The Rise and Fall of the Voting Rights Act | Crooked Media
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August 14, 2023
Strict Scrutiny
The Rise and Fall of the Voting Rights Act

In This Episode

It’s been 10 years since the Supreme Court started to dismantle the Voting Rights Act in Shelby County v. Holder. Ari Berman, author of Give Us the Ballot: The Modern Struggle for Voting Rights in America, joins Leah and Kate to track the passage of the Voting Rights Act, the challenges against it over the decades, and the fallout from Shelby County and other voting rights cases.

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Show Intro Mister Chief Justice may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it, we’re your hosts for today, I’m Leah Litman.


Kate Shaw And I’m Kate Shaw. And today we are bringing you another special summer episode, this one with an old friend, but a new guest, the great Ari Berman. Welcome to Strict Scrutiny, Ari.


Ari Berman Hey, guys. Great to be here. It’s an honor to talk to you.


Leah Litman So, Ari, is the national voting rights correspondant at Mother Jones and also the author of the terrific book Give US the Ballot The Modern Struggle for Voting Rights in America, which was published in 2015, and which former Representative John Lewis described as a must read and a primer for every American. Ari’s also writing a book called Minority Rule The Right Wing Attack on the Will of the People and the Fight to Resist It, which sounds like something both we and our listeners are going to be super interested in when it is out.


Kate Shaw So we will come back to that book. But today we’re going to stay focused on Ari’s book, give us the ballot. But we’ll also be marking the fact that this past June was ten years since the Supreme Court’s decision in Shelby County versus Holder. And so we’ll be discussing the aftermath, both of that decision and the Supreme Court’s more recent Voting Rights Act decision, Allen versus Milligan. And before we get to Shelby County, let’s kind of dial back a bit to talk about the origins of the Voting Rights Act. And our listeners have heard us talk about the Supreme Court’s intersections with the Voting Rights Act. But your book, Ari, does a wonderful job of telling the story of the passage of this landmark law. Can you briefly just talk us through what led to the Voting Rights Act passage?


Ari Berman Of course, I’ll try to condense 200 years of history into 2 minutes, but basically the fact is in 1870, the 15th Amendment was passed saying that the right to vote shall not be denied or abridged on the basis of race, color or previous condition of servitude. And for a very brief period in American history, those words meant something. And we had true multiracial democracy in the South during Reconstruction, but that was violently overthrown. And basically Jim Crow existed in the South for nearly a century. And so the Voting Rights Act, on one hand, was a very simple piece of legislation to enforce the promise of the 15th Amendment, which had been ignored for so many years. But the backdrop to it was the widespread disenfranchisement of African-Americans in the Jim Crow South, the fact that in states like Mississippi, which were 40% black, only 6% of African-Americans were registered to vote. There were poll taxes, literacy tests, grandfather classes, property requirements, all white primaries, violence and fraud, widespread economic and political intimidation, all of which kept black voters from going to the polls. There were counties in Alabama that were 90% black where there wasn’t a single black registered voter. And of course, the pivotal moment that led to the passage of the Voting Rights Act was the Bloody Sunday march in Selma, Alabama, where 800 civil rights marchers, led by John Lewis were brutally beaten on the Edmund Pettus Bridge in Selma, Alabama, on March 7th, 1965. One of the things that really struck me about that march was ABC News broke in to the primetime premiere of Judgment at Nuremberg, a film about Nazi Germany, to show the images from Selma, Alabama, of police beating civil rights demonstrators. And many Americans were so confused, they thought the images from Alabama were actually from Nazi Germany. That’s how chilling this was. And this march shook the conscience of the nation like no other. Eight days later, Lyndon Johnson introduced the Voting Rights Act. It passed six months later in August of 1965. And it really was a revolutionary piece of legislation that, in my view, made the promise of American democracy real.


Leah Litman So upon signing the Voting Rights Act, President Johnson had some memorable words for John Lewis. He told Lewis, You’ve got to go back and get all those folks registered. You’ve got to go back and get those boys by the balls. But he also had some observations about what the Voting Rights Act might mean for our national politics. He said, you know, this act might turn the South over to the Republican Party for decades.


Ari Berman Yeah, that’s that’s really interesting. I mean, there was this tension in the mind of LBJ. He was a white southerner. He was also a white Southerner that cared about civil rights, but also wanted civil rights to happen on his own terms. He was reluctant to push for the Voting Rights Act in the first place because he had just signed the Civil Rights Act and he wanted to do other things. All of his Great Society legislation. And basically what happened was John Lewis, Martin Luther King and other civil rights activists went down to Selma, Alabama, to force LBJ’s hand and to make it so intolerable that there had. Proud to be a Voting Rights Act because America wouldn’t stand for it otherwise. And that’s eventually what happened. So LBJ gives these very stirring speeches, both when he introduces the Voting Rights Act and when he signs it, where he actually says the words We shall Overcome. When he introduces the act, which is incredibly powerful for an American president to use the words of the civil rights movement. He compares it to the last victory over slavery. I mean, he really understood as a white Southerner the significance of giving black Americans who had been disenfranchized for so long the right to vote. And he wanted them to register. And he and he he was very clear with John Lewis and others the importance of doing that. But on the other hand, he was apprehensive because he knew there was going to be a backlash to this law as well. And that’s, of course, what occurred, which is two things happened. On the one hand, you had people who had been shut out from participating for so long, a black southerners were able to get the right to vote. But at the same time, there was white majorities in all of these states, and the white majorities also became activated in reaction, in many cases to the Voting Rights Act. And it wasn’t one or the other. You have to remember there were a lot of moderate whites elected because of the Voting Rights Act. There would have been no Jimmy Carter. There would have been no Clinton without the Voting Rights Act. So it’s an oversimplification to say the Voting Rights Act turned the South red. In many cases, it turned it bluer. But it’s also true that on a national landscape, a broader backlash to civil rights, which wasn’t just about voting rights, as you guys know, it was about lots of issues education, housing that Richard Nixon and other politicians would capitalize on to have this white backlash to civil rights. And I think you could very much argue that that is still influencing the Republican Party today.


Leah Litman So you mentioned the backlash. You know, that was almost immediate in the wake of the Voting Rights Act passage. And part of that backlash came in with Jim Crow, segregationists digging their heels in, but also litigation involving the Voting Rights Act. And in one of the initial cases where the Voting Rights Act was used was where, you know, Sheriff Clarke, who was one of the, you know, faces of Jim Crow, persuaded the Dallas County Democratic Executive Committee not to accept six ballot boxes from black wards. And in the book, you included a quote from a Democratic chairman, Alston Keith, who said, quote, The boxes were so infected with irregularities as to make it impossible to determine which were proper and valid ballots and which were not unquote, anyway. So the Voting Rights Act was used to stop this, you know, from determining the outcome of an election by essentially throwing out boxes of black votes. And when I read this account of this initial story of how the Voting Rights Act was used to prevent this from happening, like it was really hard for me not to think about the efforts in the wake of the 2020 election to throw out the ballots from Milwaukee, overwhelmingly black ballots in Wisconsin, or let’s say a little bit of Bush versus Gore as well. Like when you found that story, were you just like old wine, new bottles, like none of this ever changes?


Ari Berman I think I literally have a chapter in the book called The Poison New Bottles, which I’m pretty sure is a quote from Justice Souter in one of the Voting Rights Act cases. But yeah, I mean, Trump’s big lie doesn’t come from nowhere. It’s very much influenced by a lot of the rhetoric that segregationist whites used first during Reconstruction and then during the civil rights movement to try to challenge black voter participation. And they were just making things up. But they said a lot of the things that Trump is saying today that the amazing thing about the Voting Rights Act was how effective it was. There’s so many complaints so often that legislation doesn’t do what it’s intended to do. And the Voting Rights Act was just the opposite. First off, it struck down all of those suppressive devices that had prevented black Southerners from registering. So, I mean, just literally overnight they were gone, which is remarkable. And then it sent federal officials to the south to register black voters. So in places like Selma, where only 300 of 15,000 black eligible voters were registered before the Voting Rights Act, you had hundreds of people registered within days and thousands within weeks. And, you know, I was able to talk to people whose parents registered for the first time, and it was some sometimes they registered for the first time. There are people still alive today who can tell those stories. And it’s really remarkable. And then federal officials, the Justice Department, other people had a presence in the South so that, as you said, they now have the tools to invalidate those kind of fraudulent efforts to try to throw out votes and things like that. They were on the ground in a way that they just weren’t before the VRA was passed. And then over a larger time and I know we’re talk about this, there was a mechanism to make sure that states didn’t change all of their voting rules to disenfranchize black voters once again. And so I think basically from 1965 to 2013, the voting rights. That was a remarkably successful piece of legislation.


Kate Shaw And as successful as it was in terms of the immediate on the ground effects, the counter mobilization, the backlash was immediate and it was vicious. And in addition to the efforts like the one that Lisa just mentioned, you had federal lawsuits filed immediately. I think it’s like a week after passage that you have the first constitutional challenge, the Voting Rights Act, arguing a bunch of things, including that it deprives states of their right to basically oversee voting and to set voter qualifications. And in 1966, the year after the VRA has passed, you have South Carolina versus Katzenbach, in which the court upholds the law 8 to 1, although there is a justice black dissent that returns in various forms over the years. But the lawsuits just don’t stop. So we have the on the ground implementation, which, as you just said, Ari, is incredibly effective. But you have this peculiar feature of the Voting Rights Act, which is that some of its provisions, you know, not obviously the one that wipes away all of the discriminatory devices that are on the books. But some of its provisions are initially set to expire after five years in 1970 and are subsequently subject to these time limits or sunsets. And so the Voting Rights Act has to be reauthorized, and it is a number of times, but it means there are these moments of legislative reexamination of the Voting Rights Act and in some instances, expansion of the Voting Rights Act just kind of in the decades that followed this 1965 passage. So first, like, why is this a feature of the Voting Rights Act? And at one point in the book, you know, you write about tons of different legislative moments, but there’s this moment about the testimony of Modesto Rodriguez, which is in conjunction with the 1975 reauthorization or renewal. So maybe the broader question about why is it structured this way, the law? And then specifically, can you tell us a little bit about that testimony and then also what happened to Mr. Rodriguez?


Ari Berman Well, the Voting Rights Act was an extraordinary piece of legislation, particularly the part that required states with a long history of discrimination to have to approve their voting changes with the federal government. That is really unique in terms of federal law, broadly speaking, in civil rights laws. I don’t know of any other law that has quite that kind of feature. And so I think the Congress knew that that was a very extraordinary thing, that they couldn’t just say indefinitely that a place like Alabama would have to approve its voting changes with the federal government, that it had to be met by conditions on the ground. And I think there was a hope that at some point the southern states would just comply with the law to such an extent that they didn’t have to approve their voting changes with the federal government. That didn’t happen. The states kept trying to find new ways to try to circumvent the Voting Rights Act. And so what occurred was that every period of time first it was five years and then it was broadened out. But basically that part of the Voting Rights Act had to be reauthorized. And it it both made the law vulnerable, but it also built a very strong bipartisan coalition in favor of it, because the fact that people knew that it had to be renewed meant that there was very strong bipartisan support in Congress for renewing it. And they couldn’t just let this thing wither on the vine. And one of the remarkable things is that the Voting Rights Act was renewed four times and all four times. It was signed by Republican presidents, most of whom didn’t even really like the law. I mean, I wouldn’t say that Nixon and Reagan and George W Bush were great champions of the Voting Rights Act, but there was such strong bipartisan support in Congress for it that they had to do it. And it also meant that when the law came up for reauthorization, often it was an opportunity to expand it. And you mentioned how in 1975 it was expanded to include language minority groups. So Hispanics, you know, Asian-Americans, Native Americans, people that speak languages other than English. And this was a part of the Voting Rights Act that I don’t think is very well understood. And I really wanted to write about it because a lot of people think that the Voting Rights Act was about black Americans in the South, and that’s what it originally was. But then it was expanded because Latinos in South Texas were facing a lot of the same issues as black people in Mississippi, and they wanted protection as well. And so I tell this story of this farmer named Modesta Rodriguez, who lived south of San Antonio, and there was a big push in 1960, 75 to expand the Voting Rights Act. And he went to Washington to testify. He was a farmer who was a very simple guy. But the fact that he testified that a lot of the same things were happening to him that were happening to African-Americans, that they were closing polling places in minority areas and they were gerrymandering districts to keep a white minority in power. And they were threatening Latinos who got involved with economic and political retribution. They couldn’t get jobs, they couldn’t get work, they couldn’t support their families. And he came to Washington and told this story and it was very moving to people. And then he went back from Washington to the small town where he lived in Texas, and he tried to recruit people to join a voting rights lawsuit. And he was at a bar where he hung out and played pool with other friends. And one night, the members of the Texas Alcohol and Beverage Commission raided the bar, arrested one of his friends. When he asked what the charges were against his friend, he was hit on the back of the head with a heavy flash. Right by a member of the Texas Alcohol Commission. His blood was all over the county jail when his sister found him, and his sister called a voting rights lawyer in Washington and said that he was brutally beaten. What should we do? And his lawyer said, take him to the hospital. And his sister said they will kill him at the hospital if we take him there. And he had to be airlifted to San Antonio. And this was in 1975, ten years after the passage of the Voting Rights Act. People were basically still being brutally assaulted by law enforcement simply for trying to exercise their right to vote. So I think people don’t realize it took a long time for states and localities to come to grips with the power of the Voting Rights Act. And there was really a massive struggle of a lot of ordinary people that are mostly lost to history to make it happen.


Leah Litman So the book contains a lot of really important stories and important characters in this fight, you know, like Modesta Rodriguez. But in the interest of time, we are unfortunately going to have to fast forward to 2013, which is when one part of the Voting Rights Act came to an end at the hands of the Supreme Court in Shelby County versus Holder. So what happened in that decision, which I feel like we constantly refer to, but maybe it would be nice to explain a little bit.


Ari Berman Well, you guys are obviously very familiar with that decision. It was a huge turning point, not just for the Voting Rights Act, but for the arc of American democracy. The Supreme Court basically ruled that those states with a long history of discrimination that were largely in the South, but not exclusively, no longer had to approve their voting changes with the federal government. This one part of the Voting Rights Act, had blocked 3000 discriminatory voting changes from 1965 to 2013. So again, a lot of people think the Voting Rights Act was really impactful in 1960s, but they don’t think about the fact that it was still really impactful in the seventies, eighties and nineties of 2000s and all the way up to the present day. The backdrop, of course, to that is that the majority opinion was written by Chief Justice John Roberts, who ever since he was a young lawyer in the Reagan Justice Department, had been trying to weaken the Voting Rights Act. ROBERTS We people forget about this now because he’s viewed as the moderate on the courts. But Roberts was a Reagan revolutionary alongside people like Sam Alito. And when the Congress was locked in a big fight over whether to reauthorize the Voting Rights Act, Roberts was tapped as the point person by the Reagan administration to try to weaken the law. He wrote upwards of 25 memos opposing a strong version of the Voting Rights Act, basically arguing that it would amount to what Antonin Scalia later called a racial entitlement. And and basically what he argued was that history had changed, but the Voting Rights Act had not, and that it continued to treat the country as if it was stuck in the 1960s, overlooking, of course, the fact that it was reauthorized four times since the 1960s by overwhelming majorities of Congress who felt like the Voting Rights Act was still crucially important. But I mean, to me, I think the turning point there’s a lots of turning points. We could talk about the Supreme Court. You could argue that it’s Bush versus Gore. You can argue that with Citizens United, you can argue that it was Shelby County. But for me, the Shelby County decision was when I really realized that a conservative majority is going to do whatever they want and that this disregard for democracy is going to carry over to all different facets of life. So a lot of people were shocked by the Dobbs decision. I know you guys weren’t. I wasn’t. Because I think once you can weaken something as monumental as the Voting Rights Act, anything is on the table. If you can get the Voting Rights Act, why can’t you overturn Roe v Wade? And I think that’s how they were thinking. And it will go down, in my view, as one of the most ahistorical decisions in the history of the Supreme Court, because Roberts just looked at the progress that was made since 1965 without both acknowledging all the barriers that tried to overturn that progress, but also that the progress was because of the Voting Rights Act. It was because the Voting Rights Act kept the states honest that there was this incredible increase in minority voter participation. Is increasing registration the election of the first black president. The last thing I’ll say about this is this decision came down right before the death of Trayvon Martin and a whole awakening about race that would later occur from 2013 through 2020 up to the present day. And it’s hard to think about all the conversations we’ve had about race and our legacy of racial injustice since then. And then to read the Shelby County decision and realize it happened before all of that, that we a lot of people were arguing with a straight face when we were in a post-racial society. And it’s just impossible to argue that same thing today.


Leah Litman Yeah. So just two additional kind of beats on that. I mean, there’s this memorable line in Shelby County versus. Memorable in an awful way. You know, where the chief says, you know, nearly 50 years later, things have changed dramatically. And, you know, you just think about all of the examples of, you know, continued voter discrimination and continued racism that people can just point to on a regular basis. And that has not aged well. But more generally, like you mentioned, this being a very a historical decision, one of the ways in which it’s ahistorical is it seizes on this notion that there is this grand tradition of equal sovereignty in the United States, that all states are equal, need to be treated equally, you know, the same, etc.. Without unpacking how part of that tradition emerged in the aftermath of the Civil War as this alternative history of the Civil War associated with the Dunning School of Reconstruction, that was basically a way of minimizing, you know, the former Confederacy and Southern states role in trying to preserve the institution of slavery. And when you look around and think about modern day efforts to minimize slavery, write in history of racial discrimination, it’s just all part of that same phenomenon that Shelby County is very much a part of.


Kate Shaw We have to teach the opinion, and it’s impossible to get your head around what exactly this John Roberts is doing. It’s not just the selective and ahistorical nature of the presentation of history. It is just how wildly judicial supremacist an opinion it is in that Congress had, in painstaking detail, taken a look at what it thought was happening with respect to discrimination in voting on the ground and decided reauthorization was appropriate by overwhelming majorities, which, again, as you said, Ari, Scalia, in just like a truly jaw dropping moment of the oral argument, attributes to a phenomenon, he titles racial entitlement. But in any event, Roberts just cast all of that aside. And ordinarily, a court needs to tell us what standard of review it is using in evaluating something that Congress has just done and doesn’t even do that he doesn’t even really try. He just basically says, I read the history differently. I disagree with Congress. And that is just not something there’s any tradition in our law of courts doing. And yet he just charges ahead doing it so we could go on, obviously, in criticizing the opinion. It is truly an infuriating opinion.


Ari Berman Yeah. And when the 10th anniversary of the Shelby County decision occurred in June, I kind of took stock of everything that happened. And I mean, it’s pretty remarkable how wrong Roberts was, just about how dramatically things had changed in the South. You have basically more than 30 states have passed over 100 new restrictions on voting. I’m 85% of the states that previously had to approve their voting changes with the federal government have passed some kind of new restriction on voting. I have no doubt that laws that were passed recently in places like Georgia and Texas would absolutely have been blocked by Section five of the Voting Rights Act. I think those laws were both motivated by discriminatory intent, but I also think it’s clear that they affect some voters more than others. When Texas decides to take over election operations only in Harris County, the largest blue county in the state where a majority of voters are voters of color, I think it would have had a very hard time explaining that under the why they’re picking on a county that is a majority minority population and no other counties. When Georgia enacts all of these new restrictions on mail voting, when black voters start using it at a greater weight than white voters, I think that would be a hard thing for Georgia Republicans to justify under Section five of the Voting Rights Act. And then you also have the fact that when the last redistricting cycle took place, it took place without Section five of the Voting Rights Act for the first time in 50 years, and state after state after state passed maps that either took away districts that had elected black, Latino, other lawmakers of color, or just blatantly ignored demographic changes that should have resulted in more minority districts and those would not have passed muster either. So I think there’s this twin pronged attack with both voter suppression and racial gerrymandering that happened in the wake of Shelby County. And what we’ve gone from is a situation where you could stop a crime before it occurred to now trying to get justice after the fact. And it’s been three years in some cases two or three years in some cases that these maps have been in effect, that these laws have been in effect and very few of them have been invalidated. And quite honestly, very few of them will. I mean, there’s always exceptions to the rule, but most of the new restrictions on voting are going to be upheld by a conservative dominated judiciary. And after years of litigation and a lot of the maps are going to be upheld as well. We’ll see what happens in the wake of the Alabama case. But the fact is, is that I think we’ve now normalized a situation with voter suppression and racial. Jeremy, that was not normalized when we still had a strong Voting Rights Act in effect.




Leah Litman I think one of the difficulties of living through all of this right now is that we are doing so at a time when we have lost and are losing Still, like the generation of civil rights activists and heroes who understood what was necessary to pass the Voting Rights Act and reauthorize it, and so on and so forth. And so just, you know, for the sake of our listeners, we prepared this montage of clips by former Representative John Lewis, you know, describing his reactions to the Supreme Court’s decision in Shelby County versus Holder.


John Lewis Clip It is awful. It’s a sad day. I never thought that I would see the day when the United States Supreme Court. We’ll put a dagger in the heart of the Voting Rights Act of 1965. We don’t want to go back. We want to go forward. The only thing I did a little few short years ago. I gave a little blood on that bridge. But others, brothers and sisters of mine and other people in the struggle gave a very light. It has Section four and five of the heart and soul of the Voting Rights Act. Today, the Supreme Court decision broke my heart. It made me want to cry. I felt like saying, Come, come and walk in the shoes of people who tried to register, try to vote, but did not live to see the passage of the Voting Rights Act. One thing I tried to suggest in reacting to the Supreme Court decision that I wish that these men, only men, voted to strike down a certain section of the Voting Rights Act of 65 that they should be able to come in, walk in our shoes.


Ari Berman I saw John Lewis a day after the oral argument in the Shelby County case. I was in his office and spent over an hour with him, and I asked him what he thought about when Antonin Scalia called the Voting Rights Act, which he nearly died to pass a racial entitlement. And he said he almost cried that it brought him back to the mentality when he was crossing the Edmund Pettus Bridge of facing off with those Alabama state troopers. And he felt like that mentality had now shifted to the highest echelons of the Supreme Court, that Scalia was doing the work of the Jim clerks of the world in a more sophisticated way. And it was chilling because I took two civil rights pilgrimages to Alabama with John Lewis, where he retraced his steps over the Edmund Pettus Bridge. And you realize that this is only 50 years ago this happened. This is not ancient history. We’re crossing the bridge. And all these people that were alive when it occurred and there was this incredible tension because on the one hand, we’re celebrating all of the advances made under the Voting Rights Act that there would be no John Lewis without the Voting Rights Act. But you’re also realizing that that backlash against the Voting Rights Act that began in the 1960s was about to succeed because the writing was on the wall. After the oral arguments, they were going to strike down Section five of the Voting Rights Act, or at least a formula that covered it. And that was kind of, to me, the fundamental tension of American democracy in one moment, which is this incredible progress, followed by these relentless attempts to try to overturn that progress. And the other thing I think about is when Barack Obama was inaugurated, he signed the program and he gave it to John Lewis. And he said, because of you, John David Remnick tells that story in his book The Promise. But I just think people don’t really think a lot about the power that was behind the Voting Rights Act and how much it meant for so many people. And I think to me, one of the reasons why I want to write my book was because I knew these people were going to pass away, and I knew it was critically important to interview John Lewis, to interview Julian Bond, to interview Andrew Young and to try to get them to talk about this in great detail as they can before they were gone.


Kate Shaw When you talk about in the book does an amazing job of telling stories of progress and then backlash and retrenchment. And it does feel as though the election of Barack Obama in 2008 and then inauguration in 2009 does spur one of the most vigorous periods of backlash and efforts to undermine voting rights. Right. You have hundreds of new voting restrictions immediately introduced in 2009. Obviously not coincidence that this follows the election of the first black president and then after the 2010 midterm election, which was really like the Tea Party election, you have the not just introduction, but the actual passage of laws in like half of states making it harder to vote, some of which, as you say, are invalidated under the then existent provisions of the Voting Rights Act. But the fact that the effort is so fierce, you know, does, I think, have everything to do with the election at that point, you know, the very new election of Barack Obama. And you analogize that period to redemption, right? That earlier period of backlash to an undoing of the progress of reconstruction. And so the attack on the Voting Rights Act in Shelby County. Right. Which doesn’t come to fruition until 2013, does really feel like it arises out of not just like half a century of resistance, but like the couple of years just following the election inauguration of Barack Obama.


Ari Berman Yeah, that’s what was so strange about the whole Shelby County discussion was that there is this whole backdrop of voter suppression before Shelby County that was just totally ignored by the Supreme Court. And I get that it wasn’t part of the historical record. When Congress reauthorized the Voting Rights Act, most recently in 2006. But I mean, was it possible to ignore that states like Florida and Texas and Alabama were putting all these new restrictions on voting in place after the election of the first black president and doing it very explicitly because of the election of the first black president, that the election of Barack Obama sparked absolute panic from a Republican Party that was older, whiter, much more conservative than the country writ large. And instead of trying to change their policies, they tried to change the composition of the electorate. And I think that has been the overriding strategy. Of the Republican Party for the past decade was instead of trying to change policies, instead of trying to change hearts and minds, change the laws, rigged the rules. I think you could absolutely argue from Ohio a week ago. Back to the Tea Party wave, back to the movement to gut the Voting Rights Act. This was all it was about that the Republican Party was facing a demographic crisis. And instead of trying to reach out to the changing demographics of the country, they’ve simply been trying to make it harder for those changing demographics of the country to participate. And hopefully we’ll talk about this more in my new book comes out. But but I think that is the most important underlying story of American politics today. And I think it also explains a lot of what the Supreme Court is doing, because I think basically the conservative movement has relied on the Supreme Court as a chief means of changing the rules, rigging the game as it faces these changing demographics, and it doesn’t believe it can win over.


Kate Shaw So then shifting to the kind of post Shelby County decade and you started to talk about this a little bit. Much of this is in a great piece that you published a Mother Jones in late June, you know, on the ten year anniversary of Shelby County kind of taking stock of this last decade, we have lots of new restrictions on voting. And, you know, you have the kind of two phases of the Voting Rights Act, right? You have both actual access to the ballot and then you have the maps that are drawn that actually are the basis of representation in legislative bodies and on both fronts. You both have had since Shelby County massive new efforts to restrict access to the ballot and in particular in the last three years, as you said, because for the most part, new map drawing happens after the decennial census. So the 2020 census happens. And we are now in the first couple of years after a redistricting cycle following Shelby County. So all of this, even though a lot of the voter suppression tactics are now years old, some of those new laws are introduced like within hours of Shelby County being decided. It is wild how swiftly it all happens. So maybe we could focus on the redistricting side of this, which is not to suggest that everything else is not super, super important in terms of the many, many laws that would have been invalidated under the preclearance provisions of the Voting Rights Act, where states have done things like cancel or limit early voting, cancel or limit automatic registration, cancel Sunday voting, where historically a lot of black churches have done voter turnout pushes. So states have done that. Even some of that has actually been invalidated in lower courts following Shelby County. But under Section two, another part of the Voting Rights Act, and most of that has not been struck down. And most of it, I think you’re right, Ari, would have very, very swiftly been rejected by the preclearance regime prior to Shelby County. But maps are a critical fight right now. Right. So racially gerrymandered maps, maps that dilute or diminish the voting power of black voters and other minority voters. And we had a really important case about map drawing under Section two of the Voting Rights Act. So maybe we could transition now to talking about that case, Allen versus Milligan and the fallout from that case.


Leah Litman Just to remind our listeners of the facts of Milligan on Alabama is a state where 27% of the voters are black, but only one of the seven congressional districts in the state is majority minority. And that one majority minority district exists because of successful Voting Rights Act litigation. Alabama drew maps in the wake of the 2020 census. So post Shelby County world, those maps were challenged. A three judge panel concluded the maps violated Section two’s prohibition against vote dilution, and the three judge district court required, quote, two districts in which black voters compromised a voting age majority or something close to it. So when the case made its way to the Supreme Court, people were really terrified that this could be the end of Section two. So why were people so concerned about this case?


Ari Berman Why a few people were so concerned because of the record of the Supreme Court on voting rights before this case? I mean, the Supreme Court had already upheld voter ID laws, so they had set a precedent for that. They had already gutted the Voting Rights Act in Shelby County. They had further gutted the Voting Rights Act and the BRNOVICH case in Arizona, which made it very hard to challenge discriminatory voting laws. And so the feeling was if they gutted protections of the Voting Rights Act that dealt with racial gerrymandering, there would basically be no Voting Rights Act left. It would every part of it would have been eviscerated. And so it was pretty shocking to me both that the opinion was written by Chief Justice Roberts, basically ten years after Shelby County, making entirely different arguments. It’s so interesting to read the Milliken decision. He’s talking about the historic legacy of racism in American society. He’s talking about enduring socioeconomic barriers. He’s talking about disparate rates of representation. These were all things that he completely ignored in Shelby County. And so to me, it’s almost like you could read Milligan as a mere culpa by Roberts for Shelby County. Now, I’m sure he doesn’t think this way. I’m sure if you ever had him on the podcast, he would give a reason why these cases are different. Alabama presented a incredibly weak case before the Supreme Court, but nonetheless, the chief justice was writing in a much. More expansive way with regards to the Voting Rights Act, a much more charitable way than he had used a decade earlier. And then Brett Kavanaugh. His opinion was very weird as well, because on the one hand, he’s joining Roberts in most of it. On the other hand, he has this concurrence where he basically says, Oh, by the way, this other part of the Voting Rights Act might be struck down in the future, too, if states challenge it. So then you’re like, wait a second, is this a victory? Or did he just open the door to this massive defeat? And I mean, we’re going to find that out very quickly, because, of course, what happened was Alabama refused to comply with the Supreme Court’s order. It did not draw a second majority black district. What it did is it weakened the black voting age population in one district that was already majority black. And then number two, it took a second district from 30% black to 40% black, which is not anywhere close to a majority. Now, that might work in New York, but it’s not going to work in a place like Alabama that’s so racially polarized. And what’s going to happen is that now Alabama, because of Kavanaugh’s concurrence, is going to just flat out say this part of the Voting Rights Act, Section two, as it applies to redistricting, is unconstitutional, and they’re going to take up Kavanaugh on his invitation. Now, I think it would be pretty surprising. I’m curious what you guys think for Kavanaugh to flip flop so quickly. I mean, he touted the Milligan decision in a public speech as evidence of the fact that the Supreme Court is not a bunch of partizan hacks. So for him to just turn around and then invalidate a key part of the Voting Rights Act in a case in which he already ruled against Alabama, I think would be pretty surprising. But again, it just makes me very nervous when we look at the Supreme Court in its current composition as a guarantor of voting rights. I think that more often than not and I imagine you guys would agree that’s not going to lead to a good outcome. But I think in this case, what Alabama did was just too much for the Supreme Court. And I also think that if you look at the larger political context in after Dobbs, after the gun case, in a in a term in which they have validated basically affirmative action, struck down student loans to kill what was left of the Voting Rights Act, I think would have put the court in a very precarious position. And I think they had to moderate in some places. And where they seem to have a moderate in this term was on voting rights both in Alabama and the independent state legislature theory. But I don’t think we should believe that that’s what they’re going to do every single time a Voting Rights Act case comes before them in the future.


Kate Shaw No, I think you encapsulated so well, like all of the conflicting reactions we had, we digested the opinion and talked about it in a live show at Howard with Ronnie Nelson right after the opinion came down. And we were having all of these, you know, kind of cross currents of intuitions, like on the one hand, yeah, Roberts really is talking about race in a different register than in Shelby County. He refers to the right to vote as fundamental, which I’m pretty sure he never previously had ever in a written opinion like all of this is seems really significant and obviously sort of bottom line affirming the district court’s ruling against Alabama right on the ground. Hugely significant. On the other hand, is it possible that all of this was just deflecting the potential criticism of and, you know, potentially, you know, countermoves by other actors that might have come to the court if in a single term they did everything. And so they’re just spacing it out. And this is why we, I think, feel so nervous about what actually Brett Kavanaugh would do if they could do in two steps instead of one. The essential gutting the further gutting of Section two here in the redistricting context, might they basically make the calculation that the public’s not really going to put what they did the second term together with everything else they did last term in a way that actually might result in some consequences for them? I don’t know. I really don’t. But maybe to break down a little bit more sort of what is happening on the ground in Alabama. So the Supreme Court comes very close. The court basically says Alabama has to create a second majority black district. And then the governor of Alabama calls a special session and the legislature draws new districts and they don’t, as you just said, draw a second majority black district. So is this just outright defiance of what the Supreme Court held in Allen versus Milligan? Like, Is that how you read what the Alabama legislature has done?


Ari Berman Seems pretty clear. I mean, Justice Roberts said a black majority or something close to it. I don’t think you’re going to argue that a 40% black district in Alabama is something close to it. That is a.


Leah Litman Round up, right? 40 to 50? Yeah. I mean, like probably depends who’s mathing. We saw some of Justice Scalia’s math.


Ari Berman I mean, basically what they what they did is they weakened a district that’s held by the only black member of Alabama’s congressional delegation, Terri Sewell, who represents Selma and Birmingham. They made her district more vulnerable and they created a second district that would still have easily gone for Donald Trump, in which a white majority is going to block a black minority from being able to elect the candidate of their choice. So it’s pretty clear to me that the federal district court panel, which, by the way, included two Trump appointees, is going to require a special master to draw new districts. And that’s going to happen, and that Alabama is going to appeal to the Supreme Court. Court. And I think they’re motivated by two things. First off, Republicans have a four or five seat majority in the House right now. So Kevin McCarthy has talked to Alabama Republicans and told them, I don’t want to see that’s going to elect another Democrat. So they’re motivated by both political aspirations. But also the Alabama attorney general has said we’re going to challenge the constitutionality of section two of the Voting Rights Act head on. They kind of challenge it inadvertently or not inadvertently. They kind of challenge it through the back door in the Milligan case. Now they’re going to challenge it head on. And I mean, hopefully we’ll get another shadow docket opinion invalidating what’s left of the Voting Rights Act. But I mean, I think that there should be a pretty clear cut case, not just in Alabama, but in Louisiana and Georgia and a number of other states where what the Supreme Court said was draw black districts where you can reasonably draw them. And I think that there’s a number of states where that could happen. And if you’re using the precedent of Milligan, this shouldn’t be that cut and dry. And you should see a number of lower courts, even with Trump appointees going that way. But obviously, just because of the Kavanaugh concurrence and because of the unknown nature of the Supreme Court on voting rights, it’s maybe not as much of a slam dunk as it otherwise would be.


Leah Litman So I just wanted to highlight two things you said for people who might not be as immersed in this case to understand. You know, first is, as you know, you know, in the previous version of this case, Alabama had not used as a primary argument that the court should invalidate section two of the Voting Rights Act, either on, you know, some weird equal protection grounds or on the ground that it exceeded Congress’s authority under the reconstruction amendments. And Alabama, in their briefs is saying, well, look, you know, Kavanaugh said we didn’t raise it last time, but like here we are raising it this time. Alternatively, it could be that they come back with like a slightly different version of their weird race blind Theory of the Voting Rights Act, which is basically what they presented last time, saying, well, instead of striking down the Voting Rights Act, just require it to establish a violation. You can’t think about race at all. And hypothetically, you need to draw a bajillion districts and see without considering race, whether you wind up with more racial minority majority districts. It made no sense at all. But anyways, so like it’s possible we get some version of that. And just to underscore, like, it’s impossible to kind of let our feet off the gas and I know we say that a lot, but when it comes to what this court might do to voting rights, because I think you’re absolutely correct that you can only understand Milligan and the independent state legislature case as cases that emerge on the heels of plummeting court approval ratings in the wake of Dobbs and more public attention on the court. Because, you know, you talked about, you know, the court’s history on the Voting Rights Act. Justice Kagan brought up the court’s history on the Voting Rights Act during the oral argument. And. MILLIGAN And we’ll just play that clip here.


Justice Kagan Clip Okay. Well, I think what section try is trying to get at is it’s trying to ensure equal political opportunities. That’s it. So let me just use that as a segue to my last question, which is that, you know, this is an important statute. It’s one of the great achievements of American democracy to achieve equal political opportunities, regardless of race, to ensure that African-Americans could have as much political power as as as white Americans could. That’s a pretty big deal. And it was strengthened this statute in 1982 when this court interpreted it too narrowly for Congress’s taste in Congress, said, no, we didn’t mean that at all, and made this into a results test. Now, in recent years, this statute has fared not well in this court. Shelby County looks at Section five and it says no, Section five. We don’t need that anymore. And one of the things it says is we have Section two and then Brnovich comes along and that’s a Section two case. And the court says, you know what, Section two, they’re really dilution claims. You know, this is a denial claim. And and so we can construe that very narrowly. But, of course, there’s just all these cases that are dilution claims. That’s really what Section two is about. And now here we are. Section two is a dilution claim. This, you know, the class exception to dilution claim. And you’re asking us essentially to cut back substantially on our 40 years of precedent and to make this too extremely difficult. To prevail on. So what’s left?


Leah Litman And so if you put together like, look, these decisions, this initial decision happened at a time when public attention was uniquely focused on the court, The court’s long history of hostility to voting rights, the individual justices, you know, particular involvement in hostility to voting rights, like I don’t think Milligan Sudden mark this magic turn to protecting voting rights. And you know would Brett Kavanaugh say, well, I actually value judicial supremacy more and would require Alabama to draw a second district than he cares about you know furthering Republican partizan views you know maybe. But that’s not to say, like, I’m confident in that answer, and I’m certainly not confident what he would do in some other case either down the road or whatnot. But there will be a hearing like on these Alabama maps on Monday, you know, the day this episode comes out.


Ari Berman Yeah. I’m glad you brought up that Alabama’s race blind argument, because it’s worth arguing that Alabama already made a pretty radical argument for the Supreme Court that was completely eviscerated by John Roberts, who took no prisoners, basically in arguing that this should be and this was an argument that was teed up perfectly for Roberts, because Roberts is Mr. Race blind? I mean, he he made that argument in the affirmative action case. He famously said the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. So, I mean, this should have been a perfect argument for the conservative super majority, and they rejected it. So I don’t think there’s any reason to really believe that they’re going to reject an equally radical argument from Alabama, other than the fact that Kavanaugh seemed to leave the door open to it. And I think there’s another point that that’s worth noting about how the Supreme Court may have moderated on voting rights, which is I remember asking Pam Karlan to explain why she thought that the Shelby County decision turned out a certain way. And then a day later, the gay marriage decision turned out a different way. And basically what she said was the court responds to feet on the streets, meaning that the court responds often to popular movements. And there was a feeling that there was a popular movement, a growing awareness understanding of gay marriage in that in that there wasn’t the same kind of movement for the Voting Rights Act, that the Voting Rights Act had become this kind of insular thing that was backed by this coalition of 1960 civil rights organizations, but that there wasn’t really going to be any kind of consequence to gutting the Voting Rights Act. And I think what we’ve seen in the wake of the 2020 election is that there is a very strong pro-democracy movement in this country, and we saw it resisting Trump’s attempts to try to overturn the election. We saw it with so many election deniers losing in 2022. We saw it with the election of Janet passwords to the Wisconsin Supreme Court. We saw it with the rejection of issue one in Ohio. And I think that’s also influencing the courts, that democracy is no longer an abstract issue. And I think especially in the wake of Dobbs, people have put together that the weakening of democracy has what led to a weakening of so many other rights. And this was an argument that I had been trying to make for a decade, that once they take away voting rights, they’re going to come for all the other rights that are guaranteed by the right to vote. And so the fact that people are realizing that, for example, abortion and democracy are not two separate issues, they are the same issue. And you have both made this case very eloquently in your writings, I think also is putting a little bit more pressure on the Supreme Court that if they start to further got the Voting Rights Act, if they rule in favor of the independent state legislature theory, they are empowering the democracy denying wing of the Republican Party through a different kind of tactic, that it’s the same larger movement, but it’s being done through different tactics. And so I think that the fact that so many people are now focused on democracy and in a way that I would argue they weren’t in 2013, I think has maybe changed some of the calculation for the Supreme Court as well.


Leah Litman Well, some small consolation is, you know, maybe Brett Kavanaugh doesn’t stick to his guns in requiring Alabama to draw a second majority minority district. But I do hear that some let’s say Republican appointees to the court are very concerned about the prospect of people defying Supreme Court orders and how that could delegitimize the court. So, for example, Justice Alito said in the Wall Street Journal interview that he gave, he wonders if outright defiance may be in the offing for the first time since the aftermath of Brown versus Board of Education or from his mifepristone dissent here, the government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases. So we’re going to get his vote right on this Alabama case the second go around, Ari.


Ari Berman For sure. Yeah, there’s Justice Alito. That’s going to be the next thing that’s going to make us fall off our chair, right? I mean, I think it’s just I think it’s you know, it’s just worth reiterating that there basically are almost always five or six votes in favor of, if not the most extreme position on voting rights than an extreme position on voting rights. And even in the so-called victories, they’ve left the door open. For bad outcomes, both in the Milligan case and also in the independent state legislature theory case. They left the door open that let’s say the Wisconsin Supreme Court strikes down the congressional redistricting maps. Is the Supreme Court going to say that that wasn’t part of the ordinary nature of state judicial review, which they also did not define? So. But I think as long as you’re living to fight another day with the Supreme Court, it’s a good thing. And listen, could they do something bad down the road? Absolutely. But the fact that they didn’t when it was right in front of them, that that’s about as much as you could ask for. And then I think the question is, if you’re not going to try to change the composition of the court, which a lot of Democrats are, have cited, that’s not a fight they’re going to pick, which I know you’ve talked about on this show. I believe it’s a miscalculation both morally and politically. But if you believe that they’re not going to do it, then you have to change the context in which the court is operating. Right. And you have to make it that there some kind of consequences for doing away with the things that made the promise of American democracy real and that there has to be the same level of anger and fervor when it comes to the Supreme Court, gutting democracy as it is to the Supreme Court, taking away other rights. I’m hopeful that the public is starting to put two and two together, that these are not just kind of inside baseball process issues, but these are issues that relate to the protection of all other rights.


Kate Shaw It’s heartening already hear you as somebody who’s been following this as closely as you have for years. To say it does feel like people are focused on democracy issues and hitting the streets and voting on democracy. Right. We saw a lot of exit polling from the midterm elections where people were voting on abortion and democracy and going into the election. There was so much criticism of Biden’s focus on democracy, Right? Pundits like voters don’t care about democracy. And you know what? That’s actually wrong like they do. And the court maybe is responding to that. But I think that it’s so critical what you’ve just said in the last two answers. We don’t exactly know what’s going to happen. Is the court going to walk through the door left open, both in the independent state legislature case, more versus Harper, which, you know, Wisconsin or a similar Supreme Court may give us the answer to in the near term, but also the kind of invitation that Kavanaugh dropped in his concurrence. What the court is going to do with those open doors isn’t set in stone right now, like the mobilization of the public may actually impact the court’s willingness to sort of go all the way or to hesitate as we’ve seen it hesitate recently. So it’s just hugely important that we’re super grateful to the work of folks like you are in keeping voting and democracy issues front of mind for readers and voters. And it’s just it’s overdue. But it’s such a pleasure to have you on the podcast. So thank you so much for taking the time to be with us, Ari.


Ari Berman So great to talk to you guys. Great to be on the podcast.


Kate Shaw We’re really, really excited about The Minority Role, your forthcoming book. So we’d love to have you back to talk about that book. What’s the public Is it coming out next year? Is that the. plan?


Ari Berman Yeah, April 2024 is the publication date, so I would love to come back and talk to you guys about it.


Kate Shaw Fantastic.


Leah Litman Terrific.


Kate Shaw Ari Berman, the national voting rights correspondent, and Mother Jones, also the author of Give US the Ballot and the forthcoming Minority Rule. Ari, once again, thanks for being with us.


Ari Berman Thanks so much.




Kate Shaw Before we go, two really important stories that we, I’m so sorry Melissa’s not here, but these are both stories that we will return to. But we should talk about both the.


Leah Litman Well they’re stories that keep coming up.


Kate Shaw They definitely do. And they will. But just spend a couple of minutes talking about the amazing results out of Ohio, where issue one, the ballot initiative designed to make it harder to amend the Ohio Constitution, which was on the ballot in a special election called by the Ohio legislature for the explicit purpose basically, of thwarting an abortion rights amendment. That’s going to be on the November ballot. Issue one failed pretty spectacularly for a conservative state, right? So 57, 43, maybe 58, 42 is the final number. So the Ohio Constitution remains amendable by simple majority vote. And Ohioans are going to have the opportunity in November to amend their constitution to protect abortion rights. And polling suggests that they are going to do that. So that is a really, really important result from last Tuesday out of Ohio.


Leah Litman Yes. And we’ll definitely be monitoring, you know, the lead up to the November referendum that will determine whether the reproductive rights protections make their way into the Ohio Constitution. But that’s extremely encouraging. You know, both the turnout was just exceptional in this election. You know, it was many more times over the typical turnout, you know, in special elections. And also, if you look at the breakdown of, you know, how this issue one performed. Voters rejected it in some very clear Trump counties and very clear like Republican leaning counties. I think underscoring some of what Ari was just saying, you know, the increasing importance to voters of both democracy and reproductive freedom now that those issues have been made real in certain ways and we couldn’t cling to the fiction that they were just always going to be protected for eternity and sort of out of bounds for attacking. And that seems to have stayed true in Ohio.


Kate Shaw And it is just the most recent exemplar of this unbroken trend so far, right post jobs. Every single time, questions of reproductive rights and abortion access have been put directly on the ballot. American voters have voted to protect reproductive rights and freedom and abortion, so they have either enshrined these rights in their state constitutions, they have beat back efforts to restrict rights. They have here responded both to this effort to throttle democracy generally, but specifically in the context of an effort to throttle democracy so it couldn’t be used to expand reproductive rights. So this is this one place where, you know, Ari mentioned this. We’ve obviously talked in the podcast about this a lot, the kind of the fact that reproductive rights and justice issues and democracy issues are one in the same. They’re inseparable as issues. It was kind of amazing how literal that was made in this Ohio special election and just how resounding the answer that the voters provided was. So kind of the rare piece of really good news out of both like abortion and democracy world. So we should celebrate it and keep working.


Leah Litman Speaking of celebrating.


Kate Shaw Good segue.


Leah Litman We got some additional details about the absolute King shit life that Clarence Thomas is leading as a Supreme Court justice. So ProPublica released yet another story, the top line of which is they basically describe the slew of billionaires who are apparently best friends with Justice Thomas slash benefactors. You know, if Taylor Swift had a model squad and like Girl Squad, I think Clarence Thomas has like a billionaire squad because the story describes several other individuals who have been treating Thomas to these luxury vehicles that will give some additional color about in a second. But among them were people who he met through the Horatio Alger Association, including David Sokol, a former top executive at Berkshire Hathaway. H. Wayne who? Zynga. Sorry if I mispronouncing your name. A billionaire who turned blockbuster and waste management into, you know, big national things, and then also the oil baron Paul, Tony Novelli, all of these individuals have apparently been like fronting Justice Thomas luxury vacations. And the story, you know, recounts that they have collected slash uncovered, quote, at least 38 destination vacations, including a previously unreported voyage on a yacht around the Bahamas, 26 private jet flights, plus an additional eight by helicopter, a dozen VIP passes to professional and college sporting events, typically perched in the skybox Tuesdays at luxury resorts in Florida and Jamaica. And one standing invitation to an uber exclusive golf club overlooking the Atlantic coast. And. You have to add all that up. Rough estimated value is in the millions of dollars. So, Kate.


Kate Shaw And we should just say ProPublica says for sure this isn’t the whole picture.


Leah Litman Oh, no. This is only stuff they have receipts for right now.


Kate Shaw Because we talked to people and we got flight manifests. And and we know for absolutely sure that all of this shit happened. And definitely there’s more out there.


Leah Litman But lest you think he got all of this stuff for free? They also report that at least at one of these destination vacations in Wyoming, Thomas was serenaded by the Paolettas with a song that they apparently wrote about him. So, you know, he was paying for this in some ways. Mark Paoletta is one of the individuals who was depicted in that pastoral painting with Harlan Crow and Leonard Leo at Harlan Crow’s Resort. He’s also one of the individuals who has been very out there defending Thomas in all of this and yeah.


Kate Shaw  I’m just going to read a paragraph without editorializing, because the paragraph is the most damning thing. Like this is about Paoletta, not about Thomas, although it is about the trip at which the Paoletta is. Mark Paoletta and his wife serenaded the justice.


Leah Litman With a surprise song.


Kate Shaw With a surprise song. So So here, which is photographed in one of Ginni’s Christmas cards, I believe a special tribute they created. Okay, so here’s a paragraph like Thomas Paoletta did not disclose the trip on his yearly financial filings. At the time, Paoletta was general counsel and the designated ethics official at the Office of Management and Budget. In a statement, Paoletta said he wasn’t required to disclose the trip because he had reimbursed Sokol, but he did not say how much or provide documentation of those payments. This is the person who was the general counsel of the Office of Management and Budget, an unbelievably important agency of the federal government. He was also the designated agency ethics official, the person responsible for enforcing the ethics laws for the other employees of the Office of Management and Budget. Maybe he remembers Thomas. He says he did, but the fact that there’s no documentation and that he declined to provide an amount makes me at least somewhat suspicious about the claim. I said I wouldn’t editorialize. I don’t. I truly don’t know. But the fact of all of these vacations and the fact that not a single one was disclosed is so outrageous.


Leah Litman This is ethics, parentheses, Mark Paoletta’s version.


Kate Shaw It is. It is just like it is just a picture of someone who is living the life of a billionaire. Yes, but holding down a government job with enormous power, but not enormously remunerative. And he’s just like, I don’t have to choose. I can do both. I can have a government job and all the power and also live this lavish life.


Leah Litman And have it all.


Kate Shaw Who says you can’t?


Leah Litman Exactly. This is honestly, I have to say, like making me rethink some of my life choices. Because, you know, had I known that the position of Supreme Court justice basically came with a litany of billionaire benefactors who would give me what I want most dearly in life, specifically tickets to the Last Taylor show in Toronto in fall of 2024, which I didn’t get in the hour before we recorded this episode. And I’m just devastated. So if you heard the despair in my voice, that’s what it was anyways. Had I known right that being a Supreme Court justice would entitle me to just demand things and be given things free of charge by billionaires who would just be lining up to be my best friend.


Kate Shaw You might not have turned down all those Biden administration requests to put you on the court. They keep asking you, keep saying, no, I’m telling you.


Leah Litman I’m just saying, you know, I just I I’m rethinking a lot of things.


Kate Shaw I mean, and and because I’m going to channel Melissa here, because what the. There is, of course, a defense out there, which is what Supreme Court justice can’t have friends. They can’t a billionaire friend. There’s a wonderful rejoinder to that argument in the piece from Don Fox. As a former general counsel of the Office of Government Ethics, where he basically says, you can have rich friends, you can have billionaire friends, if once you take a government job, you just can’t have new ones. Like if you have a lot of billionaires who are already your buddies.


Leah Litman All of the sudden.


Kate Shaw They’re already your friend and you actually are going to take vacations together. I actually think that’s a really different picture than the picture depicted here. But all of these relationships. Post date his ascending to the highest court and it does not seem to be a coincidence to my mind.


Leah Litman No. I mean, it’s just a little striking that the moment you are seated to becoming a justice on the highest court in the land is all of a sudden when billionaires are like throwing lavish vacations at you.


Kate Shaw Also, Ginni’s Christmas cards sort of gave the game away. Much of this, I think, was pieced together because Ginni photographed. It and send all kinds of extremely incriminating and documentary evidence to, I don’t know, their Christmas card.


Leah Litman Do you think part of the message on that Christmas card is about the, quote, Biden crime family being off of what?


Kate Shaw So I think people would go would have told us if that was the case, maybe they would have gotten back. Don’t they don’t have.


Leah Litman You don’t know. They have every year. We don’t know. They have every year of those creature don’t.


Kate Shaw So we sure don’t. Okay. Who? All right. Well, that’s that’s just a little a little more a little morsel of it or some adjusting, but I think we’ll leave it there.


Leah Litman Before we go, if you’re not yet a member of Crooked’s new digital community, Friends of the Pod, you are missing out. But much like Washington, D.C., not being a state, there’s still time to fix this. Friends of the pod is a place to get more news and real time analysis. Connect with us and the rest of the Crooked family, as well as fellow listeners, and get well-researched, action oriented guides to building a more progressive world. It’s a life raft floating away from the burning wreckage of Twitter, and we want you on board. Head to crooked dot com slash friends and subscribe to friends of the pod today.


Kate Shaw Strict Scrutiny as a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and me. Kate Shaw. Produced and edited by Melody Rowell. Ashley Mizuho is our Associate producer. Audio Engineering by Kyle Seglin, Music by Eddie Cooper. Production support from Michael Martinez and Ari Schwartz and digital support from Amelia Montooth.


Leah Litman And Taylor tickets to Toronto from whatever billionaire is willing to provide them. I’m right here.


Kate Shaw I feel like this will happen for you now that we know it’s okay.