Unpacking end-of-term Supreme Court rulings at Aspen Ideas Festival

Hello friends and welcome to the Aspen ideas Festival Supreme Court panel [Music] the Supreme Court as always has checked in with the organizers of the Aspen ideas Festival and has thoughtfully handed down its affirmative action decision moments before we convene and we are here to discuss the momentous decisions that the court has handed down in the past few weeks including affirmative action the future of American elections the future of the Voting Rights Act and much more we have a remarkable panel of America's leading Supreme Court thinkers and litigators they have a diversity of views and our goal is both to help you understand the legal reasoning of the decision and their implications both the majority opinions and the dissents so that you can make up your own mind so we're going to jump uh right into it uh I am thrilled to introduce uh first of all uh Neil cacell of Georgetown law school Hogan Lovells one of the leading Supreme Court litigators who has just won the independent state legislature case as as those of you who have uh been to this panel before know that Neil is my brother-in-law and this is the latest installment of our Roadshow Brothers in law next to Neil we are thrilled to welcome Pam Carlin of Stanford Law School uh Pam is one of the leading constitutional thinkers of America and it's so great to welcome her to Aspen and also to welcome Clark Neely of the Cato Institute a leading thinker and it will be great to have his perspective uh let's Jump Right In with the affirmative action decision the court by a six to three vote has held that uh the affirmative action programs of Harvard and the University of North Carolina violate the equal protection Clause the court repudiated the Holdings of the Baki and gruder cases which had held that educational diversity is a compelling interest and the court said that the only way to justify racial classifications under the equal protection Clause are to show that you're remedying identifiable race discrimination in the past or you're avoiding an emergency in the future and because educational diversity is neither of those things it can no longer be considered a compelling interest Clark why don't you lead us off describe the majority opinions reasoning uh and also that of those of the concurring justices who argue that the equal protection Clause is colorblind what did what did the majority hold and do you agree with it I sympathize kid this is a really difficult the tough uh it was it was my introduction didn't matter very sensible response but it's a tough decision to make sense of um you know even the the there's a disagreement between the Chief Justice who wrote the majority opinion and Justice Thomas who wrote A concurrence about whether they did or didn't overrule uh prior oppressing including particularly the gruder case from uh University of Michigan on the question of whether achieving diversity on campus is a sufficiently compelling governmental interest so it's really going to require a deep dive on these lengthy opinions I forget what the page count is so 239 239 I knew Pam would know for sure um yeah I mean it's a lot to digest and I'm just going to be really honest with you I haven't had time but uh I think I can still you know sort of try to hit the highlights and and what it comes down to is this I think there are three questions that these cases present the first is whether it's ever permissible to use race in deciding whether to admit a student to to either a public university like the University of North Carolina or a private university that receives federal funds under title VI or I'm sorry that is controlled by title VI of the 64 Civil Rights Act and Harvard does take Federal money um so while the Constitution doesn't forbid Harvard from using race um the argument is that as a recipient of federal funds they have a statutory obligation to essentially be colorblind or at least to just to stay within the parameters of however much race the Supreme Court says a university is allowed to use so that's the first question can you take race into account second question is if so to what extent um the the argument that Harvard made and Court essentially was look it's just a very it's a small part of their decision we have a holistic approach we take into consideration a tremendous number of factors in race is really just one of those and then third is a more practical question namely what is the University really doing and there was actually a lengthy trial a bench trial meaning a trial in front of a judge in the heart Harvard case that produced a significant body of evidence that was not prior to that had not been made public about how Harvard's admission process actually worked and one of the most difficult things I think for Harvard to sort of contextualize I was about to say run away from but I don't want to be pejorative yet was that the admissions policy at Harvard had a significant impact on applicants of Asian dissent my wife is half Japanese my kids therefore a quarter Japanese and so this is something you know an issue of particular concern in my household and there was I think rather compelling empirical evidence that Asian students had to perform substantially better across a whole variety of measures in order to have a chance of being admitted to Harvard there was further evidence that if Harvard had a strictly kind of colorblind approach to admissions that something like 46 percent of the student body at Harvard would be Asian and the idea that even if for example we we say that it's permissible for a university to take race into account perhaps even to try to remedy past discrimination which is something that featured heavily in both Justice sotomayor's and Justice uh Jackson's dissents what what this case to me at least brought forth was that that's not always cost free and so if one group is going to receive a preference which Harvard clearly was doing for African Americans and people of Hispanic descent then other ethnicities may end up getting short shrift and it's pretty clear at Harvard that Asians were in fact getting a short shrift and so those are really the three questions that I think are in play in this case can a public or publicly funded organ academic institution take race into account if so to what extent and then third what are they really doing put aside what they say they're doing what are they really doing going forward I think it's clear that universities will be able to continue to take race into account to some extent chief justice Roberts was very clear that applicants will be able to write about their experience in their essays for example what you know what it has meant to me to be a member not me but what if it's meant to a hypothetical applicant to be a member of a particular ethnicity what hurdles have you had to overcome as a result and that that would be a permissible way going forward for universities to to take race into consideration to at least some extent the devil is really I think going to be in the details in terms of how the schools respond and what the courts say about how they've responded uh thank you so much for setting up so well Pam uh there is a practical question about how race can be used moving forward and as Clark said chief justice Roberts uh observed that universities can continue to encourage students to write about race on their essays as long as they tie that to particular challenges or adversity that they've overcome and there was one other exception saying that the military could continue to take race into account in practice what do you think the effect of the decision will be and how will affirmative action be changed at universities so um I should say that I'm speaking here in my personal capacity because when I was at the Department of Justice in the Civil Rights Division I worked on doj's Amicus brief in the Harvard and North Carolina cases um I I think you know an affirmative action program Done Right can survive the chief Justice's opinion because what he says there is that uh rather than just looking at whether someone checked a box saying that he was Latino or she was African-American you should look at how the person explains how their race goes to the qualities that make them an attractive applicant for the school and I'll just say parenthetically along the lines of something that Clark said as somebody who has always tested extraordinarily well test scores are not everything in deciding who to let in at Stanford we reject a number of people with much higher test scores than the people we let in in part because we are looking for a well-rounded class of people who've done interesting things and test scores are not everything so that means that schools will have to look more carefully and the one concern that I have about this in the short run is for students who are upper middle class uh or who go to who have gotten scholarships to go to excellent private schools or like they will have guidance counselors who will be able to tell them how to write the kind of essay that will talk about their experiences in a way that will um help to make them an attractive applicant for students who are going to underfunded public schools in the middle of nowhere with a ratio of students to guidance counselors of 400 or 600 to 1 they are not going to understand how this new process works and so they are less likely to write the kinds of essays that will make them attractive candidates under this kind of new regime so that's that's the first piece of this the second thing to look at though is there are cases coming down the pike that the court didn't address in its opinion today that are worth understanding and the the next one up I think is going to be the Thomas Jefferson case for those of you who are not from the Washington DC area but are from the New York area Thomas Jefferson is the Bronx Science of the DC Metro Area it's a school it's a it's a Math and Science High School it's incredibly selective it's a public school and they changed their admissions policies recently to get rid of a test that had a huge disparate impact on black and Latino applicants and to use a race-blind process and that race blind process has been challenged because the reason they adopted it was to increase the diversity racial diversity in the school and if that case goes to the Supreme Court and is decided then we're in a very different I think very different world going forward talking about what schools can do to make their classrooms diverse I'm so glad you flagged that crucially important case for our audience and as Pam Carlin suggests the big question moving forward is whether any race Consciousness is unconstitutional and a violation of federal law even if it results in the adoption of facially neutral policies Neil help us think through the really important litigation on the horizon pem suggested a gap between the majority opinion and that of justices Thomas and Gorsuch Justice Gorsuch essentially suggested that the text of title 6 and Title VII of federal law require total color blindness if if his view got a majority would that mean that any race conscious corporate recruiting would violate federal law and what kind of division do you see among the justices on this crucial question of how much race Consciousness is permissible moving forward uh thank you it's so great to be here with all of you again I think I've done this now for about eight or nine years and I love being here and I love this audience so thank you um I like Pam I'm speaking personally I represent like everyone in this space so um so I'm uh really very much talking personally here uh my reaction to the affirmative action decisions is that they were not nearly as bad as I thought they would be that they left a lot of room open so Pam isolates one important thing the last two paragraphs of the chief Justice's opinion say if a applicant self-identifies on the basis of race and explains why her experience matters and what she will bring to the university that's okay well that's what you know I believe a well-constructed affirmative action program will be able to do Pam's a hundred percent right that this is going to benefit you know people who have more sophisticated counseling I mean it's kind of like how Donald Trump was good for lawyers the Supreme Court's good for guidance counselors um you know and uh uh you you know and that does really concern me um but but nonetheless I do think it's possible for universities to maintain uh A diversity based program that's that's well crafted um and I think the military exception the language about that helps as well there's this really hard question which Pam is flagging which all universities are thinking about now which is what if we do something that's a proxy for affirmative action in a race conscious program so say we look at Pell Grants and you know or some sort of socioeconomic status and will that be challenged as just doing affirmative action through the back door absolutely it's going to be challenged this opinion doesn't give us very much guidance on it Pam's again 100 right that the Thomas Jefferson case would but I don't anticipate the Supreme Court to take another case in this space for a little while typically when the Supreme Court decides a case then the other cases that raise similar or even a adjacent issues they just throw back to the lower courts for additional percolation and here not only did they decide a big case they overruled or semi-overruled or partially overruled or whatever you want to call it Chief step Mr chief justice the old cases of gruder and Baki and so I do expect a lot of this litigation to return to the lower courts so there will be fights at the K-12 level there'll be fights in the universities and my last Point as Jeff said is there will be fights in the corporate setting as well that is this decision has implications for how corporations think about their Dei programs their commitments to affirmative action and the like the Supreme Court in two cases Johnson and Weber said that those those programs exist on a somewhat different footing they're not diversity based affirmative action they're designed to compensate for past wrongs and so there are strong Arguments for why corporations can still continue to do this but Justice Gorsuch flagged the argument on the other side great well thank you for introducing the crucial questions that the affirmative action cases opens up I do want to encourage you to read the opinions the majority opinion the concurrences and the dissents this is part of your education as Citizens and you'll see a remarkable constitutional debate between Justice Thomas And Justice Jackson about the history of color blindness from the Civil War to the present the meaning of the efforts to achieve racial equality and whether or not efforts to help recently freed enslaved men and women uh should lead to a color blindness requirement or not it's well worth reading and I I hope you'll do that let's turn now to the independent state legislature case and I uh since I'm not objective about this I'm going to quote from the remarkable tweet and tribute uh from Judge Michael ludic who said the following about Neil's victory in that case and I need my constitutional reading glasses to uh read it he said it would be impossible to overstate the enormity of yesterday's seminal decision in morby Harper not only is it now the single most important constitutional case for American democracy since the nation's founding almost 250 years ago it is also now one of the most important constitutional cases for representative government in America congratulations on that Neil and why does Judge ludic think that this is the most important constitutional case for American democracy since the founding well I think um for it was such a privilege to do this case because basically what the Republican party was saying was that elections would be governed by the raw political power in state legislatures the state legislatures can do whatever they want this theory was used it was the basis of Trump's 2020 theories about the the elections you might recall that there were about 62 decisions that were going on in the 2020 election many of them were in state courts and John Eastman and Trump's advisors all said these State Court decisions are illegitimate they considered everything they were about everything from you know absentee ballots and you know polling hours all sorts of things how you count ballots all sorts of things this case came from North Carolina and it was about gerrymandering and basically the North Carolina State Legislature North Carolina is a very evenly divided state has 14 congressional seats the North Carolina legislature which is overwhelmingly Republican gerrymandered it so it was about 10 to 4 or 11 to 3 in favor of Republicans that went to the North Carolina Supreme Court the North Carolina Supreme Court said this violates our own state constitution leading the Republicans to go to the U.S Supreme Court and say oh state courts have no business in federal election state constitutions have no business in federal elections and the reason why I think judge Ludwig is saying that is because he found that we found that so contrary to the tradition of checks and balances in this country going all the way back to the Articles of Confederation courts have always played a role in state constitutions have always played a role in governing Federal elections um Clark help us understand the argument of the three uh dissenters uh judge Justice Thomas Justice Gorsuch and and Justice Alito uh partially join them and essentially they said that it all turns on the meaning of the word legislature and since A legislature in its ordinary meaning only Means A legislature and not uh the state courts that review the legislative acts therefore state courts had no role to play and and essentially they said that all of the precedent and history and tradition and practice from the time of the founding until today that um suggests that state courts were expected to review the acts of legislatures should be ignored because the meaning of the word is clear do I have that right and and try to help us understand their argument yeah I think you have it right I'm trying to put my words carefully here but I guess I'll just throw caution of the wind since I'm the libertarian on the panel and I know it's expected of me like I think this is such a stupid question that I'm amazed the Supreme Court had to get involved right like it's like if I have to stop this car and like a deal with you kids in the back seat I mean it's I think it flows from this ridiculous kind of hypertextualism that we sometimes see and I'll give you an example um the 16th Amendment says that Congress shall have the power to lay and collect taxes on incomes and the argument in the North Carolina case strikes me as if somebody said oh well the 16th Amendment says Congress shall have the power to lay and collect taxes so the IRS can't collect taxes it has to be Congress I think there's a Preposterous hypertextualism that's that's I think unhelpful and unworthy and I that to me that's that's a spirit that animates this dissenting opinion animates the arguments that were made below in the North Carolina case another example on the other side would be you know the Second Amendment says that it the people the right of people to keep and bear arms shall not be infringed putting aside the militia Clause are we really going to interpret the word arms to be every single thing that is an arm including nuclear weapons no that's preposterous but that would be the kind of hypertextualism that I think is both unhelpful and unworthy um of of such you know an important document and it just I think it it it belittles a document to approach in that way and to sort of fail to keep perspective that this is first and foremost a framework for government a framework for a particular kind of government liberal government and rule of law government and that's the spirit uh that in my judgment prevailed that was that with that animated Neil's arguments and that prevailed in the Supreme Court and any other result I think would have made you know frankly a kind of a mockery of the of of what is very clearly the Spirit of this document well significant words from from you Clark Neely you are one of the leading Second Amendment defenders in this country You've Won some of the major Second Amendment cases and to learn that you're not a fan of that hypertextualism to put it mildly is notable Pam help us understand the significance of this debate and I should say that the three of us are going to have a advanced credit seminar tomorrow morning about how to interpret the Constitution where we'll dive into these questions of differences among originalist textualist pragmatists and so forth but there's a big divide to put in mildly between the uh let's call them traditional originalists including Justice Kavanaugh and now Justice Barrett in in Neil's case as well as the Chief Justice and justices Gorsuch and Thomas and Alito and the hyper textualists as Clark described them um would have denied courts and he rolled to to play in reviewing elections as well as requiring a degree of color blindness that's far more extreme than the more traditional originalists so help us understand the nature of the debate and what are the consequences of this hypertextualism moving forward sure can I just back up one minute though and say a little bit about why one of the big pieces of significance about Neil's case here and that is the Supreme Court of the United States took itself out of the business of policing political fairness in gerrymandering cases in the rucho case a couple of years ago and so the only place you could go to claim that there was unfairness in the way the state legislature draws congressional districts or draws State Legislative districts or the way your city council districts are being drawn is to go to the state courts and the court said there go to the state courts and then to turn around and uh and say but the state courts can't do anything either was deeply problematic so that's the the first big thing I think to note here second big thing to note is um what the Supreme Court has done here and this is I think chief justice Roberts at his most clever institutionalist in some ways is he has not taken the U.S Supreme Court out of the business of policing what state Supreme Courts do he's left open the question of when has a state court gone beyond traditional uh judicial review and really started to impose its own Notions of fairness so it'll be really interesting to see how that plays out now what you're seeing I think in a lot of the cases in front of the Supreme Court I think this may be what you're getting at in part Jeff is there are justices who are institutionalists and who are thinking about in the long term what's best for the court to kind of retain its power and to retain its Central position and chief justice Roberts is uh an example of this and then there are what um Leah Littman's referring to as the ye only live once justices the YOLO Court Justices who are grabbing for as much right now given how these are arguments play out right now and that's what I think is going on with the independent state legislature doctrine that as Neil says it started out as something that was Far cleverer than it was wise far more textual than it was contextual and as a result uh it looked like something that would be good for one side in the political debates now and I think that's what drove the justices to that position I would have been very surprised if they had adopted the kind of independent state legislature Doctrine the way they did in a case where it was going to Advantage the Democrats tremendously I would have been very surprised great well that's a helpful distinction between the institutionalists and the Yola justices and let me ask you how that plays out in the third big case that we're going to check before we get to that third case uh there's one thing I'd like to say more about this case because I think it connects to the themes of the ideas uh uh seminar and indeed the first session which was about listening to one another so um an interesting thing happened in this case after I argued it uh the North Carolina Supreme Court where this case was from changed its mind on some of the key questions and there were five parties on my side versus the Republican party and the five were a bunch of very liberal groups as well as the Biden Administration the solicitor general and when that decision by the North Carolina Court was made these folks all went to the United States Supreme Court and said get rid of this case get rid of Moore versus Harper it's moot now because the North Carolina court has changed opinion and they thought they were going to lose and we looked at it and I have such a diverse team of people on my staff and my method is always to really try and take what the United States Supreme Court says seriously we live in a kind of sound bite caricature age and I looked at it I thought about it and I said I think we're going to win the case and I think that these people are having a knee-jerk reflexive reaction to what the U.S Supreme Court is is about and so we stood alone we told the Supreme Court don't get rid of this case decide the case on the merits and we won and that to me is a illustration of what this week is all about it's about trying to take each other seriously and listen and of course they're open to all sorts of criticism and I give it to them too but sometimes there's still a space for good results even when we are opposed to one another such a brother absolutely it's a hugely important point and the fact that you persuaded the court to take the institutional view in briefings after the case had been argued is part of this remarkable Victory and it's why judge ludic uh paid you in the case the tribute that he did well the theme of institutionalism is raised by our our third case which is the Alabama voting rights case the Milligan case this is one where chief justice Roberts and Justice Kavanaugh joined the liberal justices in uh refusing to strike down section two of the Voting Rights Act which requires uh legislatures to be race conscious in when there's been evidence of racially polarized voting and in the process to preserve the one of the last uh parts of the Voting Rights Act that remains available Pam you're America's voting rights expert is a complicated case but help us understand it and why it once again reaffirms Chief justices Roberts institutionalism sure so again a disclaimer I worked on the case of the Department of Justice um so when President Johnson signed the Voting Rights Act into law in 1965 he said it was the toughest civil rights statute America had ever had ever enacted and in 1982 the statute was amended to say that states could not use voting practices or procedures that resulted in minority voters having less of an opportunity to participate and to elect candidates of their choice than other voters so it's a statute not just about the right to participate in elections but about the ability to elect candidates of your choice and in large parts of the country uh the only way for minority voters to elect candidates of their choice is to have them be a majority of the electorate because voting is racially polarized in those parts of the country it's not true everywhere in the United States it's gone down over time in much of the United States but there are still places where racial polarization is real and it determines the outcome of Elections uh in the 1990s Alabama was forced to draw one majority black congressional district it has seven congressional districts it was forced to draw one by the Voting Rights Act and that district has been redrawn and redrawn and perpetuated from the 1990s to the 2000s to the 2010 to 2020 and in 2000 and in 2020 Alabama redrew its districts again creating one majority black district and six majority white districts and a variety of different groups brought suit in Alabama saying it was possible to draw a second majority black congressional district and that the level of racial polarization in Alabama remains high and that otherwise black voters in Alabama wouldn't have of equal opportunity to participate and to elect it this was a classic case under a 1986 Supreme Court decision called Thornburg against Jingles which coincidentally was decided the year I was clerking so my whole life as a voting rights lawyer has been in the Jingles regime um the a three-judge district court in Alabama heard evidence in the case there was a preliminary injunction trial several weeks of evidence uh and said that Al that the Alabama plan likely violated the Voting Rights Act by failing to draw this second majority black District um the three judges who decided the case decided the case under the jingles test which the Supreme Court has used since 1986 and has been used around the country and this was really a cookie cutter case there was nothing interesting about the case at all except for one thing and we've been talking a lot this week about technology and it was technology that was the interesting thing which is scientists now have super computers that can run hundreds of thousands of simulated elections they can redraw the districts millions of times and see what the result of the elect of the redrawing the districts would be and it turned out that there were some political scientists who had run I think a hundred thousand uh simulated maps of Alabama and they never produced two majority black districts unless they took race into account and so Alabama said c we have a colorblind Constitution you'd have to take race into account too much in order to draw two districts therefore abandon the jingles test the case went up to the Supreme Court on the shadow docket which I think we may talk about a little bit later and the Supreme Court stayed the order of the three judge district court in Alabama so that the election in 2022 went forward under the six white district one black district one majority black District plan elected six Republicans and one Democrat um at the time the Chief Justice dissented from the granting of the stay by saying I think the jingles case just you know decides how this case should come out but I'm not sure Jingles is right I think we need to rethink Jingles a little and so then the Supreme Court territorial argument and ultimately the Supreme Court came back and said no we're sticking with the jingles test this is a case that meets all of the factors under jingles and therefore we are sending the case back for more proceedings and the proceedings are going to be a remedy that will presumably draw two districts from which black voters in Alabama can elect candidates of their choice uh be beautifully explained and it just shows how incredibly significant the case is and by some accounts it will result in the election of from three to five more democratic seats in the next uh house elections uh because this Jingles test which Pam described which just to review because it's complicated um requires legislatures to draw districts that where majority were minorities constitute a majority in cases where there's a history of racially polarized block voting and the minority communities are geographically Compact and contiguous that test remains alive if the other side had won then there wouldn't be a requirement to create those districts making it harder for Congress to require that minorities have an equal opportunity to elect representatives of their choice as they said in passing amendments to the voting race act in 1982. Clark just to bring this back to a version of the colorblindness debate Justice Thomas in his uh dissenting opinion in Milligan said essentially the Constitution is colorblind and therefore the Voting Rights Amendments violate the constitution Congress wasn't allowed to say in 1982 that legislatures have to take race into account to give minorities an opportunity to elect representatives of their choice um and therefore he would have made it uh impossible for that to happen do I have that right um explain the consequences of Justice Thomas's strong color blindness View and do you think Justice Thomas was right or wrong let me start by saying that I have as much trepidation about talking about voting rights in front of Pam Carlin as I would about pop music in front of Taylor Swift a bit Preposterous but if you're insist I will say I think you have the characterization right and I think that the the fundamental problem with Justice Thomas's perspective is that it's built on an ipsa Dixit um which is in essence it's an unfounded assertion um that the constitution is in fact colorblind um I'm a hardcore libertarian and I you know I take equal protection very seriously as I know we all do reasonable people can differ about what that means but I don't think that that it incorporates an absolute requirement of colorblindness and I think we can think of a number of settings in which that would be extraordinarily problematic Pam and I were talking about one earlier um which is uh some prisons are heavily uh self-segregated along racial lines there's a whole interesting kind of anthropology about why prison gangs tend to be um not tend to be they're almost exclusively uh based on race and the idea that a prison could never take into account um the the fact that if you uh mix some of these prison gangs together you will have a riot I think it's Preposterous I'm not saying that Justice Thomas would take a different view in fact he's written a descending in which he doesn't Embrace that view but that seems to undercut to me at least undercut his his categorical assertion that the constitution is colorblind so if we reject that which I do then we have to have a more thoughtful discussion about to what extent May the government take into consideration uh racial uh ethnicity and to what extent is the government's own history of of complicity in in disfavoring and deceavoring look that's you know that's a euphemism and you know supporting a system of of chattel slavery of enslaving human beings and and then propping up a system of uh of of racial apartheid in the wake of the Civil War um the idea that that's not relevant I think is also Preposterous and Justice Jackson makes that point in her descent um in the um the Harvard and UNC cases today so I think two things are true I think it's quite clear that the constitution is not literally colorblind but then at the same time that doesn't it's not a carte blanche that doesn't mean that the government can just do anything it wants when it comes to race it's a much more nuanced and a much more challenging opinion and for nuance and and intellectual you know analytical uh virtuosity I would defer to pan great well Neil help us understand this debate between Justice Thomas And Justice Jackson about whether or not the Constitution is colorblind which plays out in in both of these cases and then what's the significance of Chief Justice Robert's decision to join the Liberals in this voting rights case and the conservatives in the affirmative action case uh does he think the Constitution is always colorblind or not so uh the Alabama case just the same disclaimer that's my team's case so I'm speaking personally and the like I think that Justice I I think Justice Thomas like today it's quite remarkable he says for example the Freedmen's Bureau is race neutral um I I've read a lot about the Friedman's Bureau nobody I've ever heard of it describe it as race neutral it was set up after the Civil War to how to basically protect the freed people the the former slaves um the whole point was it was race conscious and so there is a race Consciousness that was built into the foundations of the 14th amendment in the 1860s of course Congress was thinking about doing special things for them we had to we had an obligation after they had been enslaved for so long um but yet you know Justice Thomas was caught between his Embrace of history as his method and the fact that history here totally looks the other way uh it totally goes the other way I mean I was struck I think Justice Jackson has had a remarkable first term unlike any other Justice in my lifetime at least um and as I say I've been involved in every one of these affirmative action cases for 25 years I've never heard the point that Justice Jackson made in the affirmative action arguments she said to the challengers she said um okay can I write write this essay I'm applying to the UNC I'm a fifth generation North Carolinian my father went to UNC my grandfather went to UNC his father went to UNC it's really important that I go to UNC answer from the Challenger yes okay now can I write this essay I'm a fifth generation North Carolinian my great-grandfather couldn't go to UNC because he was enslaved my grandfather couldn't go because of Jim Crow and my father faced the lingering effects of that as well can I write that essay and there wasn't a very strong answer to that which is why I think you see the Chief Justice bracket that but someone like justice Thomas isn't bracketing that just Thomas is saying nope race neutrality race neutrality race neutrality wanting to get rid of a lot of the texture and history of this country's relationship to race and and I don't think we can talk about the Alabama case without understanding that this supreme court has had a concerted attack on minority voting and most recent most you know powerfully 10 years ago this week in the Shelby County case striking down a different provision of the Voting Rights Act than the one Pam was talking about sections four and five which said was kind of the heart of the ACT which said basically you know when a jurisdiction that has a history of race discrimination wants to change its voting rules it's had to have pre-clearance from either a judge or from officials in Washington D.C and just in the Chief Justice in an opinion 10 years ago that I think is one of his gravest mistakes said that that was unconstitutional that it treated States differently and violated what he called the equal footing Doctrine and joined by all the conservatives on the court with equal footing doctrines a really interesting Doctrine because for someone who claims to be a textualist as these folks do there is no equal footing Doctrine in the Constitution you can look up down and sideways it isn't there but it's a made-up Doctrine used to basically eliminate this key provision in the Voting Rights Act and it really does show how far we've gone I mean my 46 arguments ago I guess in 2009 I argued the predecessor case Northwest Austin versus holder in which the court eight to one upheld that same provision of the Voting Rights Act and just four years later they strike it down and so I am very worried about the court on voting the Alabama case was an extreme case those three judges that that Pam Krone was talking about two of them where Trump appointees and yet they found the same problems that Pam identified it was an easy case I'm worried about the next one can I just thing here which is about the history and it is that if you look at what the 14th Amendment says everybody's a lot of people stop after reading section one of the 14th Amendment which is the equal protection clause in the due process clause and they never get to section 5 of the 14th Amendment which was the section that says Congress shall enforce the provisions of the of this article and the reason that provision is there is because the Congress that proposed the 14th Amendment and the people who ratified the 14th Amendment did not trust the Supreme Court to to protect the rights of black people because their experience with the Supreme Court and black people was Dred Scott and the Voting Rights Act is one of the signature examples of Congress using its Section 5 powers to say here's how we understand uh equality to be and this was not a partisan issue it was not a partisan issue in 1965. every one of the extensions and amendments and strengthenings of the voting right exact was signed into law by a Republican president in the case Neil was talking about the northwest Austin case and then in the Shelby County case I had the privilege to represent the bipartisan leadership of the House of Representatives in support of the act and so you know politics didn't used to have the kind of racial connotations in the late 20th century that it now seems to be having again and that's a real problem and in fact in the argument of Northwest Austin um the the Justice Scalia asked my co-counsel this act was authorized in 2006 and was voted for unanimously in the United States Senate 98-0 and he says that must have been symbolic nothing important passes 98 to zero and I'm sitting there in the chair of looking at him and I was like if I were up there I could drop the mic and be done with my life as a supreme court lawyer because I would say Mr Justice Scalia your confirmation vote was 98 to zero thank you um this is a it's a crucial uh debate that we're having which we're going to continue tomorrow but I think Neil uh hopefully uh you know puts his finger on it when you say that Justice Thomas is caught between the text and history and as I understand his argument in both the affirmative action and the voting rights cases he's saying because the text is clear because the text obviously requires color blindness we don't have to look at the messy history which suggests that in the years before and after the 14th Amendment there was race Consciousness and it's a version of the argument that he made in in the independent state legislature case because the word legislature is clear we just don't have to look at all the history which suggests that no one ever expected to exclude state courts um so uh you know of course the question of whether the text is clear is the central question in all these cases and and people are fighting Wars and and uh filing a lot of briefs contesting the idea that the text is clear but at least as I understand it at that point that's the the difference between the two camps well let's uh use our remaining time we'll probably have at least one last intervention um Clark you are the leading Second Amendment uh litigator uh among them in the country and uh there's a case on the horizon called rahini involving domestic violence in the Second Amendment it comes on the heels of this very significant case called Bruin where the court just recently struck down New York's concealed carry laws and required a text and history test where you have to find a historical analog for gun control regulation to support it Justice Breyer said this means that there's now a cottage industry in Second Amendment historians seeing whether or not assault weapons you know are consistent with the statute of Northumberland of 1393 but tell us about the state of play of the Second Amendment and why rahini may create further Clarity or confusion yeah thanks so I um I think two things are true I think that the Supreme Court correctly decided the last second amendment case that came before which challenged New York State's system of deciding who gets to carry a concealed weapon and they had they're one of the few States that had what's called a discretionary permitting system so you had to meet certain objective criteria but then you also had to go and convince some local bureaucrat that you had a special need to to carry a gun there's no other constitutional right that we only get to exercise if we convince some do you really need to have that parade what are people going to say do they really need to hear that we don't do that in any other area in the Supreme Court not surprisingly said that New York can't do that with respect to deciding who gets to carry a gun outside the home the the reasoning I think was quite concerning because what the court did I don't want to get too deep down in the weeds but normally what the court does is it applies a kind of a balancing test so to go back to a parade permit for example can you require somebody to get a parade permit yes but can you charge them ten thousand dollars for it if there's no connection between that and how much it will cost to provide security no you cannot that's the kind of balancing that I'm talking about that's what the court normally does in most cases where you've got this kind of a righted issue where there are real concerns on both sides like who's carrying a gun outside the house what the Supreme Court did in this most recent case called Bruin was it just threw all that out and said what we'll do is we'll look back at history and they're not even sure what the relevant time frame is by the way it could be 1791 when the second amendment was added to the Constitution or it could be 1868 when the 14th amendment was added who knows but whatever the time is we'll look back and we'll see how they were doing things back then and uh if you know uh the the the thing that's being challenged today was not a feature of the regulatory landscape back then and there's no reasonably analogous regulatory scheme back then you just don't get to do it I am really flummoxed by this approach I I think for so many reasons it's I think it's pragmatically really difficult um I think just even sort of jurors Prudential it doesn't really make a lot of sense to me like why why would we look back at a time you know when people were carrying muskets and like shooting wild turkeys you know like literally on the way to work because everybody lived in the country um not everybody but you know it was a different time and of course there were no high capacity weapons back then with with uh ammunition that would shoot through three walls I just uh you know and I am the Second Amendment guy as you know I think some of you know um but um but it just doesn't really make sense to me so I don't I don't really get this this new approach I also think that a lot in fact maybe even most of constitutional adjudication ultimately boils down to line drawing and just give you an example how old should you have to be to own a gun there's nothing in the Constitution about that um I got a nine-year-old son eight-year-old daughter I don't think they're old enough uh on the other hand you're eligible to serve in the armed forces when you're 17 years old and you'll be given a firearm and told to go kill people with it but then to say to you oh but if you're a civilian no it's tough It's a line drawing Challenge and it is a challenge just don't see how this what we now call the text history and tradition approach that was announced in this Bruin case helps us do that it in fact I think it not only doesn't help but I think it actually clouds the issue and and is likely to lead the court into more errors um than not and the last thing I'll say about it is this um there's there's an astonishing footnote in the majority opinion in Bruin that's also picked up on by Justice Kavanaugh in a concurrence that says in effect oh uh nothing in the opinion today should cast into doubt the legitimacy of States requiring a license to carry a gun outside the home guess what there was no licensing requirement either at the founding or in 1868 so everything in those opinions calls into question uh this this requirement that that half the states now have uh to get a license before you carry a gun and to just blithely assert that that this new text history and tradition approach doesn't uh call into question the the government licensing of who can carry a gun I just is absolutely mystifying to me and I think frankly a bit disingenuous can I say something about the what the case that's likely to go to the Supreme Court is about because it's important for people to realize it this you have to I do okay I gotta I got it this is a case that involves a man who was subject to a domestic violence restraining order after he um threatened his partner with a weapon uh and now he challenges where and he was then convicted for carrying a gun after the restraining order was uh issued against him in his position which succeeded in front of the federal court of appeals was essentially there were no laws like this in 1868 but do understand that in 1868 domestic violence wasn't a crime marital rape wasn't a crime so to say we should look back to those times to figure out whether carrying a weapon today after you've threatened your domestic partner with a weapon is a core constitutional right takes things very far and the other thing I'll just say about this is one of the things about Supreme Court opinions is justice is often joined on to stuff that they're not going to stick with the next time around so it'll be interesting to see how many of the justices who joined the opinion in Bruin peel off when it comes to felons in possession or domestic violence restraining order folks in possession we have time for uh Neil uh you're gonna have the last word but uh tell our friends what they should expect moving forward this turned out not to be a simple six to three court in every case we did see chief justice Roberts as an institutionalist how will that play out for the future and what should we think about the future of the Supreme Court well the most remarkable thing about this panel is that we've gone an hour and haven't mentioned the word abortion and that looms over the court it haunts the court I suspect we'll continue to haunt the court in all sorts of very serious ways what happened in Dobbs last year I think was a travesty and I think very hard to justify from even the Court's own premises and if they can overrule Roe versus Wade a super precedent like that then nothing is safe and that's a ticket what Pam was saying so I think this year the court looks very different than it did last year in terms of just the composition of its decisions like if you had asked last year which justices were in the majority the most it was chief justice the Chief Justice and Justice Kavanaugh 95 percent of the time in the majority this time just I only have the data for the first 40 cases decided of the 60 um having compiled the rest but of those first 40 Justice Sotomayor was the justice and the majority the most and it was Alito and Thomas who were in dissent the most so this is looking like a different term the question is will that continue and you know some of those cases are important but abortion will continue to Define what the Court's about so as you look to the next year you look to the mifa pristine case that's also my team's case which in which uh basically a conservative organization shopped for a certain lawsuit in a certain jurisdiction drew a judge who basically invalidated this abortion drug which had been around and approved since 2000 and the theory by which that the judge allowed that to happen is said well doctors have legal standing because their patients might take the drug and have some adverse side effect um you know if that's true every doctor my wife's one is going to have standing for every possible drug because they all have side effects it's an insane insane Theory it went up to the United States Supreme Court on this what we call the shadow docket not an argument just an accelerated accelerated Pace to say should there be an immediate temporary injunction or preliminary injunction and the court there the Supreme Court fortunately did the right thing let the drug continue but that case is now going to work through the court of appeals and come to the United States Supreme Court the next year and there will be other abortion cases as well and I think that will be the haunting issue of our time well thank you for that and most of all uh friends as you've listened to this remarkably Illuminating panel you have a sense of the need for each of you to read the opinions you cannot make an informed judgment about whether you agree or disagree with the court unless you take the time to read the majority opinion read the concurrences and read the dissents these opinions are written for you and if you uh accept my assignment and pick one of the decisions that we've been talking about affirmative action the independent state legislature voting rights and read it through you'll see it's not just written for lawyers they're written for ordinary citizens and they allow you to make up your own minds most of all I want to thank my panelists for having educated all of us and provided a model for civil discourse about the US Constitution 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Channel: NBC News

Views: 18,216

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Id: KLoGN3X9gZg

Length: 53min 55sec (3235 seconds)

Published: Fri Jun 30 2023