# Supreme Court Mulls Limiting Race-Based Voting Maps & Reagan-Era Judges Push Back

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 16 Oct 2025, 34 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/18a18b05-9906-4626-87bd-b3780178dba0/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Elections law expert Richard Briffault, a professor at Columbia Law School, discusses why Supreme Court conservatives seem inclined to limit race-based electoral districts under the Voting Rights Act. Then, Bloomberg Law reporter Jacqueline Thomsen talks about how Reagan-appointed judges are emerging as vocal critics of the Trump administration. See omnystudio.com/listener for privacy information.

## Transcript

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

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