Terry v. Ohio

On the fifth episode of 5-4, Peter (@The_Law_Boy), Rhiannon (@AywaRhiannon), and Michael (@_FleerUltra) talk about the 1968 ruling by the Warren Court that that paved the way for stop-and-frisk laws around the country.

A podcast where we dissect and analyze Supreme Court decisions that have weighed down american life, like stones in the pocket of a struggling swimmer, steadily dragging him towards the bottom of the ocean while he struggles towards the surface, water slowly filling his lungs

00:00 [Archival]: We'll hear argument first, this morning in case 12-96, Shelby County versus Holder. Mr. Ryan?

[music]

00:07 Leon Neyfakh: Hey everyone. This is Leon Neyfakh, co-creator of Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Shelby County v. Holder, a decision that rolled back federal protections for minority voters.

00:23 [Archival]: By 5-4, the US Supreme Court today took the teeth out of a law enacted nearly 50 years ago.

00:28 Leon Neyfakh: Before Shelby, some states had to get clearance from the federal government before changing their election laws, but in this ruling, the court held that it was unfair to single out states just because of their long history of racist policies.

00:41 [Archival]: It is wrong to deny any of your fellow Americans the right to vote in this country.

[applause]

00:53 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

[music]

01:05 Peter: Alright, welcome to 5-4 podcasts where we dissect and analyze the Supreme Court decisions that have washed over American life, like waves over the rocks, reducing once proud boulders to sandy rubble. [chuckle] Episode four, and my metaphors to open the show are getting unbelievably intricate. [laughter] I am Peter, Twitter's The Law Boy. I'm here with Michael.

01:34 Michael: Hey, everybody.

01:34 Peter: And from Austin, Texas Rhiannon.

01:37 Rhiannon: Hi.

01:38 Peter: And we are the only legal podcast featuring a woman, a man and a boy.

[laughter]

01:48 Peter: And today we are covering Shelby County v. Holder, a case that asks a lot of big questions like, "Is there still racism?" And follow-up questions like, "Are you sure? Are you sure there's still racism?" It's a case that dismantled key protections within the Voting Rights Act of 1965, allowing states to implement discriminatory restrictions on the voting rights of minorities. This hits on, I think, some of the key themes of the podcast, not only is the court expressing the sort of willful blindness to racism and how it manifests, that you'd expect from a Rush Limbaugh, perhaps, but it's a great example of Conservative hypocrisy about legislating from the bench and overreach of the judiciary into legislative prerogative. And it's also our introduction on the podcast to Chief Justice, John Roberts, who has a very particular sort of approach to these cases. He was appointed in 2005 under George W. Bush after the failed nomination of Harriet Miers, which we'll one day do an entire podcast about.

[laughter]

03:00 Michael: You know, at the time, I think everybody felt like we dodged a bullet there. But I feel like actually we took the bullet on that one.

03:07 Peter: That's right, that's right. And I think probably the best summation of how he presents his judicial philosophy is, at his appointment hearing, he said he doesn't have a comprehensive judicial philosophy. He just calls balls and strikes. He's an umpire, a legal umpire calling balls and strikes. [chuckle] That's how he thinks about the law or how he talks about the law. He also recently said, sort of along similar lines, Trump was referring probably on Twitter to Clinton judges, Obama judges, and he said, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges, what we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them," which is super wrong.

[laughter]

03:51 Rhiannon: Yeah, I'm doing the jerk off motion like.

[laughter]

03:55 Peter: If that is true, then the fact that each president has nominated only people who agree with him politically over the course of the past 40 years would be one of the most incredible coincidences in the history of mankind.

04:14 Michael: Mitch McConnell holding dead Scalia's seat open for a year would be totally incomprehensible.

04:20 Peter: Yeah, it didn't make any sense at all.

04:21 Michael: Yeah.

04:22 Peter: Why was he doing that?

[laughter]

04:26 Peter: Yeah. So Roberts has a vision of the court as an impartial body, but it's important to recognize that his vision is not substantive, it's about optics and aesthetics.

04:37 Michael: Right.

04:38 Peter: He doesn't care about the court actually being an impartial body and being above politics, he cares about the court being perceived that way.

04:46 Michael: Right.

04:46 Peter: So, as a result, he's from time to time hedged on certain politically visible cases and sort of taken a more center of the road approach than his fellow Conservative justices but he's always careful to lay the ground work for Conservative arguments down the road. I think the most prominent example of this, which we're gonna cover in a couple of episodes is the ObamaCare decision, which upheld ObamaCare itself on narrow and technical grounds, but made a Commerce Clause argument that I guarantee you, is going to be leveraged over the course of the next decade to shut down attempts at Medicare for All, Green New Deal and whatever else the left has planned after Bernie Sanders wins the 2020 election. [chuckle]

05:31 Michael: A very serious poison pill.

05:35 Peter: I mean, absolutely, it's going to be a massive obstacle.

05:38 Michael: And that's sort of the Robert's MO, right? We called it when we were chatting about this episode before, the Roberts two-step, which is he makes himself look moderate and not reactionary by just taking things a little slow, but you still end up in the same place and Shelby County is actually a good example of that as well. This was the second case on the Voting Rights Act that his court had heard. And in the first case, they basically upheld the law entirely, but they left some little warnings in there that they thought, this was constitutionally suspect, so that a few years later, they could come back to it and it would look more judicious, right?

06:17 Peter: Right.

06:18 Rhiannon: Yeah, I think that every time he speaks publicly, John Roberts' obsession with the optics of impartiality are really clear. So speaking at the University of Minnesota, some time back, he says the same kind of thing about balls and strikes. We don't sit on opposite sides of an aisle, we don't caucus in separate rooms, we do not serve one party or one interest, we serve one nation. I have a visceral reaction to this idea of service. [chuckle] Like that first of all, that impartiality is real at all, right? Like that's a myth, and then also that you serve the people with impartiality. It's gross and he's talking about it constantly.

06:56 Peter: Yeah, he also at a, 'cause he was... In his duties as chief justice, I don't know if you guys know this but the chief justice gets paid like nine grand extra a year.

07:05 Michael: Oh wow.

07:05 Peter: Yeah, and they each make a quarter million, but he makes like 260 something. And [chuckle] he was overseeing the impeachment process, which is his duty as chief justice, and he... The impeachment was very... The senators were treating it like a spectacle, and he gave a speech that was like, "Keep in mind that you are addressing the world's greatest deliberative body."

[laughter]

07:34 Peter: It's like, "No dude, I think they had it right, actually." This is a fucking disgusting mess.

07:39 Michael: Have you ever listened to the fucking clowns that [chuckle] populate the US senate? Trying to talk extemporaneously.

07:46 Rhiannon: Yeah, so apparently, he gave an interview, I think to just C-SPAN or something, where he talked about how if he's at the Supreme Court late at night by himself, he takes time to look at the portraits of the past chief justices, his 16 predecessors, and he says "They're probably looking down at me... "

08:09 Peter: He absolutely doesn't do that. Alright, guys.

08:09 Rhiannon: He says, "They're probably looking down at me with either bemusement or amazement. From time to time, I find it a useful reminder of the role of the court and the role of the chief justice." So he loves this shit, he revels in it, but I...

08:20 Peter: What he does is he looks at them and he's like, "I'm so fucking cool."

08:24 Rhiannon: Yeah, yeah, exactly.

08:25 Peter: "They're gonna do a painting of me, it's gonna look so fucking good." So we should talk about the Voting Rights Act and how we got here. And I'll hand it off to you, Rhi. I think step one is slavery, and I don't know if our listeners are aware of this, but slavery was a huge thing, and if you check the Wikipedia, you'll be shocked. [chuckle] But after slavery, there's an important history. Rhiannon, if you wanna fill everyone in.

08:57 Rhiannon: Yeah, it's a voting rights case, so I think it's worth it to talk about how we get to the Voting Rights Act, which is the legislation that's being challenged here. Broadly speaking, the Constitution allows states to determine their own voter eligibility standards, so that means an individual state can say, "You need to register to vote in this way," or, "This is what you need to do to be eligible to vote in this state," and that can be different from the standards in another state. A good example of this is that some states have voter ID laws and some don't, but let me tell you something, the states sometimes have a real problem with doing this in a non-racist way.

09:36 Peter: Oh, any states in particular?

09:38 Michael: No way.

09:40 Rhiannon: I think you could probably guess, but they're the ones that are like below the Mason Dixon.

09:45 Peter: Okay. That arbitrary line we know and love.

09:48 Rhiannon: Right, [chuckle] so after the Civil War, there was, shall we say, a slight loss of confidence in the ability of the southern states to handle this responsibility of setting voter eligibility standards. And so several constitutional amendments get passed. It's the 13th Amendment that prohibit slavery, you can't have slaves anymore.

10:10 Peter: Well, asterisk, [chuckle] prisoners.

[laughter]

10:14 Rhiannon: Right, right, right.

10:14 Peter: That's another episode.

10:15 Rhiannon: That's another episode. The 14th Amendment guarantees due process and equal protection. We've already talked about that one, a couple of times. And then the 15th Amendment states that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. So unfortunately though, reconstruction and every era after that was...

10:42 Peter: A little racist.

10:43 Michael: Like reactionary?

10:43 Rhiannon: Yeah, yeah, yeah, like incredibly fucking racist.

[laughter]

10:49 Peter: Just mind blowing amounts of racism, yeah.

10:52 Rhiannon: Right, right, violent and ubiquitous racism. States were using the power to set their own voter eligibility standards to relegate and exclude the black vote. And so, suppression of the black vote in the South, it's ubiquitous, it's aggressive. We're talking about things like implementing the requirement that voters take a literacy test or pay poll taxes, or you have to show that you own property, even more completely arbitrary stuff like moral character tests, stuff like that, and not to mention literal campaigns of violence to keep people from coming to vote.

11:27 Michael: Is it widely known that this is the origin of the term, grandfathered in?

11:31 Peter: I know that, but I think that's some law school shit.

11:34 Michael: We use the term pretty ubiquitously now, but the idea was that, "Well, look, these very confusing literacy tests and things like that, that are property requirements, yeah, they're gonna exclude black people, but they're also gonna exclude lots of poor white people." And so they would add this provision that, "Well, if your grandfather was able to vote, then you are able to vote," which meant, "If you're not descended from slaves, don't worry about it, we don't care. It's only slave descendants that have to jump through all these fucking hoops."

12:06 Peter: Right, right.

12:07 Rhiannon: Yeah, one day maybe it's another episode, too, but we will talk about how complicit the Supreme Court actually was in all of this. The court stepped in more than once to prevent the federal government from protecting the rights of black people in the South.

12:21 Peter: Absolutely.

12:22 Rhiannon: Yeah. It's all thematically consistent. And so prior to the Civil War amendments, prior to the 13th, 14th, and 15th Amendments, the federal government was very limited in its ability to regulate the relationship between individual states and their citizens. So the 14th and 15th Amendments empower Congress to do just that, and for the express purpose of protecting racial minorities. It's aimed squarely at the states. It says, "No state shall make or enforce any law, blah, blah, blah, blah, blah." And so these amendments actually create a new enumerated power for Congress to legislate. Congress has the power to enforce this article by appropriate legislation.

13:02 Michael: Right, which is an important point for this case, but we're gonna talk a lot in this podcast about the 14th Amendment, usually in the context of courts enforcing it, but it's important to remember that the 14th Amendment and 15th Amendment are first and foremost about empowering Congress, and that matters here, because what you have is the court facing off with Congress about its legislative powers under the 14th Amendment.

13:28 Peter: Right.

13:29 Rhiannon: Yeah, exactly. And so, yeah, as we transition historically through these different legal structures, so for slavery and then into the legal framework of Jim Crow, then we have the mass mobilization and the Civil Rights Movement. So after Martin Luther King's march on Selma in February of 1965, President Lyndon Johnson finally gets on board and calls for legislation, later that same year, we get the Voting Rights Act.

13:57 Peter: Yeah, yeah, so the Voting Rights Act of 1965, I think if you look at it broadly has general provisions that apply everywhere in the US and prevent certain voting rules and practices that discriminate. And then you have the specific provisions which are what matters here for this case that apply only to certain states and local governments who have historically been problematic, maybe haven't been great on the race issue in the past. Those jurisdictions comprise about 25% of the country so the Voting Rights Act, Section 5 contains, of the Act, contains a pre-clearance requirement that requires those state and local governments to obtain approval from the federal government, specifically either the Department of Justice or the DC Circuit Court of Appeals, before changes to their voting laws or practices can be made, to ensure that those changes do not violate the 15th Amendment by preventing minorities from voting. And Section 4B of the Voting Rights Act contains a formula that determines which jurisdictions this applies to. So the formula covers jurisdictions that as of initially was November 1964, and then November 1968, and then 1972, maintained a prohibited test or device as a condition of registering to vote or voting and had a voting age population of which less than 50% either were registered to vote or actually voted in that year's presidential election.

15:35 Michael: So basically, it's jurisdictions that have been making it difficult to vote and the result have been a lot of people not voting.

15:41 Peter: Yeah, that's right and to give some historical context here, Congress tried over the course of the late, very late '50s and early '60s to restrict discriminatory voting rights practices. They would see a discriminatory practice and then crack down on it and the result, in essence, was always the same, the states and the local governments would do away with whatever practice was made illegal and replace it with a new one. And the Voting Rights Act was a direct response to that. Congress is finally stepping in and saying, "Okay, okay, no more of this bullshit, if you change your voting laws we wanna see it first."

16:17 Michael: Right. It's not just that the states could just change their laws as they go, although they could, it's that by the time the lawsuit is filed and you've gone through all the fucking hearings and compiled all the data, you've had multiple elections under these laws and you have incumbents who can continue to make laws and entrench themselves that were elected under racist and unconstitutional election guidelines.

16:43 Peter: Right, so the way that the coverage formula works, the formula that decides which jurisdictions get this kind of added scrutiny is every so often Congress will look at it again and re-authorize it. The most recent reauthorization was in 2006, Congress looks at it, they do a deep dive into whether or not this is still needed, why it's needed etcetera, there's a huge Congressional record, they reauthorize the formula so the same jurisdictions are covered by it and the same jurisdictions are therefore restricted from passing new voting regulations without getting approval from the Feds.

17:26 Rhiannon: Yeah, when we say Congress made findings, that means that there were real studies done, there was data and numbers crunched and the result of that is, of all of that information is that Congress reauthorized.

17:39 Michael: Right, there was, I think, 15,000 pages of congressional record in six months of hearings in both Houses of Congress. And one thing, I'm not sure if we're gonna talk about this later but I wanted to add it in when we're talking about the formula and the coverage. If a district can show that they've been in compliance for 10 years, they can basically get out of this pre-clearance requirement. And likewise, if a court finds that a district that's not currently covered has been engaging in a lot of problematic behavior, the court can add them to the pre-clearance states and districts.

18:14 Peter: Right, I think, which it's a way of saying it's not rigid and merciless, there's a flexibility built into the law.

18:19 Michael: Right, we're gonna revisit it in 15 or 25 years, but in the meantime, states that are doing well can get out of here.

18:28 Peter: Yeah, yeah, so that brings us to this case, Shelby County, Alabama, named after Isaac Shelby, revolutionary war hero and Governor of Kentucky, way back in, I think, the late 1700s. Ironically, a very progressive abolitionist. [chuckle] No, I'm kidding, he owned slaves. [laughter] And he spent most of his governorship at war with the Indians in Kentucky. So Shelby County is a county with a... It's a problem child district, a history of discrimination but they filed for a declaratory judgment by the court that these parts of the Voting Rights Act exceed Congress' authority under the 14th and 15th amendments and are therefore unconstitutional. And declaratory judgment is basically just requesting a statement from the court about the law, like, "Say this is unconstitutional." It's not about a specific harm upon the county per se, it's just we want you to say that this is unconstitutional. Not the most uncommon thing to do in these sorts of constitutional proceedings. So it's slightly convoluted around the margins but the basic argument they're making is simple, things have changed enough since the statute was passed that the formula that is used to determine which jurisdictions get this extra level of federal scrutiny no longer should apply. And in fact it's so egregious that it's unconstitutional.

20:00 Michael: Right, which means that it should never apply to anyone, that it's not just us, that there is no constitutional application of this formula at all.

20:09 Peter: Yeah, which is... Alright. [laughter] And the basic way this case shakes out is pretty simple, the court upholds Section 5, which is the pre-clearance requirement itself, like the idea of federal approval being necessary, but strikes down 4B, which has the formula, determining which jurisdictions it applies to. If you're paying attention, Section 5 is useless without section 4B, because Section 5 doesn't apply to any jurisdictions without section 4B. So this is functionally striking down the... It's not the entire act, but it's this entire portion of the act. The arguments here, they're... First, Roberts goes on this long tangent about the importance of state sovereignty and the concepts of federalism. It's the state's rights argument, you might have heard that if you've ever discussed with someone what the Civil War was actually about or whatever, and like yeah, okay, the states do have some level of sovereignty, but it's actually... It's a complete distraction here, the real issue is whether Congress has the authority to regulate the states in this manner under the 14th and 15th Amendments, and the court is trying to build up the importance of state rights for the same reason they do it in every single fucking racist case in Supreme Court history.

21:28 Peter: They want to portray their accommodation of racist policies and practices as if it is the side effect of their commitment to state's rights, when in fact it is their central goal. And as we discussed in episode one on Bush v. Gore, their concern with state's rights to control their own elections didn't seem to matter too much when they literally overturned the Florida Supreme Court about its own election laws and procedures and stopped a state recount short to hand the election, a presidential election, to their candidate of choice.

22:00 Michael: Right.

22:02 Rhiannon: Right, right. And in general, I think people should know that at any discussion in these cases about states' rights or hearing these words, state sovereignty, that should always be a red flag for what is actually racism. It's like saying, "I'm not racist, but... " You know something is actually underneath there, the Civil War is about...

22:23 Peter: Something atrocious is about to happen.

22:25 Rhiannon: Right, exactly.

22:28 Peter: So the court starts to talk about how back in 1965, the Voting Rights Act formula targeted jurisdictions where there was a history of discrimination and did so by finding jurisdictions that used "tests and devices for voter registration" and also were at least 12 points below the national average for voter suppression. And the court's sort of setting itself up here to say that these reasons no longer apply, those jurisdictions no longer do this, but one thing to keep in mind, the 15th Amendment, which allows the federal government to regulate the states to prevent voter discrimination, is extremely broad. It empowers Congress to regulate it. It uses broad language. The Conservatives will do what they always do here, when the Constitution provides a right to the federal government or anyone that they don't like, act like it's very narrow and limited, rather than providing the sort of flexibility that is almost certainly required to actually protect that right. And then the court starts to talk about the progress we've made in the last 50 years on the race issue.

[chuckle]

23:32 Peter: And they're like... Yeah, it's actually fucking great, "Voter turnout and registration rates in covered jurisdictions now approach parity blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. Direct quotes from Chief Justice John Roberts. Note how every single one contains some sort of hedge. "Registration rates approach parity."

23:58 Michael: They don't quite reach parity but they're almost there.

24:01 Peter: Oh my god, they're getting so fair. [chuckle] "Discriminatory evasions of federal decrees are rare," and then the last one is the best, "Minority candidates hold office at unprecedented levels," unprecedented. So just to put this in perspective, the house at the time of Shelby was 10% Black, and of course, nationwide, 13%. Now, it's actually very near parity right now. There are two Black senators, I don't know if you're doing that math. [laughter] Nationwide, about 9% of state legislators are Black, Hispanics are 17% of the nation-wide population. There are four Hispanic senators, again, I'll give you some time to just bust out your calculators here. And the house is about 10% Hispanic, but he's right. It is unprecedented. It's always been worse. Great point, Chief Justice John Roberts.

25:00 Rhiannon: Yeah, saying that this is unprecedented levels is an observation that one is more than zero.

25:06 Peter: Right, right. So we disagree [chuckle] with the court's [laughter] determination here. Almost certainly one of the most egregious Supreme Court decisions of the past decade, and I think maybe the first point that we should make is on the question of, Is there still racial discrimination [laughter] in voting? Not only has the federal government had to decline a large number of proposed of voting law changes under the Voting Rights Act because they were too racist, but attempts to dilute minority voting power have evolved. It used to be like, "Well, what if we just asked if your grandfather was a free man, and if he was, you could vote." Now, it's a lot more elaborate. Gerrymandering techniques are designed to distract from the goal and inevitable outcome, which is that they will disenfranchise minority voters, and the dissent in this case. Ruth Bader Ginsburg writes a pretty good one, and this dissent made her famous. This is where the Notorious RBG thing started. It's a good dissent. It's not... We'll discuss a little bit later why I don't think it's an outstanding dissent or anything. One big problem with it is that she doesn't retire soon as after as she...

26:25 Michael: As she hands this in. Yeah. [laughter]

26:28 Peter: But again, we'll get to that, but yeah, this made her famous and just poisoned the brain of a bunch of American Constitution Society law students across the country who now have fucking mugs with her face on it and shit, but again, it's pretty good.

26:47 Rhiannon: Yeah, like YAS Queen Ruth Bader Ginsburg.

26:50 Peter: Yeah, very weird for someone who is a strong breeze from just disintegrating.

[laughter]

27:00 Rhiannon: Yeah, I think one of the powerful parts of this dissent is that she's talking some really specific shit about Alabama and the history there. She notes that it had more voting discrimination lawsuits under the Voting Rights Act than any state besides Mississippi. She points out that twice between the 1982 and 2006 re-authorizations, the Supreme Court itself handled two cases about purposeful voting discrimination in Alabama. So she's saying, "No, you guys aren't better, you guys keep fucking up... "

27:32 Peter: That's a great part of the dissent because it calls them out in a targeted manner, it's like, "This is, for these purposes at least, a trash state. You guys are doing this fucking worse than anyone."

27:43 Michael: How can this formula be unconstitutional to everyone when it's so obviously constitutional to this piece of garbage state that can not help itself but try to suppress the Black vote?

27:55 Peter: Yeah, and now, the next portion of this, in 2010, there is an FBI investigation that uncovered recordings of discussions between Alabama State senators, now brace yourselves here, these state senators... Again, 2010, were referring to Blacks in the state as aborigines, and they were opposing a referendum because they thought that having the referendum would lead to increased Black turnout, saying that if it were on the ballot, "Every Black, every illiterate would be bussed to the poles on HUD financed buses."

28:35 Michael: HUD being the Department of Housing and Urban Development.

28:38 Peter: Housing and Urban Development.

28:40 Michael: Yeah.

28:41 Peter: That's... Look, I'm not a professor of racism. [laughter] But that reads as pretty fucking racist to me. That reads as someone who should not be holding any power, perhaps, and Ruth Bader Ginsburg quotes it directly, and the majority opinion does not discuss it interestingly enough.

29:03 Michael: Yeah, it's just... This is past us.

29:05 Peter: Sure, sure. Some state senators in Alabama refer to Blacks as aborigines. If you surveyed state senators across the state, yes, a small percentage of them would refer to Blacks as being equivalent to illiterates, of course, but let's talk about the real facts here.

29:24 Michael: We said they're rare, not non-existent.

29:26 Peter: I'm gonna commit suicide on this podcast, alright.

[laughter]

29:32 Michael: I wanna talk really quick, some numbers that Ginsburg's dissent has, that I think are interesting, that go to how much progress has or has not been made that, again, the majority opinion doesn't really deal with. And so she talks about, look, under pre-clearance in between 1982 and 2006, 25 years, the DOJ had to reject 700 different attempted voter law changes because they were discriminatory. There were, on top of that, 100 successful lawsuits after the fact that the laws were found to be discriminatory. And on top of that, there were 800 instances where the DOJ didn't outright reject, but required modifications of a law to reduce racial discrimination, which if you add it up, comes out to 1600 instances over 25 years, which averages out to one every six days for 25 years straight, the DOJ was dealing with racial discrimination in voting laws just in these districts, not in the country, just in these districts, once a week.

30:43 Peter: Yeah. Alright. I wanna talk about one line in this opinion, one of the weirdest parts in the majority opinion, and it's about the fact that this is a facial challenge to the statute, and a facial challenge means that you're saying that the statute is on its face, unconstitutional, meaning that no application of it could ever be constitutional. And the distinction there is, it could be an as applied challenge, is what it's called, and that just means that in this particular application, this law is unconstitutional, they can't apply it like that. A facial challenge is this law can never be constitutional, which by the way, cannot conceivably be correct, because Roberts has effectively conceded that, initially, the law in the '60s and '70s was constitutional. So the facial challenge should, by its nature, fail. Roberts misses this point, Chief Justice of the Supreme Court, and...

31:38 Michael: Introduction to Con Law.

31:40 Peter: Yeah, and he refers to... He talks about this argument, and he's addressing Ginsburg's dissent where she talks about Shelby County's shitty history, and he says, "Well, it doesn't matter if Shelby County itself has had racial discrimination problems, because they're challenging the whole formula, not just the application to Shelby County." And he gives this analogy, this is a quote, "But that is like saying that a driver pulled over pursuant to a policy of stopping all red heads cannot complain about that policy if it turns out the license has expired."

[laughter]

32:14 Peter: No. Dude. No, that's not a good analogy, okay? Here's an actually analogous situation that I just threw together last night when I was thinking about analogies here. Cops are checking on guys with a long history of domestic violence, and when they check in on serial wife beater Steve, he happens to be hitting his wife at the time, and when he's caught, he's like, "Well yeah, but how could you have known that I was gonna be hitting my wife at the time?" And the cop's like, "Well, because you're doing it all the time, Steve, because you've been hitting your wife for 50 years, just non-stop, it's unbelievable how much you hit your wife and how you refuse to stop doing it, no matter how many times we tell you, Steve, you're an awful person." Okay? That's my analogy for Shelby County, Alabama. Shelby County, Alabama is a county that did so much fucking racism that the federal government had to babysit them, and then they still tried to do more racism, the babysitter constantly caught them, and then they were like, "Isn't this babysitter illegal?" And the court's like, "Yeah, yeah it is, yeah."

33:16 Rhiannon: Yeah, and the premise of the fucking analogy. How out of touch is it for a Supreme Court Justice to be giving a lecture, an analogy about cops pre-textually stopping people, like, are you fucking kidding me? You guys authorized that.

33:34 Michael: Yeah, yeah.

33:35 Peter: And also he uses red heads in... We're talking about pretextual stops fucking next episode. So... Anyway, point number two. [laughter] If you recall, point number one was racial discrimination still exists. Point number two, the entire premise of the majority opinion is that this formula that determines which jurisdictions are covered and subject to federal pre-clearance is outdated, but it was revisited and approved by Congress in 2006, and we've touched on this. But in 2006, Congress held hearings for several months. There were witnesses, investigative reports, 15,000 pages of Congressional record. And Congress concluded that while more explicit types of voter discrimination had largely been eliminated, more subtle discrimination still existed, and it was in fact pervasive in the covered jurisdictions, and that subtle discrimination justified the continuation of the Voting Rights Act as it stood. It passed 98-0. There was a study of lawsuits for voting discrimination spanning 1982 to 2002, and it found that discriminatory practices were still, in 2002, focused in the jurisdictions identified by the formula. And this is important because on one hand, you have the opinion of John Roberts, and on the other hand, you have a literal fucking study of voter discrimination.

35:02 Rhiannon: Right, over 20 years.

35:03 Peter: Over 20 years. So I wanna talk about what I think is maybe the most significant point made by the dissent and the most significant point that cuts against the majority opinion, which is that the reason that openly discriminatory practices are no longer prevalent in these jurisdictions to the extent they used to be, is because of the Voting Rights Act. So striking down the Voting Rights Act on the basis that they have gone away is sort of missing the point, and Ginsburg makes the very astute and sharp analogy that this is throwing away an umbrella in a rainstorm because you're not getting wet. And I think that single line might be why she got famous. Everyone's like...

35:43 Michael: It's a fucking great line.

35:44 Peter: It's a great line.

35:45 Michael: That's good.

35:45 Peter: Yeah it's good shit.

35:46 Rhiannon: Yeah, and as opposed to Justice Robert's shitty analogy about redheads, like, "Okay, this is how you do an analogy, bitch," so...

35:52 Peter: Absolutely. It's a powerful analogy. It's dead-on. I think the only real thing missing from this dissent, and the only thing, for that matter, if we go back a couple of episodes, missing from Justice Steven's dissent in Citizens United, which is another really comprehensive, often brilliant dissent, is that it doesn't question the motives of the Conservative majority. And this is something that the Liberal justices never do, so a point that's important to interject here is in 2009, there was another case similar to this in origin. And Roberts did sort of the first step of the Roberts two-step, as we're calling it, copyright, registered trademark, where he set up his reasoning here.

36:39 Rhiannon: Yeah, and one thing that Roberts gets right in this majority opinion in Shelby is that he points out that two of the dissenters this time, Justices Ginsburg and Breyer, they joined the majority in that 2009 case. And so, he basically calls them hypocritical for agreeing with the prior logic, but not on the natural follow-through, not on step two of the Roberts two-step, and to be honest, he's right. The Liberal justices, they should have seen what he was doing, but they waffled and they were kind of thrown off by the fact that they always, always read the Conservatives on the court as acting in good faith, and that allows them to just continue to be dunked on. So Ginsburg, in dissent, is always gonna say like, "This allows racism," right? But not like, "This actual fucking case in this opinion is racist."

37:34 Peter: Yes, the Liberals have continuously allowed themselves to be baited by the reasoning of Conservatives on the assumption that the Conservatives are just acting in good faith and doing what they believe is best, and watched it just get thrown back in their faces a few years later.

37:50 Michael: Right, and I don't wanna say that it's not hard because, obviously, a lot of the brightest minds in the legal profession work on these opinions, but the reason why Stevens and Ginsburg and Breyer and all of them can put together good dissents is because they are actually trying to argue in good faith from precedent and from logic and from the facts. And they're taking aim at arguments that aren't put together that way. They're taking aim at arguments that start with inclusion and work backwards, and so of course there are holes in the logic and of course they're stretching precedent. It's easy to find those things and point them out because they're full of shit.

38:34 Peter: Absolutely. So Scalia's dissent in Lawrence v. Texas, 2003 case that legalized sodomy, famously venomous, like many of his dissents frankly, specifically says that he believes that the majority has sort of come under the influence of the "homosexual agenda."

[chuckle]

38:53 Michael: Yes.

38:54 Peter: Actual term used by Supreme Court Justice Antonin Scalia, directly saying... He's putting it in an incredibly offensive way, but what, if you boil it down, he's saying, "You're being persuaded by cultural forces. These are not your legal opinions. This is the culture impacting you." And that is directly questioning their motivations and calling them political, right?

39:17 Michael: Right.

39:17 Peter: And the Liberals never fucking do this, even though the Conservatives have been marching numerous Kleger political agendas right up their fucking ass for 25 years.

39:29 Michael: I think this is a good case to point this out. I think this is literally the worst case of the Roberts' court in a lot of ways, but this is our third case on elections, right? We've done Bush v. Gore, Citizens United, and now this. And I think a defining feature of democracy is free and fair elections. I think that's fair to say.

39:48 Peter: Okay. Interesting opinion.

39:51 Michael: And so, we are sitting here describing the systematic disembowelment of our democracy, like surgical murder of our democracy piece by piece by the Conservatives on the court, and the Liberals don't have the balls to even point it out. Instead they're like, "Well, if you break this down into formal logic, you've clearly... There's proof."

40:13 Peter: Well, this doesn't seem very logical at all, John Roberts!

40:15 Rhiannon: Right, right.

40:16 Michael: "Yes, I found the key error." [chuckle]

40:20 Rhiannon: It's such a clear example of how the Conservatives, again, weaponize impartiality and how it works on the Liberals and so it makes Liberals scared to do...

40:29 Peter: That's right, it's targeting the Liberals.

40:31 Rhiannon: Right, exactly, and it makes Liberals scared to dish it right back.

40:34 Michael: And this makes them complicit in Roberts' big project, we said his project is to preserve the optics of the court as a legitimate apolitical institution while it's engaging in overtly political ends and the Liberals fear of calling that out contributes to that.

40:55 Peter: Yes, while on the other hand the Conservative justices, not just recently, but in the over the past 40 years have been saying explicitly that the Liberals are manufacturing law and applying it in constitutional cases. There is a huge, huge distance between the way that the Liberals and Conservatives on the court approach the other side's arguments and conceive of the other side's arguments.

41:25 Michael: It's worth noting that this case, the court never really states the basis for their holding, they talk about equal sovereignty and so that's a phrase they throw around but they don't articulate a standard review for lower courts to use when applying the principles of equal sovereignty, let alone apply such a standard themselves. Yeah, sure, broadly speaking, there have to be some limits on Congress' power to legislate under the 14th and 15th Amendments but you don't get from there, from, "There are some limits," to, "This is unconstitutional," that's like a big jump and he never tries at once to explain...

42:07 Peter: Right, you have to tie it in.

42:08 Michael: From A to B how they got there.

42:09 Peter: And they skip over the standard that would usually be applied, which is congruence and proportionality, which is how you would usually figure out whether Congress is exceeding its rights under the Constitution, yeah, you can control F that shit in this opinion and you won't find it once.

42:26 Michael: Yeah, it's not like this is brand new. The court has tackled the VRA in specific and how to review it before. Like this is settled law how to handle this and they just shrug their shoulders because, look, the states don't like being called racist and it's not very nice. And so in the process of doing this they've nullified the portion of the VRA that identifies problematic jurisdictions entirely and they make no effort to determine whether it might still apply to some jurisdictions but not others, which is a pretty typical way that courts handle constitutional challenges, they call it severability, whether or not the unconstitutional portion is severable. One of the reasons they don't do it here is because clearly Shelby County is not severable. [chuckle] Which would be...

43:21 Peter: They're one of the bad ones.

43:23 Michael: Throw a wrench in their plans, yeah.

43:25 Peter: Yeah, yeah.

43:25 Michael: Yeah.

43:26 Peter: But no, but they could have said, "Look, we see enough evidence for counties and states X, Y and Z but not counties and states A, B, C," but they don't even bother because that's not the point.

43:40 Michael: Right, and at one point they say something like... Oh, it's so fucking ballsy too 'cause they say something like, "Well, look, it's not the court's prerogative, we don't wanna get in that role." But it's like, yes, it's not your fucking prerogative so why are the stomping on Congress here? That's literally not your prerogative but that's what you're doing, you're just saying, "No, you're wrong, Congress."

44:00 Rhiannon: I was just gonna say, I think the lack of a standard of review is really significant here particularly in the context of what Chief Justice John Roberts wants his legacy to be, he says that he is a formula person, he says that it's just about being an umpire, you just call balls and strikes. It implies that you use these legal formulas, you apply them to the facts of the case and an objective answer comes out. Okay, well, in this case he doesn't even fucking use the formula, he doesn't use the standard that's already there and it's obvious, it brings us to the central premise of the podcast of the project, which is they are doing this shit on purpose.

44:37 Michael: If Liberals tried to pull this sort of flighty bullshit every single Conservative would write a dissent.

44:45 Peter: Yeah, the real issue here, the real reason we're talking about this is because the court is not interested, even a small amount, in whether Congress is exceeding its power under the 15th Amendment. They barely even talk about it in the opinion as such, what they are aware of is that protections for minority voters hurt Republicans and that is bad for Republicans and they are Republicans so they would like to get rid of those protections. It genuinely doesn't go further than that and if you try to ascribe to them some sort of higher purpose, you will inevitably get lost because it doesn't really make sense unless you understand what they're doing here, that they are being pragmatic, that they are helping their political party, the reason the majority opinion isn't interested in investigating the nuance of which jurisdictions should still be covered is because they have identified the opportunity to allow Republicans across the country to acquire more power by disenfranchising minorities and they are seizing that opportunity, period, flat out, straight up. That's it.

45:52 Rhiannon: Go off King.

45:53 Peter: Thank you. [laughter] Do you say thank you to go off king?

46:01 Michael: I don't wanna talk too much out of my ass here but it's something I was thinking about really...

46:04 Rhiannon: No, please continue to do that.

46:06 Michael: Yeah, reading...

46:07 Peter: Go off King?

46:08 Michael: Alright, I'm gonna go off.

46:10 Rhiannon: That's right.

46:11 Michael: Alright, reading the dissent, Ginsburg talks about all these examples of instances the Voting Rights Act has stepped in to stop discrimination and in everyone, the discrimination is in response to some sort of minority activism, Blacks are coming out in record numbers so we need to literally cancel the election, which is one thing that happened in [chuckle] Mississippi, they were like, "Fuck, we're just not gonna have an election this year. Forget that." And they're all like that, it's like, oh, black mobilization leads to the reaction, right? And in 2006, you kinda wonder well is it just optics that Conservatives are jumping on board and this is passing 98-0 in the Senate and something insane like 390-30 in the House or did something change? And maybe it's that in 2008 something did change. Maybe there was massive Black voter mobilization at the federal level.

47:09 Peter: I don't know why.

47:11 Michael: And a Black president was elected maybe and he won states that Democrats traditionally hadn't, like Virginia and North Carolina and started reaching into the south.

47:19 Peter: Okay, I see that theory.

47:21 Michael: I don't know. I'm just speculating, but it's... Maybe what we're seeing here is precisely the sort of reaction that the voting rights is supposed to come back.

47:32 Peter: I think that might be right. But again, wild speculation.

47:35 Michael: Yeah, yeah. I don't know. Who knows really?

47:38 Peter: So we've been talking a lot about John Roberts, but maybe we should talk about our boy, Antonin Scalia, one of only two POC in the Supreme Court at the time. [laughter] Yeah, so at oral argument, Scalia refers to this as a "racial entitlement." And I have to ask, what is the entitlement here? No single person can get anything out of this legislation beyond the right to vote, period. That is the absolute most any individual can get out of the Voting Rights Act. So how can that be construed even a little bit as a racial entitlement? That is a deep gaze, I think, into the absolutely diseased fucking mind of Antonin Scalia who is just absolutely one of the most unbelievable pieces of shit in Supreme Court history, which is saying something and whose burial patch has no grass growing atop it.

48:37 Rhiannon: That's it. That's all there is to say.

48:40 Peter: So we should talk about how this has panned out, and the good news is there's been no ill effects. [laughter]

48:48 Rhiannon: Sorry, I couldn't even make it.

48:50 Peter: The Liberal justices and many commentators at the time made a very simple, I think an obvious prediction, which is, this is gonna be a fucking disaster. As soon as federal oversight is pulled away, the racist jurisdictions are gonna immediately start implementing racist voting laws, and the majority opinion, no joke, does not even talk about what might happen here. And since then, what we've seen is relentless systematic disenfranchisement of voters within 24 hours of Shelby County dropping, Texas announces a new voter ID law.

49:21 Michael: Immediately.

49:22 Peter: Within 24 hours, which by the way, means that they knew that this was gonna come down 5-4 and they had this written. They were ready to go.

49:28 Michael: They had it fucking locked and loaded.

49:30 Peter: Mississippi and Alabama both almost immediately began to enforce voter ID laws that had previously been barred under the Voting Rights Act.

49:37 Rhiannon: Yeah, the Brennan Center for Justice issued a report in 2018 that found that this court decision alone was responsible for the purge of 2 million voters from the polls just up until 2016.

49:49 Peter: It's two and a half years.

49:51 Rhiannon: Which is fucking wild. We're talking about millions of people. And then there's a 2019 study that actually showed that pre-clearance led to an increase of minority turnout of 17 percentage points in elections of covered jurisdictions.

50:09 Michael: Yeah, and the court has sanctioned racially motivated policies elsewhere too, an aggressive voter purge policy in Ohio that removes you from the voter rolls if you fail to vote, statewide gerrymandering, and we'll be covering these cases, but they have just been on a fucking tear.

50:26 Peter: Yeah, it's war and it's outright voter purging, we're talking millions of people a year.

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50:42 Peter: So our next episode will be Terry v. Ohio, the case about stop and frisk, the program most famously run by Michael Bloomberg, recently murdered, [laughter] and no longer a contender for presidential candidate in the United States.

51:02 Rhiannon: You're so stupid. [laughter]

51:11 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

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51:32 Leon: From the Westwood One Podcast Network.

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