Louisiana v. Callais

Hey everyone, this is Leon from Prologue Projects. On this episode of 5 to 4, Peter,

“Reannon and Michael are talking about Louisiana V. Calay. The decision from just last week”

that essentially ended the Boding Rights Act. 5/4 started this year with a two-part series on the V. R.A. which was designed to eliminate racial discrimination in voting and was long considered a crown jewel of a civil rights movement. Part of the V. R.A. allowed and sometimes required race-conscious redistricting. To protect against racist gerrymandering that I looted the power of minority voters. But in Calay, the Supreme Court took up the question of whether

the creation of these majority minority districts as a remedy for vote dilution was an unconstitutional

race-based classification. In a six-three decision, the court ruled that it was. Effectively

gutting what was left with the V. R.A. once and for all. This is 5 to 4, a podcast about how much the Supreme Court sucks.

“Welcome to 5 to 4 where we dissect and analyze the Supreme Court cases that have lost track”

of our civil rights like my doctor losing my test results. I'm Peter. I'm here with Michael. Hey everybody. And Rianne. Hello. Brief story folks, forget story. No, no, Michael and I didn't ask a follow-up question or anything. I'm happy to jump out. Well, it's because I've already complained about the opposite of the opposite. No, I'm going to complain because I've got a minor surgical procedure coming up in a few days

and it's part of that. I had to get an EKG in advance so that they know that it won't kill me or whatever. And then they're like, hey, where are the EKG results? I call the doctor that took them and they're like, you know, we just we just can't find them and I'm not going to extrapolate on this. I'm just going to tell you and our listeners that I'm going to lose my fucking mind. I'm going to lose my fucking mind folks. And you know Peter's upset about this because

he already before we started recording just complained extensively to me and Rianne and then was like, you know what? I'm going to complain some more. I'm going to do it. I ask you guys if you had any ideas for opening metaphors and you guys just sat there fucking fully silent. Okay. So this is what it is. Michael said Olivia Rodrigo. Yeah. That's not a metaphor idea. That's just you're just naming people. You asked what was going on in Bob culture. Yeah. And you said Olivia Rodrigo is going on

toward that there's nothing for me. All right. Everybody shut up. This week's case, Calle, the Louisiana. This is a case from just last week about the Voting Rights Act and it made some headlines, which is why we're dropping this episode a few days early. Yeah, it's a big one. The Voting Rights Act allows for voters to sue for racial discrimination in voting. And

“this case is really all about what that means. How are we defining discrimination in voting?”

For over 40 years, courts have implemented a test where they would assess whether there is a politically cohesive group of minority voters in an area that could be a voting district. And if so, generally a state would be required to create a voting district for those voters. This is a way to prevent Southern states, especially from gerrymandering black voters out of representation, right? But then, along comes the Roberts Court, which has now functionally altered

this test to make it almost impossible to show racial discrimination on the latest decision. In a long line, meant to gut the Voting Rights Act. Yeah, we started this year, 2026 with a two-part series on the Voting Rights Act, kind of like the history knowing that this case was coming down the pipeline, knowing that the Supreme Court was about to rule in this way. It was like our pre-Ulogy Ulogy for the Voting Rights Act and so on. Yeah, I was just saying we pre-wrote

it's a bituary. Yeah, exactly. So here we are. If we ever open the year with like the history of a law or something like that, you know, we just predicted it. It's going down that year. Exactly.

We did it with Dobbs first. Yeah. In my section here, background that we're going to talk about

is the background to this case, Calle, what happened in Louisiana, how it went up and down the federal court system and the facts that give rise to this specific case. But of course, we just mentioned we did two episodes on the history of the Voting Rights Act and after I get done with the facts of Calle here, we're going to go back and talk about the history a little bit, because there's just so much background. And we know of course that this is a year's a decades-long project by conservatives

revealed that about a third of Louisiana's population is black. The Louisiana Legislature adopted a new

“congressional map in 2021 based on the new census. The state of Louisiana has six seats in the house”

of representatives. So the state has six congressional districts that new map that the Louisiana Ledge adopted in 2021 gave Louisiana five districts with white majorities and one district with a black majority of voters in that district. Now, note that's one out of six. Now, that's not one out of three, which is what Louisiana's population of black people is. One out of six is in fact half of one third, meaning the black vote in Louisiana with that 2021 congressional map was being

diluted by 50%. This is a huge dilution of the black vote. So that map got challenged in federal

court in a couple of different cases. Those lawsuits argued that the congressional maps

“violated section two of the Voting Rights Act because of that dilution of the black vote.”

Now, the lower court agreed that it was a violation of the Voting Rights Act. The lower court puts a hold on those congressional maps being enforced, being going into effect. And it went up to the Supreme Court, then backed down to the fifth circuit. And that case actually ended with the fifth circuit affirming that original lower district court ruling that those maps in Louisiana

did, in fact, violate section two of the Voting Rights Act. And the state of Louisiana was ordered

to draw a new map in early 2024. The federal courts actually said, Louisiana, you better draw a new Voting Rights Act compliant congressional map by the time of the 2024 elections, or we, the federal

“courts will draw the map for you. So Louisiana re-drew the maps in such a way that a second district”

had majority black voters. So that's two out of six districts in Louisiana with majority black vote. Great. Except you're listening to this podcast. You live in this America. We have this Supreme Court. Of course, that's not the end of it. A group of white voters in Louisiana challenged the re-drawn map. The newly compliant with the Voting Rights Act map in Louisiana, a group of white voters took it to court. But they want Louisiana whites to clarify. They're veins running thick

with French blood. All right, disgusting. That's the problem. Yeah. Yeah. Oh, no, no, no, no, no. The original sent the original sent a Louisiana. While we're on this note of whites in Louisiana, Philip Calle, like the guy who is the name to plaintiff here, one of these white voters, challenging the map in Louisiana. He was at January 6th. He was in Washington, DC. This reporting just came out. And is like, you know, a right wing lunatic who's like quote tweeting

Elon Musk being like non-citizens are voting in our country. Yeah, like all these like he's like a like a voting conspiracy theorist. Like things elections are rigged like, going to Denly's suing for new election maps. America's not about non-citizens voting. America is about and do we sausage, uh, shrimp, crawfish, uh, corn, you know, just and white people voting. Right. And so back to the case, what are Calle and this, uh, and this class, this group of

white voters in Louisiana trying to challenge. They're not challenging the new map on the basis of the voting rights act. They're not saying it violates the VRA. They can't obviously really do that at this point because the map had just been ordered to be redrawn to get into compliance with the VRA. Instead, these white voters say that the new map is unconstitutional. That it's a violation of the 14th amendment because this is racial gerrymandering. They're saying, well, the state of Louisiana

redrew these maps based on race, the equal protection clause of the 14th amendment. They say prohibits that you can't classify based on race in this way. You can't use race to make decisions this way. You know, think of affirmative action. Think about the arguments that conservatives make about how like just the consideration of race is unconstitutional. Even if consideration of race

in Calais, it's not anymore about if a voting law or congressional redistricting is in compliance with the Voting Rights Act, but whether essentially the Voting Rights Act is unconstitutional because what Louisiana was required to do by the Voting Rights Act, these white voters are saying is actually a violation of the 14th amendment. So for Calais, that's the question that is going up to the Supreme Court. But like I said, there's a lot of history and background to understand

before this. So I think Peter, you're definitely going to go into like what was the status quo, what did the VRA say at this point before Calais got to the Supreme Court? Right. So in order to

“understand the dispute here, you need to understand the history of the law. Voting Rights Act”

passed in 1965, broadly speaking, makes racial discrimination and voting illegal. That includes discriminatory jerrymanders, you know, dividing up congressional districts in a way that discriminates against minority voters. But the question becomes, what exactly does that mean? What's a discriminatory jerrymander? How do we identify one? In 1980, there's a case called Mobile V Bowledin, which we covered last year, where the Supreme Court held that in order to prove voting discrimination,

you have to show that a state intentionally discriminated on the basis of race. The problem with

that is that it's basically impossible to do. Right. There's rarely straightforward evidence that

the government is engaging in racist jerrymandering. Even when there is courts can ignore it, like they did in that case. Yeah. And you can imagine that if state legislators know that that's the rule, they'll just hide their motivations. Right. Yeah. They're not going to write into the like state-ledge record. Like we want to make sure black people's vote gets diluted because they're black. So in response to the Supreme Court in 1982, Congress amends the Voting Rights Act to specifically

say, no, you don't have to prove intentional discrimination. Right. You can just show that the impact was discriminatory. And that's enough to establish a violation of the Voting Rights Act. A few years later, in a case called Jingles, the Supreme Court creates a test for evaluating these claims. They say that if there is a minority group that is sufficiently large in a single geographic area that generally votes together, and a majority group is consistently voting as a block to

defeat the minority groups preferred candidate, that is presumptively voter discrimination. Right.

So basically, if there's a minority group that could easily have its own district, but doesn't,

and they're being consistently denied or representative because of a majority voting block, that will usually violate the Voting Rights Act. Right. Yeah. And the result of that is that you can sue for voter discrimination, basically saying, for example, hey, there's a black area in our state. It's big enough to have its own representative, but they're jerrymandered

“to hell so they don't. Right. And the courts will tell the state, hey, you need to create a district”

for them. Right. You need to create a majority minority district. They call it. And that's the status quo before this case that that's how these situations get remedied under the Voting Rights Act. Right. Just as a leader enters the enters our narrative here. He writes the majority

opinion. His big picture argument is basically like, hey, it's actually the Voting Rights Act

that discriminates on the basis of race. Right. Because in order to find a violation of the Voting Rights Act and then remedy it, you need to do all of this analysis of different racial voting blocks. Right. You're creating a district for black voters. That's kind of doing racism. Right. And according to him, we need to be very careful about this because the Constitution for bids us from discriminating based on race. And this is the classic conservative argument,

right, that you were referencing. Yeah. These laws and programs designed to alleviate racism are actually racist themselves because they treat people differently based on race. I think is obviously inherently stupid because how do you adequately alleviate racial discrimination without factoring in race? But this is the conservative world for you. Right. Yeah. So Elito says we need to create a new test or clarify the old test. He sort of very consistently says

throughout the opinion like, I'm not we're not overturning the prior case law. It's not a new test. We're just clarifying it. We're just sort of like sharpening it. Meanwhile, very obviously overturning it.

“Right. He says that in order to show that a given electoral map is racist, you need to show that”

there is no legitimate explanation for the map other than racism. Right. Basically rule out everything other than racism if you want to prove voter discrimination. And the biggest part of his argument is

Right. That's just based on parties, Democrats versus Republicans, Duke in it out in the political sphere.

Because back in 2019 in Rucho V. Common cause, the court functionally said that partisan jerrymandering

“is allowed. So Elito is saying, look, if you want to argue that this is racial discrimination,”

you need to prove that it's not partisan jerrymandering. Right. Because we've said that that's acceptable. And that's really the heart of this case. The idea that if you can't tell the difference between partisan jerrymandering and racial jerrymandering, you can't just assume that it's racial jerrymandering. You can't assume that it's racial discrimination. Now, aside from the fact that in a sane world partisan jerrymandering would be illegal, and it only is legal because the Supreme

Court said it is. Right. This is absurd because you can't disentangle these concepts. You can't

disentangle race and partisanship. Right. Race and partisanship are overlapping categories. They relate to one another. The reason that black people so often vote as a partisan block is that they view their interests as black people as intertwined politically. Right. You might think that they're wrong or misguided about that. Right. If you're some dumbass Republican, like Elito, you probably think, well, black voters should probably embrace the Republican party or some dumb fucking shit like

that. But that's the fact of it. They don't. Right. They believe that their interests are represented

“largely by the democratic party. So to say that you have to prove that a certain jerrymander is”

based on race rather than party, it's just sort of non-sensical. Yeah. And I want to add, like, look, in Louisiana, white people are the same. Right. They vote Republican at comparable rates as black people vote Democrat. Like in Louisiana, it's like 88% 90% of white voters vote Republican consistently. Like they also understand their racial interests as intertwined with their political and partisan interests. Like who the fuck are we kidding? Yeah. And you could

imagine this as even more absurd. Right. Like to present a hypothetical. In the mid-century, we had a couple of political parties that were explicitly racist and founded on that racism. Right. In 1948, you had the state's rights democratic party. Right. The Dixie Crats, which existed for the duration of the 1948 election. In 68, you saw the presidential campaign of George Wallace under the American independent party. Right. They had an expressly segregationist platform

and that campaign, by the way, won five states. So imagine a world where that party persisted and took control of a state government and instituted a jerry mander. Under the standard, that party could do a quote unquote partisan jerry mander and be fine. Right. Yeah. Even though the actual effect would be identical to a racial jerry mander. And in fact, the purpose of it is racist. Right. The purpose of the partisan jerry mander is inherently racist. There's another point

that I think needs to be made even if it's a little subtle and legalistic. In Root Show, the case about partisan jerry mandering, the court didn't actually say that partisan jerry mandering is constitutional. What they said is that it's non-justifiable, meaning that it is a political question that the court cannot answer one way or the other. Yeah. But then here, Elito, pretty plainly says that partisan jerry mandering is a legitimate state interest. How can both

of these things be true? How can it be that there wasn't just a total way in on it? Right. But then at the same time, it's a valid practice that is presumptively allowed. And in fact, is capable of outwaying racial jerry mandering, which is at the right place in the Constitution illegal, right? Yeah, explicitly, yeah, disallowed by the Constitution. And so the net effect here is that it's nearly impossible to bring a claim of racial jerry mandering. Right. Unless every state

legislator just raises their hands like we're doing racism, right? Let us to let us all say it on

the record, then you're pretty much never going to prove it. But also, remember, I mentioned

“Mobile V. Bolden, the 1980 Supreme Court case where the court held that you need to show”

intentional discrimination to prove a VRA claim and then Congress amended the law to specifically say no you don't. Yeah. And Elito is returning us to that standard saying you need to prove that there's no explanation besides intentional discrimination. He's overturning Congress without saying that that's what he's doing, right? He's overturning this amendment without actually mentioning it without being like, no, that's what I'm doing. Yeah. There's something about this. It's very

weird to me. I feel like the conservatives are obsessed with the idea that you can't show racism by the impact of it because when they think about racism, they think of it as a moral judgment. Right. So if you're like, this is racist. The way in which these districts are drawn is racist,

and so they get defensive. And they're like, you have to prove that it's intentional, right? But if you have a structural understanding of racism, and you could say, well, not necessarily, right, the intention may or may not be racist. It's sort of beside the point, right, which is what Congress was trying to say when they amended the VRA. Right. And before we move on to the Thomas concurrence, which we'll talk about. We need to mention one thing, which is that every

time there's like a voting rights act case where they undermine the voting rights act in some

“significant way, they need to like do a thing where they're like racism isn't so bad anymore, right?”

Right. Yeah. Yeah. Alito says vast social change has occurred throughout the country, and particularly in the south, which has made great strides in ending entrenched racial discrimination,

which, so first of all, you're basically just saying just like robbers did back in Shelby County,

but this is like a policy thing you're doing. Right. I think racism is over. I don't think it what Congress thinks. So we're going to sort of, we're going to just let things get a little looser, right? We don't have to worry about this so much. He says by 2004, the racial gap in voter turnout and registration had largely disappeared. The way that he's presenting this is as if the problem was essentially solved by 2004, but actually that's a pretty strategic choice of year

because in recent years, the racial turnout gap has gotten worse. It's increased. So the bread and center looked at voter data and found that they turn out gap between black and white Americans

actually doubled between 2010 and 2022 from 8 to 16 percent. That gap grew twice as fast in southern

states with histories of voter discrimination, which used to be subject to federal oversight, but are now not due to the court's decision in Shelby County in 2013. What a coincidence that this region that made such great strides, according to Sam Alito, is now seeing the largest turnout gaps. He's just saying, look, the racial gap in voter turnout had largely disappeared by 2004, which it depends on what data you're looking at. Right. It's like, there's some data

we could say, yeah, that's like basically true, but it doesn't speak to now 22 years later,

“find a way, which is like not a super small amount of time. I don't think you should be allowed”

to say that. You saw this problem back in 2004. In 2004 was great. I didn't shoplift at all in 2004 when he spent the next 10 years, shoplifting every day. Personal shoplifting on my own behalf was largely eliminated by 2004. You know, there's also no reference whatsoever to like, oh, why would this huge problem in racist voting laws have been solved by 2004? Well, it's because of the voting rights act, of course. And then the Supreme Court dismantled it bit by bit by bit.

And now you see the effects of that. Harkins back to the famous RBG line about throwing away an umbrella in a rainstorm because you're not getting wet. Right. They're like, wow, look, racism has ended. It's like, no, actually what happened was the south was forced to not do it. Right. That's what happened. Right. The south was brought to heal by the federal government. All these institutions in these states and in other states for the record were engaging in racism,

and then the federal government made them stop. And now you're saying they don't have to. Yeah. I'm not a not a fucking rocket scientist. I'm just sort of piecing together what I'm looking at here. Right. And I mean, it's just, it's crazy how disingenuous this is to just point to 2004, which is like the single best data point that they have. Right. Yeah. It's just, it's crazy. Yeah. So we should talk about the Thomas concurrence.

“It is only like one page. It's two paragraphs. None the less. I think there's a lot to say here.”

I'm going to read just a couple sentences from it and then and then tell you what I think.

He says this court should never have interpreted section two of the Voting Rights Act of 1965

to effectively give racial groups a quote entitlement to roughly proportional representation. By doing so, the court led legislatures and courts to systematically divide the country into electoral districts, a lot of racial lines. And then he says that interpretation is rendered section two, repugnant to any nation that strives for the ideal of a colorblind constitution. Today's decision should largely put an end to this disastrous misadventure

and voting rights jurisprudence. So I wanted to read this because in this telling,

racial jerrymandering and vote dilution claims. And this has all been a judicial misadventure

“and that they are now correcting the judicial record, which is bullshit because as we discussed”

in mobile be bolding, the court basically made racial vote dilution claims very difficult and

Congress responded not by being like, yeah, actually racial vote dilution claims aren't even legible. Congress responded by correcting this Supreme Court explicitly allowing these vote dilution claims and making them easier, right? And the only nod Thomas has to this is that he says court's leg legislatures into doing this as if they are passive actors who've been manipulated by the dastardly liberals of the war and era Supreme Court. It's a ridiculous

way to read the history of the Voting Rights Act. What reminds me of in a way is back in Shelby County during oral arguments, Scalia complained that the law had passed like 98 or 99 nothing

in the Senate, which he took to be like evidence of something nefarious going on. And I think

in both instances what you're seeing are conservatives who are angry that like their party got overtaken by the politics of the moment, right? Yeah, they were like, we were too cowardly to stand up for our racist principle, right? Right. I believe that there's a lot of those senators didn't really like this, but they felt they had to vote for it. And so we should give them that no vote back. That's what courts are for stepping in when they feel like the vibes are off on a particular

“congressional note and just overturning it. Right. And so I think that's the best way to read this”

is him being like, look, the war in court basically said this stuff is racist and nobody wanted to be called racist. And so all these legislatures had to pretend like they were going to go along with this and they were led astray by these dastardly courts and now we're correcting the record. But that is just, that's not how, yeah, courts should or do operate, right? Like Congress acted and the only question is what did they do and is it permissible under the constitution?

Those are the only two questions and he doesn't answer either of them. He's not interested in either

of them because he's really getting at us. We never, when he says we never should have done this,

he doesn't mean the court. He means the country. He doesn't think the country should have engaged in this project. Right. It's so demeaning to of the claim of racism, of what structural

“racism is, of the understanding of racism. Like the tone here, right, that this created like”

racial entitlements, right? It's basically saying like a bunch of lips got to play the race card. You know, it's like so it's so insulting. There's no treatment whatsoever. I mean in the majority or obviously in in Thomas's concurrence of like, why was the voting rights act passed? What did the voting rights act intend to ameliorate or why would Congress want to pass the voting rights act? It's like it's so demeaning of classes of people who have been subordinated on the basis of race

that you know, it's like you guys were lying. You guys were making up this stuff and it transformed everybody and it made state legislatures have to act in this way and now people are entitled to votes on the basis of their race. It's quite um, it's really dehumanizing and just demeaning and like it's mean. It's mean. And just to, you know, just to be as specific as possible. So Thomas is saying he doesn't believe that Gerrymandering is covered by the voting rights act at all, right? He's

saying that it only applies to things like ballot access, right? Your your ability to literally cast your vote. Yeah. So, you know, as long as you can cast a vote, the state can use Gerrymandering to make it functionally useless, right? Doesn't matter. Doesn't matter at all. Doesn't matter if it's partisan, doesn't matter if it's racial, doesn't matter. He does not give a shit about that. He doesn't think the voting rights covers it. But you also have the fact that when states

do try to deny ballot access more directly, he upholds it every single time, right? We just have a bunch of-- A couple of years ago, out of Arizona, right, where they were talking about different forms of ballot collection and shit like that. And he was like, "Ah, that's fine." Yeah. That's great. There's, when it comes down to it, there is no impediment to voting that they won't get behind as long as it hurts the side that they don't like. That's right. That's right. There's sort of

like the suite of voting restrictions that was like a common in the Jim Crow south, right? Literacy tests, poll taxes. Some of them are now expressly outlawed. But on the other hand, some of them are not. And I have a hard time seeing someone like Thomas as opposed to them, right? If you just take

black populations in the turn of the century, Jim Crow south. Race neutral on its face, right? Which means it would get a lower level of scrutiny from Thomas than the voting rights.

Yeah. Right. I mean, it's just ridiculous. It's nonsense. Yeah, the way I always think about

the claim that it's all about ballot access and it's not about like being able to elect representatives is sort of like, yeah, the idea that sure, like you're at like a carnival and you can fire the little air rifle and it doesn't matter if the things that you're firing that actually cannot be knocked down and you can never actually win a prize, right? Like you're still getting to play the game,

“right? Like that's that's how they treat voting is like a fucking carnival act. Like right, it's”

it's so offensive. Right. Yeah, it's about the experience. It's about the sticker that you get. If you get the sticker, the voting rights act does not apply. Your constitutional rights have been protected. Yeah. Quite literally. Yeah, it's you get to go through the motions. Like you get to you get to cast a ballot and it doesn't mean anything, but you get a little sticker and you get to be like, I partook in voting and that's yeah, it's so offensive. Hey y'all, I don't know about you,

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see MintMobile.com/4 details. Kagan has a very long and thorough descent. It's got a very good history. It starts not just at the voting rights act with starts in reconstruction. Like Post Civil War, talks about the reconstruction era. Congress talks about all the challenges to protecting minority voting throughout the Jim Crow era and failed efforts that predated the voting rights act of 1965.

Very thorough, appropriately sort of taking shots at the majority for just enacting its own policy preferences here for hiding what it's doing. At one point, she writes something like, "This is in grounds to cancel," I mean, quote unquote, "clarify an act of Congress."

There's something like that. Yeah. Yeah. Voting cases are always

Kagan at her strongest, right? This is like where she really has no weaknesses on voting issues. This sort of opinion is really well suited to her sort of professorial style.

“Yeah. She makes a couple good points that I just I think are worth emphasizing. We talked about”

the inability to disentangle race from partisanship or the fact that it's often difficult to disentangle them. She makes the point that like this has turned things on its head, Alito's opinion that before highly racially polarized voting was evidence of vote dilution. Yeah. But now it's the opposite. Now it's evidence against because it makes it partisan, right? Because it makes it get creates more of a partisan valence. So it's totally

you can only prove a racial vote dilution claim if it doesn't change the partisan make-up of the congressional district you would elect, which is so nuts. It's nonsense on its face when you think about, right? Like for even two seconds. Right. She's very good on that. She talks about how like starry decisive where you defer to precedent has like extra strength in the realm of statutory interpretation because Congress has a chance to weigh in, to correct court, unlike in

constitutional cases. So I know you wanted to talk about the interplay between court and Congress. Yeah. There's a trick here that we've mentioned referenced a couple of times that the

conservatives are doing here, which is basically going back to a mobile V-bouldin status quo.

Court ruled in mobile V-bouldin that you had to show racist intent in order to make a VRA section two claim and Congress came back. Congress came back in 1982, two years later, amended the voting rights act, said no, that's not what we meant, right? And I just think like this shows a

“really important interplay in like, I don't know, healthy democracy or whatever the fuck you want to”

call it. But an interplay between the branches where the Supreme Court says, okay, we interpret the laws. It's a shitty decision. Mobile V-bouldin, right? It's a bad decision. But Supreme Court is saying we're interpreting the voting rights act to say this, to require this. Congress comes back and is empowered to come back and say no, okay, we're going to amend the law to clarify so that you don't interpret it like that anymore. This is the interplay between the

branches that is supposed to be happening with this case, Alito, the majority, the conservatives here, not only saying we are going back to what we said in mobile V-bouldin, fuck Congress is amendments, right? They're not only saying that and sort of overturning congressional action without saying they're overturning it. They're also prohibiting Congress from responding to this case, right, because of the constitutional nature of this decision. They're saying it's a violation of the

constitution. So we're no longer fighting about what the Voting Rights Act says and how it can be interpreted in the majority here is saying the Voting Rights Act, what it requires, itself is unconstitutional. It is a violation of the 14th Amendment. It's a violation of the 15th Amendment, according to the way the conservative Supreme Court has interpreted the 15th Amendment. And so Congress can't change the voting rights act to like respond to this, right? So it's prohibiting

congressional action in response. So you know, not just going back basically and saying no,

we want mobile V-bouldin. It's saying and also Congress, you can't come back and fix it. There's nothing for you to do. The VRA is unconstitutional. Right. Another sort of like technical kind of constitutional point, but the predicated of this whole opinion is that we need to be extra careful when we're trying to handle racial redistricting because in order to do it,

“you need to factor in race and the 14th Amendment says you can't do that, right? But”

the 14th Amendment doesn't literally say that you can't factor in race when addressing inequality. That's just how the court interprets it, right? Meanwhile, the 15th Amendment does say that you can't discriminate based on race invoting and expressly authorizes Congress to pass legislation to enforce it. Right. And that's what the VRA is. So Elito is like weighing a fictional version of the 14th Amendment heavier than the fairly explicit words of the 15th Amendment, right? And you get

left with this complete absurdity where the court is applying strict scrutiny to the voting rights act, right? Right. Strict scrutiny is, of course, the most intense form of judicial scrutiny meant ostensibly as a tool for ensuring that our laws are not discriminatory. And here they are ruling that this law, the capstone of the mid-century civil rights movement, actually violates equal protection principles, right? Yeah. Just ridiculous and obscene. It's so fucking annoying

“because I think there is like a good faith like complaint about the way that we handle racial”

jerrymandering. Sure. That's basically sort of like, well, this is quite messy, right? It's quite

difficult to identify a group of people that you think should have a representative and what exactly that means in different contexts, right? But rather than sort of reckoning with the fact that, like, yeah, this actually is complicated. It's hard to disentangle various factors. And that's why

and maybe also input from the courts, right, which is sort of where we were before. Yeah. This is why the jingles factors were like super complicated. There are several steps. The steps had like some parts, like, it wasn't easy to get a vote dilution claim exactly. And you know, and I think it's very easy to say that the status quo was not perfect, of course. Really

difficult to handle these issues. But what the conservatives do is basically say, well,

does the way that we're handling all of this align with like a baby's view of racial discrimination, right? And if not, then we're just going to say it's unconstitutional. That's their solution here. Another reason why this is so like the idea of applying strict scrutiny to the Voting Rights Act

“is so absurd is you have to understand the structure of our government and Congress. Congress is”

for our lay listeners or all you lost students. One of this, Congress can only act pursuant to what's called it's enumerated powers. Congress can't just pass laws on whatever they feel like. Yeah. The Constitution gives them specific areas where they can legislate. The original Constitution gave them like 18 and over half of those are shit. Like they can mint money. They can prosecute people or counterfitting money. They can raise an army. They can raise a navy. They can

do maritime. Well, shit like that. It's like sort of whatever. There's only a few what they call heads of congressional power that like actually reach into your everyday life. And affect how you conduct yourself, how you run a business or whatever, right? Like the ability to regulate commerce, interstate commerce, for example. So the 13th, 14th, and 15th amendments, all three of those

“add enumerated powers to Congress. Each one says that Congress can pass laws to give effect to that”

amendment. And it's a very broad enumeration. It's basically like Congress can do whatever it wants

to make sure that slavery is abolished. Congress can do whatever it wants to make sure do process in the equal protection of the laws are protected that citizens get all the privileges and immunities and, you know, of the Constitution that you can't discriminate based on race in voting. Though the amendments are just like Congress passed a law, get this effect, whatever. These are very broad grants. So it's a big fucking deal when you amend the Constitution to give Congress

a new power, right? This is like a massive expansion of congressional power. It's why a lot of people call the reconstruction era, the post civil war era, the second founding, because it changed the structure of the federal government. It changed its the relationship between it and the

“states. It vastly enhanced congressional power. And in that context, to take such a narrow reading”

of, and such a hostile stance towards the signature piece of legislation, enacting the 15th Amendment is absurd. It's a, I'm sorry, it's fucking anti-constitutional. It's anti-constitutional. Like there's no other way to put it. Like this is an assault on the post civil war constitution. I also want to note like in voting rights cases, there's this thing called the Purcell principle,

which is basically that you're not supposed to make big changes in voting laws, very close to

elections. What very close to an election means is very elastic? Yeah, they know when they see it. Oftentimes, when it's things that will benefit Democrats, the window for Purcell is very big, and maybe we shouldn't be making that change just now, whereas when it's to benefit conservatives, it's like, well, how close are we really to an election? Yeah. Yeah. Maybe everyone can read district a few months before the midterm. Right. Do you know the time is relative? Yeah.

Einstein said, and, uh, and, but instead of setting aside hypocrisy, I do want to note, like, this case was argued in October, so you could, you could make the case that if anything, this opinion was overdue, but this does feel like the story to case, they would usually save for the end of the term, end of June. Because it's so big, because it's so substantive, because it really is, I mean, it's like a landmark decision. I mean, we thought it was going to

drop at the end of the term. Right. And because it will inflame political tensions, and they don't want to be around during that. They drop these and fuck off for the summer. Yeah. You know, like, uh, dobs is dropped at the end of this term. You know, these, uh, all of these cases, they drop them and they go on vacation. Mm-hmm. Bohemian Grove. Yeah. That's right. So I do think it's worth considering whether this came out a little early precisely to give

red states a little more time to get some redistricting in before the midterms, you know? Yeah. And if you think that sounds a little conspiratorial, uh, I want you to consider something. Earlier this term, this Supreme Court put a stop to election changes because they were too close

to this Supreme Court asking them to speed up what's called the issuing of the mandate, uh,

it was basically the making the judgment official, uh, which usually takes about a month to give

parties the chance to motion to reconsider and do other little procedural things. And Louisiana's like, hey, we've got an election going on right now. And we want to pause it to redraw the maps during

“an election. Can you speed up the issuance of the mandate in the Supreme Court said, yes?”

So earlier in the year, 15 weeks out is too close to the eve of the election. Right now, they're like, fuck at the elections on going who cares? Yeah. Who cares? mandate. Let's get that out. Let's get that out. Louisiana can redistrict their black people out of representation entirely. So yeah, I do think this came out as early as they could get it to come out in order to give red

states as much time as possible to rat fuck the midterm elections. Law nerds might take exception

to this, but you know, when have they been right recently? Not a lot. Yeah. Um, I think you can't really rule out that there's that level of partisan gamesmanship going on here. Yeah. It's not a surprise that right as the Republican party is becoming sort of an explicit white supremacist party, all of a sudden racism and partisanship have to be disentangled. Right. And can you just entangle these concepts that no one on earth could possibly disentangle? Yeah. Right. It's like, I do wonder

whether just a small digression, but is this that much different from being like, well, how do you know that they're not doing cultural discrimination? Right. It's like, right. It's not racial. It's cultural discrimination. Uh, can can you prove that it's not? It's just fucking nonsense.

“Yeah. I mean, I just, I think so much of this opinion is so laughable. Like, if you think about it for”

two seconds, it's just, it's not even good sophistry. You know, it's like, laughingly bad sophistry. And I don't think San Milito's that stupid. I don't think John Roberts is that stupid. I don't think, well, I don't think Amy Koney Barrett is that stupid. I don't think gorsuch is that stupid. I'm not going to land on capitol. To be fair, there's actually no evidence that John Roberts can like follow a threat of syllogistic reasoning. That's true. He might be that stupid. Yeah. He might,

he might. But I do think there is a very parsimonious explanation for the timing for the sophistry for all that, which is just that these guys are, they're not even, they're not even fooling themselves here, right? What they're doing, right? They know what their party is up to. They approve of it. They want to help, right? Like, I think that's, and that means getting this out early, right? That means pushing it out early and giving states time to do this.

And not just that, but they didn't have to answer this question, right? The challenge brought to the Supreme Court was just the challenge by the French blooded whites in Louisiana. They are like, this is discriminating against us specifically, right? And can you please resolve the issue of our district, right? And wasn't that last term? Yes. Yeah. And this Supreme Court ordered briefing on the larger constitutional issue, right? They were like, we're not just going to answer the narrow

question. We want to answer the big constitutional question about the Voting Rights Act. So it's not like this was thrust upon them, right? Very similar to Citizens United, where they have this really narrow question presented back in 2009, 2010. And they were like, actually,

“we would like to handle the much larger, more important constitutional question, right?”

Just the opposite of what the Supreme Court is supposed to do. What you're taught in law school, the Supreme Court will do. And the net effect, I mean, you look back at the last 12, 15 years, Shelby County in 2013, Rucho B. Common cause in 2019, and now Calay. Between these three, the near-complete destruction of the Voting Rights Act as it applies to Jerry Mandarin, right? And then you have cases like Bronovitch, which are a direct attack on

other forms of vote suppression, right? We have really seen this project evolve, some credit to us.

I think people always ask us, what are the worst cases of the last 25 years, or the the

centuries so far or whatever? And I always throw Rucho on that list, because it's so shameless that they would allow partisan Jerry Mandarin and just say, "Oh, we can't, we can't even address it." And look what they're building on the back of that. Well, yeah, right? Yeah. I mean, it's worth saying like what happens now and what happens next, what's happening now is a bunch of Southern states are rushing to quickly Jerry Mandarin before the election this year,

including Louisiana, which is so close to having their primaries run that they would be locked into a

to try to redraw the maps. Like these states are like, they, they were waiting for this ruling,

“which is one of the reasons why I do think they tried, like, a leader try to get it out as quick”

as possible, actually. They were waiting with their engines running. Yeah, I mean, another example from Texas, of course, where I live, last year in 2025, the state ledge in Texas adopted new, highly racist Jerry Mandarin congressional districts. And then at the end of the year, the Supreme Court said it was okay, lifted, lifted a stay on those, and so those maps are moving forward anyway, but certainly with this case, like, there's no

there isn't a VRA section two claim against these congressional maps in Texas. So Texas just to give,

you know, a kind of a lay of the land. Obviously it's a huge state. We said Louisiana has six

congressional districts. Texas has 38. It used to be the 13 of those 38 congressional districts had majority minority voting population. Texas's population overall is 60% racial minorities with these new congressional districts with this new map. Texas has down from 13. Now, eight congressional districts that are majority minority, again, out of 38, even though 60% of the population of this state is a racial minority. So, you know, those maps kind of going full steam ahead.

That's such a good example of why this approach to the Boating Rights Act that previously existed before this case made a lot of sense, because on one hand, yeah, it's difficult to say, okay, these sort of pockets of people who are of a certain race and vote together generally, they need their own representative, right? That's very, that feels very awkward as a policy prescription. On the other hand, you can zoom out and look at that status quo of a majority

minority state where the minorities have been clustered into eight districts and say, oh, that's clearly unfair, right? That's clearly disenfranchising large chunks of those people, right? And I appreciate that it does not reckon with the second problem is not serious, right? It's just

“not a serious way to address the issue. So, that's what's happening now. I've heard some people”

wonder what happens next and you hear voting rights or saying, well, like, we're not giving up the fight and we're going to do x, y and z and all that. And more, more power to them, I believe

you always got to fight the good fight and all that, but realistically, what happens next is like

one of two things, which is the Democratic Party either becomes a true party of anti-racism, a true civil rights warrior party, one that opposes segregationists, opposes neo-confederates, and aggressively tries to enact institutional reforms and policies that ameliorates structural racism, or we live in a new Jim Crow. Like that's it. Those are the choices. That's what happens next. And that Democratic Party is not going to manifest itself. It has to be created in primaries.

It has to be created in protests. It has to be created by you putting a massive amounts of pressure on your representatives, or giving them the fucking boot. I don't care if they've been your representative for 20 years and you like them. If they're not on board with expanding the Supreme Court, they got a fucking go. If they're not on board with aggressively disciplining the Supreme Court, they got to go. If they're not on board with a new voting rights act, they got to go.

Like that's it. Like same with your senator. If they're not on board with ditching the filibuster, goodbye, that's it. No, there's just no room for this bullshit anymore. Like you cannot have any tolerance for the old legalistic shit that we have put up with from the Democratic Party for decades. That party needs to die. Yeah, you know, we talked about the interplay earlier between like Congress and the Supreme Court. And you know, you get about the Supreme Court ruling

and people say like Congress must act. You know, Congress should respond, you know, past something else. And we talked about how in this case, like the Supreme Court is very in this like slide kind of way prohibiting Congress from acting on this specific thing because they've said, you know, the VRA is essentially unconstitutional. But Congress doesn't need to act. The Congress needs to act in a different way, right? Like it. It isn't about amending the voting rights act anymore. Obviously,

“Congress needs to act in structural reform, serious reform of the Supreme Court. Yeah. If you want to”

pass the John Lewis voting rights act, that's great. You have to protect it. You have to protect it by expanding the Supreme Court to like 17 people and doubling the number of appellate circuits

all their poems of power in the courts to protect that legislation. Right. There's a criticism

of our point of view that it has like some sliver of truth to it that's sort of like the Supreme

“Court's not the real problem. You're just noticing it because Congress is sort of dormant, right?”

Congress is so locked up that it can't engage in the interplay with the court that it should. And so the court appears to be unchecked, but that's really Congress is fault because they're non-functional, right? I think a case like this is where you see that argument start to fray because Congress did act, right? This isn't about Congress and the Supreme Court not having like the right amount of interplay or something. This is the Supreme Court taking advantage of the gridlock

in Congress, right? There's they are saying, oh hey, Congress is two bogged down with partisanship, no one can agree on anything. Let's rewrite the VRA, right? Because they're not going to act, right? Even though they've already acted to correct the court before, the court steps back in now, right? Taking advantage of what's happening in Congress, not acting in good faith, but taking

“advantage of the fact that Congress is bogged down. Yeah, I mean, I think the flip side of that”

and the discussion about congressional dysfunction is you need a party that doesn't care about the other side, right? You need a democratic party that says we're going to do this with 50 votes in the Senate plus the VP and a one vote of majority in the House. We don't care. We will explain the Supreme Court to 15, 16, 17, whatever with those numbers, right? Like we don't care about the filibuster. We don't care about we we're going to have that discipline. If that's not

the party, you're not going to get there with 55 votes in a 30 seat majority either. Like I just I don't believe it. I I don't believe it. You need that attitude. You need that attitude. You need that

approach without that approach. Somebody's always going to find some reason to you know, they're

these guys are they're fucking losers. They're losers who don't want to do anything and you have to make them do shit. And that means you need like a top down approach to disciplining them into doing shit. And that's so that's the attitude they need is to make Congress functional at least when they're in charge. Yeah. One of the wild things about modern politics is we're seeing you know, Kagan calls it a race to the bottom in Jerrymandering, right? The Democrats and Republicans

across the country are just Jerrymandering their states to shit in response to one another.

“We are exiting our status as a democracy. That could be undone by just reversing Rucho, right?”

You reverse Rucho and not only does this case basically go away, but all of that anti-democratic

Jerrymandering across the country, all of those now millions of people functionally disenfranchised in franchise again. It's wild how much damage has been done by this court's jurisprudence on Jerrymandering and how completely unconcerned the majority is because they are not interested in democracy per se. No. They're not interested in democracy because the status quo where they should above the democratically elected branches is working just fine for them. They're the

philosopher kings of the government right now and they know it. And so yeah, they don't want democracy. They want to retain their place of privilege at the top judicial supremacy. All right, folks, next week, there will be no episode because this is counting as your next week episode. We just expedited it. Yeah, we moved quick on this one. But then the week after that, we're doing a special episode on the Mr. Beast's sexual harassment lawsuit.

Oh, this is going to force me to research Mr. Beast. What is a Mr. Beast? I am aware of him. I know, roughly what he does. I've seen those soulless little eyes. Yeah, Guy looks like it's going to say, freaky smile. Nothing behind the eyes goes by Mr. Beast has an army of children behind him. I feel like I'm not a religious scholar, but I feel like this screams at the Antichrist. It feels like, yeah, he looks like

a haunted house in plea. It does feel like a bad home in for society that almost everyone I see these days is giving me Antichrist vibes. You know what I mean? I'm getting him from Mr. Beast. I'm getting him from Trump. Peter Thiel. Sam Altman. Elon Musk. All of these guys are a little

Right now. Like, one of them is going to hit. You know what I mean?

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