SoS 2026: Louisiana v Callais

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Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.

N. Rodgers: Hey, Aughie.

J. Aughenbaugh: Good morning, Nia. How are you?

N. Rodgers: You know what? I'm a little crabby.

J. Aughenbaugh: Why's that?

N. Rodgers: Every year, I think that summer of SCOTUS is going to be like, it's just going to be a wrap up and it'll be easy and it won't be a problem, and there won't be anything really controversial or make my blood rise or anything like that. Then you go, could you hold my coffee for just a moment, please? Then you make me want to cry.

J. Aughenbaugh: I'm the devil that says, I'll hold your coat. While you go ahead and, proceed to, delve into all kinds of nastiness. Yes.

N. Rodgers: It's good because I learn more from your notes than cause I should say to listeners, I consume legal cases, like most people consume legal cases, which is what's the bottom line? What are the last two sentences of this thing that I need to know? Because I don't do well with memorizing them, I don't do well with understanding them. Then when they're complex, I say, hey, Aughie, explain this to me, and he takes the next hour and he explains it to me, and that's all good. Which is what he's going to do now, because this case is more complex than it initially sounds like.

J. Aughenbaugh: Listeners, this is the first episode of our summer of Scots summer of 2026. This is starting a little bit earlier than usual. Usually, we don't really begin our episodes about the summer of Scots. Until June. But occasionally, this Supreme Court goes ahead and drops a bomb, and, then the rest of us are like, so what's the dative you anything? This podcast episode is going to be looking at a particular Supreme Court decision which was decided on Wednesday, May 6 of 2026. The name of the case is Louisiana versus Callais. This is the case where a divided Supreme Court, and when I say divided, it was the six conservatives versus the three liberals, the court narrowed the ability of states to use race as a determining factor in creating election districts. What's at issue here is a federal law and a clause of the 14th Amendment. The federal law is the Voting Rights Act, which was passed in 1965, but specifically Section 2. Section 2 prohibits voter discrimination on the basis of race, color, or membership in language minority groups. The Constitutional Clause, which was also at issue in this case, is the Equal Protection Clause of the 14th Amendment.

N. Rodgers: They were both argued.

J. Aughenbaugh: Yes, these were both argued. I'm going to get to how we ended up with both of them being at play in this case. This case actually originated three or excuse me, four years ago in 2022. After the 2020 census, Louisiana redrew its congressional districts. When they did so, they created one district that would have a majority minority population. A federal district court in the case of Robinson versus Ardon ruled the new congressional districts more than likely violated the Voting Rights Act because it did not include an additional majority black district. For those of you who don't know, blacks make up nearly 26, 27% of Louisiana's population. The Federal District Court said, well, then you should probably have at least two majority minority voting districts. Louisiana state legislature went back and redrew their congressional maps, and they created an additional majority black district. At that point, a bunch of white voters said that the new map was a racial gerrymander that violated the Equal Protection Clause of the 14th Amendment.

N. Rodgers: It takes four years to work its way through the court system. Because its how things work here.

J. Aughenbaugh: Got to the Supreme Court last year. The Supreme Court heard oral arguments in last term.

N. Rodgers: October 15, 2025.

J. Aughenbaugh: Then the court said, we are going to hold the case over so that we look at not only the voting Rights Act issue, but also the Equal Protection Clause issue.

N. Rodgers: I'm sorry. We had the new arguments October 15 of 2025. In 2024, they heard and they said, no, we want to hear more arguments on this.

J. Aughenbaugh: Yes.

N. Rodgers: At the time, Aggie told us, Clarence Thomas said, We don't need to hear more arguments on this. We need to rule.

J. Aughenbaugh: Yes.

N. Rodgers: He was the only one. He was like, why are we doing this? Why are we hearing more arguments?

J. Aughenbaugh: Yes.

N. Rodgers: Hasn't there been some speculation that maybe it's because they couldn't come to there is a decision? There was some crabbiness on the court?

J. Aughenbaugh: There was some speculation that the court was badly fractured among shall we say, the less conservative members of the conservative bloc and the liberals. The liberals argued, we should rule on this case based on the Voting Rights Act. The less conservative members of the court were like, wait a minute, here, there seems to be another issue. Clarence Thomas thought that after oral arguments, the court didn't need, any more arguing. He was ready to rule that what Louisiana did in response to the federal District Court ruling clearly violated the Equal Protection Clause. It was just like, why are we re arguing this. But, in many ways, that's classic Clarence Thomas. He's just like, obviously this is unconstitutional. Let's move on. We're going to first listeners look at the majority opinion, which was assigned to Justice Sam Alito. Then we're going to look at Justice Elena Kagan's dissent. According to Alito, the Louisiana law in response to the Federal District Court ruling, this is known as SB 8, Senate Bill 8, which created a second majority minority election district in Louisiana. He said, this goes against the Voting Rights Act. He said, for decades, federal courts in the United States misinterpreted the Voting Rights Act because he said the Voting Rights Act did not require Louisiana to create an additional majority minority district. The only way the Voting Rights Act requires such an action as if it was clearly demonstrated that the state of Louisiana was purposefully discriminating against Black voters. In other words, the purpose of the Voting Rights Act was to eradicate intentional voting discrimination based on race, etc.

N. Rodgers: Louisiana had drawn maps where they had diluted the Black vote by making weird shaped districts. That sounds familiar because it happens on a regular basis. But if they had made weird shaped districts that had diluted the Black vote, that would have been against the Voting Rights Act. But creating a second majority minority district was not required and therefore was egregious.

J. Aughenbaugh: Because according to Alito, there was no evidence presented in the Federal District Court decision that showed that Louisiana was intentionally discriminating against African Americans with how they drew the maps. At that point then Alito looks at previous Supreme Court rulings about the Voting Rights Act. A lot of discussion in the oral arguments was about a 1986 case, Thornburg versus Gingles. This was a case that arose in North Carolina, where the Supreme Court held that North Carolina's General Assembly, the state legislature, had a redistricting plan that violated Section two of the Voting Rights Act by diluting the impact of Black voters in five of the then states six electoral districts. But he said, conditions in the country, but in particular, Louisiana have changed in the 40 years since Thornburg versus Gingles. He gave four examples, vast social change throughout the country, particularly in the South. Two, there's a correlation between race and party preference. In other words, it's really difficult to go ahead and say that a gerrymander was racial when many minority populations typically vote for the Democratic Party.

N. Rodgers: That's shifting.

J. Aughenbaugh: But nevertheless, that is the assumption made interestingly enough by states controlled by Democrats.

N. Rodgers: Alito could have talked to a political scientist if he had called Aggie and said, Is that still true? Aggie would have said, oh, no, things are shifting. That's not but yes.

J. Aughenbaugh: He said, gerrymandering claims or frequently partisan gerrymandering claims are frequently repackaged as racial gerrymandering claims. He said, it's almost impossible for courts to distinguish between the two. Then he said, for the use of computers have created alternative maps to produce racial balance, which is true. We political scientists with our computer science friends can go ahead and draw any kind of map that you want, and we can get it to less than one tenth of 1% variance, depending on the criteria you want us to use in creating a map. We can do that. Bottom line, according to Alito, Louisiana's enactment of SB 8 excuse me, triggered strict scrutiny because the state's underlying goal was explicitly racial. Again, for our listeners who are unfamiliar with strict scrutiny, strict scrutiny is a test. It's one type of judicial review used by the courts in the United States. It is the most exacting form of judicial review. Why? Because it requires the government to answer two questions. One, do they have a compelling interest in using race as a as a criteria as a category. Two, is the program narrowly tailored to achieve that compelling interest? And the joke among lawyers, Nia, is that when the court says it's using strict scrutiny, it is strict in theory, but fatal in fact. Because typically the government program or action.

N. Rodgers: Does not meet that criteria.

J. Aughenbaugh: It is extremely difficult

J. Aughenbaugh: Thomas wrote a concurring opinion, and this pretty much reflected why he didn't want to hear re-arguments. He thought that federal courts, since the Voting Rights Act was created, have misinterpreted Section 2 of the Voting Rights Act. Why? Because he said it was interpreted to effectively give racial groups an entitlement to roughly proportional representation. He said, that's never been a requirement in the US Constitution. Never.

N. Rodgers: Can I object with my opinion?

J. Aughenbaugh: Yeah.

N. Rodgers: Justice Thomas wants to make me set my hair on fire because while that may not have been what the Constitution intended, the Constitution was written by rich white guys who didn't want poor white guys and certainly no women and certainly no Black people to have any rights in this country whatsoever. The idea that we should stick with that. Now I'm getting mad. I'm getting mad. I'm with Kagan that this pulls apart what the purpose of the VRA was, which was to give black people the right to vote. I appreciate that Justice Thomas from his Ivory Tower position on the Supreme Court, does not think that there needs to be roughly proportional representation, but there does, if you want there to be fairness. If you want there to be fairness in the world, if 20% of people in Virginia are African American, then 20% of the state institution university, VCU, at least 20% should be Black. Should be African American.

J. Aughenbaugh: I'm going to push back on that logic. I don't know if proportional representation gets you fairness. But what scholarship has shown is proportional representation does increase government legitimacy.

N. Rodgers: Maybe that's what I'm thinking of in terms of the belief in democracy.

J. Aughenbaugh: Yes, because what we basically know is if people can't see themselves in government, then they are less likely to accept government decisions, including government decisions that they don't like, right?

N. Rodgers: Agreed.

J. Aughenbaugh: Okay.

N. Rodgers: Rich white guys running my world instead of people who've lived like me and know my life experience and understand.

J. Aughenbaugh: Yes, right?

N. Rodgers: Yes.

N. Rodgers: Buff on Justice Thomas. If he were here right now, I would buff on him because that is I completely disagree. Anyway, I think they got this wrong, and Justice Kagan is about to eloquently say why I'm basically flailing my arms in that general direction.

J. Aughenbaugh: Justice Kagan in her dissent, which was joined by her fellow justices, Sonia Sotomayor and Ketanji Brown Jackson.

N. Rodgers: And Nia.

J. Aughenbaugh: And Nia

N. Rodgers: The silent partner in that.

J. Aughenbaugh: Kagan basically made two points. One specific to this case and then a broader point about the Voting Rights Act. About this case, she went ahead and said that, the courts new interpretation of Section 2 would dilute minority citizens voting power. In particular, she goes ahead and says that the way the federal courts had been interpreting Section 2 allowed for a huge increase in the number of minority elected officials at all levels of government in the United States, local, state and federal. She said and, you know, that was one of the exemplary artifacts or results of the Voting Rights Act, right?

N. Rodgers: Right.

J. Aughenbaugh: She said, I am skeptical that we're going to continue to see such increases in the number of minority elected officials in the United States after what the court rules in Louisiana versus Callais. But then she went after Chief Justice John Roberts.

N. Rodgers: For our purposes today, he is not to be called J. Rob. He is to be called Chief Justice Roberts because I'm mad at him and I don't like him right now.

J. Aughenbaugh: Yes.

N. Rodgers: In terms of this case. He is not my buddy and I'm not using my nickname.

J. Aughenbaugh: She went ahead and said that the Callais decision was part of a set of rulings that have effectively gutted the Voting Rights Act. She goes back to Shelby County versus Holder in 2013, which basically said Section 5 of the Voting Rights Act was unconstitutional. Now, for our listeners who not read Shelby County versus Holder, in that case, the Supreme Court basically said that Section 5 was unconstitutional. Section 5 of the Voting Rights Act basically required a certain number of states to get pre-clearance before they made any changes to their election procedures because those states had demonstrated over time to engage in discriminatory election practices. Most of these states were in the Deep South or border states, and Congress when they renewed the Voting Rights Act multiple times after 1965, never updated the list of states. In 2013, Shelby County, Alabama went ahead and said, why do we have to get pre-clearance when there's been no evidence that we have done anything to discriminate against minority populations with our election practices? The Supreme Court was just like, we warned Congress, a couple of years earlier that if they renewed the Voting Rights Act, they needed to present evidence that these states still had to get pre-clearance. In other words, they were still on the.

N. Rodgers: Bad Boy list.

J. Aughenbaugh: Yeah.

N. Rodgers: The naughty list. They had to show why they were on the naughty list.

J. Aughenbaugh: Naughty list.

N. Rodgers: I mean, I hate to say these words out loud, but I don't disagree with that.

J. Aughenbaugh: Yeah.

N. Rodgers: I think that, that needs to be based in fact. That needs to be based in actual practice. If you can show that that is still a practice, then it still holds.

J. Aughenbaugh: Yes.

N. Rodgers: But it's one of those things of how do you prove that you're allowed to get out of prison. My behavior has been exemplary for the last 15 years. Please let me out of prison. It sucks, but that's actually not an unreasoned argument on the part of the court. I don't like it, but it is not an unreasonable argument.

J. Aughenbaugh: Yeah. I think many critics of Shelby County versus Holder are like, could not the court have just issued a very narrow ruling and said that Shelby County didn't have to comply with Section 5 of the Voting Rights Act.

N. Rodgers: Yeah, but then every other county would have sued and would have said, Wait a minute. What's so special about Shelby bluh, bluh, bluh.

J. Aughenbaugh: But if we live in a democracy, Nia, then the court could have sent a message to Congress. Now, Congress could ignore the message, but the people's elected representatives could have responded by saying, okay, the court has basically told us, we need to have evidence that the states on this naughty list, that need to get pre-clearance from a federal court or by the Justice Department still on the list.

N. Rodgers: That's a congressional failure, not unlike other congressional failures where the court says, you know, if you go back and revisit this, you could solve this.

J. Aughenbaugh: Yes.

N. Rodgers: Jobs. There are other things where Congress has gone, no, it's fine, it's fine and then it isn't fine.

J. Aughenbaugh: But then she went ahead and identified a couple other instances where the Roberts Court went ahead and weakened the Voting Rights Act, Brnovich versus the Democratic National Committee in 2021, and then went ahead and pointed out for good measure that is recently in 2022, in the Milligan case, the court upheld a vote dilution challenge to a district map based on Section 2 of the Voting Rights Act. Bottom line for Kagan. She said, it becomes really difficult for states to be held accountable for racial gerrymandering claims in federal court. She goes, and for good measure, she went ahead and criticized the court's ruling in 2019 in Rucho versus Common Cause, where the Supreme Court said, partisan gerrymandering was a political question that could only be remedied by state governments. She says, basically, the court has so gutted the Voting Rights Act that it's almost impossible for a state to be challenged in federal court for the way they craft their voting districts. It was pretty much every constitutional law scholar, Nia that I read, went ahead and basically agreed with Kagan, that what the Supreme Court was doing, was gutting the Voting Rights Act. Now, before we're sitting, go ahead.

N. Rodgers: There's this thing that Aggie often talks about, be careful about the line between judicial review and judicial activism.

J. Aughenbaugh: Yes.

N. Rodgers: Because review is a legitimate thing that we asked the court to do, and activism is a thing we would prefer the court did not do. I feel that this walks over that line. Maybe it's the career of John Roberts, Chief Justice Roberts, that I perceive as walking over that line because I think he decided years ago he didn't like the Voting Rights Act.

J. Aughenbaugh: Yes.

N. Rodgers: But Congress has over and over and over okayed it.

J. Aughenbaugh: We need it. Yeah.

N. Rodgers: Clearly, Congress was okay with it, which I'm here at the line of, is this activism? This feels like slipping into activism to me, I don't like the way you wrote it. I'm going to find in these ways that will hurt people so that you will try to rewrite it. I think that's a horrible way for judges to use the law to harm people in order to get Congress to do something. That seems petty to me. Now I hope that his pillow is always warm.

J. Aughenbaugh: The decision in the Callais case, listeners to Nia's point does seem to be the culmination of a multi decade effort by John Roberts to effectively gut. Now, the Roberts Court has never said that the entirety of the Voting Rights Act is unconstitutional because quite clearly, Congress in the US Constitution can create norms for federal elections/Congress always had that authority. They hardly ever used it before the Voting Rights Act, but nevertheless, Congress has that authority. But as far back as 1982, when he was a lawyer in the Reagan administration, he wrote a memo, that was critical of efforts to expand the Voting Rights Act of 1965. In that memo, he said the Voting Rights Act was always designed only to cover intentional discrimination, not the impact of discrimination. There's a difference here, disparate treatment versus disparate impact. As far as he was concerned, unless an individual or the federal government could show that a state was intentionally engaged in racial discrimination, then their challenge to what a state did, had to be illegal and certainly unconstitutional.

J. Aughenbaugh: But he gets on the court. The first bomb he drops, it was a kind of ticking time bomb, was Northwest Austin versus Holder. This is the case where Roberts went ahead and said, "We're a different nation from the one when Congress first passed the Voting Rights Act." He basically went ahead and said, though this case, Northwest Austin, doesn't require us to do so. This court is increasingly skeptical of the pre-clearance list in Section 5 of the Voting Rights Act. Congress doesn't respond. In 2013, the Roberts Court does what to Section 5? Declares it unconstitutional because Congress has not demonstrated that the states on the naughty list are still engaged in naughty behavior. But then.

N. Rodgers: Yeah, I have to say have we made racial gains in this country in the sense of equality and discrimination laws and things like that? Yes, we have. But there have been places in this country where that has been hicking and screaming that that has been done. If they could find an off ramp from the Constitution, they would happily take it and go back to the days where women didn't vote, African-Americans didn't vote. Any Brown people, no, no, there'll be no voting for you. What I think people in those states often don't, or those counties, maybe in states don't recognize is that the elites also don't want poor whites voting. There'll be some of that as well if they can get their way. And for him to say, "Oh, no, we fixed it," I'm like, "I don't think the country's fixed." I think that's a very well to do white guy point of view.

J. Aughenbaugh: Well, it also suggests that how you go about doing it becomes extremely important. Right now, the institutions are not even talking with one another because the court is basically saying to Congress, and for that matter, a number of presidents. The most recent version of the Voting Rights Act was renewed with Obama. Before that, it was Vote 43. You had a Republican president who was just like, "Fine. I'm going to sign it. I believe in the Voting Rights Act." But the political institutions or branches of government refuse to go ahead and respond to the Supreme Court, which then leaves us with this all or nothing approach, which I always find extremely unpalatable in a democracy. For the Roberts Court to go ahead and say that there are not still elements of racism in our voting practices. Well, that's easy to go ahead and say when you are a very elite member of US society who went to prep schools, Ivy League schools, Ivy League law schools and have had a very elite path to one of the most prominent legal positions in the United States.

N. Rodgers: Who will never be denied pretty much anything.

J. Aughenbaugh: Yes. On the other hand.

N. Rodgers: On the other hand. When do you get out of jail? If you're on the naughty list, if nobody ever revisits the actual facts as they are, if we consider that we believe ourselves that we believe in truth. You and I are very much into that because we're university. We teach that idea. There are facts, and you can know a fact, and then you would have some truth behind whatever it is that you're trying to write. If those places are not engaging in regular discrimination or in governmental apparatus discrimination, then take them off the list and let people then prove that they are doing that. I can understand.

J. Aughenbaugh: Well, it also begs the question. Is there going to be a government institution that looks at gerrymandering? The Supreme Court has said, this is an issue for state governments. Well, we've seen what state governments have done in regards to gerrymandering in the last 12-18 months. I got to be honest with you, listeners, I'm not feeling very hopeful when both political parties view partisan gerrymandering as a way to go ahead and exact revenge on their opponents? I'm sorry.

N. Rodgers: Is this really a thing that we can trust the states to do?

J. Aughenbaugh: We certainly can't trust the political branches at the federal level because both of them are looking for ways to go ahead and gain advantages for the next election.

N. Rodgers: Stick it to their opponents.

J. Aughenbaugh: You can't go ahead and tell me that you are being principled when your behavior is unprincipled. I'm sorry. Now, that all said, as I pointed out, no constitutional law scholar, particularly those who deal with elections and voting rights, were pleased with this decision. Moreover, it's had almost an immediate impact. Three Southern states at the time of this recording, Louisiana, Tennessee, and Alabama, took steps to call off primary elections, so that they could redraw congressional district maps. A fourth, Florida, is going to fold it into possibly their redistricting effort, which would basically go ahead and take a state Florida that is much like our home state of Virginia, which leans towards a particular party. In Florida's case, it's Republican. They're going to go ahead and make that state basically into a Republican dominated state when statistically, it isn't. It leans Republican, but there's going to be huge parts of Florida that have a whole bunch of Democratic voters, many of them, people of color, who won't have any meaningful representation in Congress if Florida redraws the maps the way it's being reported they are considering. In the states I've already mentioned, Louisiana, Tennessee, and Alabama, it would not surprise me if by 2030, none of those states has a Democrat or a representative of color representing that state in the House. Statistically, that is an improbability. But that's going to be the result. Basically the Supreme Court is saying to the political branches and specifically the states, you guys need to go ahead and figure it out. I find that extremely distasteful in a democracy. Because again, one of the purposes of judicial review is to, excuse the expression, is for the federal courts who have independence to call bullshit. Your behavior is wrong. Now, there's a correct way to go about doing this. But your behavior is wrong. I really think that the Supreme Court could have decided Louisiana v. Callais based on Section two of the Voting Rights Act and not brought in the Equal Protection Clause of the 14th Amendment. Because when you do that, unless you go ahead and amend the 14th Amendment, we're stuck with this. We're stuck with this interpretation for at least a generation. I'm not all that optimistic about what the results will be at the end of that generation.

N. Rodgers: My only optimism comes from the thing that you say to me whenever I get upset about these kinds of things, which is sometimes the dissents boomerang back to be the policy.

J. Aughenbaugh: Yeah, the majority opinion on the court, yeah.

N. Rodgers: That takes time. It takes time for the court to say, "That was not the way to go."

J. Aughenbaugh: Yeah.

N. Rodgers: I'd like to think, I don't know John Roberts, but I would like to think that if he looked at those states and saw that there was absolutely no representation in their congressional bodies or in their state legislative bodies, I'm like, all the way down, it's all white and it's mostly male. I think he would think, "Oh, that's too far."

J. Aughenbaugh: Yeah.

N. Rodgers: I'd like to believe that about him. I want to believe that about him because otherwise, I have to believe that he's a scumbag and I don't want to believe that. But it does hurt me this idea that what it will cause is 20 or 30 years of that before somebody says, "Wow, this is really bad. We have to fix it." Then it will take someone like Lyndon Johnson who swam completely upstream to get the Voting Rights Act to start with because it was not a thing that, he had to beat people into supporting that because.

J. Aughenbaugh: Yeah, well, the part of the Democratic Party, which was his base, Southern Democrats were against it. He was from Texas. It took an act of courage on his part and a fair amount of hubris and a fair amount of what you just went ahead and described. Johnson employing his infamous treatment where he browbeat a number of Southern Democrats to support the Voting Rights Act. The other thing I want to mention about this case before we conclude, and I know this is a long episode, but there was a lot to unpacked here, and this is, excuse the expression, inside baseball on some dynamics going on the court among the justices.

N. Rodgers: Gossip.

J. Aughenbaugh: When the court handed down the Callais decision, Louisiana, the State of Louisiana asked the Supreme Court to immediately impose the decision on the federal district court. Typically, the Supreme Court waits about a month because their thinking is the lower courts need time to read, interpret, digest what they ruled. But the Supreme Court, within days, agreed with Louisiana and imposed the decision. Justice Brown Jackson dissented from that order, claiming that the Supreme Court did not have a good reason to do so. But Alito wrote a concurrence in response to Brown Jackson's dissent. He pointed out the court would not have to forego the normal 30 day period to impose the decision if it had not taken so long to issue the case decision in the first instance. Now, for those of you who don't know, Louisiana versus Callais was one of the first cases heard by the Supreme Court this term.

N. Rodgers: October 15th, 2025.

J. Aughenbaugh: Yes. It was the second week of oral arguments. There is some evidence or some speculation that the majority opinion was written and ready to go as early as December. Basically, what's been going on, and you're starting to see this in regards to Brown Jackson and some of the liberals complaint about the court majority using the intern docket to issue decisions without full briefings, oral arguments, time to deliberate. What some of the conservatives are pushing back and saying, we would not have to rush these decisions if the lower courts and some of our colleagues didn't drag their feet in the hopes that the status quo remains.

N. Rodgers: In terms of elections, if you can drag out to a certain point, then you can't change it for the current election because most states have laws that say, you can't change the districts within a certain number of months of the election because it's too hard for the state to figure out where people should vote. One of the things that people don't realize is the setting up of the districts and the plan for an election day starts months in advance with all your volunteers and getting the space and getting whatever and having make sure it's all in order. What some people are doing is hoping they can run out the clock so that they can say, oh, it's too close to the election to change for this time, so it'll have to be next election that you have this new map or this new districting or what have you. See our earlier episode on the gerrymandering in Virginia, which you will hear about in that discussion there. That there's a timing effect that one has to be careful of. In fact, that case was actually decided basically on timing, that the timing is all wrong. I can see where the minority is saying, if we can't win, we can at least slow it down. We can at least slow down the process and that is an age old way of if you've ever watched a middle schooler hand in a test, they walk from the back of the room to the front of the room, it takes about three years for them to make that walk. I don't know why. They're just putting off the inevitable of what's about to happen after I turn in this test to my teacher. It's a similar thing. That slow walking.

J. Aughenbaugh: You gave a really good example, Nia, the Virginia redistricting case. One of the arguments that the Virginia Supreme Court took into account was a statement made by the voter registrar's office in Virginia that went ahead and said that a decision had to be handed down by mid April because if not, that office would not have enough time to go ahead and print up and organize the primary elections which in Virginia occur relatively late compared to other states. It's not until August. They were like, we need that time. One of the reasons why they need all that time is that voter registrars offices and states are historically understaffed.

N. Rodgers: There's usually one or two paid people and a couple of volunteer people. When it's time for an election, those people work like I don't know, 80-hour weeks because they're trying to get it all done. That's why you can't find any of them the week after an election because they've all gone to Bermuda to lay on a beach somewhere and just go.

J. Aughenbaugh: The thing you need to take into account here is this is political gamesmanship. You're starting to see accusations of this being leveled at the Supreme Court level where those in the dissent -.

N. Rodgers: By each other.

J. Aughenbaugh: Oh, yeah and they're doing it publicly.

N. Rodgers: Alito basically said, If you hadn't slow walked it, we wouldn't have had to do it this way.

J. Aughenbaugh: That's right. Yes.

N. Rodgers: Brown Jackson said, If you weren't a criminal, we wouldn't have to slow walk it.

J. Aughenbaugh: You're beginning to see this play out publicly. To me, it's fascinating because this is the kind of stuff that normally would never be made public by the justices.

N. Rodgers: It used to be that the justices were a justice. You know how back in the day and parents don't do this now, but our parents never fought in front of us. That was always a thing they did in their bedroom late at night. They didn't fight. In front of the kids it was united front.

J. Aughenbaugh: Yes.

N. Rodgers: Whatever that front was, even if one of them disagreed, it was a united front. Man, you're not seeing that anymore in the court. The court now is like, oh, heck with this, I'm just going to call you out every moment I can. It feels a little like maybe John Roberts has maybe lost some of the control of the court in the sense of how they present themselves publicly. I don't know. Or maybe it's the media is so ubiquitous now.

J. Aughenbaugh: It is hyper aware.

N. Rodgers: That snarky comments that were made years ago just didn't get reported in the same way that they get reported now.

J. Aughenbaugh: But to me, this is fascinating about the court because John Roberts, I think, at the end of the day, would like none of the justices to have any kind of public persona. But that's almost impossible.

N. Rodgers: In the TikTok Instagram age, man, they're all over the place. As you add younger and younger justices, that's going to be more and more true.

J. Aughenbaugh: One, you're talking about the condition of media today. It is ubiquitous. It is 24/7. But the other thing is, think of the larger than life personas that the Supreme Court increasingly attracts. Earlier you had Scalia and Ginsburg, but they had cults but they were anomalies. But on the current Supreme Court, think about, for instance, Clarence Thomas. For basically the entirety of his tenure on the court, he has been sticking his hand on his nose and saying, na na na na na, to a whole bunch of people who he thinks are his enemies. Alito is pugnacious.

N. Rodgers: Well, Thomas is a divisive figure from his hearing forward. People love him or they hate him. There are very few people who are like, I'm neutral on Justice Thomas, and that is a function of big personality. Similarly with Alito. There are people who love him, and there are people who hate him. Same with Sotomayor. There are people who love her and there are people who can't stand.

J. Aughenbaugh: That's certainly the case with Brown Jackson. She has said publicly in speeches, I view part of my job to go ahead and make the public aware of when the Supreme Court gets it wrong. No justice. In the history, the Supreme Court has ever said that that's part of their job. Never.

N. Rodgers: The other bit that we have to talk about briefly if it's okay with you, so we got a couple of minutes is the level of hubris currently on the court.

J. Aughenbaugh: God, yes.

N. Rodgers: Because in previous courts, a lot of times what you would hear would be deference to their colleagues. You would hear, I disagree with my colleague. He's brilliant, but I disagree. They have moved from, he's generally brilliant, but I disagree with him to he's a chucklehead, and you shouldn't listen to anything he says. We've moved into this weird place of where they feel comfortable talking to their followers and their tribe and their whatever publicly and nastily in some cases about their colleagues.

J. Aughenbaugh: Those of us who follow the court always look for little signs. It's like what Soviet Union experts used to do in regards to the Kremlin.

N. Rodgers: Who went in that door? Oh, my goodness. That's going to be it. We're going to be in trouble now.

J. Aughenbaugh: We haven't heard from so and so who has this position in the Kremlin.

N. Rodgers: In four days. Is he still alive? Chinese government watchers do the same thing, I think.

J. Aughenbaugh: One of the things that we measure is the number of times dissenting opinions conclude with the phrase, I respectfully dissent because that's the historic time honored traditional way of concluding a dissent.

N. Rodgers: I respectfully dissent, Justice John Agabau.

J. Aughenbaugh: But if you say for the above reasons I dissent.

N. Rodgers: Respectfully.

J. Aughenbaugh: What happened to the respect? Which is a sign that we scholars are just like, wow, they were excuse the expression pissed. They were upset. The number of dissenting opinions that conclude without the adverb respectfully has gone up on the Roberts court, in particular, the last roughly 10 years.

N. Rodgers: Wow.

J. Aughenbaugh: Even Kagan, who generally likes to get along or tries to get along with her colleagues, by all accounts, concluded her dissent without the adverb respectfully. I was like, oh Elena?

N. Rodgers: He's unhappy.

J. Aughenbaugh: Elena is pissed.

N. Rodgers: The thing is, I know that in part, it must be exhausting to be part of a minority on the court. Where you're just like, really I talk and talk and I don't get anywhere with you people. I get it. But by the same token, that pendulum swings. This court is going to end up doing something so conservative that it will have to swing back or it will lose its legitimacy.

J. Aughenbaugh: That is what scholars pointed to roughly the last 4.5, five years of the Warren Court. When the membership of the Warren Court changed to where there were pretty much just liberals. The last 4.5, five years of the Warren Court Nia, they spent very little time responding to or trying to get the votes of those who were more conservative or believed in judicial self restraint. You saw that with the Griswold decision, where the Supreme Court said that a state could not ban contraception. Well, there were solid constitutional reasons for that decision, which didn't find their way into Justice Douglas' majority opinion. But you issue enough of those decisions to where you are so far out of touch and you overturn so many precedents that at some point in time, even your supporters are just like, what the hell's going on?

N. Rodgers: I think that John Roberts may be entering that time with this court.

J. Aughenbaugh: Yeah, how you do it, becomes as important as what you do. Every court has that danger because again, if you're part of the majority, you can just go ahead and say-.

N. Rodgers: What ifs. Don't care what you think.

J. Aughenbaugh: Yeah. But you exhibit that attitude enough.

N. Rodgers: You'll pay for it.

J. Aughenbaugh: Yeah, you're going to pay for it.

N. Rodgers: You or the branches in general?

J. Aughenbaugh: Yeah, the court in general loses that. Anyways, good discussion. Again, listeners, this is Part 1 of our summer of SCOTUS. We will have plenty of other episodes.

N. Rodgers: Multiple parts. There are multiple episodes in the summer of SCOTUS. We have one coming up that is the disposition of Supreme Court papers, which speaks to my heart as a government documents librarian. Where should those go and who should have access? Then, of course, we'll have lots of cases because in the next few weeks, they will fall like rain from the sky.

J. Aughenbaugh: Yes.

N. Rodgers: Because there's a whole bunch sitting out there waiting. This is now how the Justice is at. They throw everything at you and then they leave town.

J. Aughenbaugh: Yes.

N. Rodgers: That's more and more how they are doing large portions of the opinions that they're writing. Drop an opinion and bail.

J. Aughenbaugh: Yeah, the easy cases have already basically been dealt with. It's the harder cases where multiple people want to write separate opinions.

N. Rodgers: Many dissents and many concurrences and now I have to rewrite mine because you said a thing, and now I have to include this thing.

J. Aughenbaugh: But anyways, thanks Nia.

N. Rodgers: Thank you Aughie.

You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.