0:00:00.3 Speaker 1: It's the law. And don't ask me why.

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0:00:07.2 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are joined by civil rights attorney, Hannah Mullen, to talk about the upcoming Supreme Court term. On the docket this year are cases that could further undermine the Voting Rights Act, topple federal Indian law and affirmative action, and the ability of individuals to vindicate their rights under Medicare and allow state legislatures to dictate the outcomes of federal elections. This is 5-4, a podcast about how much the Supreme Court sucks.

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0:00:48.2 Peter: Welcome to 5-4 where we dissect and analyze the Supreme Court cases that have left our rights dark and murky like the water in Jackson, Mississippi.

0:00:56.4 Rhiannon: Oh.

0:00:57.3 Peter: I am Peter.

0:00:57.9 Michael: Peter. [laughter]

0:00:58.9 Peter: So, was that really? [laughter]

0:01:01.7 Rhiannon: That hurts.

0:01:03.2 Peter: You guys said it like I did it, I didn't do it, I want it to be fixed. [laughter] I'm Peter. I'm here with Rhiannon.

0:01:10.9 Rhiannon: Hey. Hello.

0:01:12.5 Peter: And Michael.

0:01:13.3 Michael: Hey, everybody.

0:01:14.6 Peter: And our friend, Hannah Mullen.

0:01:15.8 Hannah Mullen: Hi.

0:01:16.3 Peter: Welcome to the show.

0:01:17.3 Hannah Mullen: I'm so glad to be here. Thank you for asking me.

0:01:20.0 Peter: We are glad you're here. Today, we are previewing the upcoming Supreme Court term, and to help us, we've brought Hannah on. Hannah is a civil rights lawyer, and more importantly, our friend on Twitter.

0:01:33.9 Hannah Mullen: Yeah.

0:01:34.7 Peter: We try to be responsive to our audience, and of course they've been clamoring for us to have more White women on the podcast.

0:01:43.4 Rhiannon: Yeah, direct request.

0:01:44.6 Peter: Yeah. We've resisted for a while because there's already a Supreme Court podcast catering exclusively to White women, but we have finally relented. [laughter]

0:01:54.1 Rhiannon: Stupid. [laughter]

0:01:58.8 Peter: We are going to walk through some of the higher profile cases on the Court's docket this year, from Medicare funding to Tribal Rights, Voting Rights, affirmative action, all the things that will be stressing you out next year. And Rhi, I think you're kicking it off here, right? Health and Hospital Corporation of Marion County v. Talevski.

0:02:21.7 Rhiannon: Yeah, let's get into it. Just like the name, it's long, it's complicated, it has so many things happening. This case has to do with the spending clause. It has to do with 1983 civil rights lawsuits, Medicaid, other federal legislation, the administrative state. There's a lot going on. What's interesting, I think about this case is it hasn't been really discussed very much in terms of cases that are coming up in this term, but it's really important, it's a big one, so just wanted to put it on people's radar. Alright, we can start with the Constitution, we start there a lot. The Spending Clause: Article I, Section 8 of the Constitution gives Congress the power to tax and also to spend money. And Congress can basically spend money in three categories: Congress can pay the country's debts, they can provide for the defense, and then they can spend on general welfare. That's what the Spending Clause says. Now, Medicaid is one such law, the federal government is authorized to spend money on poor people's healthcare because of the Spending Clause in the Constitution. Right?

0:03:30.4 Rhiannon: Now, I also mentioned 1983, we've talked about 1983 cases before. These are civil rights lawsuits based on a law that was passed in the early 1870s, it gave people the right to sue state officials for violating federal laws and federal rights. That's not just constitutional rights, but rights established by the federal government. You can sue a state official for violating those rights under Section 1983. So, let's talk about the facts of the case. This comes out of a nursing home in Marion County, Indiana. It's a nursing home that's run by the state, this is not a private facility. So Gorgi Talevski lived at this nursing home and he had dementia. This facility gave him basically a bevy of unnecessary medication just to sedate him, to restrain him all the time. And then, they also transferred Mr. Talevski to another facility far from his family without any notice, they didn't tell anybody and they didn't get their consent.

0:04:30.5 Rhiannon: Now, pursuant to Medicaid and Congress's spending power, there's a law called the Federal Nursing Home Reform Act, which establishes the rights of residents of nursing homes that receive Medicaid funding. So, FNHRA, the Federal Nursing Home Reform Act says that you can't give unnecessary or dangerous medication to nursing home residents just like as a consequence or just for convenience. And it also says that nursing home residents can't be moved to different facilities without notice and without using the proper procedure mandated by law. So Mr. Talevski actually passed away and his family sued on his behalf through his estate saying, "Look, you clearly violated the FNHRA, you violated Mr. Talevski's rights that these federal laws establish, so you as the state provider we can sue you under 1983, state official violating rights under federal law." So what is really sort of ominous and deeply concerning about the case is what the state of Indiana is arguing here. They're arguing that actually there is no cause of action, no option to sue under 1983 because of two things.

0:05:44.5 Rhiannon: First they say the FNHRA, that federal law that establishes rights for nursing home residents, yes, that statute establishes rights according to Indiana, but those aren't really the federal rights that are protected by 1983. And second, which is an even broader kind of argument, the State of Indiana is saying that actually 1983 can't be used to secure rights under spending clause statutes at all. So remember, this is Medicaid, this is a big federal law that has passed because Congress has the power to spend for the general welfare, right? The State of Indiana here is saying, any law that's passed under that spending power, these laws that establish poor people's rights across a plethora of social welfare issues, Indiana is saying, "There's no private individual right to sue us when we violate those laws."

0:06:36.6 Rhiannon: So implications here are pretty bleak, when your rights to Medicaid funds are violated by the state, you have no remedy, under Indiana's argument here. If 1983 causes of action are not available, under congressional spending programs, to the extent that we even have a social safety net in this country, that's it, right? That's how people sue when these kinds of rights are violated. So big, big implications about not just Medicaid, but any statutes that establish people's rights that are passed pursuant to the spending clause. Hannah, I'd love to hear your input.

0:07:12.2 Hannah Mullen: I don't know how much I know, but I know I have a lot of feelings about it.

0:07:16.5 Rhiannon: Okay. Yes, we like those too.

0:07:17.8 Hannah Mullen: I'm in danger of going on and on, my outline for this case is three pages single-spaced, but... [laughter]

0:07:26.6 Michael: It's outline, outline, loosely.

0:07:29.7 Hannah Mullen: Yeah, the paragraphs, I wrote in prose about this case are three pages. But I think it's hard to overstate on first-cut explanation how surface-level bananas the argument is here. Just when you sort of walk through the statutory texted issue. Section 1983 provides a cause of action against any person who under Color of Law deprives another of any, "rights, privileges or immunities secured by the Constitution and, in brackets, federal laws." So, if a state actor violates your rights that are secured by a federal law, Section 1983 is your cause of action.

0:08:11.9 Michael: Right. End of story. That's it.

0:08:13.5 Rhiannon: Right.

0:08:14.1 Hannah Mullen: End of story, right? That should be pretty straight up and down if we're all textualists now, right? And the Federal Nursing Home Reform Act actually uses the word "rights" in the text.

0:08:25.3 Rhiannon: Yes.

0:08:25.5 Hannah Mullen: That's directly at issue. The right to be free from any physical or chemical restraints, Transfer and Discharge Rights, so the right not to be transferred involuntarily. So, that seems open and shut, it should be pretty simple to match up, right secured by a federal law and the rights in the Federal Nursing Home Reform Act. And the way that the State of Indiana basically tries to get around the very broad and apparently on point text of Section 1983 is, again, an argument that sounds really, really wacky on like first, second, third, fourth, tenth glance, which is that, at the time that Section 1983 was passed in the 1870s, Indiana's claim, which is very hotly disputed in the briefs and should not be taken at face value, Indiana's claim is that, well, under the common law rule at the time as applied to Contract Law, third-party beneficiaries, so that's people who are not parties to a contract, but somebody else who is getting the benefit of that contractual relationship, if that contract was breached by one of the parties, that third party, non-party to the contract, couldn't sue to enforce the contract. And so that's sort of the lead argument in the brief, leading to the question, what does that have anything to do, [laughter] with the federal cause of action Section 1983?

0:09:57.5 Rhiannon: [laughter] Exactly.

0:09:58.3 Peter: Well, this is the primary strategy of conservatives right now, to just... Like, you go back in time until you find some bullshit reason in historical legal analysis, why their position might be correct and then you stop there.

0:10:12.8 Rhiannon: Exactly, yup.

0:10:13.2 Hannah Mullen: Well, it's not just conservatives now, this has been... And the way they hook that Contract Law discussion into supposed relevance into the interpretation of 1983 and Spending Clause statutes, is that the court for a while has held up Contract Law as "analogous" to Spending Clause legislation. The idea being that when the federal government gets a state to agree to some sort of condition in order to receive federal funds, that's kind of like a contract, the state and the federal government are agreeing to something and the federal government is giving them money. So principles like notice and things not being too coercive that we find in Contract Law, that should apply there.

0:11:00.3 Peter: Where does that land you vis-a-vis individual constitutional rights?

0:11:03.1 Leon: Yeah.

0:11:03.2 Hannah Mullen: Right.

0:11:03.4 Peter: Or rights that flow from constitutional rights.

0:11:05.3 Hannah Mullen: The argument is, well, I looked at this contracts Hornbook from 1871, and it told me that third-party beneficiaries can't sue. So, we should just assume, even though there is absolutely nothing in the text of Section 1983 and basically no indication that Congress actually was thinking about third-party beneficiaries Contract Law, modern Spending Clause legislation wasn't even a thing yet, and they're trying to import that supposed background principle into the interpretation of 1983.

0:11:36.9 Rhiannon: Yeah.

0:11:37.2 Peter: Yeah.

0:11:37.6 Michael: I think it's worth emphasizing too, whether or not analogizing Spending Clause with general welfare, legislation to contracts has some merit in some context. Here, it is just an awful model for how this legislation was written. If Congress is outlining the rights of residents in these facilities, that's clearly not like a third-party beneficiary model here. This is social legislation, this is designed to protect a class of American residents. Right?

0:12:16.3 Rhiannon: Right.

0:12:16.7 Michael: That's the whole thing here. These are the subjects of legislation that, to protect them, and casting them as sort of these ancillary players that are like just receiving these benefits as like aside to this contract that's mainly between the federal and state governments is just totally nonsense.

0:12:40.7 Peter: Right.

0:12:41.4 Rhiannon: Yeah.

0:12:41.9 Peter: All right, next case. [laughter] We should do the next case.

0:12:49.8 Michael: Yeah.

0:12:50.3 Rhiannon: Yeah, yeah, yeah, yeah.

0:12:51.8 Peter: Okay, Merrill v. Milligan.

0:12:53.2 Rhiannon: All right.

0:12:54.1 Peter: Micheal, take it away. [laughter]

0:12:57.0 Michael: Yeah, so Merrill v. Milligan, this is a case about Alabama and the Voting Rights Act. So you know it's gonna be a good one already [laughter] just on those facts, nothing else, nothing else. So between 2010 and 2020, the relative Black population in Alabama increased pretty substantially, and so after the 2020 census, there was a question as to whether during this round of redistricting the State of Alabama would increase the number of majority-minority congressional districts in Alabama from one, which had been for the previous decade, to two, because Black people were up to 28% of the population. Now, the Voting Rights Act, Section 2 of the Voting Rights Act has this protection. It protects against vote dilution, and it has been used in the context of racial gerrymandering to prevent a sufficiently large minority block from having its vote diluted by being packed into a very small number of districts or cracked amongst a large number of districts to the point where they have very little or no ability to affect who their representatives are.

0:14:17.3 Rhiannon: Right.

0:14:18.0 Michael: And so that's what this case is about, is Alabama drew their seven congressional districts with only one majority-minority district. They packed a bunch of Black voters into one district and then cracked all the rest amongst several other districts. Even though Black people are almost a third of the state, they're only getting one out of seven districts where they'll have a chance to pick their representative. And a three-panel District Court found that Alabama had violated the Voting Rights Act and provided 11 different maps that they said could satisfy the Voting Rights Act and all its requirements that would provide two rather than one majority-minority districts. This got appealed to the Supreme Court who, without opinion, stayed the District Court's ruling so that the current election will be held under this unconstitutional map while they decide whether or not essentially to change 30 years plus of jurisprudence. I think it's 36 years actually, whether or not they're gonna throw it out the window and in the meantime we'll just have to...

0:15:30.3 Peter: Well, this election will be held under an unconstitutional map, but don't worry, they will say that it's constitutional next year and then we can all rest easy.

0:15:38.5 Michael: Right, exactly. [laughter] Exactly. And so what's concerning about this case is there are hints based on the arguments Alabama is making and a very short concurring opinion that Justice Kavanaugh put out when they stayed the lower court opinion, sort of explaining what was going on. One part of this test, the Gingles test, you have to sort of demonstrate that the population in question is capable of sustaining a district where they would be a majority of the population, but that district would have to be compact and contiguous and wouldn't be... Have to meet all these other criteria, race neutral, sort of classic redistricting criteria. And what Alabama is arguing is when demonstrating this, you cannot consider race in the drawing of these maps and in the demonstration of this, and doing so is a violation of the 14th Amendment, Equal Protection Clause.

0:16:40.6 Rhiannon: Aye yai yai.

0:16:41.3 Peter: Well, okay, so...

0:16:42.8 Rhiannon: Longest pause in the history of the world. [laughter]

0:16:46.9 Michael: It's hard to explain. [laughter]

0:16:49.7 Peter: Well, it might be worth noting where the Voting Rights Act comes from because the 15th Amendment prohibits discrimination in voting and expressly says that Congress has the authority to pass laws to enforce the amendment.

0:17:02.1 Michael: Right.

0:17:02.5 Peter: That's what the Voting Rights Act is, right?

0:17:04.7 Michael: Right.

0:17:05.5 Peter: It's a law passed with the specific intent of manifesting the prohibition on racial discrimination in voting. And so when you say that you can't consider race, [laughter] it's... You're literally saying, well, you can't factor race into your racial discrimination analysis. It's entire bullshit.

0:17:31.4 Michael: It's total nonsense. It's in keeping with the modern conservative weaponization of the 14th Amendment and their sort of attempts to reify this colorblind Constitution as if that wouldn't be total nonsense to the drafters and the ratifiers of the 14th and 15th Amendments, which were specifically designed to make sure that Black people were made free and equal citizens. The idea that there is anything colorblind about that at all is total nonsense.

0:18:07.2 Hannah Mullen: It's also the... One can make a safe assumption on the surface based on the fact that Alabama, the state, is making this argument. The map was drawn by the Republican state legislators that adopting Alabama's race-blind argument would lead to benefits for the Republican Party.

0:18:27.1 Michael: Absolutely.

0:18:27.5 Rhiannon: Right.

0:18:27.8 Hannah Mullen: That's sort of just logically on the surface of the case, but there's actually a really interesting Law Review article by Nick Stephanopoulos, who's a law professor at Harvard, and Jowei Chen, who's a political science professor at Michigan, that they published last year in the Yale Law Journal just showing that, incredibly rigorously using these cutting-edge, randomly-generated maps in a technique that's become common in the political gerrymandering context, but they describe it as the first time they applied that method to the racial gerrymandering context. And they just prove, yes, if you have to take race out of the analysis completely, and you can't think about ensuring that minority, which in the South means Black communities have the ability to elect their preferred candidates, it would lead, especially in Southern states, to significant drops in the ability of Black voters to elect their preferred candidates. So it would effectively further dilute the voting power of Black voters.

0:19:30.0 Michael: Yeah.

0:19:30.3 Peter: Well, that's a crazy coincidence.

0:19:31.8 Michael: Yeah.

0:19:32.2 Peter: Yeah.

0:19:32.7 Michael: Who would guess?

0:19:33.6 Peter: All right. Well, next case. [laughter]

0:19:37.4 Hannah Mullen: That sucks. Anyway. [laughter]

0:19:41.0 Michael: Before we continue, and I think this is something to note, this is only one step in a multi-step process that they're objecting to the use of race in first of all. And then on top of that, within this step, race is only one factor amongst many factors that's being considered here. It's like whether these districts are contiguous and compact and keep together communities of interest and all this other stuff, race is just one factor. So I think it sort of also, as we'll talk about later, I think this foreshadows a lot of what we're gonna see in the affirmative action context as well.

0:20:19.9 Hannah Mullen: Yeah, the best way to stop discriminating on the basis of race is to stop discriminating on the basis of race.

0:20:25.4 Michael: Yeah, exactly, this nonsense.

0:20:28.2 Rhiannon: This is a good spot, it feels like, to take a break. And we're back.

0:20:33.7 Peter: Next case. Brackeen v. Haaland. Hannah, all you.

0:20:38.9 Hannah Mullen: Alright. So Brackeen is a challenge to the Indian Child Welfare Act. It's brought by two groups of plaintiffs. One is Texas as a state plaintiff. There were several states that challenged the law in the lower courts. Texas is the only one that's taking the challenge all the way to the Supreme Court. And then there are also seven individuals, which are three non-Indian couples who tried to adopt Indian children, and then one of those Indian children's biological mothers who supports the adoption.

0:21:08.3 Hannah Mullen: And so ICWA was passed in 1978 in response to outcry and a long series of congressional hearings about the breakup of Native American families, which just as a note in the legal context, the doctrine is referred to as Indian Law. Native Americans are referred to as Indian, so that's why I'm going to use the term Indian throughout this discussion as well. And there's a horrible history of essentially ethnic cleansing, of Indian children being removed from their homes and put in non-Indian White homes, which effectively broke tribe's ability to pass their history and culture down through the generations and was sort of an existential threat to tribal identity.

0:21:56.4 Peter: We talked about this in Adoptive Couple v. Baby Girl, and I think recently too, but the percentage of children getting adopted out of Indian homes was above 30.

0:22:08.3 Rhiannon: Right.

0:22:09.1 Peter: Above 30% of all children getting adopted out of Native homes. Really wild numbers.

0:22:16.2 Rhiannon: Right.

0:22:16.6 Michael: Yeah.

0:22:17.7 Hannah Mullen: Yeah, and the Congress in its hearings basically determined that the two major causes of the problem were the federal boarding school infrastructure, which had been taking children away from their families and putting them in educational settings designed to take them away from their culture. But then also, as Peter just mentioned, state child custody proceedings that were having children be adopted out of their families and out of their tribes. And so the Indian Child Welfare Act was passed in response to that, and as relevant to the case, there are three main requirements that ICWA imposes on state child custody proceedings when they involve an Indian child.

0:23:00.3 Hannah Mullen: The first is that any party seeking an Indian child's removal from their family has to give notice of those state court proceedings to the child's parent or Indian custodian and their tribe. The second is that it prohibits a state court from ordering a child's removal unless it makes certain findings, including that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. And then third, it establishes standards for the placement of Indian children in foster or adoptive homes that include that preference must be given absent good cause to the contrary, to placement with a member of the child's extended family, other members of the Indian child's tribe or other Indian families.

0:23:44.1 Rhiannon: Right, so it establishes that kind of priority, right? If an Indian child is going to be adopted...

0:23:48.8 Hannah Mullen: Right, exactly.

0:23:49.7 Rhiannon: ICWA basically establishes, the priority is that the child goes to a member of their own family or their own Indian tribe, somebody in their community, essentially, before being adopted out by a non-Indian family.

0:24:04.1 Hannah Mullen: Right.

0:24:04.4 Michael: And there are some White people who are totally steamed about this for totally non-weird reasons, totally normal, normal shit, normal shit.

0:24:17.6 Rhiannon: Yeah. Go on. [laughter]

0:24:20.0 Hannah Mullen: And so these White people who are upset about this for totally normal reasons that I do not have any critiques of, basically bring four challenges. They're coming at ICWA from all kinds of different angles. Three of them are challenges that are alarming in their own right, but probably not the headliners. They argue that it's beyond the scope of the Indian Commerce Clause to pass ICWA, that Congress didn't have enough power to do it. There's an anti-commandeering challenge for people who wanna brush up on their Fed courts that the standards improperly sort of co-opt state courts and state agencies. And then there's a non-delegation challenge because we have to drink every time there's a non-delegation challenge to a federal action, because I think it's now just in the checklist of things you have to bring.

0:25:06.9 Hannah Mullen: But those three challenges would decimate ICWA, but that's it. They're sort of hived off to the particulars of the law. But then there's an Equal Protection challenge, which is the Blockbuster. And that's the argument that the classifications in ICWA, so the references to Indian and non-Indian and the way the law treats those groups differently are racial classifications under the Equal Protection Clause and therefore they're subject to strict scrutiny.

0:25:37.1 Hannah Mullen: And that is an argument that if the court adopted it would basically blow up Indian law, because there's a centuries-old understanding dating back to literally before the Constitution itself, that Indian tribes are political, they're separate sovereigns, and so the federal government interacts with them in a political capacity, and laws treating Indians or Indian tribes differently, that's a political classification, subject to rational basis review and very much within the tradition of how Congress and the federal government interacts with Indian tribes, not racial classification subject to strict scrutiny. Because as we all know, strict scrutiny, strict in theory, fatal in fact, if classifications treating Indians differently, then non-Indians in federal law were subject to strict scrutiny, it would be extremely difficult for basically the field of Indian law to survive.

0:26:32.4 Michael: Right.

0:26:33.3 Rhiannon: Right.

0:26:33.4 Peter: Alright, well.

0:26:34.2 Michael: No concerns there. [laughter]

0:26:37.2 Hannah Mullen: Which, just to be specific about it though, Indian law includes things like reservation status, land use, water rights, gaming, and there are a lot of non-Indian White people who I'm sure are very offended by ICWA just because they think a lot about the rights of White people that want to adopt Native American children, but it would also be, for example, a huge boon for casino companies.

0:27:00.9 Rhiannon: Yes, oil companies.

0:27:02.3 Hannah Mullen: Oil companies, companies that resent the fact that sometimes Indian tribes are treated differently for the purposes of water rights. There's a lot of money to be made if Indian law were to be decimated.

0:27:14.4 Peter: Has the Wynn Corporation filed an amicus? Because that might be the end of me. [laughter]

0:27:20.9 Hannah Mullen: Well, it's funny you mentioned it, though, but Matt McGill, who's the counsel of record from Gibson Dunn for the petitioners, he's the chair of Gibson Dunn's betting and gaming practice group. He challenges ICWA, like, for a living. Gibson represents two out of the three largest casino groups in the world. So maybe it's just a fun coincidence, but Rebecca Nagle of "This Land" did a whole episode basically tracing the intersection of right-wing lawyers like Matt McGill and Paul Clement who bring pro bono challenges to ICWA on behalf of non-Indian families that want to adopt Indian children, and that they have massive casino clients especially, and in some cases, oil and gas clients.

0:28:05.2 Peter: So literally the bad guys in Ocean's Eleven are suing.

0:28:09.6 Rhiannon: That's right. [laughter]

0:28:11.1 Peter: Okay. Well, let's move away from these cases where the conservatives are trying to do away with racial classification specifically to target programs designed to combat historical racism and move into affirmative action. [laughter]

0:28:27.5 Rhiannon: Great!

0:28:28.2 Michael: Yeah. [laughter]

0:28:30.1 Hannah Mullen: A plus.

0:28:30.9 Peter: Students for Fair Admissions v. UNC and Students for Fair Admissions v. Harvard; two cases, not consolidated, but being handled separately, challenging two different affirmative action programs, one at Harvard, the other at the University of North Carolina. The reason they are two separate cases is essentially because UNC is a public school and therefore has to abide by the Equal Protection Clause of the 14th Amendment, which says that people must receive equal treatment under the law. So the question there is whether race-conscious admissions policies violate the Equal Protection Clause. And frankly, this one's sort of a done deal. Like, there's just no way the conservatives uphold state school affirmative action a clean 6-3 unless there's a real curveball here. The more interesting case, maybe the more variable case is against Harvard, which is of course a private school, and so the claim there is different. The claim there is that the admissions process violates Title 6 of the Civil Rights Act by discriminating against Asian-American students in particular.

0:29:39.5 Peter: So, I think it's probably important to understand the Harvard admissions process a little bit. I will, of course, simplify. But applicants are assessed across five categories: Academics, athletics, extracurriculars, personal, and willingness to participate in Eyes Wide Shut sex parties. [laughter] And from those, they are then assigned an overall score. But you can essentially get bonus points for various things, one of which is racial diversity, but also includes socioeconomic diversity, geographic diversity, whether you are the child of alumni, donors, faculty, or staff. The score you get is not what your admission is based on per se, it's just sort of a tentative rating. There's further discussion, recommendations for admission are made to the admissions committee, and they review everything holistically and make decisions. What's interesting is that there are essentially two arguments being put forth here in the broad sense. One is that Harvard should not be allowed to factor race into admissions, full stop.

0:30:44.3 Peter: The other, though, is that their admissions process discriminates against Asian-American applicants, primarily because Asian-American applicants score notably low in the personal category. That category includes things like essays, recommendations from teachers and guidance counselors. Without speaking to the merits of this claim, I just wanna point out a little bit of irony here, because this is a complete inversion of the traditional argument against affirmative action, right?

0:31:11.0 Rhiannon: Yeah, exactly.

0:31:11.3 Peter: The conservative position has always been basically like, "Admissions need to be based on merit alone, so if Black students have worse test scores and GPAs on average than White students, for example, so be it. We must abide by the scores." Now those same people are saying, "Well, hey, wait, Asian-American students are performing worse by this personal metric, so even though it's race-neutral on its face, it must be discriminatory," which reveals, I think, that it's not unfairness that they care about per se, it's just their perception of what the natural hierarchies are and their desire to see those hierarchies replicated in school admissions.

0:31:47.8 Rhiannon: Yeah, exactly. And we should say that we're pretty sure on the results here. We're not in the business of predicting how Supreme Court cases come down, usually, but the writing is on the wall for this one. Just in terms of... One of our very first episodes was Fisher v. Texas, and... So there have even been recent cases in the Roberts Court that indicate that now that it's a 6-3 super majority, they're done with affirmative action, they're not. Yeah.

0:32:18.6 Peter: At least the race-conscious admissions are almost certainly done. The swing votes aren't even there, right? Roberts is notoriously anti-affirmative action, so they don't even have him to try to pull to the left. There's just really no change. I just don't see a way where race-conscious admissions processes survive.

0:32:36.1 Rhiannon: Right. I think that's right.

0:32:37.9 Peter: And finally.

0:32:39.2 Michael: Last but not least. [chuckle]

0:32:41.3 Peter: God, this case.

0:32:42.8 Rhiannon: It's been a slug. [chuckle]

0:32:44.3 Peter: Yeah. Moore v. Harper, independent state legislature. Let's go, Rhi.

0:32:48.4 Rhiannon: Yeah. So it's really funny because in preparation for this episode, we all said that we weren't really gonna talk about Moore v. Harper for very long, but there's just a lot to say. [chuckle]

0:33:00.5 Peter: Yes.

0:33:00.6 Rhiannon: And each one of us said something distinct as what we wanted to contribute to this part of the discussion.

0:33:05.7 Michael: Yeah, we're like, "It's well covered, we'll probably have to do an episode on this maybe even before the case, so we should go light," and then as we're outlining we're like, "Well, and I wanna say this about Moore v. Harper, I wanna say this." [laughter]

0:33:16.0 Rhiannon: Real pissed about some things, so, yeah. [laughter]

0:33:18.1 Michael: We'll see how we do, if we can do brief.

0:33:19.4 Rhiannon: Yeah. So we are planning a whole episode on it, but let's just jump in, Moore v. Harper. This is a North Carolina case, case out of North Carolina. And people might have heard of Moore v. Harper not by name but by media talking about this independent state legislature theory. So that's the issue in Moore v. Harper. And I gotta say, independent state legislature theory is fucking wild, it is a fucking wild idea. So basically, what independent state legislature theory is, is that with regard to elections, the Constitution grants authority to state legislatures to design and implement federal elections how they see fit. So right now, there might be different rules in different states for what is needed to register to vote, the congressional districts that are drawn by the state legislature, on and on, etcetera.

0:34:14.1 Rhiannon: So your state legislature, according to the Constitution, is in charge of designing and implementing federal elections. Now, what the independent legislature theory says, is that not only do state legislatures have control over those mechanics, but they have exclusive control over these rules, and they have total authority to determine how federal elections are conducted without any limitation from what state courts might say, or what their state constitution might say. So for example, if a state constitution, if the Texas constitution said that partisan gerrymandering is illegal, is prohibited, the Texas State Legislature would be unbound, unrestricted by that constitutional rule in Texas, and they could still gerrymander, however that state legislature pleases with respect to federal elections. So taking it further, a legislature could maybe, for example, set new election rules that take power away from voters when picking electors for the electoral college, and they could do this without any checks and balances from the state courts or their own state constitutions.

0:35:27.1 Rhiannon: This kind of argument probably first comes up in terms of in the modern era with a little bit of prominence in Bush v. Gore. The Bush team was originally arguing that the Florida State Legislature had exclusive control over that federal election, and that whatever the Florida State Supreme Court had to say didn't matter. And then independent state legislature theory came up, of course, again during the 2020 election with the Trump side wanting Pennsylvania, for example, to change its rules about how they selected their electors. So yeah, this is kind of percolating up, but would be inserting absolute chaos really into how federal elections are conducted state to state.

0:36:14.9 Rhiannon: And so this whole thing kind of has me thinking about the 17th Amendment, which is the Amendment that established direct voting by the people for senators. So this was passed... The 17th Amendment was passed in like 1910, 1911, and before that, state legislatures elected senators directly, meaning senators represented your state government in Congress, not the people, because the state legislatures were the ones electing and sending senators to congress. So the people would have no representation at all in the Senate, and of course that kind of system is really rife with abuse, special interests, and political machines gain control of state legislatures, they elect their own puppets and business elites for representation in the federal government.

0:37:01.0 Rhiannon: So you know I'm not saying our money-filled elections are necessarily better now, but just noting that legally here, independent state legislature theory sort of signals a mask off kind of casual agreement with a much less democratic system that in many ways we already had before and we got rid of because it wasn't fucking working.

0:37:27.8 Michael: Right, right. It feels like a throwback to those days where state legislatures had more primacy in the relationship.

0:37:35.4 Rhiannon: Exactly.

0:37:35.9 Michael: Mediating the relationship between the public and the federal government.

0:37:38.7 Rhiannon: Right.

0:37:39.2 Michael: And you can sort of see how less democratic things were at the founding, how disconnected the people were from the federal government. You could directly elect your representatives in the House, but you couldn't directly elect your representative in the Senate, you couldn't directly elect the president, the electoral college does that, and then the President nominates the Supreme Court and the Senate confirms them. So there's all these degrees of separation between the people and the federal government.

0:38:10.9 Rhiannon: Exactly, yeah.

0:38:11.7 Michael: And this definitely does have echoes of that, of re-inserting these barriers.

0:38:17.8 Rhiannon: Yeah. Peter called it anti-democracy, right? Like it's an anti-democracy stance.

0:38:21.8 Michael: Yeah.

0:38:22.0 Peter: Yeah, it's probably worth noting here, just pragmatically, the court has allowed for largely unfettered gerrymandering regimes, meaning that one party can seize control of state government power, gerrymander the state to death and effectively insulate themselves from democratic input. And then on top of that, those state legislators, who no longer represent the will of the state at all, if this theory is brought to fruition could functionally circumvent the will of the people in federal elections, including in presidential elections, by potentially very directly choosing a winner themselves. The president then chooses his own judges who oversee all of these processes, creating a feedback loop of undemocratic institutions at every level of government, a complete break of the government from democratic responsiveness.

0:39:13.8 Rhiannon: Exactly.

0:39:14.3 Michael: Yeah.

0:39:14.8 Hannah Mullen: So at the risk of being sort of the well actually nerd in the chat...

0:39:19.8 Michael: Let's hear it, Hannah.

0:39:20.3 Hannah Mullen: I think I disagree about that it naturally flows from the version of the independent state legislature doctrine that's laid out in the briefs, that flows from the time place manner description in the Elections Clause, that that would necessarily lead to state legislatures having the ability to set aside the results of the ballots that actually did come in the door and appoint their own electors.

0:39:48.4 Peter: Well, I think you're introducing this idea of what does the state legislature have to do to ensure that the will of the people "is over-written," and there has been sort of ongoing debate about when they would have to step in. And I think the common understanding it may... Sorry if I'm just speaking past your point here.

0:40:09.9 Hannah Mullen: No, no, no.

0:40:10.9 Peter: But the common understanding, I think the sort of common-sense understanding, and there's court jurisprudence to back this up, if you tell the people of your state "Your vote counts", then there are certain things that you are sort of guaranteeing them in terms of their vote actually, meaning something, meaning that a state legislature could probably not allow the election to move forward, say they don't like the results and send their own slate of electors for presidential election. But if in advance they decide, "We are not going to go the classic democratic way," nothing is stopping them. That's sort of my understanding of the options presented.

0:40:50.4 Hannah Mullen: Yeah, I think that's right. The distinction I wanted to be careful to draw is an Ex-ante Ex-post distinction where the independent...

0:40:57.3 Peter: Yeah, if you wanna talk like that, you could say that.

0:41:01.9 Rhiannon: Yeah. [laughter]

0:41:02.0 Hannah Mullen: Whatever, little Latin never killed anybody. But the point is it would basically clear the way for them to set whatever rules they wanted for federal elections on the front end. But the thing that I'm scared of is accidentally shifting the Overton window so far, that if the independent state legislature doctrine is adopted, like the Ginni Thomas approach to trying to steal an election after the fact, suddenly everybody would just think that that was okay, and like no, there would be a separate fight about that still being extremely illegal.

0:41:32.1 Peter: Yeah.

0:41:32.2 Michael: So here's what I'd say to that. One, I'm fairly confident that part of the Ex-ante rules that they'll put in will be various escape hatches about concerns about fraud and whatnot, and mechanism by which if the legislature has lost confidence in the electoral count or whatever that they will reserve the right to send their own slate of electors, which will be unreviewable. But also, I think the reason why we should assume the worst here is because, like Rhi said, this came up first most prominently recently in Bush v. Gore when the Florida State Legislature was contemplating the possibility that Al Gore would win in the recount, and they wanted to send Bush electors anyway, right?

0:42:26.1 Rhiannon: Right.

0:42:26.7 Michael: That's where this came up, that's what they were contemplating doing, is precisely what we're saying is maybe not a concern, that's what they're considering doing, and that's where this came up. And one of the people who testified to Florida's legislature was John Eastman, architect of Trump's post-election coup strategy.

0:42:46.8 Rhiannon: That's right.

0:42:47.2 Peter: And also Clarence Thomas bought the argument, right?

0:42:49.9 Michael: Yeah.

0:42:50.8 Rhiannon: Yes. Yeah.

0:42:51.0 Michael: And he joined Rehnquist's recurrence in Bush v. Gore, which seemed to...

0:42:52.3 Hannah Mullen: Yeah, I was gonna say Rehnquist did too.

0:42:54.6 Michael: Yeah, it went out of its way to basically be like, yeah, we would have been on board with that. So I think if you look at also, like I was reading a thing, 538 had a whole piece on Republican nominees who are election deniers, and that 60% of Americans will have an election denier on the ballot, or something like nearly 40% or over 40% of Republican nominees either fully deny their results or partially deny the results of the 2020 election. And a good like 15% to 20% of them are just being super fucking weaselly and refusing to even answer questions.

0:43:36.9 Rhiannon: Right.

0:43:37.2 Michael: So they have like 115, 120 Republican house members as heavy favorites to win their districts who are election deniers. Like we have to be realistic about what the Republican party is right now, what they would do with unfavorable results in the next election, and in that context, to what degree the Supreme Court is on board with the project. Like, are they gonna be telling the Republican Party to tap the brakes here, to slow down, to maybe have some pro-democracy heads, re-assert control, or are they gonna be putting on the green light and saying, fucking go wild? And that's my concern. The precise shape of what the next challenge will look like is almost impossible to predict, but whether or not the Supreme Court is down for the project is a big concern.

0:44:35.3 Peter: Yeah.

0:44:35.9 Rhiannon: Yeah.

0:44:36.2 Peter: It had three votes 20 years ago.

0:44:37.9 Rhiannon: Yeah.

0:44:38.0 Peter: That feels scary enough, at least more or less. Alright, that's all the cases [chuckle] that we decided to cover. [laughter]

0:44:46.4 Rhiannon: Yeah. There are others that are real bad too.

0:44:49.4 Michael: If you're like, "These are interesting, but I wanna learn more", you just wait. [laughter] I'm sure we will be doing full episodes on every one of these in the next 15 months. Yeah.

0:45:01.3 Rhiannon: Those hard lessons are coming.

0:45:01.9 Michael: Yeah.

0:45:02.0 Peter: I'm not seeing a surprise win coming on any of these, but...

0:45:03.3 Michael: No, you never know.

0:45:04.9 Rhiannon: Right.

0:45:05.9 Michael: Clarence Thomas is old, it could happen, it could happen for us. [laughter]

0:45:12.2 Peter: That's true, that's true. The stress on the heart of having to hear Ginni at the breakfast table every morning. [laughter] Alright. So I guess we should talk about big picture, what this upcoming term... Like what the narratives surrounding it are gonna be, and we've seen abortion and gun rights be dealt with, and now it seems like maybe the conservative legal movement is moving on to "lower priorities", some slightly less big ticket items. But it feels like we're about to just sort of jump right in where we left off. And I wanna reset a little bit because in the summer of 2021, the dominant legal media narrative was the idea of the 3-3-3 court. Term had been largely uneventful and people wanted to explain it by claiming that there was a strong moderate block of Roberts, Kavanaugh, and Amy Coney Barrett. We did a whole episode about how dumb and wrong that framing was, and I think the good news is that it was so clearly wrong that no one is even trying to defend it anymore.

0:46:22.9 Rhiannon: Yeah, yeah, I think that's right.

0:46:23.3 Peter: And the media narrative has just shifted completely. We'll probably do an upcoming episode sort of updating the state of legal journalism, but the question moving forward is whether there's any sort of reckoning within legal media about why they got it so wrong and what it says about their understanding of the court as an institution. So it'll be interesting to see how they cover this term, whether they are still looking for nuggets of hope that there is institutional legitimacy here or whether they become pragmatic.

0:46:56.0 Rhiannon: Yeah, I think that's exactly right. Looking at all these cases, I don't wanna say a lot, we've talked at length already in this episode, but looking at these cases and my impression for the next term, I just wanna say when I look at this list, I see, we talked one, two, three, four, five cases, I see three of the five as being involved in some way in racial justice. I kinda just wanna make the point that we think of and we are taught that the Supreme Court did cases about race that was in the past, but the work of racial justice, at least through the courts, keeps on happening, is happening today, and that the project is contra what we're taught about it in school, the process today is about dismantling and getting rid of legal protections for minorities, whether that's voting, whether that is admissions, and to institutions of higher education, whether that's adoption, it's still happening, I guess, is my point.

0:47:57.3 Michael: Right, that's absolutely right.

0:47:58.9 Peter: Should we wrap?

0:48:00.6 Rhiannon: Let's wrap it.

0:48:01.4 Hannah Mullen: Anyone who wanna talk for 40 more minutes about Talevski? [laughter]

0:48:07.1 Peter: Hannah Mullen, thanks for joining us. [laughter] We appreciate your time.

0:48:10.1 Rhiannon: Yes, and your smarts. Thank you so much.

0:48:11.6 Michael: Yeah, thank you so much.

0:48:13.2 Peter: Yeah.

0:48:13.3 Hannah Mullen: It was a joy. Thank you for having me.

[music]

0:48:23.9 Peter: Alright. Next week, Tanner v. US, a case about how drunk a jury can be before it's not okay. [laughter] Spoilers; pretty drunk. [laughter]

0:48:35.5 Rhiannon: "They can party," is what the Supreme Court said.

0:48:36.0 Michael: They can get down. They can have fun.

0:48:38.8 Peter: You'll hear all about the world's coolest jury [laughter] next week. You can follow us on Twitter @fivefourpod, and subscribe to our Patreon, patreon.com/fivefourpod, all spelled out, to support us and get premium episodes, ad-free episodes, special events, access to our Slack, all sorts of shit. We'll see you next week.

0:49:03.8 Speaker 7: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin, and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks @chipsNY, and our theme song is by Spatial Relations.

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0:49:31.3 Peter: I'm gonna go ahead and pull up the right document instead of the wrong one, and then we'll get... [laughter] And we'll get on the road.

0:49:38.1 Rhiannon: Hannah, we should say that Rachel is our awesome producer, if you wanna say something over, if you mess up and wanna just take it again...

0:49:49.9 Michael: We will probably take second takes every now and then.

0:49:51.8 Hannah Mullen: Cool. I would be careful about offering me something like that, because I'm the girl who after the party dissects every single thing I said and why it was the dumbest thing alive.

0:50:01.9 Rhiannon: I used to be like that on the podcast.

0:50:02.4 Hannah Mullen: I'll bet you did. [laughter]

0:50:04.8 Rhiannon: Yeah.

0:50:06.0 Peter: If you think you said something stupid later or incorrect, just let us know, and we can...

0:50:08.2 Rhiannon: Yeah, sure.

0:50:10.2 Peter: We review [0:50:10.5] ____.

0:50:11.0 Michael: We can put in audio of me going, "Pfff, that's dumb." [laughter]

0:50:19.0 Peter: "Not correct."

0:50:19.1 Michael: "Wrong."