Supreme Court Mulls Limiting Race-Based Voting Maps & Reagan-Era Judges Push Back | Bloomberg Law
Summary
Supreme Court Case: The podcast discusses a Supreme Court case challenging the drawing of a black majority district in Louisiana, with conservative justices poised to limit a key part of the Voting Rights Act.
Voting Rights Act: The potential limitation or reinterpretation of Section 2 of the Voting Rights Act could impact minority representation and the creation of opportunity districts.
Legal Arguments: The discussion highlights differing legal perspectives on the use of race in redistricting, with conservative justices questioning its constitutionality and liberal justices emphasizing historical precedent.
Impact on Elections: The timing of the court's decision could influence upcoming elections, affecting the ability of states to redraw district maps before the midterms.
Judicial Perspectives: Reagan-era judges express concern over the Trump administration's approach to the rule of law, emphasizing their commitment to judicial independence and institutional integrity.
Conservative Ideology: The podcast explores the evolving nature of conservative ideology, noting differences between Reagan and Trump appointees in their judicial philosophies.
Judicial Independence: The discussion underscores the importance of judicial independence, with Reagan appointees emphasizing the rule of law and resisting executive overreach.
Transcript
[Music] This is Bloomberg Law with June Graasso from Bloomberg Radio. >> It's a very complicated case involving a challenge to the drawing of a black majority district in Louisiana. But one thing was clear during the 2 and 1/2 hours of oral arguments at the Supreme Court. The six conservative justices are ready to limit a key part of the Voting Rights Act that for more than half a century has been a guardrail against racially gerrymandered maps that dilute the votes of minorities. The law was passed in response to rampant discrimination against black voters in the South and Justice Brett Kavanaaugh questioned whether it was still warranted 60 years later. Race-based remedies are permissible for a period of time, sometimes for a long period of time, decades, uh, in some cases, but that they should not be uh, indefinite and should, uh, have a end point and what exactly do you think the end point should be or how would we know for the intentional use of race to create districts? But liberal justice Elena Kagan pointed out that the remedy of redrawing districts only happens in a case where a court has found a specific proved discrimination by the state. >> What these section two suits do is they ask about current conditions and they ask whether those current conditions show vote dilution which is violative of section two. So they say, is there racial segregation, racial residential segregation now? Is there racially polarized voting now? and when the state fails um with respect to those issues when those conditions obtain now. >> However, other conservative justices like Neil Gorsuch suggested that any use of race as a factor in redistricting even to correct a state's discriminatory delution of minority voters is unconstitutional. I'm asking, is it acceptable under section two, as as you understand it, given our precedence, for a court to intentionally discriminate in a remedial map on the basis of race? >> How quickly the court hands down its decision could determine whether or not states will have sufficient time to redraw maps, if permissible, before the midterms. My guest is elections law expert Richard Bralt, a professor at Columbia Law School. Rich, before we get to the facts of the case and the oral arguments, I want to ask you about the impact of this decision if the justices, as expected, limit or eliminate section two of the Voting Rights Act. >> It's not clear they're going to do away with section two, though they will clearly change how they interpret it. I think that it's tricky because it's not clear how many districts it's going to affect. It clearly will affect some districts. It clearly will mean that certain lawsuits to improve minority representation won't be brought. Probably the harder thing to figure out is to what extent certain districts that have already been created as minority opportunity districts, even if they weren't result of litigation, but were done either defensively as a way of foralling litigation or because the local legislators thought it was the right thing to do. whether those can now be attacked as reflecting an excessive attention to race. We don't know what the court's going to say and we don't know how far this will go in terms of unraveling pre-existing, you know, districtricting practices, but certainly whatever they do, it will definitely have an impact on minority representation and potentially on partisan representation as well. >> Tell us about what the issue is here. >> It's almost it's very hard to explain what the issue is. It's a very complicated case. I mean the underlying issue is to what extent can or must states take race into account in drawing their districts. This case grew out of an earlier case in Louisiana where the plaintiffs argued under section two of the voting rights act that a minority in this case African-American or black voter representation was illegally reduced that the state is approximately a third black but only one out of the six congressional districts had a majority minority population and the plaintiffs were able to persuade a lower court that it was relatively easy to draw a second majority minority district and that the state's failure to do so under the totality of the circumstances including the nature of racial block voting in the state and historical factors in the state constituted a denial of equal representation. The state went ahead and did that but they did it in such a way that by taking certain partisan factors into account. They created a very strange looking district that kind of goes across much of the state even though the plaintiffs when they brought their case had proposed a much more compact district. Well, now another set of voters in this new district have brought a lawsuit saying that this district is drawn predominantly for racial reasons and drawing on older Supreme Court president there that that's unconstitutional. The plaintiffs in the original case are trying to defend the district by saying that it's okay to use race even in the significant way when it's being used as a remedy for prior racial discrimination. And that's really in the issue here is when is it okay to use race in drawing districts and maybe to what extent is it permissible to use race in drawing districts? That becomes the big question. >> The Supreme Court originally heard oral arguments in the case in March but didn't reach a decision and added sort of a new wrinkle for the current oral arguments. The court asked for more briefing on the constitutional question of the constitutionality of using race in this context. Again, to back up, the court has said in in a in the past in a leading case called Shaw, which was decided in 1993, that the predominant use of race when race is the predominant factor in line drawing, that is subject to strict judicial scrutiny and can only be satisfied if there's a compelling state interest. and they assumed without actually deciding that compliance with section two of the Voting Rights Act is a compelling state interest. In some sense, this this case raises the question of whether compliance with the Voting Rights Act is a compelling state interest or again it could be turned out to what can the Voting Rights Act permissively require? How is the court interpret the Voting Rights Act? There are a lot of questions all sort of tied up in a knot in this case and it could come out in many different ways. I mean, the one thing that seems pretty clear is that the original plaintiffs, the the black voters who sued for change are likely to lose. They did win in the lower court and the map was redrawn in their favor, but the challengers to that map, I think, are likely to win. But on what theory, it could be any from a relatively narrow theory to an extremely broad theory. And to some extent, you heard that in the oral argument where three different lawyers were making the case against the current district. the original plaintiffs challenging the current district, the state of Louisiana, which originally had defended the districts and then changed its position. State of Louisiana drew these districts but are now saying that they believe they're unconstitutional. And the US government, the Trump Justice Department, and they each presented slightly different theories as to why the districts are invalid and what would be the proper use of race and line drawing. >> Yeah, that's three against one seemed a little bit unbalanced. Now, the conservative justices, would you say they're sort of on a spectrum from a position of there should be no consideration of race at all in redistricting to something less? >> I think I would phrase it in terms of how much how big a change do they want to make in the law and when could race be used. And I do think you have the sense that some didn't think race could be used at all. Others, I think, were open to the use of race, but only in a relatively narrow set of circumstances. And I think a lot of it had to do with how do they fit this decision with an earlier Supreme Court decision, one that is now almost 40 years old, in which they interpreted the Voting Rights Act, section two of the Voting Rights Act, laid down a case called Jingles, which set the pattern for Voting Rights Act enforcement for the last 40 years, including just two years ago when the Supreme Court in a case coming out of Alabama, which on fairly similar facts to this one, sustained the use of race in drawing a remedial district. And so I think the what you saw, let's call them the the more moderate conservatives, uh, Justice Barrett, maybe Justice Kavanaaugh, maybe the Chief Justice looking for ways of squaring this case with that Alabama case known as Milligan or explaining why this case could come out differently and maybe explaining how this case fits with the older president, Jingles, and are they going to overturn Jingles? Are they going to say this as a clarification of jingles, which would be a way of changing it without flat out changing it? So, I do think my guess is less likely that you're going to see a majority striking down the Voting Rights Act, but you're going to definitely see a new interpretation of how it applies and what it requires, at least based on the oral argument. And it's always tricky to rely on the oral argument. I mean, we're not going to see a decision for quite some time, but you did see at least some of the justices trying to figure out how to square this with a decision that's just two years old and with a precedent that is 40 years old. >> Chief Justice Roberts, who voted with Justice Kavanaaugh and the liberals in that Alabama case, asked how the court could differentiate the case. He said that case took the existing precedent as a given. I think that provides a basis for saying why they're not bound by the case that the validity of Jingles and its interpretation were not really being challenged in the Alabama case. Then as they pointed out the state in the Alabama case had certain very specific arguments and those specific arguments were rejected. The court is now hinting that all they ruled on in the Alabama case were the specific objections uh that Alabama raised said the lower court's order in that case but that they had not definitively ruled on either the meaning of the Jingle's decision or the meaning of section two of the Voting Rights Act. >> Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Richard Brefalt of Colombia Law School. The timing of the court's decision is key. An early decision could affect the midterms and boost the Republicans's chance for electoral success. And later in the show, Reagan appointed judges are not afraid to criticize the president and his administration. I'm June Graasso and you're listening to Bloomberg. I think the results would be pretty catastrophic if we take Louisiana as one example. Every congressional member who is black was elected from a VRA opportunity district. We only have the diversity that we see across the South, for example, because of litigation that forced the creation of opportunity districts under the Voting Rights Act. Every justice in Louisiana has been elected through a VRA opportunity district and nearly all legislative representatives have been elected on those same districts. So Louisiana alone is an example of how important it is to have section 2 continue to be enforced to create these opportunities. >> That was civil rights attorney Janai Nelson describing what the results of ending section two of the voting rights act would look like. Nelson was defending the creation of a second black majority congressional district in Louisiana. During the oral arguments, the Supreme Court's conservatives suggested they'll limit the use of race in drawing legislative maps, a move that could undermine the last major pillar of the Voting Rights Act. The court already declared sections four and five of the Voting Rights Act unconstitutional in the Shelby County versus Holder case in 2013. I've been talking to elections law expert Richard Bralt, a professor at Columbia Law School. So Rich, after hearing the oral arguments, do you think that the best possible outcome here for voting rights advocates would be that the court sends the case back to the lower court to draw a new map? Of course, the worst case scenario is that the court just throws out section two. It it's complicated because this case is not an appeal of the earlier case that struck down the old Louisiana map and said you you need a second district. This case is an appeal of the new map which has the second district which clearly reflects attention to race. So, it's a little unclear, but they might very well conclude that this is an illegal map uh or an unjustified map and strike it down and then yes, you know, have to send it back to the lower court and then lower court presume would then give it to Louisiana legislature which would then probably go back to the original map because in the earlier case, a case called Robinson, as several of the justices pointed out, there was no final judgment in that case. There was it was a decision on a preliminary injunction and the lower court didn't impose a map. The state basically decided that the legislature wanted to write its own map and not take the risk of a court imposed map. So they went and drew up a map uh before there was actually a final judgment by the district court in the Robinson case which I say say this is a complicated case and you may very well see that the court giving in new instructions as to what the section two of the voting rights act require and what does the equal protection clause prohibit in terms of the use of race in drawing lines. Hard one to read because there are a number of different factors running around in this case. Um there was an argument about one of the key elements in the voting rights litigation until now has been proving the presence of racial what's called racial block voting. That is blacks and whites voting very differently from each other. The justice department, the Trump Justice Department basically has said that these days it's impossible to separate race from party that this is really partisan gerrymandering and the Supreme Court has given the green light to that. So that they would want to raise the burden very heavily on plaintiffs to separate race from party and if they can't then you don't have a win that you don't have a voting rights act violation that I think is an argument that might draw some appeal in the Supreme Court. So the Trump administration basically said yes you might be able to use race as a remedy but only if you could really prove that it was race that was driving the voting outcomes and not party and putting a very heavy burden on the plaintiffs. a much heavier burden on the plaintiffs to show that than had been the case until now. >> And what were the best arguments that the liberal justices made? Not that they'll have any persuasive effect on their conservative colleagues. >> The liberal justices I think primarily basically relying heavily on star decisis that is we've decided this before including two years ago that this case is on all fours with the Alabama case. So that's one. Two, another version of star decisis is there is a doctrine that says that court opinions interpreting statutes get super strong star decisives have super strong precedential effect because whereas court decisions interpreting the constitution really can't be overturned except through an extraordinary process of constitutional amendment. Court decisions interpreting a statute, Congress can always overturn them and Congress has not tampered with the Voting Rights Act since 1982. So there's kind of two starry decisis arguments here. One based on the Milligan case, the other based on jingles and saying Congress has has not bothered with that case for 40 years. The other I think was a third argument and and it didn't come up as much in this argument as people might have thought. If you go back to the Alabama case, uh you mentioned that Kavanaaugh was in the majority. He wrote a concurrence. I'm not sure if he was in a majority or whether he just concurred. He echoed some of the language Justice Okconor had used many years earlier in dealing with affirmative action and saying there's got to be some time limit for this that it's not clear how how much longer you can keep taking effects into account in remedies. And much of the argument of the the lawyer for the NAACP and the liberal justices is well actually there is a built-in time limit in section two. Plaintiffs have to show that there is current racial block voting, that there is a current desperate impact. And so therefore, it's not something that goes on forever. Plaintiffs can't make that showing. They lose. And they made the point that in much recent litigation, plaintiffs have lost a lot of voting rights cases, that they don't win a majority of their cases. And so the concern that this is going to lead to a kind of endless kind of racialization of line drawing, they're saying it's just very overdrawn. That was very much a response to Kavanaaugh's position in the Alabama case. That didn't come up as much in the argument this time as I think people might have expected, but that was one of the arguments that both the NAACP rebutted and the the liberal justices also took into account. >> There are a lot of legal experts saying it's the death of the Voting Rights Act and you know it's a sure thing that the conservatives are going to get rid of it. You don't think that it will go that far? >> No, I think they're going to make it much less effective, but I again I I don't count myself a great prognosticator on this. I don't think there's a majority based on the questions in the oral argument. It seemed to me that it's more likely that they will reinterpret the Jingles case andor the section of the Voting Rights Act in a way that places a much higher burden on plaintiffs to prove something that would entitle them to redrawing lines and in order to enhance minority representation. I think that may have the effect of making sure there'd be even fewer Voting Rights Act victories than there are now. But based on the kinds of questioning, it seemed to me that they're more likely to make the Voting Rights Act much less effective than to throw it out altogether. >> What do you think the timing looks like here? Do you think the court might try to rush this through to get around the Purcell principle, which is that courts shouldn't change election rules right before an election? I >> mean, that's a good question. Uh, and I don't know. I mean, you're right. I mean, one concern is if they come down soon, there may be a lot of lawsuits challenging current plans that uh were done either as a result of litigation or as a way of foralling litigation that create either majority minority districts or what are called opportunity districts, districts without a a black or Latino majority, but are designed in a way to make it easier for minority voters to u to elect the candidates of choice. So, right, if there's a decision between now and the spring, it's quite possible we'll see yet more re-redistricting. If it's much later than that, I think it would be very hard for it to show up in the 26 election, but it would surely show up in the 28 election. So, I don't know. I mean, it's now been argued twice. They set it up on the calendar early in the term. It's conceivable that there'll be an early decision, but it's really very hard to tell. And it may be that they need some time to figure out a theory that commands support or it could very well be that there's, you know, multiple opinions. This is a very hard case. >> Where do you think the Chief Justice stands? Because he did write the majority opinion in the Shelby County case, which got rid of sections four and five of the Voting Rights Act. A classic Roberts move would be to effectively change everything without literally overturning it. You might see Thomas Alo and Gorsuch wanting to do more, possibly Kavanaaugh, but my sense of Roberts and Barrett anyway is they want to they want to change as little formally as little as possible while making a big enough change to get rid of these kind of cases. And I think the Department of Justice gave them the the argument that might allow them to do it. They seem very keen on that. Kavanaaugh seemed particularly keen on that. He kept citing to their the Department of Justice brief which really talked about the need to separate out race from party to make a very high barrier for doing that and to emphasize that partisan jerrymandering is just fine. >> Are there any other voting rights cases coming up to the court or percolating in the lower courts? But there are some other issues percolating around in the lower courts. Maybe the most important one is whether there's a private right of action under section two of the Voting Rights Act with most courts have assumed that there is, but one circuit court has held there is not. So that issue is perking out there, but I don't think it's before the Supreme Court this year. >> They do seem to have enough before them this term. Thanks so much, Rich. That's Professor Richard Bralt of Columbia Law School. It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals. >> In February, Seattle federal judge John Kunau ruled against President Trump's attempt to end birthright citizenship. In doing so, he was blunt in his criticism of the president and in his own determination to protect the rule of law. There are moments in the world's history when people look back and ask, "Where were the lawyers? Where were the judges?" In these moments, the rule of law becomes especially vulnerable. I refuse to let that beacon go dark today. Kunau is just one of the judges appointed by President Ronald Reagan who've been vocal critics of the Trump administration's efforts to circumvent court orders and challenge the law in unprecedented ways. Most federal judges are more guarded. But the Reagan appointees, all in their 80s with decades of experience on the bench, are institutionalists who have no trouble being blunt about a party trying to subvert a court order or the rule of law. Joining me is Bloomberg Law reporter Jacqueline Thompson. Jacqueline, in general, how have Reagan appointees viewed Trump in this administration? Again, speaking generally because I'm sure not every Reagan appointee feels this way, but some of them really have sort of blanched at the way that the Trump administration has been approaching the law and then also been approaching the courts in general. You know, the arguments that they make in court. We've had judges sort of bristle at how they've approached birthright citizenship. We've had judges detail times where they feel like the administration isn't complying with their court orders or at least not doing so in a really wholesome way that they feel, you know, recognizes the power of the courts. And so, it's just been interesting to watch these judges who are in Seattle, they're in Boston, we have one in DC, there's also one on the fourth circuit which covers Virginia. And, you know, they've been pretty vocal in talking about how they feel about the administration. >> Yes. particularly Judge William Young in that 161page opinion which was stunning in so many ways. Judge Young wrote, "The Constitution, our civil laws, regulations, mores, customs, practices, courtesies, all of it. The president simply ignores it all when he takes it into his head to act." >> Yes, definitely. you know, he he really went through all the different ways that he feels about the president within that opinion. And, you know, it was really just such a striking opinion, not just because of what he said about Trump, but the way that he wrote it. And it really felt like he was trying to speak to the public there and almost give them a sort of civics lesson and saying, you know, this is the way that the courts function and this is the way they have historically functioned. And what I'm facing today in my courtroom is not proper actions by the administration. And I haven't decided what I'm going to do yet. But whatever I do do here will be fully done with all of that in mind. >> President Reagan seems to hold a special place in the hearts of party members. Trump even has a portrait of him, as you mentioned in your article, hanging in the Oval Office. What kind of people did Reagan appoint to the bench? You know, Reagan also went with young conservatives the way that Trump did. And that's why we have so many Reagan appointees who are still active judges. These were folks who were getting appointed in their 30s and their early 40s. They've been sitting on the bench from anywhere from 36, 37 years to nearly 40 years some of them. And you know, they've spent a lot of time on the court and seen administration to administration seeing all of these changes. you know, Judge Lambert in DC, for one, he's talked about how he was arguing on behalf of the Reagan administration in court before he got a federal judgeship. So, these are folks that, you know, Reagan administration officials were familiar with, knew of them, and, you know, sort of had the conservative credentials that they wanted to put onto the court. Now, of course, some of them are in blue states. That means that they had blue slips that were signed by Democratic senators in order for them to get the seats. But overall, Reagan really had an opportunity to shape the courts in a really conservative way, just as Trump did during his first term and will to the extent that's possible during his second. >> But conservative ideology has evolved in the nearly 40 years since Reagan left office. And also, the current administration doesn't always seem to be interested in conservative ideology, but rather gathering more power for the president and the executive branch. >> Yeah, I I think that's right. And it's just very interesting to watch the divide that we see on some of these courts where we'll even have instances where Reagan appointees and Trump appointees are split over an issue and they won't be lined up and ruling the same way. And you would think, oh, you know, a conservative is a conservative. But really, we're dealing with shades of conservatism here. And the way I've started to be thinking about it is a little more, okay, is a Trump appointee maybe even further to the right than a Reagan appointee necessarily is. And that's not the case for all courts. Um, I cover the fifth circuit a lot and I think the Reagan appointees on that court are quite in line with the Trump appointees there. But in others, that's not so much the case. are much more traditionalist conservatives. They really think about, you know, the the Buckley era of conservatism and what that all means for them. >> Well, it's more about the rule of law, I think, for some of the Reagan appointees, the older judges. And you talked to a former Reagan appointed judge in Miami, Thomas Scott, who said they're institutionalists. They're going to come down very hard. You're playing games with the court and it's not going to be successful. And I think we've seen that. >> Yeah. And it's also important to recognize again these folks have been on the courts for decades. They realize that their power comes from people complying with their rulings. So there's a little bit of self-preservation there, right? In terms of them wanting to say, "Hey, I still have influence here, but I only have this influence if you actually go along with what I'm doing here." And there's that, but there's also this respect for the rule of law. They've seen it play out again for years and years on their time at the bench and they've seen what happens when it's not respected. They've seen what happens in other countries when it's not respected. You know, Judge Coffer, one of the judges we mentioned in the story in Seattle, he brought up Eastern European governments and saying, you know, he had spent time there and watched what happened when the rule of law disappeared and what it meant for people to be returning to those democratic institutions. So they're bringing a lot of perspective here, not just domestically, but globally. >> And I saw an article that said northeastern courts at the center of some of the debates about executive power. Is there a reason why it seems centered in some of the northeastern courts? >> Yeah. Um, so just like during the Biden administration, we saw so many lawsuits filed in Texas, it seems like Boston and other courts that are within the First Circuit are becoming the same draw for uh, liberal litigators. And that's really because there's a number of um, Democratic appointees there that make up the majority of those courts. So, when you're going to a circuit and you're saying, "Hey, I want to get the best case law possible for my client. Where do I want to file this lawsuit?" you're probably going to want to try and file it somewhere like Boston. You could go, you know, to Rhode Island has had a lot of cases as well, and they've even had a Trump appointee in Rhode Island, uh, ruling against the Trump administration. >> One appointee told you that perhaps, you know, the Reagan appointees have been on the bench a long time and they might not be as patient as as other judges, >> right? Yeah. You know, I think we all know from personal experience when we, you know, sit down with folks who've been doing jobs for a long time, they know how the job is done. They have no problem telling people how they think the job should be done. And, you know, that very well could be what's happening here as well. >> But some legal scholars have said there could be a backlash to these kinds of blunt statements from judges. >> Yeah. And we've already seen that um play out. You know, when I reached out for comment for reaction from the White House to Judge Young's 161page ruling that you referenced earlier, you know, a White House official shared with me a list of cases in which Judge Young had been reversed or had been chided by the Supreme Court. And you know, that stood out to me and them saying, "Hey, you know, this guy, he's not a perfect judge." To which I say, you know, which judge is perfect? I cover them for a living and I think it's hard to say that any judge is perfect. They're all human like the rest of us. So, it was interesting to see that level of push back from the White House on that. And, you know, I think it'll only continue as we see rulings come out. We may start seeing things pop up from folks nominations hearings. um some rehashing of that nomination process that so many people say has become too politicized and too toxic and that should be forgotten the second that they become judges on the bench. But is that really possible? Can we really separate out the two? I don't know. >> There's been this sort of phenomenon of less judges retiring during the second Trump administration, especially on the appellet benches and you know a lot of speculation as to why. So, you know, the Reagan appointees have been on the bench for a long time. They're in their 80s. Have any of them said, "It's time for me to retire or I'm not going to retire because none of these judges have come out publicly and said anything." Um, some of them are already on senior status. For example, Judge Young is a senior judge. Judge Coffaner is a senior judge. That means that they hear fewer cases. Um, Judge Lambert is also a senior judge, but he's quite active. if he hears cases in DC and in Texas, um, which is where he grew up, so he keeps himself very busy. But just because you're a senior judge doesn't mean that you work any less. Um, I spoke to Judge Young maybe two years ago for a totally unrelated story. And, you know, he sort of made a comment to me about how he's going to keep going for as long as he can. And that's something I've had in the back of my mind here as we do this reporting. It's amazing how long they've been on the bench and how they're still so committed. Thanks so much, Jacqueline. That's Bloomberg Law reporter, Jacqueline Thompson. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcast, Spotify, and at www.bloomberg.com/mpodcast/law. And remember to tune in to the Bloomberg Law Show every week night at 1000 PM Wall Street time. I'm June Graasso and you're listening to Bloomberg. [Music]
Supreme Court Mulls Limiting Race-Based Voting Maps & Reagan-Era Judges Push Back | Bloomberg Law
Summary
Transcript
[Music] This is Bloomberg Law with June Graasso from Bloomberg Radio. >> It's a very complicated case involving a challenge to the drawing of a black majority district in Louisiana. But one thing was clear during the 2 and 1/2 hours of oral arguments at the Supreme Court. The six conservative justices are ready to limit a key part of the Voting Rights Act that for more than half a century has been a guardrail against racially gerrymandered maps that dilute the votes of minorities. The law was passed in response to rampant discrimination against black voters in the South and Justice Brett Kavanaaugh questioned whether it was still warranted 60 years later. Race-based remedies are permissible for a period of time, sometimes for a long period of time, decades, uh, in some cases, but that they should not be uh, indefinite and should, uh, have a end point and what exactly do you think the end point should be or how would we know for the intentional use of race to create districts? But liberal justice Elena Kagan pointed out that the remedy of redrawing districts only happens in a case where a court has found a specific proved discrimination by the state. >> What these section two suits do is they ask about current conditions and they ask whether those current conditions show vote dilution which is violative of section two. So they say, is there racial segregation, racial residential segregation now? Is there racially polarized voting now? and when the state fails um with respect to those issues when those conditions obtain now. >> However, other conservative justices like Neil Gorsuch suggested that any use of race as a factor in redistricting even to correct a state's discriminatory delution of minority voters is unconstitutional. I'm asking, is it acceptable under section two, as as you understand it, given our precedence, for a court to intentionally discriminate in a remedial map on the basis of race? >> How quickly the court hands down its decision could determine whether or not states will have sufficient time to redraw maps, if permissible, before the midterms. My guest is elections law expert Richard Bralt, a professor at Columbia Law School. Rich, before we get to the facts of the case and the oral arguments, I want to ask you about the impact of this decision if the justices, as expected, limit or eliminate section two of the Voting Rights Act. >> It's not clear they're going to do away with section two, though they will clearly change how they interpret it. I think that it's tricky because it's not clear how many districts it's going to affect. It clearly will affect some districts. It clearly will mean that certain lawsuits to improve minority representation won't be brought. Probably the harder thing to figure out is to what extent certain districts that have already been created as minority opportunity districts, even if they weren't result of litigation, but were done either defensively as a way of foralling litigation or because the local legislators thought it was the right thing to do. whether those can now be attacked as reflecting an excessive attention to race. We don't know what the court's going to say and we don't know how far this will go in terms of unraveling pre-existing, you know, districtricting practices, but certainly whatever they do, it will definitely have an impact on minority representation and potentially on partisan representation as well. >> Tell us about what the issue is here. >> It's almost it's very hard to explain what the issue is. It's a very complicated case. I mean the underlying issue is to what extent can or must states take race into account in drawing their districts. This case grew out of an earlier case in Louisiana where the plaintiffs argued under section two of the voting rights act that a minority in this case African-American or black voter representation was illegally reduced that the state is approximately a third black but only one out of the six congressional districts had a majority minority population and the plaintiffs were able to persuade a lower court that it was relatively easy to draw a second majority minority district and that the state's failure to do so under the totality of the circumstances including the nature of racial block voting in the state and historical factors in the state constituted a denial of equal representation. The state went ahead and did that but they did it in such a way that by taking certain partisan factors into account. They created a very strange looking district that kind of goes across much of the state even though the plaintiffs when they brought their case had proposed a much more compact district. Well, now another set of voters in this new district have brought a lawsuit saying that this district is drawn predominantly for racial reasons and drawing on older Supreme Court president there that that's unconstitutional. The plaintiffs in the original case are trying to defend the district by saying that it's okay to use race even in the significant way when it's being used as a remedy for prior racial discrimination. And that's really in the issue here is when is it okay to use race in drawing districts and maybe to what extent is it permissible to use race in drawing districts? That becomes the big question. >> The Supreme Court originally heard oral arguments in the case in March but didn't reach a decision and added sort of a new wrinkle for the current oral arguments. The court asked for more briefing on the constitutional question of the constitutionality of using race in this context. Again, to back up, the court has said in in a in the past in a leading case called Shaw, which was decided in 1993, that the predominant use of race when race is the predominant factor in line drawing, that is subject to strict judicial scrutiny and can only be satisfied if there's a compelling state interest. and they assumed without actually deciding that compliance with section two of the Voting Rights Act is a compelling state interest. In some sense, this this case raises the question of whether compliance with the Voting Rights Act is a compelling state interest or again it could be turned out to what can the Voting Rights Act permissively require? How is the court interpret the Voting Rights Act? There are a lot of questions all sort of tied up in a knot in this case and it could come out in many different ways. I mean, the one thing that seems pretty clear is that the original plaintiffs, the the black voters who sued for change are likely to lose. They did win in the lower court and the map was redrawn in their favor, but the challengers to that map, I think, are likely to win. But on what theory, it could be any from a relatively narrow theory to an extremely broad theory. And to some extent, you heard that in the oral argument where three different lawyers were making the case against the current district. the original plaintiffs challenging the current district, the state of Louisiana, which originally had defended the districts and then changed its position. State of Louisiana drew these districts but are now saying that they believe they're unconstitutional. And the US government, the Trump Justice Department, and they each presented slightly different theories as to why the districts are invalid and what would be the proper use of race and line drawing. >> Yeah, that's three against one seemed a little bit unbalanced. Now, the conservative justices, would you say they're sort of on a spectrum from a position of there should be no consideration of race at all in redistricting to something less? >> I think I would phrase it in terms of how much how big a change do they want to make in the law and when could race be used. And I do think you have the sense that some didn't think race could be used at all. Others, I think, were open to the use of race, but only in a relatively narrow set of circumstances. And I think a lot of it had to do with how do they fit this decision with an earlier Supreme Court decision, one that is now almost 40 years old, in which they interpreted the Voting Rights Act, section two of the Voting Rights Act, laid down a case called Jingles, which set the pattern for Voting Rights Act enforcement for the last 40 years, including just two years ago when the Supreme Court in a case coming out of Alabama, which on fairly similar facts to this one, sustained the use of race in drawing a remedial district. And so I think the what you saw, let's call them the the more moderate conservatives, uh, Justice Barrett, maybe Justice Kavanaaugh, maybe the Chief Justice looking for ways of squaring this case with that Alabama case known as Milligan or explaining why this case could come out differently and maybe explaining how this case fits with the older president, Jingles, and are they going to overturn Jingles? Are they going to say this as a clarification of jingles, which would be a way of changing it without flat out changing it? So, I do think my guess is less likely that you're going to see a majority striking down the Voting Rights Act, but you're going to definitely see a new interpretation of how it applies and what it requires, at least based on the oral argument. And it's always tricky to rely on the oral argument. I mean, we're not going to see a decision for quite some time, but you did see at least some of the justices trying to figure out how to square this with a decision that's just two years old and with a precedent that is 40 years old. >> Chief Justice Roberts, who voted with Justice Kavanaaugh and the liberals in that Alabama case, asked how the court could differentiate the case. He said that case took the existing precedent as a given. I think that provides a basis for saying why they're not bound by the case that the validity of Jingles and its interpretation were not really being challenged in the Alabama case. Then as they pointed out the state in the Alabama case had certain very specific arguments and those specific arguments were rejected. The court is now hinting that all they ruled on in the Alabama case were the specific objections uh that Alabama raised said the lower court's order in that case but that they had not definitively ruled on either the meaning of the Jingle's decision or the meaning of section two of the Voting Rights Act. >> Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Richard Brefalt of Colombia Law School. The timing of the court's decision is key. An early decision could affect the midterms and boost the Republicans's chance for electoral success. And later in the show, Reagan appointed judges are not afraid to criticize the president and his administration. I'm June Graasso and you're listening to Bloomberg. I think the results would be pretty catastrophic if we take Louisiana as one example. Every congressional member who is black was elected from a VRA opportunity district. We only have the diversity that we see across the South, for example, because of litigation that forced the creation of opportunity districts under the Voting Rights Act. Every justice in Louisiana has been elected through a VRA opportunity district and nearly all legislative representatives have been elected on those same districts. So Louisiana alone is an example of how important it is to have section 2 continue to be enforced to create these opportunities. >> That was civil rights attorney Janai Nelson describing what the results of ending section two of the voting rights act would look like. Nelson was defending the creation of a second black majority congressional district in Louisiana. During the oral arguments, the Supreme Court's conservatives suggested they'll limit the use of race in drawing legislative maps, a move that could undermine the last major pillar of the Voting Rights Act. The court already declared sections four and five of the Voting Rights Act unconstitutional in the Shelby County versus Holder case in 2013. I've been talking to elections law expert Richard Bralt, a professor at Columbia Law School. So Rich, after hearing the oral arguments, do you think that the best possible outcome here for voting rights advocates would be that the court sends the case back to the lower court to draw a new map? Of course, the worst case scenario is that the court just throws out section two. It it's complicated because this case is not an appeal of the earlier case that struck down the old Louisiana map and said you you need a second district. This case is an appeal of the new map which has the second district which clearly reflects attention to race. So, it's a little unclear, but they might very well conclude that this is an illegal map uh or an unjustified map and strike it down and then yes, you know, have to send it back to the lower court and then lower court presume would then give it to Louisiana legislature which would then probably go back to the original map because in the earlier case, a case called Robinson, as several of the justices pointed out, there was no final judgment in that case. There was it was a decision on a preliminary injunction and the lower court didn't impose a map. The state basically decided that the legislature wanted to write its own map and not take the risk of a court imposed map. So they went and drew up a map uh before there was actually a final judgment by the district court in the Robinson case which I say say this is a complicated case and you may very well see that the court giving in new instructions as to what the section two of the voting rights act require and what does the equal protection clause prohibit in terms of the use of race in drawing lines. Hard one to read because there are a number of different factors running around in this case. Um there was an argument about one of the key elements in the voting rights litigation until now has been proving the presence of racial what's called racial block voting. That is blacks and whites voting very differently from each other. The justice department, the Trump Justice Department basically has said that these days it's impossible to separate race from party that this is really partisan gerrymandering and the Supreme Court has given the green light to that. So that they would want to raise the burden very heavily on plaintiffs to separate race from party and if they can't then you don't have a win that you don't have a voting rights act violation that I think is an argument that might draw some appeal in the Supreme Court. So the Trump administration basically said yes you might be able to use race as a remedy but only if you could really prove that it was race that was driving the voting outcomes and not party and putting a very heavy burden on the plaintiffs. a much heavier burden on the plaintiffs to show that than had been the case until now. >> And what were the best arguments that the liberal justices made? Not that they'll have any persuasive effect on their conservative colleagues. >> The liberal justices I think primarily basically relying heavily on star decisis that is we've decided this before including two years ago that this case is on all fours with the Alabama case. So that's one. Two, another version of star decisis is there is a doctrine that says that court opinions interpreting statutes get super strong star decisives have super strong precedential effect because whereas court decisions interpreting the constitution really can't be overturned except through an extraordinary process of constitutional amendment. Court decisions interpreting a statute, Congress can always overturn them and Congress has not tampered with the Voting Rights Act since 1982. So there's kind of two starry decisis arguments here. One based on the Milligan case, the other based on jingles and saying Congress has has not bothered with that case for 40 years. The other I think was a third argument and and it didn't come up as much in this argument as people might have thought. If you go back to the Alabama case, uh you mentioned that Kavanaaugh was in the majority. He wrote a concurrence. I'm not sure if he was in a majority or whether he just concurred. He echoed some of the language Justice Okconor had used many years earlier in dealing with affirmative action and saying there's got to be some time limit for this that it's not clear how how much longer you can keep taking effects into account in remedies. And much of the argument of the the lawyer for the NAACP and the liberal justices is well actually there is a built-in time limit in section two. Plaintiffs have to show that there is current racial block voting, that there is a current desperate impact. And so therefore, it's not something that goes on forever. Plaintiffs can't make that showing. They lose. And they made the point that in much recent litigation, plaintiffs have lost a lot of voting rights cases, that they don't win a majority of their cases. And so the concern that this is going to lead to a kind of endless kind of racialization of line drawing, they're saying it's just very overdrawn. That was very much a response to Kavanaaugh's position in the Alabama case. That didn't come up as much in the argument this time as I think people might have expected, but that was one of the arguments that both the NAACP rebutted and the the liberal justices also took into account. >> There are a lot of legal experts saying it's the death of the Voting Rights Act and you know it's a sure thing that the conservatives are going to get rid of it. You don't think that it will go that far? >> No, I think they're going to make it much less effective, but I again I I don't count myself a great prognosticator on this. I don't think there's a majority based on the questions in the oral argument. It seemed to me that it's more likely that they will reinterpret the Jingles case andor the section of the Voting Rights Act in a way that places a much higher burden on plaintiffs to prove something that would entitle them to redrawing lines and in order to enhance minority representation. I think that may have the effect of making sure there'd be even fewer Voting Rights Act victories than there are now. But based on the kinds of questioning, it seemed to me that they're more likely to make the Voting Rights Act much less effective than to throw it out altogether. >> What do you think the timing looks like here? Do you think the court might try to rush this through to get around the Purcell principle, which is that courts shouldn't change election rules right before an election? I >> mean, that's a good question. Uh, and I don't know. I mean, you're right. I mean, one concern is if they come down soon, there may be a lot of lawsuits challenging current plans that uh were done either as a result of litigation or as a way of foralling litigation that create either majority minority districts or what are called opportunity districts, districts without a a black or Latino majority, but are designed in a way to make it easier for minority voters to u to elect the candidates of choice. So, right, if there's a decision between now and the spring, it's quite possible we'll see yet more re-redistricting. If it's much later than that, I think it would be very hard for it to show up in the 26 election, but it would surely show up in the 28 election. So, I don't know. I mean, it's now been argued twice. They set it up on the calendar early in the term. It's conceivable that there'll be an early decision, but it's really very hard to tell. And it may be that they need some time to figure out a theory that commands support or it could very well be that there's, you know, multiple opinions. This is a very hard case. >> Where do you think the Chief Justice stands? Because he did write the majority opinion in the Shelby County case, which got rid of sections four and five of the Voting Rights Act. A classic Roberts move would be to effectively change everything without literally overturning it. You might see Thomas Alo and Gorsuch wanting to do more, possibly Kavanaaugh, but my sense of Roberts and Barrett anyway is they want to they want to change as little formally as little as possible while making a big enough change to get rid of these kind of cases. And I think the Department of Justice gave them the the argument that might allow them to do it. They seem very keen on that. Kavanaaugh seemed particularly keen on that. He kept citing to their the Department of Justice brief which really talked about the need to separate out race from party to make a very high barrier for doing that and to emphasize that partisan jerrymandering is just fine. >> Are there any other voting rights cases coming up to the court or percolating in the lower courts? But there are some other issues percolating around in the lower courts. Maybe the most important one is whether there's a private right of action under section two of the Voting Rights Act with most courts have assumed that there is, but one circuit court has held there is not. So that issue is perking out there, but I don't think it's before the Supreme Court this year. >> They do seem to have enough before them this term. Thanks so much, Rich. That's Professor Richard Bralt of Columbia Law School. It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals. >> In February, Seattle federal judge John Kunau ruled against President Trump's attempt to end birthright citizenship. In doing so, he was blunt in his criticism of the president and in his own determination to protect the rule of law. There are moments in the world's history when people look back and ask, "Where were the lawyers? Where were the judges?" In these moments, the rule of law becomes especially vulnerable. I refuse to let that beacon go dark today. Kunau is just one of the judges appointed by President Ronald Reagan who've been vocal critics of the Trump administration's efforts to circumvent court orders and challenge the law in unprecedented ways. Most federal judges are more guarded. But the Reagan appointees, all in their 80s with decades of experience on the bench, are institutionalists who have no trouble being blunt about a party trying to subvert a court order or the rule of law. Joining me is Bloomberg Law reporter Jacqueline Thompson. Jacqueline, in general, how have Reagan appointees viewed Trump in this administration? Again, speaking generally because I'm sure not every Reagan appointee feels this way, but some of them really have sort of blanched at the way that the Trump administration has been approaching the law and then also been approaching the courts in general. You know, the arguments that they make in court. We've had judges sort of bristle at how they've approached birthright citizenship. We've had judges detail times where they feel like the administration isn't complying with their court orders or at least not doing so in a really wholesome way that they feel, you know, recognizes the power of the courts. And so, it's just been interesting to watch these judges who are in Seattle, they're in Boston, we have one in DC, there's also one on the fourth circuit which covers Virginia. And, you know, they've been pretty vocal in talking about how they feel about the administration. >> Yes. particularly Judge William Young in that 161page opinion which was stunning in so many ways. Judge Young wrote, "The Constitution, our civil laws, regulations, mores, customs, practices, courtesies, all of it. The president simply ignores it all when he takes it into his head to act." >> Yes, definitely. you know, he he really went through all the different ways that he feels about the president within that opinion. And, you know, it was really just such a striking opinion, not just because of what he said about Trump, but the way that he wrote it. And it really felt like he was trying to speak to the public there and almost give them a sort of civics lesson and saying, you know, this is the way that the courts function and this is the way they have historically functioned. And what I'm facing today in my courtroom is not proper actions by the administration. And I haven't decided what I'm going to do yet. But whatever I do do here will be fully done with all of that in mind. >> President Reagan seems to hold a special place in the hearts of party members. Trump even has a portrait of him, as you mentioned in your article, hanging in the Oval Office. What kind of people did Reagan appoint to the bench? You know, Reagan also went with young conservatives the way that Trump did. And that's why we have so many Reagan appointees who are still active judges. These were folks who were getting appointed in their 30s and their early 40s. They've been sitting on the bench from anywhere from 36, 37 years to nearly 40 years some of them. And you know, they've spent a lot of time on the court and seen administration to administration seeing all of these changes. you know, Judge Lambert in DC, for one, he's talked about how he was arguing on behalf of the Reagan administration in court before he got a federal judgeship. So, these are folks that, you know, Reagan administration officials were familiar with, knew of them, and, you know, sort of had the conservative credentials that they wanted to put onto the court. Now, of course, some of them are in blue states. That means that they had blue slips that were signed by Democratic senators in order for them to get the seats. But overall, Reagan really had an opportunity to shape the courts in a really conservative way, just as Trump did during his first term and will to the extent that's possible during his second. >> But conservative ideology has evolved in the nearly 40 years since Reagan left office. And also, the current administration doesn't always seem to be interested in conservative ideology, but rather gathering more power for the president and the executive branch. >> Yeah, I I think that's right. And it's just very interesting to watch the divide that we see on some of these courts where we'll even have instances where Reagan appointees and Trump appointees are split over an issue and they won't be lined up and ruling the same way. And you would think, oh, you know, a conservative is a conservative. But really, we're dealing with shades of conservatism here. And the way I've started to be thinking about it is a little more, okay, is a Trump appointee maybe even further to the right than a Reagan appointee necessarily is. And that's not the case for all courts. Um, I cover the fifth circuit a lot and I think the Reagan appointees on that court are quite in line with the Trump appointees there. But in others, that's not so much the case. are much more traditionalist conservatives. They really think about, you know, the the Buckley era of conservatism and what that all means for them. >> Well, it's more about the rule of law, I think, for some of the Reagan appointees, the older judges. And you talked to a former Reagan appointed judge in Miami, Thomas Scott, who said they're institutionalists. They're going to come down very hard. You're playing games with the court and it's not going to be successful. And I think we've seen that. >> Yeah. And it's also important to recognize again these folks have been on the courts for decades. They realize that their power comes from people complying with their rulings. So there's a little bit of self-preservation there, right? In terms of them wanting to say, "Hey, I still have influence here, but I only have this influence if you actually go along with what I'm doing here." And there's that, but there's also this respect for the rule of law. They've seen it play out again for years and years on their time at the bench and they've seen what happens when it's not respected. They've seen what happens in other countries when it's not respected. You know, Judge Coffer, one of the judges we mentioned in the story in Seattle, he brought up Eastern European governments and saying, you know, he had spent time there and watched what happened when the rule of law disappeared and what it meant for people to be returning to those democratic institutions. So they're bringing a lot of perspective here, not just domestically, but globally. >> And I saw an article that said northeastern courts at the center of some of the debates about executive power. Is there a reason why it seems centered in some of the northeastern courts? >> Yeah. Um, so just like during the Biden administration, we saw so many lawsuits filed in Texas, it seems like Boston and other courts that are within the First Circuit are becoming the same draw for uh, liberal litigators. And that's really because there's a number of um, Democratic appointees there that make up the majority of those courts. So, when you're going to a circuit and you're saying, "Hey, I want to get the best case law possible for my client. Where do I want to file this lawsuit?" you're probably going to want to try and file it somewhere like Boston. You could go, you know, to Rhode Island has had a lot of cases as well, and they've even had a Trump appointee in Rhode Island, uh, ruling against the Trump administration. >> One appointee told you that perhaps, you know, the Reagan appointees have been on the bench a long time and they might not be as patient as as other judges, >> right? Yeah. You know, I think we all know from personal experience when we, you know, sit down with folks who've been doing jobs for a long time, they know how the job is done. They have no problem telling people how they think the job should be done. And, you know, that very well could be what's happening here as well. >> But some legal scholars have said there could be a backlash to these kinds of blunt statements from judges. >> Yeah. And we've already seen that um play out. You know, when I reached out for comment for reaction from the White House to Judge Young's 161page ruling that you referenced earlier, you know, a White House official shared with me a list of cases in which Judge Young had been reversed or had been chided by the Supreme Court. And you know, that stood out to me and them saying, "Hey, you know, this guy, he's not a perfect judge." To which I say, you know, which judge is perfect? I cover them for a living and I think it's hard to say that any judge is perfect. They're all human like the rest of us. So, it was interesting to see that level of push back from the White House on that. And, you know, I think it'll only continue as we see rulings come out. We may start seeing things pop up from folks nominations hearings. um some rehashing of that nomination process that so many people say has become too politicized and too toxic and that should be forgotten the second that they become judges on the bench. But is that really possible? Can we really separate out the two? I don't know. >> There's been this sort of phenomenon of less judges retiring during the second Trump administration, especially on the appellet benches and you know a lot of speculation as to why. So, you know, the Reagan appointees have been on the bench for a long time. They're in their 80s. Have any of them said, "It's time for me to retire or I'm not going to retire because none of these judges have come out publicly and said anything." Um, some of them are already on senior status. For example, Judge Young is a senior judge. Judge Coffaner is a senior judge. That means that they hear fewer cases. Um, Judge Lambert is also a senior judge, but he's quite active. if he hears cases in DC and in Texas, um, which is where he grew up, so he keeps himself very busy. But just because you're a senior judge doesn't mean that you work any less. Um, I spoke to Judge Young maybe two years ago for a totally unrelated story. And, you know, he sort of made a comment to me about how he's going to keep going for as long as he can. And that's something I've had in the back of my mind here as we do this reporting. It's amazing how long they've been on the bench and how they're still so committed. Thanks so much, Jacqueline. That's Bloomberg Law reporter, Jacqueline Thompson. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcast, Spotify, and at www.bloomberg.com/mpodcast/law. And remember to tune in to the Bloomberg Law Show every week night at 1000 PM Wall Street time. I'm June Graasso and you're listening to Bloomberg. [Music]