in
24:08
Speaker 8: a really fulsome way that they feel, you know, recognizes
24:11
Speaker 8: the power of the courts. And so it's just been
24:14
Speaker 8: interesting to watch these judges who are in Seattle, they're
24:17
Speaker 8: in Boston, we've one in d C. There's also one
24:20
Speaker 8: on the Fourth Circuit, which covers Virginia, and you know,
24:23
Speaker 8: they've been pretty vocal in talking about how they feel
24:27
Speaker 8: about the administration.
24:29
Speaker 2: Yes, particularly Judge William Young in that one hundred and
24:33
Speaker 2: sixty one page opinion, which was stunning in so many ways.
24:38
Speaker 2: Judge Young wrote, the Constitution, our civil laws, regulations, moires, customs, practices, courtesies,
24:46
Speaker 2: all of it. The President simply ignores it all when
24:49
Speaker 2: he takes it into his head to act.
24:51
Speaker 8: Yes, definitely, No. He he really went through all the
24:56
Speaker 8: different ways that he feels about the president within that opinion,
25:00
Speaker 8: and you know, it was really just such a striking opinion,
25:02
Speaker 8: not just because of what he said about Trump, but
25:04
Speaker 8: the way that he wrote it, and it really felt
25:07
Speaker 8: like he was trying to speak to the public there
25:09
Speaker 8: and almost give them a sort of civics lesson, saying,
25:11
Speaker 8: you know, this is the way that the courts function,
25:13
Speaker 8: and this is the way they have historically functioned, and
25:16
Speaker 8: what I'm facing today in my courtroom is not proper
25:20
Speaker 8: actions by the administration. And I haven't decided what I'm
25:23
Speaker 8: going to do yet, but whatever I do do here
25:27
Speaker 8: will be fully done.
25:28
Speaker 2: With all of that in mind, President Reagan seems to
25:31
Speaker 2: hold a special place in the hearts of party members.
25:35
Speaker 2: Trump even has a portrait of him, as you mentioned
25:37
Speaker 2: in your article, hanging in the Oval office. What kind
25:40
Speaker 2: of people did Reagan appoint to the bench?
25:44
Speaker 8: You know, Reagan also went with young conservatives the way
25:47
Speaker 8: that Trump did, and that's why we have so many
25:50
Speaker 8: Reagan appointees who are still active judges. These were folks
25:53
Speaker 8: who were getting appointed in their thirties and their early forties.
25:56
Speaker 8: They've been sitting on the bench from anywhere from thirty
25:59
Speaker 8: six thirty seven years to nearly forty years some of them.
26:03
Speaker 8: And you know, they've spent a lot of time on
26:05
Speaker 8: the court and seen administration to administration, seeing all of
26:09
Speaker 8: these changes. You know, Judge Lambert and DC for one,
26:13
Speaker 8: he's talked about how he was arguing on behalf of
26:16
Speaker 8: the Reagan administration in court before he got a federal
26:19
Speaker 8: judge ship. So these are folks that you know, Reagan
26:23
Speaker 8: administration officials were familiar with, knew of them, and you know,
26:27
Speaker 8: sort of had the conservative credentials that they wanted to
26:30
Speaker 8: put onto the court. Now, of course, some of them
26:32
Speaker 8: are in blue states. That means that they had blueslips
26:35
Speaker 8: that were signed by Democratic senators in order for them
26:38
Speaker 8: to get the seats. But overall, Reagan really had an
26:41
Speaker 8: opportunity to shape the courts in a really conservative way,
26:45
Speaker 8: just as Trump did during his first term and will
26:49
Speaker 8: to the extent that's possible during a second.
26:51
Speaker 2: But conservative ideology has evolved in the nearly forty years
26:57
Speaker 2: since Reagan left office, and also the current administration doesn't
27:02
Speaker 2: always seem to be interested in conservative ideology, but rather
27:07
Speaker 2: gathering more power for the president and the executive branch.
27:11
Speaker 8: Yeah, I think that's right, and it's just very interesting
27:15
Speaker 8: to watch the divide that we see on some of
27:17
Speaker 8: these courts, where we'll even have instances where Reagan appointees
27:22
Speaker 8: and Trump appointees are split over an issue and they
27:25
Speaker 8: won't be lined up in ruling the same way. And
27:27
Speaker 8: you would think, oh, you know, a conservative is a conservative,
27:30
Speaker 8: but really we're dealing with shades of conservatism here. And
27:35
Speaker 8: the way I've started to be thinking about it is
27:36
Speaker 8: a little more okay, is a Trump appointing maybe even
27:41
Speaker 8: further to the right than a Reagan appointee necessarily is.
27:45
Speaker 8: And that's not the case for all courts. I cover
27:47
Speaker 8: the Fifth Circuit a lot, and I think the Reagan
27:49
Speaker 8: appointees on that court are quite in line with the
27:52
Speaker 8: Trump appointees there. But in others that's not so much
27:55
Speaker 8: the case. They're much more traditionalist conservatives. They really think about,
28:00
Speaker 8: you know, the Buckley era of conservatism and what that
28:04
Speaker 8: all means for them.
28:05
Speaker 2: Well, it's more about the rule of law. I think
28:08
Speaker 2: for some of the regular appointees, the older judges. And
28:12
Speaker 2: you talk to a former Reaguan appointed judge in Miami,
28:15
Speaker 2: Thomas Scott, who said, they're institutionalists. They're going to come
28:19
Speaker 2: down very hard. You're playing games with the court and
28:22
Speaker 2: it's not going to be successful. And I think we've
28:25
Speaker 2: seen that.
28:26
Speaker 8: Yeah, And it's also important to recognize again, these folks
28:30
Speaker 8: have been on the for decades. They realize that their
28:33
Speaker 8: power comes from people complying with their rulings. So there's
28:37
Speaker 8: a little bit of self preservation. They're right in terms
28:39
Speaker 8: of them wanting to say, hey, I still have influence here,
28:43
Speaker 8: but I only have this influence if you actually go
28:45
Speaker 8: along with what I'm doing here. And there's that, but
28:49
Speaker 8: there's also this respect for the rule of law. They've
28:51
Speaker 8: seen it play out again for years and years on
28:54
Speaker 8: their time in the bench, and they've seen what happens
28:56
Speaker 8: when it's not respected. They've seen what happens in other
28:59
Speaker 8: countries when it's not respected. You know, Judge Kaufner, one
29:03
Speaker 8: of the judges we mentioned in the story in Seattle,
29:06
Speaker 8: he brought up Eastern European governments and saying, you know,
29:09
Speaker 8: he had spent time there and watched what happened when
29:12
Speaker 8: the rule of law disappeared and what it meant for
29:15
Speaker 8: people to be returning to those democratic institutions. So they're
29:19
Speaker 8: bringing a lot of perspective here, not just domestically, but globally.
29:24
Speaker 2: And I saw an article that said Northeastern courts at
29:27
Speaker 2: the center of some of the debates about executive power.
29:31
Speaker 2: Is there a reason why it seems centered in some
29:34
Speaker 2: of the Northeastern courts.
29:36
Speaker 8: Yeah, So, just like during the Biden administration we saw
29:40
Speaker 8: so many lawsuits filed in Texas, it seems like Boston
29:43
Speaker 8: and other courts that are within the First Circuit are
29:46
Speaker 8: becoming the same draw for liberal litigators. And that's really
29:50
Speaker 8: because there's a number of Democratic appointees there that make
29:55
Speaker 8: up the majority of those courts. So when you're going
29:58
Speaker 8: to a circuit and you're saying, hey, I want to
30:00
Speaker 8: get the best case law possible for my client. Where
30:03
Speaker 8: do I want to file this lawsuit? You're probably going
30:06
Speaker 8: to want to try and file it somewhere like Boston.
30:09
Speaker 8: You could go, you know, to Rhode Island has had
30:12
Speaker 8: a lot of cases as well, and they've even had
30:15
Speaker 8: a Trump appointing in Rhode Island ruling against the Trump administration.
30:19
Speaker 2: One appointee told you that perhaps, you know, the Reagan
30:23
Speaker 2: appointees have been on the bench a long time and
30:26
Speaker 2: they might not be as patients as other judges.
30:30
Speaker 8: Right, Yeah, you know, I think we all know from
30:33
Speaker 8: personal experience, when we, you know, sit down with folks
30:37
Speaker 8: who've been doing jobs for a long time, they know
30:40
Speaker 8: how the job is done. They have no problem telling
30:43
Speaker 8: people how they think the job should be done. And
30:46
Speaker 8: you know that very well could be what's happening here
30:49
Speaker 8: as well.
30:49
Speaker 2: But some legal scholars have said there could be a
30:52
Speaker 2: backlash to these kinds of blunt statements from judges.
30:56
Speaker 8: Yeah, and we've already seen that play out. You know,
30:59
Speaker 8: when I cheffer comment for reaction from the White House
31:03
Speaker 8: to Judge Young's one hundred and sixty one page ruling
31:05
Speaker 8: that you referenced earlier, you know, a White House official
31:09
Speaker 8: shared with me a list of cases in which Judge
31:11
Speaker 8: Young had been refersed or had been chided by the
31:15
Speaker 8: Supreme Court. And you know that stood out to me
31:18
Speaker 8: and them saying, hey, you know this guy, he's not
31:22
Speaker 8: a perfect judge, to which I say, you know which
31:24
Speaker 8: judge is perfect? I cover them for a living, and
31:27
Speaker 8: I think it's hard to say that any judge is perfect.
31:30
Speaker 8: They're all human like the rest of us. So it
31:33
Speaker 8: was interesting to see that level of pushback from the
31:37
Speaker 8: White House on that, And you know, I think it
31:39
Speaker 8: will only continue as we see rulings come out. We
31:44
Speaker 8: may start seeing things pop up from folks nominations, hearings,
31:49
Speaker 8: some rehashing of that nomination process that so many people
31:53
Speaker 8: say has become too politicized and too toxic and that
31:56
Speaker 8: should be forgotten the second that they become judges on
31:59
Speaker 8: the bench. But is that really possible? Can we really
32:02
Speaker 8: separate out the two? I don't know.
32:04
Speaker 2: There's been this sort of phenomenon of less judges retiring
32:10
Speaker 2: during the second Trump administration, especially on the appellate benches,
32:15
Speaker 2: and you know, a lot of speculation as to why. So,
32:18
Speaker 2: you know, the Reagan appointees have been on the bench
32:20
Speaker 2: for a long time, they're in their eighties. Have any
32:23
Speaker 2: of them said it's time for me to retire or
32:26
Speaker 2: I'm not going to retire, because none.
32:29
Speaker 8: Of these judges have come out publicly and said anything.
32:32
Speaker 8: Some of them are already on senior status. For example,
32:35
Speaker 8: Judge Young is a senior judge. Judge Kaffner is a
32:38
Speaker 8: senior judge. That means that they hear fewer cases. Judge
32:41
Speaker 8: Lambert is also a senior judge, but he's quite active.
32:44
Speaker 8: He hears cases in DC and in Texas, which is
32:47
Speaker 8: where he grew up, so he keeps himself very busy.
32:50
Speaker 8: But just because you're a senior judge, doesn't mean that
32:53
Speaker 8: you work any less. I spoke to Judge Young maybe
32:56
Speaker 8: two years ago for a totally unrelated story, and you know,
33:00
Speaker 8: he sort of made a comment to me about how
33:02
Speaker 8: he's gonna keep going for as long as he can.
33:05
Speaker 8: And that's something I've had in the back of my
33:07
Speaker 8: mind here as we do this reporting.
33:09
Speaker 2: It's amazing how long they've been on the bench and
33:12
Speaker 2: how they're still so committed. Thanks so much, Jacqueline. That's
33:16
Speaker 2: Bloomberg Law reporter Jacqueline Thompson and that's it for this
33:20
Speaker 2: edition of The Bloomberg Law Show. Remember you can always
33:23
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33:26
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